Transcript Slide 1

Cyber Liability, Cyber Bullying
and Other Issues Facing
Schools
in an Age of Technology
February 16, 2011
Cyber-Communication in Schools:
Keeping Up with Technology and
Related Student Discipline/Legal Issues
TEXTING
&
SEXTING
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.
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.
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
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
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Disciplining for off-campus conduct
Title IX implications
Discrimination
Employment Liability
– Negligent Hiring
– Negligent Retention
Negligence
• 4 elements of negligence
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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
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
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
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.
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.
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
BTW
• Strip searches are generally a
spectacularly bad idea.
• Safford Unified School District #1 v. Redding
(U.S. Supreme Court, 2009)
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
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
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?
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
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.
Cyberbullying
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.
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.
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.
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
Forms of Cyberbullying
• Emails or IMs directed at a specific person
• Websites
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Vote for the biggest freshman geek
Hot or Not
Worst Teacher
Student/Teacher Obituaries
• Cell phones/Text Messages
• Chat Rooms
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
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.
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
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
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.
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)
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.
Develop a Cyberbullying policy
Including:
1. Specific definitions of harassment, intimidation
and bullying (including electronic forms)
2. Graduated consequences and remedial actions
3. Procedures for reporting
4. Procedures for investigating
5. Language specifying that if a student’s offcampus speech or behavior results in a
“substantial disruption of the learning
environment” the student may be disciplined
6. Procedures for preventing cyberbullying
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 anticyberbullying programming
• Educate parents
• www.stopcyberbullying.org
Cyberbullying
And
Web 2.0 Issues
What is Web 2.0?
• Web applications that facilitate
– Interpersonal communications
– Information sharing
– Collaboration
• Examples include
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Social networking sites
Wikis
Blogs
Other web-based communities
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
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
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
Disciplining Teachers for OffCampus 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
Teacher/Student Relationships
• Generally three theories of liability
1. Negligent Hiring
2. Negligent Retention
3. Negligent Supervision
Theories of Liability
1. 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.
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Potential issues (other than sexual abuse & molestation claims):

Negligent hiring lawsuits
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Employee turnover
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Substance abuse problems
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Theft

Loss of proprietary information
Controls
1. 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
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Sex-offender registry checks
Controls
1. 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!
Theories of Liability
2. 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)
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Allegations
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Comments from co-workers, references, or students
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Input / complaints from parents
Controls
2. Negligent Retention Liability
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Prompt and Appropriate response to incidents or allegations
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Interview and meeting with accused and affected individuals
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Immediately remove the accused adult from the environment
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Perform a thorough investigation
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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?
Theories of Liability
3. 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.
Controls
3. 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
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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.
Controls (cont’d)
3. 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:
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Showing overly-affectionate behavior

Engaging in non-professional behavior, such as sexual jokes or
teasing
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Seeking to extend their contact with certain students beyond the
school day
Controls

Points to remember regarding Negligent Hiring, Retention, and
Supervision
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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
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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)
Controls

Points to remember regarding Negligent Hiring, Retention, and
Supervision
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Consistency

Avoid inconsistencies in application of pre-hiring controls, and postincident response
Additional Controls

Develop and Communicate a Written Policy

Should become part of the Employee Handbook, on-line Worker
Guidelines, or whatever format your employee policy guide takes.

Should utilize real-life examples, especially those which resulted in
what was believed to be nothing more than ‘good clean fun’,
becoming a high-profile event.

Make expectations clear regarding:
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Being alone with students
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Away-from-school contact
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What constitutes inappropriate behavior
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Beware especially of words with double-meanings,
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Comments which could be taken as flirtatious, suggestive, etc.
Additional Controls

Develop and Communicate a Written Policy
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Obtain signed acceptance, and agreement to abide by, this
policy
Additional Controls
Create an atmosphere for Safe Reporting

When a staff member is approached by a student, about an
alleged Sexual Misconduct act…

Affirm the student, and be supportive

Avoid the temptation to assess the truthfulness of the
disclosure

Assure that confidentiality will be maintained, and that there
will be no retaliation

Document the discussion

It may be appropriate to report the incident to state officials
(required by law, in some form, in all states)

Take every complaint or report seriously
What To Expect Following A Reported
Incident

Faculty, parents and students may rally around the accused

Accuser may be subjected to harassment and ridicule

Staff members may be distracted from their routines

The news media, attorneys, & investigators may contact school
officials for information

Appoint one person as the school corporation’s official
representative for media relations

Communicate the proper communication protocol to all of
staff.
What about E-Due Diligence?
• Expanding due diligence (in making
hiring decisions or otherwise) to include
electronic mechanisms
• Conducting a background search of
potential or current employees using
online resources
Pros of E-Due Diligence
• Free
• Fast
• Risk Management Tool
• Hiring Screening Tool
• Protect from:
– Negligent hiring/retention claim
– Defamation
Cons of E-Due Diligence
• Inaccurate or false information
• Discovery of “protected” information
• Impact on employee morale/publicity
• Blur Personal/Professional lines
• Risk of litigation
• Special risks for public employers
Legal Considerations
• Discrimination
• Fair Credit Reporting Act
• First Amendment
• Fourth Amendment
• Personal Privacy Statutes/Lifestyle
Discrimination
• Defamation
Lessons from the Law
• The employer should conduct the e-due
diligence itself. Do not hire a third party.
• Do not create false alias or profile to gain
access to an employee or candidate’s site.
• Do not use information learned from the
site in a discriminatory manner or manner
otherwise prohibited by law.
• Have a procedure to verify that
information obtained is accurate/true.
Lessons from the Law
• Do not hack or break into a site that is not
accessible to the public
• Select a non-decision maker to perform the edue diligence and give guidelines for
information sought
• Make sure the information searched and
reported is rationally related to the essential
functions of the employee’s/potential
employee’s job
• Consult your school attorney before
implementing an e-due diligence program
Acknowledgments
Look b4 u Leap! Employment Considerations
before Jumping into the World of Web 2.0. ,
NSBA Council of School Attorneys’ 2010
School Law Conference
Deryl W. Wynn and Rachel E. Rolf
McAnany, Van Cleave and Phillips, P.A.
Kansas City, Kansas
Acknowledgments
Sexting at School: Lessons Learned the Hard
Way
NSBA
Inquiry & Analysis, February 2010
Lisa E. Soronen, NSBA Staff Attorney
Karen A. Haase, Harding & Shultz
Lincoln, Nebraska
Acknowledgments
Bullying Beyond the Schoolyard
Preventing and Responding to Cyberbullying
Sameer Hinduja & Justin W. Patchin
Corwin Press, 2009
QUESTIONS???