. Student behavior involving technology is a social phenomenon that the law and schools have not been able to keep up with. Most authorities are still disagreeing on how to deal with the behavior. . Technology Concerns In Schools. School Computers and the InternetOff-Campus ConductCell Phones/CamerasSocial Networking Sites.
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Wireless Technology Update
Capital Area School Development Association
August 12, 2010
Carrie E. Flynn
2. Student behavior involving technology is a social phenomenon that the law and schools have not been able to keep up with. Most authorities are still disagreeing on how to deal with the behavior.
3. Technology Concerns In Schools School Computers and the Internet
Social Networking Sites
5. Intimidation, Harassment, Menacing, or Bullying Behavior and No Physical Contact
Threatening, stalking, or seeking to coerce or compel a person to do something; intentionally placing or attempting to place another person in fear of imminent physical injury; or engaging in verbal or physical conduct that threatens another with harm, including intimidation through the use of epithets or slurs involving race, ethnicity, national origin, religion, religious practices, gender, sexual orientation, age, or disability that substantially disrupts the educational process, with or without a weapon.
Violent and Disruptive Incident Reporting System of the New York State Education Department
6. So what’s cyberbullying?
It’s bullying by electronic means. Currently, the most common virtual locations for cyberbullying are chat rooms, social networking web sites (facebook, myspace, twitter), email and instant message systems.
7. Key Differences Anonymity
Pretend they are other people
Spread lies and rumors about victims
Send or forward mean text messages
Post pictures or recorded conversations of victims without their consent
Stealing an individual’s name and password.
Altering photographs using PhotoShop or other photo editing software in order to humiliate the individual.
8. Key Differences Creating confrontational and mean-spirited online polls about the individual and posting them on different web sites.
Using web sites and blogs to post hurtful, embarrassing information about another individual.
9. Types of Cyberbullying Flaming is a type of online fight. It is an act of sending or posting electronic messages that are deliberately hostile, insulting, mean, angry, vulgar or insulting, to one person or several, either privately or publicly to an online group.
Denigration also known as "dissing,” occurs when a person sends or publishes cruel rumors, gossip or untrue statements about a person to intentionally damage the victim's reputation or friendships.
Online polls ask readers to vote on specific questions, often very hurtful and demeaning, such as "Who is the ugliest person in 8th grade" or "Who do you love to hate?"
10. Types of Cyberbullying Outing occurs when someone sends or publishes confidential, private, or embarrassing information, online. Private email messages or images meant for private viewing, is then forwarded to others.
Trickery is when a person purposely tricks another person into divulging secrets, private information or embarrassing information, and publishes that information online.
Exclusion is an indirect method of online bullying, intentionally excluding someone from an online group or community.
Harassment is when the electronic bully repeatedly sends insulting, hurtful, rude, insulting messages.
11. Types of Cyberbullying Happy slapping is a relatively new type of bullying. This occurs when an unsuspecting victim is physically attacked, in person, as an accomplice films or take pictures of the incident. The image or video is then posted online or distributed electronically. Often the attackers will say it was only a prank or joke, hence the term "happy slapping".
Text wars or attacks are when several people gang up on the victim, sending the target hundreds of emails or text messages. Besides the emotional toll it can take on the victim, the victims' cell phone charges can be costly.
12. Types of Cyberbullying Sending malicious code intentionally, to damage or harm the victim's system or to spy on the victim.
Images and videos are a rapidly growing concern. Due to the prevalence and accessibility of camera cell phones, photographs and videos of unsuspecting victims, taken in bathrooms, locker rooms or other compromising situations, are being distributed electronically. Some images are emailed to other people, while others are published on video sites such as YouTube.
Griefing involves chronically causing grief to other members of an online community, or rather, intentionally disrupting the immersion of another player in their game play.
13. Types of Cyberbullying Bash boards are online bulletin boards where people post anything they choose. Generally, the postings are mean, hateful and malicious.
Impersonation can be particularly harmful and occurs when someone pretends to be or poses as another person. This is usually accomplished by breaking into someone’s account, by stealing a password and perhaps changing it, or by maliciously using that information provided by a friend (one reason to never give a password to anyone but a trusted adult). Once the impersonator has access to the victim's information, considerable damage can occur. By sending out emails supposedly from the victim or by posting material online, the victim’s reputation or friendships can be irreparably harmed.
19. Sexting The practice of sending or posting sexually suggestive or explicit text messages and images to a peer or group of peers via the cellular telephones or over the Internet.
20. Sexting Statistics Sex Messages
20% of teens have electronically sent or posted nude or semi-nude pictures of themselves.
22% of teens have received such images.
15% of teens have sent to someone they only know online.
National Campaign to Prevent Teen and Unplanned Pregnancy, Sex and Tech, Results from a Survey of Teens and Young Adults (Oct. 2008)
21. Possible Laws Implicated Disorderly Conduct
22. Child Pornography Any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
23. Sex Offender (NY) The court may assign one of the following three risk levels:
Level 1 (low risk of repeat offense)Level 2 (moderate risk of repeat offense) Level 3 (high risk of repeat offense and a threat to public safety exists)
24. Fact Pattern #1 18 year old boy and 16 year old girl have been dating for a while. They get into a fight. Boy has password to girl’s computer. Finds nude photos that she had previously sent him. Gets onto her email account and distributes to her entire contact list, a total of 70 people.
25. Fact Pattern #1 The boy is charged with 140 counts of possession and distribution of child pornography. 70 for possession of child pornography and 70 for distribution of child pornography.
26. Fact Pattern #1 The student took a plea deal instead of facing a possible life sentence. The student received five years probation, semi-annual polygraph test, attendance at sex offender classes with sex offenders and has to register as a sex offender until he turn 43.
27. Fact Pattern #2 School District confiscates cell phones from 4 male students. District officials discovers that all the cell phones contain posed semi-nude or nude photographs of female students at the District.
What do you do first?
28. Fact Pattern #2 The District turns the phones over to the District Attorney’s Office who began a criminal investigation of the students. The investigation turns up a total of 20 students who either had the images on their phones or were depicted in the images. The District Attorney sent a letter to parents stating that the students could agree to a deal which included probation, a fine and 9 month counseling program
29. Fact Pattern #2 Be charged with possessing or distributing child pornography and the criminal use of a communication device.
These charges could lead to the students (both the boys and the girls) to be registered sex offenders for at least ten years and have their information disseminated as such.
30. Fact Pattern #2 Right
31. Actual Outcome of Fact Pattern #2 This case is still going through the courts but interestingly the girls involved were able to obtain a Temporary Restraining Order against the District Attorney prevented him from filing charges. The court found the Constitutional right of free speech was implicated. There was no analysis of the acts connection with the school.
Miller v. Skumanick, 605 F. Supp.2d 634 (M.D. PA. 2009)
32. Legal Approach Free Speech
Off Campus Activity
33. Free Speech Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
United States Constitution
34. Tinker v. Des Moines Indep. Cmty. Sch. Dist. Students do not “shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.”
35. Tinker v. Des Moines Indep. Cmty. Sch. Dist. However, the Court recognized that student speech in school is different from speech outside of school and it set forth a test for determining when speech may be suppressed in schools. Under Tinker, school officials may not suppress student speech unless they reasonably conclude that the speech will “materially and substantially disrupt the work and discipline of the school.”
Tinker, 393 U.S. at 513
36. Bethel School Dist. No. 403 v. Fraser The Court held that school officials could punish a student for “offensively lewd and indecent speech” during a high school assembly. 478 U.S. 675 (1988). The Court noted the “marked distinction” between the political speech in Tinker and the indecent content of Fraser’s speech and reasoned that schools have the authority to determine “what manner of speech in the classroom or in school assembly is inappropriate.”
Bethel 478 U.S. 675.
37. Hazelwood School District v. Kuhlmeier The Court held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Thus, school officials may suppress “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”
Hazelwood, 484 U.S. 260.
38. Morse v. Frederick Justice Roberts, writing for a five to four majority, found that schools have the right to discipline students who present messages that conflict with stated anti-drug policies, even where the evidence of disruption of school activities (a fact that seemed critical in Tinker) might be absent.
Morse, 551 U.S. 393
39. While the Supreme Court has set forth standards on restricting disruptive, indecent, school-sponsored, or drug related speech in schools, the Court has not yet spoken on whether public school administrators may prohibit or sanction on-line student speech.
40. Wisniewski v. Board of Education of Weedsport Central School District Eighth-grader Aaron Wisniewski was using his parents' computer in April 2001 when he sent to some 15 friends an icon containing a small drawing of a pistol firing a bullet at a person's head and blood splattering. Beneath the icon were the words "Kill Mr. VanderMolen." After a classmate brought the icon to the school’s attention, Aaron was suspended.
494 F.3d 34 (2d Cir. 2007)
41. Wisniewski v. Board of Education of Weedsport Central School District The court found that Tinker should apply to cases concerning off-campus internet speech when it is reasonably foreseeable that the speech would reach school property or does reach the school.
The icon crossed “the boundary of protected speech and constitute[ed] student conduct that pose[d] a reasonably foreseeable risk that the icon would come to the attention of school authorities and that it would ‘materially and substantially disrupt the work and discipline of the school.’”
42. Doninger v. Niehoff Administrators barred a Connecticut high school student from running in a student election after the student criticized administrators online for their handling of a student festival. In a LiveJournal post, the student called the school officials “douchebags” and asked her fellow students and their parents to complain to school superintendent Schwartz in order “to piss [Schwartz] off more” than the mass e-mail had.
527 F.3d 41 (2d Cir. 2008)
43. Doninger v. Niehoff “[A] student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that the off-campus expression might also reach campus.”
44. Speech Cases Appeal of D.V., Decision No. 15,168 (2005)
A student used a home computer to alter a teacher’s website by adding sexually explicit comments concerning the teacher and the teacher’s spouse. The student was suspended for one month. The Commissioner concluded that the penalty was proportionate to the severity of the offense and there was no basis to find that the school district acted arbitrarily, unfairly, or excessively in imposing a year long suspension.
45. Speech Cases Appeal of Ravick, Decision No. 14477 (2000)
Student suspended for 15 months after sending an anti-Semitic e-mail that threatened that the “Trench Coat Mafia” was coming to school. Commissioner held that because the e-mail in question contained a threatening message it was not entitled to First Amendment protection. That the e-mail was sent from off of school grounds to other student e-mail addresses did not preclude punishment because students may be disciplined for off-campus conduct that may endanger the health or safety of pupils within the educational system or adversely affect the educative process.
47. An investigation must be: Prompt
Result in appropriate corrective action
48. A “prompt” investigation: Means sooner rather than later
Results in more accurate recollection of events
Allows for timely end to offending conduct
Shows district is responsive to complaint
49. A “thorough” investigation is where: All witnesses are interviewed
All relevant evidence is gathered
Any discovered “loose ends” are followed up on
50. Appropriate corrective action is taken where: Wrongful conduct is promptly stopped
Appropriate corrective action is taken against wrongdoer(s)
Reoccurrence of wrongful conduct is unlikely
Corrective action must be determined based on facts and circumstances of each case.
51. Scope of investigation Investigator should have clear understanding of:
Reasons for the investigation
Objectives of the investigation
Process and timeline for investigation
Potential witnesses and evidence
Method of recording information
52. Choosing a person to investigate. An investigator should: Be competent and understand the scope of investigation
Have knowledge of the district’s policies, procedures, practice and rules
Have good interviewing skills
Ability to formulate appropriate follow-up questions when new facts or issues arise during the interview
Be objective and impartial
53. Essential Elements of an Investigation Preparation:
Who will investigate
Identify individuals with relevant information (e.g. witnesses)
Create a plan/time-line for completing the investigation
54. Essential Elements (Cont’d) The Investigation:
Review all relevant documents
Speak with all witnesses who may have relevant knowledge
Follow-up on new leads (when necessary)
55. Essential Elements (Cont’d)
Documenting the Investigation
Each investigation should be maintained in a separate file. For example, an investigation file may include:
A log of the investigator’s actions and calls by date.
Contemporaneous and finalized interview notes for each witness.
All complaints made by the victim.
All documents relevant to the issues investigated.
The investigator’s written report.
Documentation of notification of the investigation’s results.
Documentation of any remedial or corrective action taken.
56. Investigator should use the following techniques/procedures when interviewing witnesses: Prepare outline of questions for each witness
Make appropriate disclosures
Discuss incidents chronologically
Rely on facts
Clarify any vague or confusing information
Ask simple questions
Ask about other potential witnesses and other related information
Ask hard questions
Reconfirm accuracy of key information
Ask witness to contact investigator with any additional information
57. Cont’d For each specific incident that is the subject of the investigation, discuss the incidents in chronological blocks of time. For each block of time discuss:
- What occurred?
- When did it occur?
- Where did it occur?
- Who was present when it occurred?
- Who else may know about the incident?
- How did it happen?
- Who said or did what?
- Why did it happen?
- Was this an isolated incident or part of an on-going pattern? If it is part of pattern, discuss each separate incident?
- Did anyone make any notes, recordings, etc. relating to the incident?
58. Additional techniques/procedures for interviewing victims Explain investigation process
Do not promise confidentiality
Ask victim to write down incidents of the alleged wrongdoing and potential witnesses
Discuss each incident thoroughly
Review key information with victim
Ask victim to describe the steps needed to ensure a thorough investigation
59. Additional techniques/procedures for interviewing alleged wrongdoer: Describe each alleged incident of discrimination and give wrongdoer right to respond
Explore any motive for victim to lie, be mistaken, etc.
Allow wrongdoer to provide alibis or mitigating circumstances
Ask wrongdoer to describe the steps needed to ensure a thorough investigation
60. Making a Determination At the conclusion of the investigation, the investigator must make a determination after considering all the evidence. Writing a report summarizing the facts and findings is very helpful when making a determination.
If conflicting information was received by the investigator, identify the conflict and describe any factors which may help to resolve the conflict.
Summary of key information obtained from each witness and any other evidence.
Any remedial or corrective action taken (if known).
Recommendation of investigator (if requested).
61. Credibility Determinations Where appropriate, the investigator may have to resolve inconsistent information given by witnesses by assessing the credibility of each witness. The following factors may be considered: evasiveness, conflicting factual statements, facial expressions, defensiveness or other demeanor or motive to lie.
62. Utilizing and Consulting with Counsel In certain circumstances, it may be appropriate to involve outside counsel. In each investigation, outside counsel’s role may be different. For example:
Given the sensitivity or potential liability associated with a particular claim, an employer may want the investigation covered by the attorney-client privilege or the attorney work-product doctrine. In these cases, the investigator must be an attorney or a person acting at the direction of an attorney.
During the course of the investigation, outside counsel may be consulted for guidance on a particular matter. (e.g., appropriate parameters of an investigation, whether a witness should be interviewed, the scope of questions asked during the witness interviews).
After the investigation, an employer may wish to discuss whether and what type of disciplinary action should be taken.
63. Reporting to Outside Third Parties Police
Child Protective Services
State Education Department (e.g., corporal punishment)
Child Abuse in an Educational Setting
Changes in the Law?
School Policy Changes?
65. NY Proposed Legislation Include electronic communication in the definition of harassment
Create procedures to investigate harassment
Establish a statewide registry for bullying, cyber bullying and hazing complaints.
Mandate a course of study in internet safety
Create a crime under the penal law.
66. The Law Why a new law will not work?
67. So what does a school district do about cyber-bullying and sexting until the laws come up to speed as to this is a current problem?
68. Preventing Cyberbullying: School Policy Internet Use Policy
Code of Conduct
Use of Student Contracts
69. Need for A Good Policy! Elements of a Good Acceptable Use Policy
Educational Purposes Only
Uses that harm people or property
Uses that jeopardize the security of the school’s network
Uses that damage the district’s network
Rules of Etiquette
Privacy (or lack thereof)
Consequences for Failure to Follow
70. Preventing Cyberbullying: Education Education: The best defense to combat cyber-bullying is to educate teachers, students, parents and the community.
71. School Policy Internet Use Policy
Sexual Harassment Policy
Code of Conduct
72. Education Education: The best defense we are going to have to combat cyber-bullying is by educating students and parents.
They need to be equally careful to apply that power fairly and effectively across the spectrum of political and cultural beliefs that comprise education communities.
73. Punishing Students for Improper Use of School Computers Students may be punished for their improper use of school computers.
Improper uses include:
Improperly logging into a computer as an administrator or teacher to tamper with or change grades.
Using a school computer to gain unauthorized access to computer servers in an attempt to crash servers.
Using a school computer for illegal activities.
Ex.: Sending a bomb threat.
Sexual or other unlawful harassment.
Using a school computer in violation of the district’s Terms & Use Policy
Punishments may include:
Prohibition from further use of district computers
74. Punishing Students for Off-Campus Conduct
76. Practical Tips for Schools to Gather & Preserve Evidence for Disciplinary Proceedings Get parents involved early
Parents’ cooperation is key
Can help to preserve the chain of custody
Parents have the ability to get cell phone and/or home computer records without subpoena (phone call logs & text message logs)
If appropriate, get law enforcement involved
Immediately exercise custody & control over any school computer or other property which may have been used to facilitate the inappropriate relationship
May want to enlist school’s Information Technology Department or Forensic Examiner to search the computer (s)
If possible, get custody & control over student’s cell phone or home computer to retrieve evidence.
77. Banning Cell Phones A recent court case affirmed a school district’s authority to ban cell phones (Price v. New York City Bd. Of Educ., 51 A.D.3.d 277 (1st Dep’t 2008)).
Such a ban falls within the school board’s statutory authority to adopt such rules “as may be necessary . . . for the general management, operation, control, maintenance and discipline of the schools.” Education Law §2254(13)(a).
If a school wishes to ban cell phones it must put its students and parents on notice through its Code of Conduct or Policy Manual.
78. Confiscating Cell Phones Confiscating the phone
While there is no legal guidance on how long a school may withhold a confiscated cell phone schools should be reasonable to prevent violating the property rights of both students and parents.
Note that schools may be legally responsible for any property that is confiscated, including a cell phone, that is lost or stolen through negligence.
Schools may raise the defense that the student should not have had the lost/stolen item with them in the first place. The success of such defense will likely be fact-specific.
Any potential discipline for violating a school’s cell phone policy should be expressly stated in the school’s code of conduct
79. Resources Myspace School Administrator Guide: http://cms.myspacecdn.com/cms/SafetySite/documents/SchoolAdministratorGuide.pdf
National Crime Prevention Council: http://www.ncpc.org/cyberbullying