Transcript Legal Issues to Consider to Avoid EEOC Claims and Other

Facebook, Twitter, and Their Friends:
Effectively Navigating Employee and Student Issues
in the Era of Social Media
METRO BUREAU
WEDNESDAY, DECEMBER 10, 2014
Presenter:
Kevin T. Sutton
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How Social Media
Questions Make Us Feel …
How We Hope To Feel by
Lunch Today …
How Do We Get There?
 Syllabus for Today
 Controlling the Use of Technology
 First Amendment Considerations
 Fourth Amendment Implications
 Limitations on Employee Discipline
 Permissible Scope of Student Discipline
 Cyberbullying
 On-Campus v. Off-Campus Conduct
 Use of Evidence Gathered Online
 Relying on Social Media in Hiring
 Review of Recent Decisions/Case Law
Challenges
 Uncertainty in Law
 Lack of cohesion from state to state
 Lack of consistency from court to court
 Balance of private rights v. obligation
to community
 Blurred lines (public v. private)
 Why?
 Law moves slowly
 Social media outlets emerge too fast
 Example: Snapchat
 Districts forced to be reactive instead
of proactive
Intersecting Concepts
Discipline
Safety
Disruption
Hiring/
Firing
Free Speech
Privacy
Policy
Search &
Seizure
CyberBullying
Evidence
We used to think we had a pretty good grasp on this stuff …
But “Social Media” is so much more than most people think …
Social Media Permeates … Everything
 Always On
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Accessible on mobile devices
Live tweeting
Interactive television
 Universal
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Everyone wants to “connect”
“Grandma joined Facebook!”
iPhone 6 … 10 million orders
 Consequences
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Example – game attendance
Deterioration of soft skills
“If you can’t say something
nice ….”
Where Do We Start?
First Amendment Overview
This is Speech After All … Right?!?
 Tinker v. Des Moines Ind. Sch. Dist. (1969)
 USSC recognizes students’ right to free speech on and off
campus
 Students have right to free speech unless it “materially
disrupts class work or involves a substantial disorder or
invasion of the rights of others”
 Hazelwood Sch. Dist. v. Kuhlmeir (1980)
 First Amendment protections did not compel a public school
to affirmatively sponsor speech that conflicts with its
“legitimate pedagogical goals” even though same speech could
not be regulated outside of school
Analysis of Speech
Key Question:
Does the speech from outside school walls
cause a substantial disruption in school?
 If YES, discipline may be appropriate
 In NO, discipline not likely appropriate
Recent Cases
 S.J.W. v. Lee’s Summit R-7 School Dist.
 696 F.3d 771 (8th Cir. 2012)
 Kowalski v. Berkeley Cty. Schools
 652 F.3d 565 (4th Cir. 2011)
 J.S. v. Blue Mountain Sch. Dist.
 650 F.3d 915 (3rd Cir. 2011)
 Layshock v. Hermitage Sch. Dist.
 650 F.3d 205 (3rd Cir. 2011)
 J.C. v. Beverly Hills Unified Sch. Dist.
 711 F.Supp.2d 1094 (C.D. Calif. 2010)
Recent Cases
 Evans v. Bayer
 684 F.Supp.2d 1365 (S.D. Fla. 2010)
 Doninger v. Niehoff
 527 F.3d 41 (2nd Cir. 2008)
 J.S. v. Bethlehem Area Sch. Dist.
 807 A.2d 847 (Pa. 2002)
Basic Principles Extracted
 Assessing a “Substantial Disruption”
 Use Caution
 Be Realistic
 Inconvenience not enough
 Embarrassment not enough
 Key elements
Violence
 Threats
 Safety
 Criminal Activity


Courts Don’t Always Cooperate
Fourth Amendment Issues
Internet Privacy Protection Act
 Public Act 478 of 2012
 Sec. 4. An educational institution shall not do any of the
following:
(a) Request a student or prospective student to grant access to,
allow observation of, or disclose information that allows access to
or observation of the student’s or prospective student’s personal
internet account.
 (b) Expel, discipline, fail to admit, or otherwise penalize a student
or prospective student for failure to grant access to, allow
observation of, or disclose information that allows access to or
observation of the student’s or prospective student’s personal
internet account.


NOTE: Sec. 3 provides similar restrictions for employers
Search & Seizure - Students
 Standard for Police
 Warrant for search
 Standard for School Administrators
 Two-Step Inquiry [TLO v. New Jersey]
Reason to suspect student violated SCC?
 Reason to suspect evidence of violation of SCC exists in the area
you want to investigate/look?


Confirmed by GC v. Owensboro Public Schools (March 2013)
Search & Seizure
 Practical Examples:

Things v. Information
Things
 Search for Stolen iPad
 Search for a Weapon
 Search for Drugs
 Information
 Law Not Well-Developed

• Search for Texts
• Search for Photos
 Consent Issues
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Can be addressed via policy
Reasonable expectation of privacy?
Use what you have at your disposal!
R.S. v. Minnewaska Area Sch. Dist.
 Factual Background
 Factors to consider to determine if search is
reasonable:
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The scope of the legitimate expectation of privacy at issue
The character of the intrusion complained of
The nature and immediacy of the governmental concern at
issue and the efficacy of the means employed dealing with it
 Bottom Line – They Went Too Far
 IPPA Implications in MI
Citation: 894 F.Supp.2d 1128 (D. Minn. 2012)
Chaney v. Fayette County Pub. Sch. Dist.
 County-wide “Community Awareness Seminar”
 Presentation included picture of 17 year old female
student in a bikini found on FB
 Picture included student’s full name
 Student alleged violation of her Constitutional right to
privacy under the 4th and 14th amendments
 Court dismissed her claims because she had no
expectation of privacy in a picture she posted to “friends”
and “friends of friends” (broad privacy setting)
Citation: 977 F. Supp. 2d 1308 (N.D. Ga. 2013)
Rosario v. Clark County Sch. Dist.
 Student tweets 
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“Mr. Isaacs is a b*tch too”
“I hope Coach brown gets f*ck*d in tha *ss by 10 black d*icks”
“F*ck coach browns b*tch *ss”
“AND Ms. Evans b*tch *ss boyfriend too He a p*ssy *ss n*gg* tryna talk sh*t”
 Student argued school violated his Fourth Amendment rights by searching
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his Twitter account
Court finds student had no reasonable expectation of privacy in his tweets
Student had private Twitter account but court says that’s irrelevant
The school accessed his tweets through one of student’s followers
Where person tweets to his friends he runs the risk that the friend will turn
it over to the government
Note: First Amendment protections applied
Citation: 2013 US Dist. LEXIS 93963 (D. Nev. 2013)
“Schools pay $70k to Minnesota student forced
to give up Facebook password”
 Headline - March 27, 2014
 School officials and police made female student, Riley,
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give up her password and look through her account
No parent present
Riley made post about a mean teacher’s aide and got inhouse suspension
Mother of a different student found out about sexual
online chat between Riley and her son; Riley’s account
was searched
Riley switched to home school because of it all
New school policy: students’ electronic records can only
be searched when reasonable suspicion that school rules
have been violated
“Employer demands
Facebook login credentials during interview”
 Headline - Feb. 20, 2011
 Officer for Maryland Division of Corrections (DOC)
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forced to hand over login credentials during interview
DOC wanted login information for background checks
Difference between checking what job applicant posted
publicly online and private information
Officer had highest privacy settings, likened it to
government agency going through his personal mail
Federal Stored Communications Act implications
Search & Seizure - Employees
 Investigating computer activity is often essential;
factors in determining an employee’s expectation of
privacy on his/her work computer include:
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Whether the employer/district maintains a policy banning
objectionable use
Whether the employer/district actually monitors the use of the
employee’s computer activities
Whether third parties (such as IT Departments) have the right
of access to the employee’s computer
Whether the employer/district placed the employee on notice,
or the employee was aware of the monitoring policies
Employers should obtain consent, either through
acknowledgment or notification
Practical Guidance
 Staff Activities on District Network
 District AU and Other Policies Rule
Tougher standards
 Less wiggle room
 Easier to investigate
 Easier to discipline
 Recent examples
 Porn Search at Work

Responding to Employee Online Conduct
Employee/Staff Issues
 Problematic, Though Generally Less Pervasive
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Intentional v. Unintentional
Recent examples
 Clear Expectations
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Acceptable Use Policies
Digital Communications & Social Media Policies
 Guidance Often Ignored
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“I won’t be the one …”
“Everyone else has it …”
“No one will ever see my posts …”
 Consequences, Be Damned!
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Freedom of speech/privacy advocates
 Generational Issues?
Central Question:
What are the standards that govern
employee conduct?
Free Speech Has Its Limitations
 Assumptions Don’t Match
Reality
 Speech of Public Employees is
Closely Scrutinized

Garcetti v. Ceballos (2006)

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A public employee’s speech
concerning his or her job duties
was not entitled to First
Amendment protection
Lane v. Franks (2014)

A public employer may not
retaliate against a public employee
for giving truthful testimony, under
subpoena and under oath, where
testifying in court is not part of the
employee’s job
Social Media and Tenured Teachers
 Relative to the World of Social Media …
 The Case of Anna Land
 The “Jobbie Nooner Case”
 Middle school teacher, tenured
 “A simulated act of fellatio with a male mannequin”
 Photos posted to Internet
 Images spread like wildfire – community concerns, etc.
 Terminated by District
 Dismissal reversed by State Tenure Commission (Early 2009)
 STC decision affirmed by Michigan Court of Appeals
(May 2010)
What We Think We Know:
Guiding Principles from Land
 Adverse Effects Doctrine (Beebe)

Given the presumption of fitness engendered by tenure status, 'just and
reasonable cause' can be shown only by significant evidence proving that a
teacher is unfit to teach. Because the essential function of a teacher is the
imparting of knowledge and of learning ability, the focus of this evidence must be
the effect of the questioned activity on the teacher's students. Secondarily, the
tenure revocation proceeding must determine how the teacher's activity affects
other teachers and school staff.

[T]he likelihood that the conduct may have adversely affected students or fellow
teachers, the degree of such adversity anticipated, the proximity or remoteness in
time of the conduct, the type of teaching certificate held by the party involved, the
extenuating or aggravating circumstances, if any, surrounding the conduct, the
praiseworthiness or blameworthiness of the motives resulting in the conduct, the
likelihood of the recurrence of the questioned conduct, and the extent to which
disciplinary action may inflict an adverse impact or chilling effect upon the
constitutional rights of the teacher involved or other teachers.
What We Think We Know:
Guiding Principles from Land
 Misconduct Needed Too
 Absent misconduct, consideration of negative publicity
surrounding a teacher's behavior would run afoul of the
purpose of the Teachers' Tenure Act to protect the rights of
competent teachers to teach. Thus, while we agree that it was
unfortunate that students gained access to the photographs in
this case, we expressly disavow any suggestion that negative
publicity alone, absent a showing of underlying professional
misconduct, can provide reasonable and just cause for
discipline under the Teachers' Tenure Act.
What We Think We Know:
Guiding Principles from Land
Adverse Effects + Misconduct =
Grounds to Terminate
 Specific to tenured teachers
 Specific to offsite, electronic communications,
outside District network
 Not exactly the slam dunk we would hope for
Reason to Hope?
 Might Land be an aberration?
 Things to consider …
 Just Cause v. Arbitrary & Capricious
 Discharge/Discipline now a prohibited subject of bargaining
 More favorable STC
 Overall tenor of discussion, increased knowledge about online
activities
 Would the outcome be different today?
 Tough to predict
 Above items suggest yes, but case language a challenge
Illustrative Cases
 Federal suit charges district’s superintendent failed
to end sexting by teacher
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Substitute teacher / nephew of Superintendent
“Thousands” of graphic messages sent through text, email, and
chat to female students, all minors
Superintendent, teacher, and Board member all aware
No action taken against substitute teacher … at first
After substitute arrested, District terminated him
Federal civil rights lawsuit, alleging sexually hostile
educational environment
Geissler v. Independent School District #2154
 Teacher seen viewing pornography on computer
 Investigation revealed 200,000 pornographic web
site visits in 15 months
 Use of District system
 Terminated; termination sustained - misconduct
 The frequency with which the claimant violated the
school district’s policies and the subject matter of
the computer use was a serious violation of the
standards of behavior the school district had the
right to reasonably expect of the employee
Illustrative Cases
 ISD #284
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No just cause to discharge teacher, even though he spent inordinate
amount of time on computer when he should have been
concentrating on teaching students
Chart used by District to show time spent on web was exaggerated
Discipline not warranted under progressive discipline
 Monterey County
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No just cause to discharge employee who read and printed out coworker’s email, even though email related to investigation of
employee, where employee had permission to get on co-worker’s
computer for anti-virus work
AUP did not provide that info on computers was private
Munroe v. Cent. Bucks. Sch. Dist.
 Teacher with a personal blog
 Negative blog posts about administration and students
 Terminated; sued alleging First Amendment harassment
and retaliation
 Postings were “far from implicating larger discussions of
education reform, pedagogical methods, or specific
school policies” and “mostly complained about the failure
of her students to live up to her expectations”
 Case dismissed
Citation: 2014 U.S. Dist. LEXIS 101571 (E.D. Penn. July
25, 2014)
Rubino v. City of New York
 Student drowned during field trip
 Next day teacher posted on Facebook “the beach sounds like a
wonderful idea for my 5th graders! I HATE THEIR GUTS!”

“Friend” commented “you would let little Kwame float away” to which teacher
responded, “Yes I wouldn’t throw a life jacket in for a million!”
 Postings shown to administration and investigation began
 Teacher admitted to writing the postings at a hearing
 Teacher argued termination would be arbitrary and capricious; she
had clear employment history, and her comment bore no relation to
teaching ability
 Alleged infringement of First Amendment rights
 Court held termination was not arbitrary and capricious but the
punishment was not proportionate to her offense; termination was
inconsistent with first amendment freedom of speech
Citation: 34 Misc. 3d 1220(A) (N.Y. Sup. Ct. 2012)
Medina County Board of Education (Arb)
 Students added inappropriate programs (violent
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games) to their computers
Teacher responsible for supervision
Written reprimand
Discipline was not arbitrary and capricious
Even if not an expert in computers, teacher should
have maintained a more watchful eye on student
activities
Practical Guidance
 Strong Policies
 All communication driven through District network
 All communication educational in nature only
 Dilemma – 21st Century Learning v. Inappropriate Actions
Prohibition on connecting with current students (encourage?)
 Twitter assignments/communication
 Training / Communication of Expectations is Paramount
 Need for open dialogue with staff/EA

 Investigation
 Conversation with employee
 Case by Case on how hard to push
Practical Guidance
 Social Media in Hiring
 Background Checks
What are you looking for?
 Beware - Discrimination
Issues
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Remember IPPA
 Discipline/Discharge
 Look for nexus between
conduct and educational
impact
 Misconduct?
Dealing With Student Issues
Student Issues Abound
Sampling of recent headlines …
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Lawsuit alleges Mississippi district
expelled him for online posting of
nude photo of classmate
New Jersey district settles lawsuit with
student disciplined for profane offcampus tweet about principal
Parents file claim against San Diego
district after cyberbullying incident led
to student’s suicide
Father of bullied student who
committed suicide sues Illinois district
and producers of anti-bullying video
Oregon district settles student’s
lawsuit over high school dance team’s
social media policy
Former student sues Minnesota
district after “sarcastic” tweet leads to
seven-week suspension
… from the past 5 months
Keys to Student Issues
 District Policy
 Student Code of Conduct
 Limit Usage of Cell Phones in School
 Limit Expectation of Privacy
 Seek Consent
 Apply TLO two-part analysis
 Seek legal counsel
On-Campus v. Off-Campus Conduct
Remember …
 First Amendment considerations
 Tinker
 Hazelwood
 Can police off-campus speech
 “Substantial Disruption”
 Consider safety, threats, violence
 Nexus to school activities
Nixon v. Hardin County Bd. of Educ.
 Student tweeted about shooting/killing another student
 First Amendment concern – can schools regulate off campus
online speech by students?
 Held:
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Speech (tweets) had no connection to school other than speaker and
target being students there
Speech not at school, directed at school, or involved school time or
equipment. There was no disruption to school.
School’s Motion for Summary Judgment on First Amendment claim
denied
 Hard to explain outcome; Court was wrong
Citation: 988 F.Supp.2d 826 (W.D. Tenn. 2013)
Wynar v. Douglas Cty. Sch. Dist.
 Student sent “increasingly violent and threatening”
messages via Myspace from home about weapons
and threatened to shoot people at school on a
specific date
 Threats are definitely speech that would reasonably
lead school officials to “forecast substantial
disruption”
Citation: Wynar v. Douglas Cty. Sch. Dist., 728 F.3d
1062 (9th Cir. 2013)
Cyberbullying
Cyberbullying Defined
 “Willful and repeated harm inflicted
through the use of computer, cell
phones, and other electronic
devices”

T.K. v. NYC Dept of Ed, 779 F.Supp.2d
289 (E.D.N.Y. 2011)
 “When the Internet, cell phones, or
other devices are used to send or
post text or images intended to hurt
or embarrass another person”

www.ncpc.org/cyberbullying
How is Cyberbullying Different?
 Attacks can be anonymous
 Bullying can go viral
 Bully does not see emotional toll the bullying creates
 Absence of monitoring / lack of knowledge by
parents, teachers
 24/7 in nature
 2010 Study – 10-18 years old
20.8% cyberbullied in lifetime
 7.5% cyberbullied in last 30 days
 16% of high school students cyberbullied in past year

Cyberbullying Examples
Megan Meier, Missouri
Ryan Halligan, Vermont
Jessica Logan, Ohio
Responses to Cyberbullying
 State laws
 Matt’s Safe School Law, MCL 380.1310b
 District-level policies
 Consider “substantial disruption” on school
environment
 Practical approach to resolution, if possible
 Education
Use of Evidence Gathered Online
Legal Standards for Evidence
 Evidence must be properly authenticated
 FRE 901
 MRE 901
 MRE 901(a): authentication is evidence sufficient
to support finding that the matter in question is what
its proponent claims
Illustrative Cases
In the Matter of Russell
No. 303586, 2012 Mich. App. LEXIS 1418 (Mich. Ct. App. July 24, 2012)
 Court allowed in evidence of mother on a website soliciting prostitution in
parental termination case
 The evidence was admitted because a witness confirmed that the individual
on the website was the mother through their direct correspondence
In the interest of ADW
821 N.W.2d 778 (Iowa Ct App 2012)
 Parental rights termination case
 Court did not allow into evidence picture from mother’s FB of a marijuanagrowing operation because the state (who offered it into evidence), could
not authenticate it
 The state had no personal knowledge about the picture, did not know who
posted it, and had nothing to prove the mother even knew it was on her
profile
Illustrative Cases
Parker v. State
85 A.3d 682 (Del. 2013)
 Appellant argued lower court erred by entering statements posted on her FB profile
 She argued for the court to use the Maryland approach: social media evidence can
only be authenticated through testimony of the creator, documentation of internet
history or hard drive of creator’s computer, or information obtained directly from
social networking site
 Ct adopted Texas approach: proponent can authenticate social media evidence using
any type of evidence so long as he can demonstrate that a jury could reasonably find
the evidence is authentic
People v. Dabish
No. 301622, 2013 Mich. App. LEXIS 1384 (Mich. Ct. App. Aug. 13, 2013)
 Defendant sought to introduce emails from murder victim to show victim’s state of
mind
 Emails excluded because defendant could not authenticate them. He could prove his
receipt of them but he could not prove that they were written and sent by who he
purported they were written and sent by
Giacchetto v. Patchogue-Medford Sch. Dist.
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Elementary school teacher diagnosed with adult ADHD
Claims she was mocked by the principal when reported diagnosis
Disability discrimination claims against the school
Issue: School district motion to compel plaintiff to provide authorizations for the
release of all records from her social media accounts (Facebook, Twitter, etc.)
“The fact that the information [Defendant] seeks is in an electronic file as opposed to
a file cabinet does not give [it] the right to rummage through the entire file”
The fact that an individual may express some degree of joy, happiness, or sociability
on certain occasions sheds little light on the issue of whether he or she is actually
suffering emotional distress. If the Court were to allow broad discovery of Plaintiff's
social networking postings as part of the emotional distress inquiry, then there would
be no principled reason to prevent discovery into every other personal
communication the Plaintiff had or sent since alleged incident.
Teacher had to produce posts that specifically related to her emotional distress
claims she suffered or treatment she received in connection with them
the Court sees no basis at this time why Defendant should go through a third-party
provider to access Plaintiff's social networking postings when Plaintiff has access to
this information herself
The Anonymous Tip/The Provided Info
 Information often comes to
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District without being aware
of it otherwise
Take it as you get it
Can’t turn a blind eye
Can’t be the parent
Realistic/practical
limitations on what actions
can be taken in response
Clear as …
Questions?
Resources/Contact
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