Education Law Insights

Another Circuit Court Recognizes Schools’ Right to Discipline Students for Off Campus, Online Misconduct

Posted by Jackie Wernz on August 27, 2015

In a recent case, the Court of Appeals for the Fifth Circuit joined four other circuits in recognizing the right of school districts to discipline students for at least some off-campus, online speech if the speech reasonably leads school authorities to forecast a substantial disruption or material interference with school activities. The case is important because it recognizes that even where a student’s online speech may contain elements of social commentary, if the speech also is reasonably understood to be threatening, harassing, and intimidating in violation of school board policy, schools are within their rights to take disciplinary action.

In Bell v. Itawamba County School Board, the Fifth Circuit, which has jurisdiction over Louisiana, Mississippi, and Texas, addressed a rap song posted by a Mississippi high school senior, Taylor Bell, on his publicly accessible Facebook page and YouTube. The bulk of the song criticized two coaches at the school, who were named in the song, for allegedly engaging in improper sexual relations with female students. The song also included four references to violent acts that would be carried out against the coaches, however, presumably by Bell.

The court found that Bell threatened, harassed, and intimidated the coaches in violation of school policy by intentionally directing his rap recording at the school community. The speech was threatening, harassing, and intimidating, according to the court, despite Bell’s attempts to explain the comments as merely “foreshadowing something that might happen” by someone else or as merely “‘colorful language’ used to entice listeners and reflective of the norm among young rap artists.”

The court went on to find that because the song created a reasonable risk of a substantial disruption, discipline was justified. The speech pertained directly to events occurring at school, identified two teachers by name, and was reasonably interpreted as threatening to the teachers’ safety. Moreover, the potential consequences of the threats were serious, including potential serious injury or death to the threatened coaches. Especially in light of the numerous, recent examples of violence in schools, it was reasonable for the school to determine that there was a risk of disruption that justified discipline.

This case is another important victory for schools, which are tasked with protecting members of the school environment in a world where misconduct often occurs off-campus and online. The case is one in a growing trend of courts recognizing these realities in the current school environment.

 

Is Your School District’s Lack of Social Media Guidelines Putting the District at Risk?

Posted by Jackie Wernz on July 10, 2015

School districts are under growing scrutiny and criticism for the lack of clear social media guidelines and policies. For instance, after a Michigan teacher reportedly was sentenced to 6 to 15 years for an inappropriate relationship with a minor student that involved numerous communications through Snapchat and text messages, a news investigation criticized the 44% of 84 school districts that had no specific social media policy on the books. In response, a state representative is now pushing legislation that would require all Michigan schools to have such a policy in place by next school year. Our friends over at LRP Publications also forwarded an interesting story about social media guidelines recently issued by Waco Independent School District in Texas, showing that many school districts are updating their social media guidelines for the coming school year. In light of these recent events, school leaders may be wondering if their school district is in need of a social media tune up. How do you know?

Although a board policy is not always necessary, it is prudent to have certain rules in writing for employees with respect to social media. This can be accomplished through handbooks or guidelines, and should cover more than just relationships between employees and students online. The following are just a few issues that should be addressed in good social media guidelines:

  • Why can’t we be friends? As noted previously, what, if any, relationship employees can have with students (and parents!) via personal social media accounts is one of the most important issues addressed in social media guidelines. School districts are coming under fire for not having clear policies on this subject. The options on this issue run the gamut from full prohibitions to full permission, with outright bans being called into question as unconstitutional in at least one state. Most school districts’ guidelines fall somewhere in between. For instance, in Waco, certified staff can have personal social media connections with students with whom they have a separate social relationship, but other staff members may not. If you don’t have clear guidelines for employees on this subject, it can make it difficult to address misconduct if and when it arises. And because of the legal uncertainty in this area, legal review of any proposed guidelines is an essential step.

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Must Schools Protect Teachers from Bullying by Students Online?

Posted by Jackie Wernz on June 11, 2015

A lawsuit filed by a California teacher against the school district where she works puts a new spin on an old problem. As the National School Boards Association reported, the suit, filed last week by Amy Sulkis in the Los Angeles Superior Court, alleges that her school district employer failed to adequately protect her from cyberbullying and online sexual harassment by students who, among other things, created a fake Twitter account in her name and sent out inappropriate Tweets. Legal scholarship has long recognized that although liability for student-on-student and teacher-on-student harassment has led to successful lawsuits against public schools, courts have been less inclined to extend protections to teachers who allege they are harassed by students. Sulkis’s lawsuit shows how these concerns can be compounded by the use of online social media such as Twitter, and creates a new wrinkle in the question of what schools are required to do when teachers complain about online harassment by students.

The Facts

According to CBS Los Angeles, Sulkis’s lawsuit reportedly alleges that the 16-year teaching veteran had an unblemished record and relationship with students until, in 2013, students created a false Twitter account in her name and sent out “disparaging and sexually suggestive statements” about her. A student who admitted to creating the account was initially given a two-day suspension, but after negotiations with the administration it was reduced to one day. Subsequently, students posted inappropriate and derogatory posts about Sulkis, but when Sulkis reported those posts to the administration she was told there was no available recourse. According to Sulkis, although she and her attorney asked for school-wide training for students on proper use of social media, that request was denied. A later post by a student allegedly included an image of Sulkis, an offensive caption, and a link to a pornographic Twitter page. Sulkis alleged that she was forced to take time off work to deal with the emotional distress and because she did not feel safe in her work environment. The lawsuit followed shortly thereafter. (more…)

How Does the Supreme Court’s Recent Facebook Decision Impact Schools?

Posted by Jackie Wernz on June 2, 2015

With Guest Blogger Kendra Yoch

In a recent decision, Elonis v. United States, the U.S. Supreme Court held that in order to convict a man for alleged threats made against his wife on Facebook, the prosecutor must show some level of intent. It was not enough to show that a reasonable person would have believed the man’s comments to be a “true threat.” There are strong arguments that this criminal case did not change the standard for schools to address student, staff, or community member social media comments in the school environment. However, school leaders should be ready for challenges by individuals disciplined or otherwise sanctioned for such comments based on arguments similar to those raised in Elonis.

The Facts

Anthony Douglas Elonis was convicted under a federal law prohibiting communication of any threat to injure the person of another. After his wife had left him and taken their children, he began posting graphically violent rap lyrics on Facebook under the pseudonym Tone Douggie. Elonis posted disclaimers that the lyrics were fictitious, therapeutic, and an exercise of is First Amendment rights. But his wife took the threats seriously and obtained a restraining order. The lyrics included a question as to whether the restraining order was “thick enough to stop a bullet,” references to smothering his wife with a pillow and dumping her body in a creek, and, perhaps the most troubling reference for school leaders, the following: (more…)

District Must Reimburse Special Education Student for Data Plan Required by Private Residential School

Posted by Jackie Wernz on May 28, 2015

Those who follow the intersection between special education and technology know there is a dearth of administrative decisions and case law addressing what, if any, responsibility school districts have to provide or otherwise pay for technology for special education students. A recent administrative decision from Massachusetts sheds some light on this murky area. The case was unique because rather than addressing whether a device was “assistive technology” necessary to provide the student a free, appropriate public education (FAPE), it was looking at whether the district had complied with a hearing officer decision requiring it to reimburse for tuition and related expenditures for a unilateral private residential placement. Nonetheless, because the case addressed when technology might be an essential part of a special education student’s program, it’s worth a read for school leaders who deal with these issues.

The case involved a highly intelligent special education student with Asperger’s Syndrome, ADHD, and related issues. In an earlier administrative decision, a hearing officer found that the student’s school district, Barnstable Public School, was required to reimburse the student’s parents for their unilateral placement of the student at a private residential school, Franklin Academy, which the student began attending after the parents disagreed with the school district’s proposed high school placement for the student. Following that decision, Barnstable reimbursed the parents in full for tuition payments they made to Franklin Academy and expressed willingness to reimburse the parents for certain transportation expenses. The school district disputed, however, whether it was required to pay the parents for numerous “related expenses,” including certain technology expenses. Specifically, the parents asked for $11,224 for reimbursement for an Apple laptop computer, an iPad, and iPhone, audiobooks, various accessories, data plans, software, apps, phone fees, and other similar expenses. The parents argued that the items at issue were components of “special education” and/or “related services,” and, therefore, must be provided at no cost to the parent. (more…)

NSBA to OCR: Standard for Addressing Requests for Technology by Students With a Communication Impairment is Off Key

Posted by Jackie Wernz on April 10, 2015

Readers of our FR Alerts may remember my colleague Kendra B. Yoch authored an Alert in 2013 about a set of outlier cases in the Ninth Circuit Court of Appeals, K.M. v. Tustin Unified School District and D.H. v. Poway Unified School District. The cases dealt with a request by a student with a hearing impairment for a certain technology service as an accommodation. A three-judge panel of the Court of Appeals held that a school district violated disabilities laws even though it had complied with the Individuals with Disabilities Education Act (IDEA), because compliance with the IDEA does not satisfy all claims under Section 504 of the Rehabilitation Act (Section 504) or under the Americans with Disabilities Act (ADA).

If you are outside the jurisdiction of the Ninth Circuit (Arizona, Washington, Oregon, California, Montana, Idaho, Nevada, Alaska, and Hawaii), you may rightly think “Well that’s interesting, but luckily it doesn’t apply to me.” Although normally that response is correct, the U.S. Department of Education’s Office for Civil Rights (OCR) last fall adopted the Tustin standard in a “Dear Colleague Letter” (DCL), thus applying the standard to school districts across the country. Last month, the National School Boards Association called OCR out in a letter. As NSBA reported, it argued in its letter that OCR was off base in so widely applying an inappropriate standard and one that has only been adopted by one court in one jurisdiction.

The Tustin Decision 

In the Tustin case, two hearing impaired students had individualized education programs (IEPs) providing services and accommodations to address their communications. There was no question that the students were receiving a free and appropriate public education (FAPE) under the IDEA, because they were making progress and receiving meaningful educational benefits. The students’ parents wanted the schools to provide the students Communication Access Realtime Translation (CART), which is a service where a stenographer transcribes communications in real time, which are then streamed to the student’s computer in closed captioning. The Ninth Circuit held that the mere fact that the students were being properly served under the IDEA did not preclude liability under Section 504 and the ADA. (more…)

FTC Reminds Schools When They Can Consent to Certain Online Activities By Students Under COPPA

Posted by Jackie Wernz on March 27, 2015

Last week the Federal Trade Commission announced on its blog that it has updated its frequently asked questions (FAQs) about the interplay between schools and the Children’s Online Privacy Protection Act (COPPA). Although nothing in the guidance is new, it is a good reminder of the often confusing rules governing consent for online services and apps in the school context.

What is COPPA?

COPPA and the related FTC regulation implementing it generally apply to operators of commercial websites and online services (including mobile apps) directed to children under 13 that collect, use, or disclose personal information from children. Operators covered by COPPA and the FTC rule must do a number of things to comply with the rule, including providing notice to parents about what data they collect and how they use it, and obtaining verifiable parental consent, with limited exceptions, before collecting personal information online from children.

Under COPPA and the FTC rule, there are some circumstances where a school district can collect the required parental consent to avoid having to coordinate between parents and the online service providers. That issue is what the FTC FAQs address, and the FTC updated them to streamline and clarify the rules, which are often confusing to stakeholders. (more…)

Crying Over (Virtual) Spilled Milk: ACLU Sues School District For Firing Employee Who Posted Vegan Beliefs Online

Posted by Jackie Wernz on March 24, 2015

A recent lawsuit out of Ohio brings a local flair to what has otherwise become a relatively common story. We’ve all heard of teachers being disciplined or dismissed for posting something thoughtless online that led to community uproar. But did you ever think it would happen with a post about … milk?

My Twitter followers may have seen my retweet of the NSBA Legal Clips story about this case last week. The lawsuit, which was filed by the ACLU in Ohio, involves a former teacher, Keith Allison, who alleges he was fired by Green Local School District (GLSD) because of a message he posted on Facebook on his own time and off of school grounds. The post was made in the Summer of 2014, and urged readers to choose plant-based milk over cow’s milk. The post showed a picture of a young calf in a small crate and said:

The cruelty of separation, loneliness, and infant slaughter lingers inside each glass of cow’s milk. Your voice can help change the system. You don’t have to support this. Plant-based milks are everywhere and are delicious.

Turns out that the community GLSD serves is heavily populated with dairy farmers. Allison’s post even said “This place is five miles from my house.”  Allison’s supervisor allegedly called him in after the school year began and said that teachers like himself needed to take care not to offend the agricultural community. His pay was cut, and then at the end of the year his contract was not renewed. Although he was later hired for a different position, Allison says the new position was not as good as the old, and that he feels now he must censor his speech to avoid further retaliation by GLSD.

Those who read the blog know that a public school district that disciplines or terminates an employee for off-campus, online speech has to contend with the First Amendment. Teachers and other school employees do not shed their free speech rights simply by being hired by a public school. To survive a First Amendment challenge, a school district will need to show one of the following three things: (more…)

12 Legal Mistakes to Avoid in Terms of Service for Online Educational Services and Apps

Posted by Jackie Wernz on March 17, 2015

A classroom teacher comes across a promising online educational service or application that she wants to use with her students and comes to you to make sure it’s legally appropriate. The service or app would collect and use student data, maybe even share it. How do you know whether the service or app is privacy-friendly and complies with your responsibilities under federal laws like FERPA? The first key is to review the terms of service (TOS) for the service or app—and to do so before you or that teacher “clicks” to agree to using it with students.

The Department of Education recently issued requirements and best practices focused on protecting student privacy while using online educational services. The requirements and best practices document was followed by model terms of service guidance and a training video with the goal of helping school leaders tackle these very questions. The Department warned that school officials must exercise diligence when reviewing TOS agreements to avoid violating student privacy requirements.

The model TOS guidance is especially useful in that it sets forth 12 privacy-related TOS provisions to which school leaders should pay particular attention.  The guidance provides examples of TOS provisions that are best practices and suggest that the provider is taking the right steps toward protecting privacy. The guidance also provides examples of TOS provisions that cannot or should not be included in TOS—in other words, examples of legal mistakes that you might see in a TOS and should avoid. Explanations follow each set of examples to help school leaders understand the privacy concerns at issue.

Examples include provisions relating to the definition of “data,” marketing and advertising, and data mining, among others. Although the Department makes clear that the best practice is always to consult legal counsel to review TOS and other materials governing a relationship between a school district and an online educational service or app provider, the guidance and other materials are essential reading for school leaders who are called upon to review TOS or other requests related to such providers.

My colleague Brian Crowley and I will be presenting with Board President Anne Miller of Community School District 300 this Saturday on this and other technology related issues at the National School Boards Association Conference in Nashville. If you are at the conference, we hope you will come and chat with us about these and other hot EdTech issues.

U.S. Department of Education Closes 2014 with Prolific Guidance

Posted by Jackie Wernz on January 22, 2015

With Guest Blogger Kendra Yoch

The U.S. Department of Education (DOE) was busy the last quarter of 2014, issuing guidance on six issues, plus another already in 2015. The Dear Colleague Letters (DCL), Frequently Asked Questions, and Fact Sheets provide an overview of the way the DOE interprets the federal civil rights laws in the school context and the steps schools should take to ensure compliance with these laws. In case you missed one, here is a recap.

Ensuring Students Have Equal Access to Educational Resources Without Regard to Race, Color, or National Origin

On October 1, 2014, the Office for Civil Rights (OCR) issued a DCL and Fact Sheet outlining the obligations of states, districts, and schools under Title VI of the Civil Rights Act. On the 60th anniversary of Brown v. Board of Education, OCR highlights the right of all students, regardless of race, color, or national origin, to equal educational opportunities. Title VI prohibits both intentional discrimination and the implementation of policies and practices that disproportionately affect minority students. The DCL explains how OCR investigates complaints and urges districts and schools to proactively identify and address any discrepancies in resources, such as access to advanced courses, arts, extracurricular activities, strong teachers, strong administrators, technology, and comparable learning environments.

Responding to Bullying of Students with Disabilities

On October 21, 2014, OCR issued a DCL and Fact Sheet providing guidance on responding to bullying of students with disabilities. OCR notes an increase in the number of complaints it has received on this issue. The guidance explains that failure to adequately address bullying based on a student’s disability may be a violation of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA). Additionally, bullying of a student with a disability on any basis may cause a denial of a free and appropriate public education (FAPE), which the district must also address. (more…)