Transcript 2012 Update of Technology Policies

Legal Implications of Student Owned
Devices
TIES Technical Leadership Conference
February 17, 2012
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
1st 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.
 8th grader posted sexually
explicit material and
principal’s photograph on
imposter site.
 10 day suspension
Procedural history of these cases
 Lower court rulings were split: one upheld the school’s
decision to suspend; one found the suspension to be a
violation of the student’s free speech rights.
 On appeal, different panels of the 3rd 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 can’t 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
Education’s initial policy
response to student
Internet use:
Blocking and filtering
Education’s 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 AUP’s: recommendations
 Consider changing the name (or at least your district’s
orientation) from “acceptable use” to “responsible use”
 Frame your AUP within a context of the benefits and the
necessity of using technology in today’s 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 district’s goal to provide students with rich and
ample opportunities to use technology for the purpose of advancing the
educational mission of the district. The district’s 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 Children’s Internet Protection Act (CIPA) requires
recipients of federal technology funds to comply with certain
Internet filtering and policy requirements.
 Protecting Children in the 21st 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.
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. 121A.0695 “School Board Policy; Prohibiting
Intimidation and Bullying” (cited as among the weakest in the
nation by the US Dept of Education)
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
Revisiting and revising AUPs
Specific Recommendations
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 AUP’s
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 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.”
Cell phone policies
Drafting and Revising Policy
Cell phone policies vary widely
 Some districts forbid cell phones (e.g. 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 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 textmessage 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 Devices, EducationWeekly
Cell Phones: what’s 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)
 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) 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 teacher’s
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?”)
“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
 Don’t 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; don’t 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
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
Assessing your school’s policies and
practices
Where to go from here
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?
 Do you have a curriculum that communicates and
educates about ethical Internet conduct (that you
can “certify” per the Protecting Students in the
21st 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?
Little Buffalo Law & Consulting
Conclusion
Q&A