Education Law Insights

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Each Tuesday the #Edchat hashtag brings together educators from across the globe to discuss education-related topics on Twitter. (For those wondering “What is #Edchat,” one of the founders describes the movement here.) Last week one of the questions on #Edchat was “How do we train educators to teach in programs like BYOD and 1:1?” The chat was timely because the Internet is abuzz with questions about whether BYOD programs and 1:1 programs have a place in the classroom. BYOD programs are programs through which schools tell students “bring your own devices” to the classroom for pedagogical use, and 1:1 programs are programs through which schools equip each student with a school-owned electronic device for school-related use.

As the transcript shows, there was a lively conversation with hundreds of Tweets discussing the benefits of BYOD and 1:1 programs. For instance, participants pointed out that BYOD and 1:1 programs allow technology to be more seamlessly integrated into the classroom in ways the traditional computer lab never allows. Participants also noted that use of technology in the classroom can help turn students from “tech comfy” to “tech savvy.” (The idea is described more here.)

The participants also pointed out some of the risks of BYOD and 1:1 programs. As one participant put it, “Moving forward with 1:1 without preparing teachers properly creates school culture and pedagogical problems.” But there are also important legal risks, and school districts should not move forward with BYOD or 1:1 programs without preparing educators to understand those risks, as well. I pointed this out in a few Tweets, and was asked by some participants to provide some resources about those legal risks.

Although there can always be another legal issue lurking around the corner, here are some of the legal risks about which educators must be aware before moving forward with BYOD and 1:1 programs.

• Student Fees. Most BYOD and 1:1 programs require students and their parents to expend funds. For BYOD programs, students and parents must buy a device. For 1:1 programs, there is usually a deposit and/or insurance payment required. Careful attention should be paid to whether these programs can be implemented equitably for students who do not have the means to participate.
• Student Records. Certain materials created by or about students are “student records” under state and federal student records laws, including the Federal Educational Rights and Privacy Act (FERPA). State law may require retention of such records for a specified period of time. It is unclear whether materials created by students on electronic devices in classes are such student records, but this issue should be addressed under relevant law before a BYOD or 1:1 program is implemented to prevent challenges from parents wishing to review materials created electronically in class.
• Inappropriate Content. If a student accesses the Internet on a traditional computer owned and operated by the school, there are filters required by federal law that prevent the student’s from accessing inappropriate content such as pornography. But what if a student accesses his own device during class through his wireless signal? Best practice is probably to require students to only access their BOYD devices through the school Wi-Fi account to avoid the risk of students viewing inappropriate material at that time. Although some have taken issue with such restrictive policies, I am not persuaded that allowing students to access devices on their own, unfiltered wireless signals creates less legal risk. Moreover, teachers may need to take a more active role with more traditional forms of supervision when students are using BYOD and 1:1 devices to prevent against use for inappropriate means. This might include walking around the classroom to check what students are viewing.
• Intellectual Property. If a teacher creates a course lesson using a BYOD or 1:1 device, or students and the teacher create content on the device, who owns the copyright of the materials? This issue should be addressed clearly in school board policy, and teachers should be aware of who owns content they and their students create in class before implementing a BYOD or 1:1 program.
• Bullying/Cyberbullying and Sexting. Once a student is using an electronic device in the classroom, he or she may veer off course and use the device to bully or cyberbully or send sexually explicit content to other students. Educators must have a plan for how to determine whether such activity is occurring, which may include electronic or more traditional forms of supervision of student activities on the devices. It is also advisable to tell students that when they are using even a BYOD device in the classroom, their First Amendment rights are limited. And the same limitations can be applied when a student is using a 1:1 device anywhere or at anytime. Setting these limitations and notifying students of them will allow for discipline of conduct that occurs on the devices without successful First Amendment challenges by students and parents.
• Educator Ethics/Teacher Boundary Issues. Technology breaks down barriers between students and teachers, which can be a good thing. But it can also be a bad thing if the lines between professional educator and friend are blurred. If a teacher is using his or her own personal electronic device to communicate with students inside the classroom, there is a greater risk of him or her doing so outside of the classroom. Special care should be taken to ensure that educators are properly trained on educator ethics and teacher/student boundary issues before a BYOD or 1:1 program is implemented. Rules should also address when and how teachers can communicate with students through technology to avoid inadvisable contact outside of school hours.
• Privacy Considerations. Does a student or teacher give up his or her Fourth Amendment rights against unreasonable searches and seizures simply because the student or teacher is using a BYOD or 1:1 device at school? Can a school randomly search all of the BYOD or 1:1 devices at any time without individualized suspicion of wrongdoing by the user? If the school knows of misconduct of one type (e.g., bullying) on a BYOD or 1:1 device can a student be punished if a search shows evidence of another type of misconduct (e.g., drug sale)? Teachers and administrators need to be armed with knowledge of how the Fourth Amendment applies in this context before moving forward with a BYOD or 1:1 program.
• Are Your Policies Keeping Up? Most school board policies were drafted in the days before the technology revolution. School districts need to take a close look at whether policies on non-tech issues are keeping up with the EdTech revolution, addressing all of the points above as well as many others before implementing a BYOD or 1:1 program.

As these topics make clear, the legal world of BYOD and 1:1 is still murky. Educators should pay just as close attention to creating a legally sound BYOD or 1:1 program as they do to creating a pedagogically sound program. This does not mean that a program cannot be successfully implemented – it can! But it is important to consult with the school board attorney to make sure policies are adequate, educators are prepared through professional development on legal issues, and students are aware of their rights and limitations before implementing BYOD and 1:1 programs in schools.