In a recent decision, the first federal appellate court to address the rights of school officials to search student cell phones held that a student’s violation of a school rule regarding technology did not justify a general search of the student’s cell phone by Kentucky school district employees. The case is an important reminder to school leaders that they can search student technology in certain circumstances, but they must respect the fine line between a justifiable search and a search that violates a student’s constitutional rights.
The Decision
The case, G.C. v. Owensboro Public Schools, dealt with a student, G.C., who was involved in a string of disciplinary incidents and had communicated to school officials that he was suicidal. During his freshman year, school officials searched G.C.’s phone after an incident where he walked out of a meeting with a prevention coordinator, left the school building without permission, made a phone call to his father in the parking lot and was found in the parking lot with tobacco products in plain view. The school official who searched the phone cited concerns that the student was going to harm himself as a basis for conducting the search.
That fall, at the beginning of his sophomore year, G.C. violated the school cell phone policy by using his phone to send text messages during class. His teacher confiscated the phone and delivered it to another administrator. The administrator read four text messages on the phone in an effort to see if there was evidence that he was going to harm himself. Although no evidence of misconduct was found on the phone, G.C., who was attending the school as an out-of-district student, was told that he had lost his privileges to attend Owensboro High School because of his behavior.
The Sixth Circuit Court of Appeals, addressed a number of issues in its decision, including whether the school district was required to provide G.C. a hearing before telling him he could not attend the high school (it was) and whether the school discriminated against him based on Section 504 of the Rehabilitation Act (it did not). But the most interesting element of the decision dealt with whether the school officials were justified in searching the student’s cell phone.
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As The New York Times recently reported, a Colorado school district is facing a civil rights complaint after refusing to allow a six-year-old transgender student to use the girls’ bathroom in a local elementary school. The case highlights the challenges that school administrators face when addressing requests by transgender students to use single-sex facilities in school.
On the one hand, families of transgender students, such as the Colorado student, argue that requiring a student to use a gender-neutral, separate facilities creates a stigma. If the facilities are difficult or time-consuming to access, families may see the request as unduly burdensome on the student. On the other hand, schools may have to balance the rights of the transgender students with other factors, such as the rights of other students and the need to maintain discipline.
The Colorado case provides an example of a situation in which the school believed the balance tipped against allowing the transgender student to use the girls’ restroom. The school allowed the student to wear female clothing to school and to be referred to as a female. The school also allowed the student to use a “gender neutral” bathroom in the school health room. In denying the student access to the girls’ bathroom, the school cited concerns about what would occur as the student, who was born a male, grew older and developed male physical characteristics. The school indicated that parents of students who were born female might have legitimate concerns with the transgender student using the same single-sex facilities as their daughters even if the student identifies and presents as female.
Such a decision is not without precedent. In Doe v. Clenchy, a court in Maine held that a school district could deny a transgender student’s request to use the female restrooms at school. The school allowed the student to use the restroom through the fifth grade, but that year a male student walked into the girls’ restroom while the transgender student and some of her friends were washing their hands. When confronted by administration the student said that his grandfather and guardian said if the transgender student could use the girls’ restroom, so could he. The court recognized that the school was placed in a difficult situation because of the desire of a student’s grandfather and guardian “to make a social statement.” The court also noted that it appeared inevitable that a controversy might arise since the parents of the transgender student had agreed to reevaluate the request if the parents of female students complained. The court found that the transgender student’s rights were not violated by the decision to require her to use a gender-neutral restroom in light of the facts of the case.
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In a Dear Colleague letter issued last week to chief state school officers, the U.S. Department of Education called for immediate action to reduce gender-based violence in schools. The letter is short and sets forth only a few general suggestions for steps that schools can take to respond to gender-based violence. But the letter must be read against the backdrop of two previous Dear Colleague letters issued by the Department on bullying, harassment and sexual violence. Against the backdrop of those letters, the most recent Dear Colleague Letter is yet another reminder of the high standards to which the Department and its Office for Civil Rights (OCR) holds schools with respect to sexual harassment and violence.
Background
By way of background, the letter reportedly was released during a White House event on teen dating violence prevention, which was part of National Teen Dating Violence Awareness and Prevention Month and the Obama Administration’s efforts to raise awareness of gender-based violence. A press release issued by the Department suggests that the purpose of the letter was to make clear that although strategies to improve school climate and reduce bullying are critical, they may not be adequate to address the harms of gender-based violence.
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As schools increase the use of technology to communicate with and about students, questions arise about the intersection between the data created and student records laws, such as the Federal Educational Rights and Privacy Act (FERPA). States also have similar laws that may provide greater protections than their federal counterpart. Are emails, texts, Tweets, and other digital communications between teachers, administrators, parents, and students “educational records” under FERPA and related state laws?
Let’s address the following questions: (1) Why does it matter? (2) Are digital communications student records? and (3) How do I respond to a broad student records request for digital communications? (more…)
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.
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The U.S. Department of Education has launched a Spanish-language website providing resources to teachers, parents, and community leaders to prevent bullying. The website is http://espanol.stopbullying.gov and is similar in content to its English-language counterpart, www.stopbullying.gov. This website is an important reminder of the intersection between challenges school districts face in addressing bullying and challenges they face in communicating effectively with Limited English Proficient (LEP) students and parents about important issues. Schools with large populations of parents and students with LEP should take steps to address bullying and provide bullying prevention education resources in relevant languages as well as in English.
The Illinois State Board of Education reported in its recent Superintendent’s Message that the Spanish-language “stopbullying” website includes the following resources:
- Training Module with Speaker Notes – a presentation with suggested talking points, including the latest research to help participants create an action plan for a community event.
- Training Module PowerPoint – a slide-by-slide presentation for use at a community event, workshop, or town hall meeting.
- Community Action Toolkit – a supplemental guide, including tip sheets, a template event agenda, action planning matrix, and feedback forms.
- Misdirections Packet – a Tip Sheet and a Spanish transcript of the Misdirections video featuring Dr. Catherine Bradshaw, a national expert in bullying prevention who discusses approaches to avoid in bullying prevention and response.
The Spanish-language resource is a reflection of the challenges school districts face in juggling bullying concerns and concerns relating to communicating with English Language Learners and students and parents with LEP. When LEP students, parents, staff and community members are at issue, it can be even more difficult for school districts to comply with recent Department of Education Office for Civil Rights (OCR) requirements to prevent and address certain types of bullying, such as bullying based on ethnic background or race. For students and parents with linguistic challenges, this may include education on and responses to bullying in a language other than English.
Moreover, recent lawsuits make clear that educating staff and community members about bullying in schools and how to report it is important. Responding to such reports in a meaningful way is also important. One recent lawsuit reportedly filed by a former school district employee inArizona, for instance, alleges that the school district did not respond to her reports that an ELL student was being bullied for his strong accent, among other things.
The media coverage of the Sandy Hook school shooting is tapering down, but the lessons for school administrators in its wake are just beginning. One such lesson comes after a California school suspended a high school senior for writing a poem about the Connecticut tragedy. The case provides an opportunity to consider the standards for when student speech is protected, even if it is controversial, and when it is a red flag warranting discipline and other school action.
The Facts
In late December, the Life Learning Academy suspended a 17-year old student for a poem she wrote about the shooting at Sandy Hook Elementary School in Newtown, Connecticut. The poem included lines such as “I understand the killings in Connecticut. I know why he pulled the trigger.” The student told ABC News that the meaning of the poem is about society and how she understood why things like the incident happened. She explained that she wasn’t agreeing with the actions of the shooter, but “that’s how the school made it seem.” She stated that she’d written poems about suicide and sadness in the past because it is a genre that she likes, comparing herself to Stephen King who “writes weird stuff all the time. That doesn’t mean he’s going to do it or act it out.”
The student reportedly neither turned in the poem to school employees nor distributed it to others in the school community. Rather, a teacher came across the poem in a notebook and turned it into the school’s principal. According to one account, the school—which is a non-residential high school located on Treasure Island, a former US Navel base in the middle of the San Francisco Bay—and the San Francisco Unified School District are reportedly considering expelling the student. The school has a zero tolerance approach to violence or threats of violence.
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With guest blogger: Julie Heuberger Yura
A father calls to inform you that his ex-wife is not permitted to pick up their son from school anymore. Up until now, the parents operated under a joint custody agreement submitted upon the student’s enrollment in the District. Mother picks the student up from school on Tuesdays and Thursdays and drops him off on Monday, Wednesday and Friday mornings. Father covers the remaining pick-up and drop-offs.
More and more, school officials are called on to determine who has the right to contact or see a student during the school day, review student records, be present at conferences and other school events and/or make special education and other decisions. It is often difficult to discuss these issues without feeling like you are picking sides or prying into family business. However, in situations like the one above, safety should be the school district’s priority. Ask to see the most current court order. Unless father can provide you with a protective or other order or agreement modifying mother’s rights, she cannot be prohibited from picking up her son.
In cases where custody is awarded solely to one parent, both the Illinois School Code and Illinois Dissolution of Marriage Act permit the other, non-custodial parent to receive copies of report cards, reports of the student’s emotional and physical health, notices of school‑initiated parent‑teacher conferences, notices of major school‑sponsored events, such as open houses, which involve student‑parent interaction, and copies of the school calendar and other items furnished by the school district to the custodial parent. However, the laws also state that where a protective order prohibits a parent from contact with the child, the parent is prohibited from accessing or inspecting the child’s school records.
Often, a non-custodial parent will ask school officials if he or she is permitted to attend school conferences. Even in cases where the other parent has sole custody, absent a protective or other order, the non-custodial parent usually has some right to participate in his or her child’s education (even though the custodial parent may have the final say in educational decisions). This is another instance where you should turn to the parenting agreement for the answer. The school should also check with custodial parent to see if he or she has any recent orders addressing this matter.
One final issue that we delved into at TechCon 2012 last month was discipline of students for off-campus, online misconduct. Stories of schools wrangling with the issue of whether they can discipline students for such misconduct are common, such the recent issue in Granite City, Illinois, in which a school reportedly suspended 21 students, including honor roll students and the homecoming king, for Tweeting, re-Tweeting, or “favoriting” Tweets including one making sexual comments about a female teacher. At TechCon, we discussed a couple of other interesting examples: students taking unflattering photographs of teachers and posting them online and students doing the same with videos of off-campus fights between other students. I made a shameless self-promotion at the presentation and suggested that participants read my recent blog post, Eighth Circuit: School Discipline of Missouri Students For Inflammatory Website Constitutionally Sound, to get some background on the issue. And we discussed that these questions are very fact-specific and must be considered individually as they arise. But we also discussed that school leaders generally need to ask themselves the following three questions with respect to discipline of off-campus, online misconduct.
- Does school board policy allow for discipline of the type of speech in question?
In all cases where discipline is imposed, including for off-campus, online misconduct, it is essential that the district have a clear policy allowing for discipline of the type of activity in question. Even if a school district may discipline a student without infringing on his First Amendment rights, the district still may face challenges if its policy does not allow—or does not clearly allow—for that discipline.
- Is there a sufficient connection between the off-campus, online speech and the school environment?
A sufficient connection, or “nexus,” exists between the off-campus, online speech and the school where it is reasonably foreseeable that the speech would reach and impact the school community. This is a very fact-specific analysis, but here are a few examples of questions that can help you determine whether a sufficient connection exists:
- Were the materials made “public” so they could be viewed by anyone on the Internet?
- Even if the materials were “private,” was access allowed to other students?
- Even if the materials were “private,” were they specifically aimed at the school environment in a way that would lead someone to reasonably expect members of the school community to find out about them?
- Is the speech of the type that can be disciplined in the school context?
Once it is established that the speech can be disciplined under school board policy and that there is a sufficient nexus with the school, the question becomes: Can the speech be disciplined under the First Amendment?
If the speech is “unprotected” speech under the First Amendment it can be disciplined, period. But there are only a few categories of speech that are unprotected, and they are quite rare. One example is speech encouraging illegal drug use, which the Supreme Court in a 2007 case (Morse v. Frederick) held could be disciplined in the school context.
Even if the speech is protected by the First Amendment, it can also be disciplined in the school context if it causes a substantial disruption or invasion of the rights of others, or causes a reasonable risk of a substantial disruption or invasion of the rights of others.
What does that mean? Like the connection/nexus inquiry, the issue is very fact-specific and should be dealt with on a case-by-case basis. The list of questions to ask is long, and the best person to guide you through the process is your school attorney. But here are a few questions that could suggest a substantial disruption if the answer is “yes”:
- Are the materials misleading or false, in a manner that would create a need for the school district to actively correct the misinformation?
- Is there evidence of a past disruption in a similar circumstance?
- Have a number of staff members or students expressed anxiety about the online materials or their safety because of the online material, or missed significant amounts of class because of their concerns about the material?
After discussing these standards for discipline, we also discussed what can (and should) be done if students cannot be disciplined for off-campus, online misconduct. School districts may still be required to respond to the misconduct, particularly if it is pervasive or relates to a protected characteristic such as race, sex, or disability. I suggested that participants review a recent Franczek Radelet Alert (and an OCR letter cited therein) that talks about responses that school districts can (and in some cases must) take in response to bullying and harassment, including online bullying and harassment. Notably, OCR made clear that these responses are available, and may even be required, even if the students who are responsible for the bullying and harassment cannot be disciplined.
I was excited to speak to an engaged group of school leaders this past Friday at TechCon 2012. For those unfamiliar, TechCon is an annual conference that focuses on issues of technology in education and that is hosted and sponsored by the Illinois Association of School Business Officials (IASBO), the Illinois Chief Technology Officers (ILCTO), and Illinois Computing Educators. I participated in a panel discussion with Thomas Zelek of Elmwood Park CUSD 401 and Bill Spakowski of Single Path, LLC about social media policies. We addressed a number of interesting issues including whether school districts should have a social media policy at all, the implications of the recent Illinois Facebook Password law, and – a little off topic but interesting nonetheless – student discipline for off-campus, online misconduct. Over the next few weeks, I will blog on these issues and specifically on the topics we discussed at the conference. (more…)
In a recent decision, the first federal appellate court to address the rights of school officials to search student cell phones held that a student’s violation of a school rule regarding technology did not justify a general search of the student’s cell phone by Kentucky school district employees. The case is an important reminder to school leaders that they can search student technology in certain circumstances, but they must respect the fine line between a justifiable search and a search that violates a student’s constitutional rights.
