Finding the right balance between keeping students safe and letting them explore their world digitally was the focus of an April 21 session during the National School Boards Association’s 72nd annual conference, in which NSBA senior staff attorney Sonja Trainor gave advice on how school districts can open their doors to technology without getting sued.
Cracking down on cyber bullying or harassment, searching students’ cell phones or laptops, and filtering school internet access are some of the areas where educators can get into trouble if they don’t know their proper legal boundaries, Trainor said. Here’s what she had to say about each of these areas.
Cyber bullying and harassment
When school leaders discipline students for using technology inappropriately, this discipline is challenged most frequently when the use of technology occurred off campus, Trainor said.
On campus, the courts have ruled that schools have the right to regulate…
• Speech or actions that are disruptive or that interfere with the rights of others (Tinker);
• Lewd or vulgar speech or actions (Frasier);
• School-sponsored speech or activities, such as a school newspaper (Hazelwood); and
• Activities associated with illegal drug use (Morse).
Off campus, it’s more problematic, as a pair of recent court cases indicates—and unfortunately, the U.S. Supreme Court earlier this year declined to step in and provide some clarity on the issue.
The High Court let stand the suspension of a West Virginia high school student who created a web page that suggested another student had a sexually transmitted disease and then invited classmates to comment. The court also left alone separate rulings that said schools could not discipline two Pennsylvania students for MySpace parodies of their principals that the students created at home.
However, all states except Montana now have school bullying ordinances, Trainor said, and many of these laws also address cyber bullying. School leaders should be aware of their state’s laws regarding bullying via traditional or electronic means and make sure they are in compliance.
Sexting
Since 2009, Trainor said, 16 states have passed laws that address “sexting,” or sending sexually suggestive pictures or messages electronically—and at least 13 other states are considering sexting legislation.
Many of these state laws are attempts to decriminalize sexting by making it a misdemeanor instead of a felony, but some states also are requiring schools to teach students about the dangers of sexting.
A New Jersey bill would put the onus for education on wireless carriers, Trainor said, by prohibiting cellular companies from selling a contract without educating the user about sexting.
If you have to discipline students for sexting, make sure you impose discipline on all students equally, Trainor said: Don’t treat girls and boys differently, and don’t distinguish between the senders and the deliberate receivers of explicit messages.
(By deliberate receivers, she was referring to students who request, forward, or save explicit messages—and not students who receive unwanted ones.)
Cell phone and laptop searches
Under the Fourth Amendment, government searches of individuals must be reasonable, Trainor said, meaning law enforcement officials need a warrant or probable cause. But school officials have slightly more latitude; a 1985 Supreme Court case established the bar for student searches.
Under this case, New Jersey v. T.L.O., the court ruled that such searches must be “justified at inception,” meaning school leaders must have a reasonable suspicion of wrongdoing, and they must be “permissible in scope.”
In other words, if you think a student smells of marijuana and you search her purse for drugs, you cannot then extend the search to include her locker, and so on. It’s this last point, the “permissible in scope,” that usually gets school leaders into trouble, Trainor said.
In Mendoza v. Klein ISD, an assistant principal who confiscated a student’s cell phone looked to see if the student had used her phone during school hours, which was a reasonable search, a Texas judge ruled.
But the administrator then scrolled through the student’s text messages and found a nude photo of the girl, which she had sent to her boyfriend, and further punished the girl for sexting. The judge ruled that examining the rest of the student’s text messages violated her Fourth Amendment rights, because it exceeded the scope of the original search.
Internet filtering
Under the Children’s Internet Protection Act (CIPA), schools that receive federal e-Rate discounts on their internet access are required to have an internet safety policy that includes the use of technology to protect them from harmful online content.
As of this year, schools applying for e-Rate discounts also must certify that they teach students about internet safety. The Federal Communications Commission recently clarified that schools don’t have to block students’ access to Facebook or other social networks under CIPA; instead, this is left to a school’s discretion.
CIPA, which was enacted by Congress in 2000, specifies only that school monitor their students’ use of the internet “on a district’s computers,” Trainor said—so the law is vague in terms of how it applies to schools implementing “bring your own device” (BYOD) policies.
She recommended that schools with BYOD programs require their students to access the internet through the district’s network, so the district’s filtering rules still apply while students are on campus.
While school leaders have some local discretion in terms of which websites they block, make sure you’re not filtering websites that express a particular viewpoint, as a central Missouri district recently learned.
The Camdenton R-III School District last month settled a lawsuit brought by the American Civil Liberties Union (ACLU), which said the district’s filtering software was blocking access to nonsexual websites about lesbian, gay, bisexual, and transgender (LGBT) issues.
Under the terms of the settlement, the district agreed to stop blocking pro-LGBT sites, submit to monitoring for 18 months to confirm compliance, and pay $125,000 in legal costs. The ACLU sued the district as part of a national campaign to ensure that students have access to websites supporting gay and lesbian youth.
General advice
The key to staying out of legal trouble, Trainor said, is to draft clear policies that spell out your expectations for how students will use technology—and the consequences for misusing it. Here are some of her suggestions:
• Coordinate your plans and policies among all departments.
• Consider a separate use agreement for personally owned devices.
• Include a clear definition of sexting.
• Include a clear notice of authority to search student devices and to discipline students when they abuse the rules.
NSBA’s Technology Leadership Network recently collaborated with other education organizations on a document that aims to guide school leaders as they revise their ed-tech policies to better reflect how today’s students want to learn.
The report is called “Making Progress: Rethinking State and School District Policies Concerning Mobile Technologies and Social Media,” and copies were distributed during Trainor’s session.
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