Cyber-Communication in Schools: Keeping Up with Technology and

1. Cyber Liability, Cyber Bullying and Other Issues Facing Schools in an Age of TechnologyFebruary 16, 2011

2. Cyber-Communication in Schools: Keeping Up with Technology and Related Student Discipline/Legal Issues

3. TEXTING & SEXTING

4. Texting/Sexting • Texting – Transfer of digital communications via personal digital devices (usually cell phones). • Sexting – The practice by which students (and faculty, congressmen, quarterbacks, etc.) forward sexually explicit images of themselves or their peers via text messaging.

5. How Common is Sexting? • National Campaign to Prevent Teen and Unplanned Pregnancy survey: • 33% have sent nude or semi-nude pictures of themselves • 22% have received a nude or semi-nude photo of someone else. • 15% of teens have forwarded images to someone they only know online.

6. Texting/Sexting • Harmful effects on students • Students don’t anticipate long term effects • Often originates as private exchange between love interests • Relationships quickly deteriorate • Images are widely distributed • Embarrassment • Suicide • Criminal prosecution & having to register as sex offender

7. School/Administrator/Teacher Liability • Negligent Supervision • Liability for failing to prevent/stop/control cyberbullying. • Searching/Seizing cell phones: • 4th Amendment Concerns (not for private schools) • Isolating evidence • Disciplining for off-campus conduct • Title IX implications • Discrimination • Employment Liability • Negligent Hiring • Negligent Retention

8. Negligence • 4 elements of negligence • Duty • Breach of that duty • Breach of duty was proximate cause of harm • Damages • Schools have a duty to provide a safe educational environment for students. • In loco parentis

9. What steps should an administrator follow in investigating sexting? • Interview students • Isolate evidence • Determine where actions took place • During school hours while student(s) at school? • After hours while student off campus

10. Search/Seizure of Phone • Can you search/seize the phone? • Private Schools • Generally Yes but beware of discriminatory behavior • Best to have a policy addressing the circumstances under which the school will search/seize phone. • Enforce policy uniformly

11. Search/Seizure of Phone • Can you search/seize the phone? • Public Schools have 4th Amendment concerns • New Jersey v. TLO analysis. • Students have legitimate expectations of privacy • In student searches, administrators must adhere to a reasonableness standard and must balance student privacy interests against the school’s interest in maintaining order and discipline. • Administrator must have reasonable suspicion that there has been a violation of law or school rules. • Search cannot be unreasonably intrusive in light of the age and sex of the student and the nature of the infraction.

12. Search/Seizure of Phone • Can you search the phone? • 4th Amendment concerns • Probable cause (SRO) • Klump v. Nazareth Area School District • Student caught displaying cell phone against school rules • Phone confiscated by teacher • Teacher and asst principal searched contact list and called other students to see if they were also violating rules. • Also accessed student’s text messages and voice mail. • Used IM program on phone to converse with student’s brother w/o identifying themselves as anyone other than student.

13. Search/Seizure of Phone • Can you search the phone? • Klump v. Nazareth Area School District • Seizure of cell phone was reasonable because violation of school rules. • Search was unlawful because no reason to suspect at the outset of the search that student was violating any other school rules. • Violation of Federal Stored Communications Act? • Can always get a subpoena or warrant • Best to seek permission to search phone from student or parent

14. BTW • Strip searches are generally a spectacularly bad idea. • Safford Unified School District #1 v. Redding (U.S. Supreme Court, 2009)

15. Isolating the Evidence • Normally not an issue when physical evidence is involved • Evidence stored on electronic device could constitute child pornography • Virginia administrator • In course of investigation instructed student to forward an image to him • Charged with possession of child pornography • Charged with failure to report suspected child abuse

16. Sexting Discovered – Now what? • Notify parents of all students involved • Report sexting to police (state statutes) • Report as suspected abuse or neglect • Minimize exposure to child pornography charges (Possession/Transmittal) • Decide whether, how, who to discipline • Prevent bullying/harassment of students involved

17. Reporting Protocol • Develop reporting protocol in advance to address the discovery of sexting. • Once discovered, events can move very fast. • Involve school attorney, police and prosecutor when developing reporting protocol • Get your tech people involved • Is evidence on your server? • Where did incident take place?

18. Can the school discipline students for off-campus conduct? • Must demonstrate a nexus between the incidents of off campus misconduct to the school or an effect of a substantial disruption in school. Tinker v. Des Moines Ind. Community School District. • What does your policy say? • May also use extra-curricular code • Beware of disparate treatment • If you discipline one, discipline all

19. Anti-Sexting Policy • Mere possession of digital images prohibited • All involved will be subject to punishment • Parents/Police may be contacted • School may search cell phones with reasonable suspicion • Specific consequences for sexting with wiggle room for administrators • Prohibit harassment/bullying related to sexting.

20. Cyberbullying

21. Cyberbullying • Cyberbullying is willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices. • Next generation of traditional bullying except the student can never get away from it. • 3/2010 judgment against Michigan school for $800,000 in bullying case. • NY school settles Title IX bullying suit for $75,000 plus therapy expenses through June 30, 2013.

22. Cyber Harassment • Cyber Harassment - threatening or harassing email messages, instant messages, or to blog entries or websites dedicated solely to tormenting an individual. Differs from cyberstalking in that it is generally defined as not involving a credible threat.

23. Cyber Stalking • Cyberstalking is the use of the Internet, email or other electronic communications to stalk, and generally refers to a pattern of threatening or malicious behaviors • Cyberstalking may be considered the most dangerous of the three types of Internet harassment, based on a posing credible threat of harm. Sanctions range from misdemeanors to felonies. • All are becoming increasingly common nationwide.

24. Cyberbullying laws • Maryland • Cyber Harassment - Md. Code tit. 3 § 3-805 • Cyberbullying -  Md. Code, Ed. Law § 7-424, 7-424.1 • Virginia • Cyber Stalking - Va. Code §18.2-60 • Cyber Harassment - Va. Code § 18.2-152.7:1  • Cyberbullying - Va. Code § 22.1-279.6

25. Forms of Cyberbullying • Emails or IMs directed at a specific person • Websites • Vote for the biggest freshman geek • Hot or Not • Worst Teacher • Student/Teacher Obituaries • Cell phones/Text Messages • Chat Rooms

26. Cyberbullying Prevalence • Grades 6 – 12 • 30% reported being a victim of cyberbullying (32% boys – 36% girls) • 11% reported cyberbullying others (18% boys – 16% girls) • 47% reported having witnessed cyberbullying Hinduja & Patchin 2006 survey

27. Disciplining for Off-Campus Behavior/Cyberbullying • Neither students nor teachers shed their constitutional rights to freedom of speech at the schoolhouse gate. Tinker v. Des Moines. • School officials generally cannot discipline students for off-campus speech which is unpleasant or behavior with which they simply do not agree unless the school environment is significantly affected. Beussink v. Woodland R-IV School District.

28. Disciplining for Off-Campus Behavior/Cyberbullying • Student creates web page that includes derogatory and threatening remarks about English teacher. • List of “Why Fulmer should be fired.” • “Why she should die.” • Solicits donations to help pay for hitman • School expels student

29. Disciplining for Off-Campus Behavior/Cyberbullying • School officials can discipline students for conduct occurring off of school premises where it is established that the conduct materially and substantially interferes with the educational process. J.S. v. Bethlehem Area School District (CT 2004) • Teacher subsequently sued the family of the student and was awarded $500,000

30. Disciplining for Off-Campus Behavior/Cyberbullying • Student posts a link to a Youtube video on his Myspace page that made fun of teacher’s hygiene, organizational habits, weight and classroom conduct. • Footage involves close-up shot of buttocks, students making faces, giving her bunny ears and giving pelvic thrusts in her direction from behind. • School suspends students for 40 days with 20 days held in abeyance if research paper was completed during suspension.

31. Disciplining for Off-Campus Behavior/Cyberbullying • Court upheld the suspension. • The school is not required to establish that an actual educational discourse was disrupted by the student’s activity. The “work and discipline of the school” includes the maintenance of a civil and respectful atmosphere toward teachers and students alike. Demeaning, derogatory, sexually suggestive behavior toward a nonsuspecting teacher in a classroom poses a disruption of that mission whenever it occurs. Requa v. Kent School District No. 415 (WA, 2007)

32. When can School Officials Intervene? • Can generally intervene/discipline if conduct/speech: • Substantially or materially disrupts learning; • Interferes with the educational process or school discipline; • Utilizes school technology to harass; • Threatens other students or infringes on their civil rights. • Violates your policy.

33. Develop a Cyberbullying policy Including: • Specific definitions of harassment, intimidation and bullying (including electronic forms) • Graduated consequences and remedial actions • Procedures for reporting • Procedures for investigating • Language specifying that if a student’s off-campus speech or behavior results in a “substantial disruption of the learning environment” the student may be disciplined • Procedures for preventing cyberbullying

34. Preventing Cyberbullying • Have clear rules regarding the use of computers and other technological devices • Utilize the expertise of other students (older) through peer mentoring • Maintain a safe and respectful school culture • Maintain and update monitoring and filtering software • Implement and evaluate formal anti-cyberbullying programming • Educate parents • www.stopcyberbullying.org

35. Cyberbullying And Web 2.0 Issues

36. What is Web 2.0? • Web applications that facilitate • Interpersonal communications • Information sharing • Collaboration • Examples include • Social networking sites • Wikis • Blogs • Other web-based communities

37. Web 2.0 Usage • Over 90% of college students involved with at least one social networking website • Over half of 12 to 18 year olds involved in at least one social networking site • Internet usage is growing fastest in the “over 30” demographic • Teachers and students are involved in the same online communities

38. Web 2.0 Culture • Unique language • Significant amount of personal information online • Frequent misconception of privacy • Tendency to over-share information • Easily blur personal and professional life

39. Web 2.0 Abuses • Inappropriate student-teacher relationships • Inappropriate Content • Drinking/Partying Photos • Provocative photos and content • Illegal activity • Abusive behavior • Cyberbullying • Harassment • Sharing confidential information

40. Disciplining Teachers for Off-Campus Conduct • Spanierman v. Hughes (D. Conn. 2008) • Teacher creates several My Space profiles • Uses My Space to communicate with students off campus • My Space page includes inappropriate photos and conversation content with students • School does not renew teaching contract (Non-tenured teacher) • Teacher sues claiming violation of First Amendment freedom of speech and association and Fourteenth Amendment violation of Due Process and Equal Protection

41. Teacher/Student Relationships • Generally three theories of liability • Negligent Hiring • Negligent Retention • Negligent Supervision

42. Theories of Liability • Negligent Hiring Liability • A basis of recovery against employers for wrongful (and even criminal) actions of employees against 3rd parties, whether those actions are performed within or outside the scope of employment. • The failure of an employer to exercise reasonable care in the selection of an applicant in light of the risk created by the position to be filled. • Potential issues (other than sexual abuse & molestation claims): • Negligent hiring lawsuits • Employee turnover • Substance abuse problems • Theft • Loss of proprietary information

43. Controls • Negligent Hiring Liability • An adequate background investigation (The requirements of a negligent hiring liability tort are generally satisfied when the offending party is hired without an adequate background investigation and when such an investigation would have indicated the applicant was a potential risk.) • An investigation (for purposes of today’s topic) should include: • A formal, consistent process for this • Work history • References • Criminal history • Sex-offender registry checks

44. Controls • Negligent Hiring Liability • An adequate background investigation • Include National and State-wide criminal background and sex offender searches • Include paid and non-paid staff • Communicate in-advance, to potential chaperones of field trips or special events that they must be on an approved list, to accompany a trip. • Obtain signed releases, granting permission to perform such searches (e.g. Background Investigation Consent Form) • Be consistent in your policy!

45. Theories of Liability • Negligent Retention Liability • A body of case law exists, the thrust of which is that the employer knew, or with the exercise of reasonable care, should have known, that the employee posed a danger to others. • An employer’s negligence in retaining an employee known to be dangerous to others. • How ‘should the employer have known?: • Previous reports (news media, background check data) • Allegations • Comments from co-workers, references, or students • Input / complaints from parents

46. Controls • Negligent Retention Liability • Prompt and Appropriate response to incidents or allegations • Interview and meeting with accused and affected individuals • Immediately remove the accused adult from the environment • Perform a thorough investigation • Document all meetings & communications, remembering that everything could become a public document. • Involve Human Resources and School Legal Counsel right away. • An investigation should include: • Who was involved • Date(s), places, time of day • What gap(s) in the program may need to be filled?

47. Theories of Liability • Negligent Supervision • A contention, or case, for the employer not having done everything in their power to supervise or monitor private encounters between adult staff (or volunteers or visitors) and minor students • The good news here is that experience shows that juries will often look understandably at situations where good efforts were attempted, recognizing that it is near impossible for a reasonably staffed educational facility to supervise EVERY potential encounter.

48. Controls • Negligent Supervision • A well-communicated and enforced policy, to all staff, that certain conduct (or even appearances of such conduct) will not be tolerated, or will at least be questioned. • Prohibit closed-door meetings between student & faculty member • Prohibit staff from giving rides to students • Require accompaniment of at least one other adult individual • Require maintaining appropriate personal boundaries • Discourage cell phone communications (incl. Texting) (“If you wouldn’t do it in front of your mother, then it’s probably something you shouldn’t be doing.”) – good Rule of Thumb • This topic should be part of staff training and re-training, possibly using local news stories to highlight the topic sensitivity.

49. Controls (cont’d) • Negligent Supervision • Include a clearly-defined, consistent response policy • Include, in policy communications, consequences for offenders • Encourage school personnel to look for, and report suspicious-looking behavior, related to Sexual Misconduct. • Be alert to warning signs of a staff member: • Showing overly-affectionate behavior • Engaging in non-professional behavior, such as sexual jokes or teasing • Seeking to extend their contact with certain students beyond the school day

50. Controls • Points to remember regarding Negligent Hiring, Retention, and Supervision • Sin of hubris • Don’t compromise policies, because of an individual’s community reputation, friendship, etc. • Remember pedophiles will look to find places where they have access to children • Remember pedophiles are very mobile • Avoid the thinking, “No child has ever been molested here, so why worry?” • “Predators are looking for access & opportunity” - (Nancy McBride, national safety director, National Center for Missing & Exploited Children)