technology, the law, and schools: emerging issues annual conference of the south dakota association...

Technology, the Law, and Schools:

Emerging Issues

Annual Conference of the

South Dakota Association of

School Business Officials

Pierre, South Dakota

September 28, 2011

Charles J. Russo, J.D., Ed.D.Panzer Chair in Education University of Dayton(937) 229-3722 (ph)charles_j_russo@hotmail.com

Outline

I. Introduction

II. Technology and Students

a) Internet and Related Technologies

b) Cell Phones

III. Employees and Technology

IV. Recommendations

a) Internet

b) Cell Phones

II. Students a) Internet, Related Technologies

Key Issues

1. Student Free Speech v. Need to Maintain Safe and

Orderly Learning Environment

2. Who Owns the Computers/ Systems?

3. Where did the message Come From? (home, school)

II. Students a) Internet, Related Technologies

Schools Win (2011)

Kowalski v. Berkeley County Schools (WVA 4th Cir. 2011)

(created fake profile of classmate)

D.J.M. ex rel. D.M. v. Hannibal Pub. School Dist. No. 60 (MO, 8th Cir. 2011) (used “instant messaging” to

communicate a “true threat” to a friend about his desire to bring weapons to school to harm others

In re Keelin B. (N.H. 2011)

(affirmed a student suspension for sending emails containing sexually explicit language to principal and teacher under the name of a peer)

II. Students a) Internet, Related Technologies

Students Win 2011

Layshock ex rel. Layshock v. Hermitage School District (PA, 3d Cir. 2011) (fake vulgar profile of

principal created on grandmother’s home computer)

J.S. ex rel. Snyder v. Blue Mountain School District (PA, 3d Cir. 2011) (8th grader used home

computer to create fake profile, suggested that principal was a drug addict, pedophile).

II. Students b) Cell Phones

Key Issue

1.Student Free Speech v. Need to Maintain Safe

and Orderly Learning Environment

II. Students b) Cell Phones

Cell Phone Ownership Data

2004 71% adults 45% teens (12-17)

2009 77% adults 65% teens

“Teens and Mobile Phones Over the Past Five Years: Pew Internet Looks Back” (August 2009)

II. Students b) Cell Phones

Schools win 5 of 6 cases

III. Employees

On the one hand,

“It can hardly be argued that either students or teachers

shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate.” Tinker v. Des Moines

Independent Community School District , 393 U.S. 503, 506

(1969)

III. Employees

But, on the other hand,

“[a] teacher's employment in the public schools

is a privilege, not a right.” Board of Education of

City of Los Angeles v. Wilkinson, 270 P.2d 82,

85 (Cal. Ct. App. 1954)

III. Employees

Thus, who wins . . . . balancing rights

Pickering v. Board of Education of Township High School District, 391 U.S. 563 (1968)

to

Garcettit v. Ceballos, 547 U.S. 410 (2006)

III. Employees

Dismissals

San Diego Unified School District v. Commission on

Professional Competence (Cal. Ct. App. 2011)

(fired for posting graphic photographs of himself

on Craig’s List soliciting sex)

Snyder v. Millersville University (E.D. Pa. 2008)

(student teacher dismissed for posting” Drunken

Pirate” Pictures on My Space)

III. Employees

License Issues

Professional Standards Commission v. Adams (Ga. Ct. App. 2010) (one year suspension for failing to investigate students’ sex video properly)

Wax v. Horne (Fla. Dist. Ct. App. 2003) (revocation for

sending profanity-laced, sexually explicit material to 16 7th graders)

Stueber v. Gallagher (Fla. Dist. Ct. App. 2002)

(revocation for inappropriately accessing pornographic Internet sites on a school computer)

III. Employees

Teachers, Students, and Facebook . . .

A state trial court in Missouri enjoined a state statute

forbidding teachers from “friending” students while the

Dayton (OH) Board of Education recently enacted such

a policy.

IV. Recommendations-AUPs

1. Acceptable use policies (AUPs) should restrict

computer access to legitimate academic,

instructional, or administrative purposes.

2. Students, parents, and teachers, should sign

AUPs at the beginning of each school year.

AUPs should make it clear that those who refuse

to sign or fail to comply will be denied access to

district-owned technology, especially the Internet.

IV. Recommendations-AUPs

3. To the extent that that they are bought/ maintained

with board funds, AUPs should state that use of

computers/ tech can be limited. This is important

since by clarifying ownership, officials have

greater latitude in regulating access to and use of

tech.

4. AUPs should consider differentiated provisions

based on student age.

IV. Recommendations-AUPs

5. AUPs should warn against visiting inappropriate

websites and transmitting materials such as viruses,

jokes, and the like.

6. AUPs need to address privacy and use limits such as

preventing teachers from using school computers to

conduct for-profit businesses while clarifying

reasonable expectations of privacy, especially as it relates to

sending and receiving messages.

IV. Recommendations-AUPs

7. AUPs should identify possible sanctions ranging

from loss of computer privileges to suspensions

for students to like penalties leading to dismissal for

teachers who commit more serious offenses.

8. AUPs should be reviewed annually, typically

between school years, not during or immediately after

controversies.

IV. Recommendations-Cell Phones

1. Subject to controlling statutes, leaders should begin

by considering whether there is public support for

policies designed to ban/ limit cell phone use in schools

IV. Recommendations-Cell Phones

2. If communities are likely to support cell phone

policies, educational leaders should ensure that

they involve representatives of key constituencies

in crafting guidelines, both when they are first

developed and when they are being revised,

because ensuring such agreement can be of invaluable

assistance.

IV. Recommendations-Cell Phones

3. Policies should clarify whether students are

forbidden from merely possessing cell phones or from

using them in schools.

IV. Recommendations-Cell Phones

4. Key due process elements that policies should

include are that they should specify circumstances under

which cell phones can be taken away, who can take

them away, who can hold phones once they are taken

way from students, how long officials can maintain

possession of phones, in addition to specifying when and

to whom they can be returned.

IV. Recommendations-Cell Phones

5. Policies should address what must occur

before student cell phones can be searched.

6. Policies should be reviewed annually, typically

between school years, not during or immediately

after controversies.