cyber ethics: from policy to practice kentucky association of school administrators education law...

Cyber Ethics: From Policy to Practice

Kentucky Association of School AdministratorsEducation Law & Policy Symposium

June 7, 2012Presented By:Peter K. Fagen, Managing PartnerFagen Friedman & Fulfrost, LLP

2

What Would You Do?

After school students go to a restaurant. One student films others making

derogatory statements about a 13-year-old, calling her a “slut” and “ugly.”

Student who filmed posts it to YouTube from a home computer.

Next day, victim & parent bring video to the school’s attention.

What would you do in response to the video?

3

Objective

Review what steps a school district can take to promote CYBER-CITIZENSHIP in the school community.

4

Evolution and Integration of Technology

in the School Community

5

What We’ve Learned:

One voice can impact your community.

6

Impact

Because one voice can wield so much power, it is critical that your community (students, teachers, staff, administrators, school board, parents, community members) understand the importance of:

CYBER-ETHICS

7

Balance

At the same time, school districts must understand the limitations of their ability to police students, teachers, and others in cyber-space.

8

Challenge

Law has not caught up with technology.

School districts must operate according to statutes and case law that do not contemplate modern technology.

9

Traditional Framework

School district responsible for student “…conduct on school property, as well as off school property, at school-sponsored events…”(KRS § 158.150)

10

Traditional Framework

Traditional framework for school district jurisdiction for student discipline is based on geography.

Based on this traditional framework, we will apply modern day (and modern technology) misconduct scenarios and provide guidance on school district ability and responsibility to discipline such conduct.

11

Cyber-Ethics Overview

We will look at the promotion of student and employee cyber-ethics in their usage of: School-Issued Technology Personal Technology Off Campus Personal Technology as Instructional Tool Personal Technology On Campus

12

School-Issued Technology

What is “school-issued technology”?

Examples: Laptops E-mail Accounts iPads Online Access

13

School-Issued Technology

Unethical use of school-issued technology includes any conduct that violates a school policy, which may include: Access to impermissible websites Hacking Stolen passwords Bullying Sexual harassment Threats

14

School-Issued Technology

What is a school district’s authority to search school-issued technology: For students? For staff?

15

School-Issued Technology

What if a teacher is on their prep. period, lunch break, or returns to the classroom in the evening to use a school-issued laptop?

16

School-Issued Technology

When can a teacher be disciplined for cyber-misconduct on school-issued technology? Teacher contract can be terminated for:

Immoral character; or Conduct unbecoming of a teacher.

(KRS § 161.790.)

17

School-Issued Technology

When can a teacher be disciplined for cyber-misconduct on school-issued technology? There may be adverse impact to a teacher

certificate for: conviction of a misdemeanor; immoral conduct; or violation of Professional Code of Ethics, which:

• includes prohibition of sexual jokes, remarks and inuendo; and

• requires “behavior which maintains the dignity and integrity of the profession.” (KRS § 151.120.)

18

Promoting Cyber-Citizenship on School-Issued Technology

Thorough policies on acceptable use of school issued technology Separate policies for students and teachers Expressly state no privacy interest Must they be signed?

Educate students and staff on District acceptable use standards and serious consequences for violation. No privacy interest / forensic IT investigation

19

School-Issued Technology

Recap on School-Issued Technology: A school district’s right to control student and

employee conduct is broad.

20

Cyber-Ethics in Cyber-Space

21

Cyber-Ethics in Cyber-Space

Under the traditional discipline framework, it is more difficult for a school district to promote ethical conduct in cyber-space.

When do social networking, YouTube and blogging demonstrate “immoral conduct”?

22

Student Right to Free Speech

Tinker v. Des Moines School district may restrict speech if it is

reasonably foreseeable that there will be a substantial disruption to the orderly operation of the school.

J.S. v. Blue Mountain SD & Layshock v. Hermitage SD

T.V. v. Smith-Green Commty. School Corp. J.C. v. Beverly Hills USD

23

What Constitutes a Substantial Disruption?

Substantial disruption requires more than: Mere gossip; Groups of students talking about an

incident two or three times in class; “Divisiveness” among teammates; A few students missing portions of

classes to participate in school investigation of online speech; or

Administrators being pulled away from ordinary tasks.

24

What is Bullying/Cyberbullying?

Cyberbullying versus Free Speech = Safety First

Site administrators inundated with claims of bullying

Response may be different if on-campus versus cyberbullying

25

Bullying / Cyberbullying Under Kentucky Law

Harassing another student on campus or at a school-sponsored event violates the Penal Code and may result in a $250 fine.

Sending harassing communications to another student using an electronic device is a Class B misdemeanor (up to 12 months in jail and a $250 fine).

26

Bullying / Cyberbullying Under Kentucky Law

Bullying and/or Cyberbullying may be punishable as harassment.

A person is guilty of harassing communications when, with intent to intimidate, harass, annoy, or alarm another person, he or she: Communicates with a person . . . which causes annoyance or

alarm and serves no purpose of legitimate communication; or Communicates . . . anonymously or otherwise, by telephone, the

Internet, telegraph, mail, or any other form of electronic or written communication in a manner which a reasonable person under the circumstances should know would cause the other student to suffer fear of physical harm, intimidation, humiliation, or embarrassment and which serves no purpose of legitimate communication.

27

Cyberbullying Different than Traditional Bullying

Indirect, Usually Off-Campus

Affects Broader Audience

No Physical Presence Harder to Pinpoint

Victims Harder to Prevent ANONYMOUS

28

Training Considerations

Designate a point person to train staff regarding digital citizenship, tolerance, and bullying.

Designate a point person to conduct bullying investigations.

Educate community on how to identify, respond to, and prevent bullying;

educate parents on the limitations placed on school district, to prevent bullying off campus, and the need for parent and community involvement.

29

Employee Cyber-Ethics:What Would You Do?

Receive anonymous call from a parent directing you to a Craigslist ad.

Ad is a photo of a middle school teacher, nude images of his body and graphic, vulgar text soliciting sex.

His name and employment information are not included in the ad.

Site is restricted to people over 18.

30

CPC v. SDUSD (Lampedusa)

Teacher as role model Cyber conduct caused principal to lose

confidence in teacher’s “fitness to teach” Slippery slope: Could a Match.com ad

cause a principal to lose confidence in a teacher?

31

Employee Conduct/Misconduct?

Blogging about working conditions?

Organizing a strike? Complaining about

students, parents, board members???

32

Personal Technology Off Campus

Bottom line for student / employee conduct on their own technology on their own time: School district has little jurisdiction to discipline

students unless it can be shown that the conduct is reasonably foreseeable to cause a substantial disruption to school operations.

For employees, conduct may also be grounds for discipline if the conduct still falls within the enumerated grounds, despite being off-campus, just be cautious of collective bargaining implications.

33

Personal Technology as an Instructional Tool

From the Classroom Wall to the Facebook Wall:Inviting the Outside In

Small group assignments on Facebook Posting student made videos on YouTube Campus or District Facebook Page

34

Law Has Not Caught Up with Technology

Inviting the cyber-world into the classroom is rife with legal problems.

Legal perspective: Not trying to stand in the way of education innovation, but trying to assist school districts in implementing innovative technology responsibly.

Attorneys role is to anticipate potential legal pitfalls and provide tools (i.e. policy and instruction) on how to prevent those pitfalls.

35

Personal Technology as Instructional Tool - Hypo #1

Under CIPA, a school district must monitor and filter school district Internet use. How would the District monitor Facebook if it

is required as an instructional tool?

What if the District saw misconduct while monitoring?

36

Personal Technology as Instructional Tool - Hypo #2

Students create a classroom project on video and post it on YouTube. Do school district

photograph / video waivers include this scenario?

37

Personal Technology as Instructional Tool - Hypo #3

The campus Facebook page becomes a forum for student, teacher or parent complaints about the District. How much authority does the

district have to remove posts? What if an administrator is

tagged in a vacation photo in a bathing suit by a family member, can all Facebook “friends” on campus page view it?

38

Personal Technology as Instructional Tool

To the extent a school district is going to utilize outside technology as an instructional tool, school policies should be put in place to promote cyber-citizenship in social networking, blogging, YouTube, etc.

It has not yet been tested in the law how enforceable such policies are.

39

Teachers and Students as “Friends”

By the creation of a virtual “social network” through technology that is no longer tied to the school site, there has been an explosion of inappropriate teacher-student conduct and relationships.

40

Teachers and Students as “Friends” - Hypo #1

Teacher has a weekend job at Hooters wearing skimpy clothes.

Hooters photos posted to her Facebook wall.

Teacher is friends with 6th grade students. Is this immoral or unprofessional conduct? Can a school site prohibit a teacher and

student from being “friends” on social networking sites?

41

Teachers and Students as “Friends” - Hypo #2

Teacher and Student are Facebook friends.

A photo is posted to Student’s wall of the Student smoking marijuana. Does this trigger the teacher’s

duty to report abuse and neglect to the police or CPS as a mandatory reporter?

42

Promoting Cyber-Ethics in Social Networking

Encourage teachers not to friend students. If social networking is interwoven into the

educational process, encourage teachers to exercise good judgment in “socializing” with students. For example, teachers may want to create a a

separate professional and personal Facebook page. Train teachers on the danger of students

viewing inappropriate content on their wall and the impact of mandatory reporting when they view misconduct on student walls.

43

Teachers and Students as “Friends”

An inappropriate / sexual relationship between a teacher and student is grounds for dismissal as immoral conduct (even if the student is 18).

Knowledge of or reasonable suspicion of a teacher and a student having an inappropriate / sexual relationship will likely trigger a teacher’s mandatory reporting duty.

44

Personal Technology On Campus

It’s a bird, it’s a plane, it’s a. . .

Personal Electronic Device! Almost every person now

carries a phone, a camera, a video camera, a twitter account, and Facebook access . . . in their pocket!

45

Personal Technology On Campus

While on campus, a school district can promote cyber-ethics on personal electronic devices through a “cell phone” policy.

Districts vary on acceptable times of use and rules regarding confiscation.

Cell phone policy should be updated to include all functions of a personal technology device and may be blended with photograph and video policy.

46

Personal Technology On Campus

Cell phone policies should be cautious about student search and seizure procedures.

Reasonable suspicion = “justified at inception” and “reasonable in scope.”

47

Personal Technology On Campus

Does your District issue cell phones to staff?

Do teachers have a privacy

interest in a school district issued phone?

City of Ontario v. Quon

48

Personal Technology On Campus

Emergency exceptions in cell phone policies (pros and cons)

Emergency Communications Plan

49

Personal Technology On Campus

Last but not least . . . Sexting!?

50

Personal Technology On Campus

Sexual images of a minor trigger mandatory reporting.

Criminal prosecution may include child pornography. Consequences include registered sex offender status.

Anticipate creation of a “Romeo and Juliet” exception by the state legislature.

51

Sexting Under Kentucky Law

Distribution of obscene material to a minor is a Class A misdemeanor

(up to 1 year in prison

and a $500 fine). Possession and distribution of sexual

images of a minor are Class D felonies (at least 1 year in prison and a $1,000-$10,000 fine).

52

Sexting Under Kentucky Law

Statute of limitations for a misdemeanor is 1 year.

Law provides an exemption for teachers/administrators who might possess images as part of disciplinary process. Do not over-rely on this provision. Minimize

the number of people who see or possess the images. (KRS §§ 531.030, 531.335, 531.340.)

53

Personal Technology On Campus

If you discover a “sexting” photo on campus, it is recommended that:

the sexting image be sealed and law enforcement contacted;

the District assess whether additional student phones should be searched;

the District assess whether the victim was the subject of bullying; and

the District assess what extent discipline may be appropriate.

54

Personal Technology / Sexting: What Would You Do?

A 13 year-old student “sexts” a topless photo to a boyfriend.

She is being harassed and ridiculed by other students because of the texted image.

A teacher reports seeing shallow cuts on the student’s thigh.

55

Witsell Case Example

In Witsell, a school social worker provided mental health counseling and had the student sign a no-harm contract.

The social worker did not notify site administrators or student’s parents of the counseling or cuts.

The following day, the 13 year-old hung herself and died.

56

Conclusion: Promoting Cyber-Ethics

To promote cyber-ethics: Have clear policies in place. Update policies as

technology evolves. Train students and staff

on acceptable use and cyber-citizenship.

Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

Thank you!

342826.1