TIES Technical Leadership Conference February 17, 2012 Legal Implications of Student Owned Devices.

TIES Technical Leadership Conference February 17, 2012 Legal Implications of Student Owned Devices

Disclaimer The information in this presentation is not legal advice and is not intended as legal advice. It is intended to provide general legal information. It does not cover all issues related to the topics discussed. The specific facts that apply to your matter may make the outcome different than you might anticipate based on the material presented. Please consult with your own attorney with regard to specific issues.

Student Free Speech 1 st Amendment constraints on policy

Free speech and the Internet: case law is still in flux Layshock v. Hermitage School Dist. 17 y/o high school student creates vulgar, offensive, fake profile of principal, including photograph of principal. 10 day suspension* Snyder v. Blue Mtn. School Dist. 8 th grader posted sexually explicit material and principals photograph on imposter site. 10 day suspension

Procedural history of these cases Lower court rulings were split: one upheld the schools decision to suspend; one found the suspension to be a violation of the students free speech rights. On appeal, different panels of the 3 rd Circuit issued seemingly conflicting decisions; a rehearing en banc was conducted, leading to decisions overruling the schools suspensions. The schools filed a joint petition for certiorari with the US Supreme Court. In January 2012, the US Supreme Court denied certiorari in these 2 cases and Kowalski, another student free speech case.

Schools cant wait for the courts The best available case law involves pre-Internet era incidents. Cases are decided by different judges in different jurisdictions based on different facts it will take years for a body of law to develop that can be applied with any certainty to cases involving technology. Legislation, though well intended, often misses the mark. The best tool for schools is policy.

Acceptable Use Policies (AUPs) Primary school technology policies

Technology Policies: dual purposes Ensure that students are protected from inappropriate materials and communications on the Internet. Enable student and teacher access to the multitude of resources available on the Internet.

How our orientation has changed Educations initial policy response to student Internet use: Blocking and filtering Educations evolving policy response to student Internet use: Students need to learn responsible Internet use and be held accountable for their online behavior.

Why our orientation has changed Blogs Wikis Social bookmarking sites (e.g. Delicious, Flicker, YouTube and TeacherTube, RSS feeds) Cloud based productivity tools (e.g. GoogleDocs, Zoho)

Updating AUPs: recommendations Consider changing the name (or at least your districts orientation) from acceptable use to responsible use Frame your AUP within a context of the benefits and the necessity of using technology in todays educational environment.

Bellingham Public Schools The Bellingham School District Board of Directors recognizes that an effective public education system develops students who are globally aware, civically engaged, and capable of managing their lives and careers. The Board also believes that students need to be proficient users of information, media, and technology to succeed in a digital world and that access to technology resources and the skills students develop play an important part in the learning process and the success of students in the future. Therefore, the Bellingham School District will use electronic resources as a means for students to learn core subjects and apply skills in relevant and rigorous ways. It is the districts goal to provide students with rich and ample opportunities to use technology for the purpose of advancing the educational mission of the district. The districts technology will enable students to communicate, learn, share, collaborate and create, to think and solve problems, to manage their work, and to take ownership of their lives.

Key Federal Laws The Childrens Internet Protection Act (CIPA) requires recipients of federal technology funds to comply with certain Internet filtering and policy requirements. The Childrens Internet Protection Act (CIPA) Protecting Children in the 21 st Century (Title II of the Broadband Data Improvement Act) requires schools to certify by July 2012 that their Internet safety policy provides for the education students about appropriate online behavior. Protecting Children in the 21 st Century

Certification Language Schools must certify that, as part of their CIPA/Erate/Internet Safety Policies, that they: educate minors about appropriate online behavior, including... on social networking websites and in chat rooms and cyberbullying awareness and response as part of that Internet safety policy.

State Laws: 2 main categories State laws pertaining to Internet use in schools that are often redundant of federal law in that they are tied to funding and require blocking and filtering. State laws addressing conduct (e.g. anti bullying laws; teacher ethical codes; teacher immorality statutes).

Key Minnesota Laws Minn. Stat. 122A Teachers and Other Educators (includes provisions on licensure, contracts, and training) Minn. Stat. 122A Teachers and Other Educators Minn. Stat. 121A.0695 School Board Policy; Prohibiting Intimidation and Bullying (cited as among the weakest in the nation by the US Dept of Education) Minn. Stat. 121A.0695 School Board Policy; Prohibiting Intimidation and Bullying

General recommendation review and revise regularly Schools are well served by scheduling periodic updates for their AUPs Technology and mobile devices change rapidly, as do perspectives on technology enhanced teaching and learning Regular updating also perpetuates ownership in the policy by those whose activities are affected by the policy

Four big ideas for your AUP Responsible personal conduct within the online environment is no different than responsible personal conduct face-to-face. Individuals must protect personal safety online Civic life has an expanding digital dimension that demands responsible engagement by individuals and groups. There are long--lasting implications to publishing in the online environment. See, http://www.k12.wa.us/EdTech/InternetSafety/Acceptable UsePolicyInfo.aspx http://www.k12.wa.us/EdTech/InternetSafety/Acceptable UsePolicyInfo.aspx

Specific Recommendations Revisiting and revising AUPs

Recommendation: reference off campus behavior A student or employee engaging in [unacceptable uses] of the Internet when off school district premises and without the use of the school district system also may be in violation of this policy as well as other school district policies. In situations when the school district receives a report of an unacceptable use originating from a nonschool computer or resource, the school district may investigate such reports to the best of its ability. Students or employees may be subject to academic sanctions or disciplinary action for such conduct including, but not limited to, suspension or cancellation of the use or access to the school district computer system and the Internet and discipline under other appropriate school district policies, including suspension, expulsion, exclusion, or termination of employment. Internet Acceptable Use and Safety Policy (Policy 524), Edina Public Schools

Recommendation: maintain your AUPs overall framework when adapting to BYOT Districts that appear to be experiencing the smoothest transitions from banning mobile devices to welcoming them have undergone as little policy change as possible, striking or heavily revising only obvious barriers such as district-wide cell phone bans. They then issue school-level acceptable-use guidelines that reflect individual campus cultures and treat violations of those guidelines like other behavioral issues. Districts Tackle Questions Surrounding BYOT PolicyDistricts Tackle Questions Surrounding BYOT Policy, Education Week

Recommendation: address student owned mobile devices Draft policy or procedures prohibiting students from using outside networks to access the Internet from campus Make sure policies are worded in a way that takes into account the various uses of technology in schools and not particular devices (e.g. the cheating policy should be worded in a way that encompasses cheating via a cell phone, laptop, passing notes)

Recommendation: maintain flexibility Test drive your policy approach by conducting a pilot program Include language in your policy that allows for swift change, when necessary: During the course of the school year, additional rules regarding the use of personal laptops or Mobile Internet Devices may be added. If this occurs, any new rule will become a part of this policy. Jefferson-Scranton School District

Examples of AUPs written with Web 2.0 technology in mind Barrington Public Schools, IL Edina Public Schools, MN Fairfax County Schools, VA (succinctly states Students using privately owned electronic devices must follow the policy stated in this document while on school property, attending any school-sponsored activity, or using the [school] network). Fairfax also has Recommended Best Practices for Personally Owned Computing/Network Devices and a Personally Owned Computing/Network Device Acceptance of Responsibility and Device Use Agreement Permission Form. Fairfax County Schools, VA Recommended Best Practices for Personally Owned Computing/Network Devices Personally Owned Computing/Network Device Acceptance of Responsibility and Device Use Agreement Permission Form.

Cell phone policies Drafting and Revising Policy

Cell phone policies vary widely Some districts forbid cell phones (e.g. New Haven, CT schools)New Haven, CT schools Many (most) schools allow limited use of cell phones by students A growing number of schools are making use of cell phones for instructional purposes (e.g. Cumberland Valley, PA)Cumberland Valley, PA

Cumberland Valley policy language re: instructional purpose At no time should cell phones be seen, heard, or used during academic classes, unless for instructional purposes with specific permission by the teacher. Phones should be set to silent (not vibrate) or turned off during all classes and study halls. Students who leave classes, study halls, or lunch on a pass are not permitted to use cell phones at that time. Checking the time is not an acceptable reason to access a phone during class time.

Rationale for easing restrictions Most students have phones or other mobile devices that could allow them to give real-time feedback to a lecture on a text- message back channel, take pictures during a science field trip, or answer teacher prompts with online polling. With the increasing capabilities and prevalence of mobile devices, the growing demand for K-12 students to be comfortable learning online, and the shrinking technology budgets of districts coping with the aftermath of the Great Recession, allowing students to use their own mobile devices is making more sense to more people. Schools Open Doors to Student Mobile DevicesSchools Open Doors to Student Mobile Devices, Education Weekly

Cell Phones: whats the legal standard for student searches? Any searches of students or their property need to be 1. Justified from the beginning (i.e. there must be reasonable grounds for suspecting the search will turn up evidence that the student has violated a law or the rules of the school); and 2. Reasonably related in scope to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. New Jersey v. TLO, 469 US 325 (1985)

School cell phone policies Policy review and comparison: Oak Harbor High School cell phone policy (includes language about searching confiscated phones) Oak Harbor High School cell phone policy Dysart Unified School District cell phone policy (allows instructional use of phones in classroom) Excellent resource on the current state of the law and school policies: Hello Students Have a Right To Privacy in their Cell Phones (ACLU publication)Hello Students Have a Right To Privacy in their Cell Phones (ACLU publication) This publication includes a model cell phone search and seizure policy.

Risks associated with student owned mobile devices in the schools Cyber bullying Sexting Cheating Inappropriate use of cell phone camera/recording devices Cyber baiting Inappropriate self disclosure Essentially, policies need to protect children from predators, from each other, and from themselves.

Teacher/staff off duty Internet use Drafting and Revising Policy

Off duty Internet behavior Pennsylvania - Teacher Suspended for Blog Posts About Students (teacher reinstated) Florida - Teacher Suspended for Posting Anti-Gay Marriage Views on Facebook (ACLU supporting teachers reinstatement) North Carolina - Teacher Suspended After Parents Question Facebook Comments Alabama - Special Education Teacher Allegedly Mocks his Students on Facebook

Authority to Discipline the nexus requirement Off duty behavior and the nexus requirement: A nexus may be found if the employee's off duty misconduct prevents the employee from adequately performing the duties of the job or creates low morale or ill will among co-workers. A nexus also is likely to be found if the employee's misconduct arose as a result of the employment relationship (e.g. a teacher's inappropriate relationship with a student). It is important to show a nexus in instances where the school is alleging teacher immorality or inappropriate speech. (See, Teacher Discipline and Immoral Conduct Outside of the Classroom Where Do School Authorities Draw the Line?)Teacher Discipline and Immoral Conduct Outside of the Classroom Where Do School Authorities Draw the Line?)

Nexus and Teacher Free Speech When presented with a case involving First Amendment concerns, a showing of nexus certainly makes clearer any ambiguities that might be present in balancing both the school district and teacher's interests. For example, if a nexus is found, it at least arguably raises a rebuttable presumption that the school district had an interest worth protecting to which a teacher's interest may be required to yield. The best solution to these issues lies with the individual school districts and boards educating their teachers as to what specific conduct is required of them.

Additional considerations An employee's status must be considered when determining whether sufficient evidence exists to discipline the employee for off duty behavior (i.e. at will, union, and tenure). Policies must be narrowly drafted and specific as to the conduct being regulated and the rationale for regulation (i.e. how regulating the conduct at issue serves a recognized public interest).

Best Practices for Off Duty Use of Social Media Dont disclose confidential/proprietary information Exercise care with privacy settings and personal profile content Be who you are; be thoughtful about how you present yourself; speak in the first person Respect your audience and your co-workers; respect your employer (i.e. use disclaimers) Respect copyright and fair use laws Try to add value; dont forget your day job

Policy option: refer employees to related policies, ethical codes, and laws This [AUP] policy refers to acceptable use of technology and communication tools in Bismarck Public Schools. The district has policies regarding Staff Ethics (GAGA) and Sexual Harassment (GAEA) which govern on and off-duty conduct, including when engaged in electronic communications. Teachers are also governed by the North Dakota Code of Professional Conduct for Educators (State of North Dakota; Article 67.1-03). Bismarck Public School District

Policy option: reference employee off duty behavior in the AUP [School] reserves the right to extend its authority to off campus staff and student speech that could reasonably come onto the campus and create disruption of the school functioning and/or substantially interfere with the rights of others. This includes but is not limited to staff/student created websites; social network postings; blogs; electronic messaging. Bismarck Public School District

Policy option: address off duty behavior in the employee handbook Cypress-Fairbanks Independent School District Employee HandbookCypress-Fairbanks Independent School District Employee Handbook, Section III Employee Relations Limited Electronic Communication with Students Personal Use of Electronic Media

Policy option: address off duty behavior in a separate policy Lake County Schools, FL Guidelines for Employee Use of Social Media Networks Lake County Schools, FL Guidelines for Employee Use of Social Media Networks

Where to go from here Assessing your schools policies and practices

What do your current policies say? Do they adequately address off campus behavior? When did you last review and revise your AUP? Are your technology policies specific enough to cover multiple technologies (e.g. cell phones, cameras, recording devices, iPads, iPods)? Do you have a policy for employees that addresses school-related electronic communication with students (i.e. email, Twitter, texting, etc)? Do you have a policy for employees that addresses their use of social media?

Are you addressing ethical behavior with students and staff? Little Buffalo Law & Consulting Do you have a curriculum that communicates and educates about ethical Internet conduct (that you can certify per the Protecting Students in the 21 st Century Act). Are you helping students and other members of the school community understand the long term effects of Internet speech? Are you providing meaningful staff development opportunities and adequate resources to your teachers and staff?

Q&A Conclusion

TIES Technical Leadership Conference February 17, 2012 Legal Implications of Student Owned Devices.

Documents

policy slide

student internet use

zoho slide

day suspension slide

responsible internet

student free speech

yo high school student

different facts