The Supreme Court has a lot to worry about these days, like a year plus of finding out first hand what can happen (or not happen) to your ability to make precedent when you have a 4-4 deadlock on the Court. So its recent decision to deny review in the case of Bell v. Itawamba County School Board probably didn’t register much of a blip on the Supremes’ radar. But for school leaders and EdTech legal nerds like myself, the Court’s decision is a big deal and raises the important question: How do school leaders approach discipline of students’ off-campus, online misconduct in light of the Court’s denial of the petition for review?
The case revolves around Mississippi high school student Taylor Bell, who raps under the name T-Bizzle. I wrote about the case back in 2015, explaining the facts as such:
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.
For those who are interested, you can listen to T-Bizzle’s song here.
As numerous other courts across the country have done, the Fifth Circuit applied the Supreme Court’s 1969 case of Tinker v. Des Moines Independent Community School District, to the case. Tinker dealt with on-campus speech in the form of wearing black armbands to protest the Vietnam war. Tinker says that if a student’s conduct causes or could reasonably be foreseen to cause a substantial disruption to the school environment or invade the rights of others, it can be subject to discipline without violating the First Amendment’s protections of free speech. Since Tinker really dealt with on-campus speech, most courts to apply this standard to off-campus, online misconduct have also worked in a “nexus” standard to their test as well, requiring that the speech have a sufficient connection to school to justify discipline. The Fifth Circuit applied these standards and found that Bell’s song violated school policies against threats, harassment, and intimidation; was intentionally directed at the school community; and created a reasonable risk of a substantial disruption. The Fifth Circuit thus upheld the school’s decision to suspend Bell under Tinker.
The problem is that although there were some threatening elements to Bell’s lyrics, his rap song included what some describe as true political commentary. Hey, even some high-profile rappers (T.I., Killer Mike, and this Southern girl’s favorite, Big Boi from Outkast) wrote to the Court explaining why they believe Bell’s song should be protected by the First Amendment. The song also was not intentionally injected into the school community by Bell–it was merely about school. These facts led many to argue that the Supreme Court should use the case as an opportunity to address the apparent confusion among lower courts on the issue of when, how, and under what circumstances schools can discipline students for off-campus internet speech. This is how Slate describes the concern:
Federal and state courts across the country are totally, hopelessly fractured on the question of First Amendment protection for students’ online speech. Some federal appeals courts and state supreme courts protect it vigorously. Others barely protect it at all. Everybody seemed to agree a decade ago that the Supreme Court needed to weigh in. It still hasn’t, and so the 5th Circuit wandered its way into a terrible decision without contravening any precedent.
Despite these concerns, the Supreme Court declined the opportunity to weigh in on the case.
Now, I don’t really agree with those who cry that the sky is falling and that school leaders are hopelessly lost without a Supreme Court decision on these issues. Sure, some courts have taken a narrower view of discipline rights than the Fifth Circuit, and schools in those jurisdictions should of course respect and follow those precedents. But in the vast majority of jurisdictions, the highest appellate court has either applied the Tinker standard to off-campus, online speech or has been silent on the question (in Illinois, we don’t even have a lower court decision addressing the issue at all). In those jurisdictions, it’s still safe for school leaders to assume that if a student’s off-campus, online misconduct violates a school rule, has a sufficient nexus (or connection) to the school environment, and causes or reasonably could be foreseen to cause a material and substantial disruption to the school environment, the student can be disciplined. I realize that’s not a bulletproof tactic, particularly if the speech is not overtly threatening or could be described as valid political or social commentary. Indeed, free speech advocates who wrote briefs in support of Bell in the case argued that Tinker should not even apply to off-campus, online speech. But for now, as the Fifth Circuit explained in its decision in Bell, without a Supreme Court decision on point schools must continue to apply the law as the lower courts are developing it, as fractured as that may be. And that means that even a rap song like T-Bizzle’s, which I agree did include some commentary that could be described as political, is still fair game for discipline, especially if it contains threatening content aimed toward members of the school community.
Student data privacy is the “it” issue right now in edtech, as evidenced by a recent special Student Data Privacy Report (free registration required) issued by Education Week. Education Week prefaces the report with a fact that school leaders know all too well—while technology brings great benefits in the way of innovation, it also brings great risks, especially to the privacy of student data and other information.
The report covers a number of important student data privacy issues for schools, including:
All of these issues are of crucial importance for school leaders to understand, but in my opinion two deserve the greatest attention.
The first is the growing trend toward obtaining cyberinsurance. Cyberinsurance policies focus on protecting a school district in case of a data breach or network security failure. As the Education Week report points out, these policies were born to serve the private sector, but have evolved to help schools who fear that they may be the next to deal with costly breaches like those that rocked companies like Home Depot and Target. We are seeing more and more of our clients looking into the policies. As always, we advise that you talk with your insurance representative to understand if such a policy is a good fit for your school district.
Training on Student Data Privacy
The second key issue is the need for better training on data privacy issues. School leaders should take steps to educate administrators and educators alike on the district’s policies and procedures regarding student data privacy. What information about a student can be posted online? When can a teacher use an online service or application with students that requires registered student accounts and/or the sharing of student data? What concerns should business managers be on the lookout for relating to contracts for operational services such as student information systems and assessment systems? This is a heavily regulated area of law, so if your school leaders and employees don’t know the answers to these and other important student data privacy questions, training may be necessary to avoid the pitfalls identified in the Education Week report. (Of course, before you can train, you have to have the policies and procedures in place. We talked about this issue in a recent FR Alert that you can check out here.)
I will be talking about these and other student data privacy issues with two of my colleagues, Brian Crowley and Nicki Bazer, at the upcoming “Triple I” Joint Annual Conference of IASB/IASA/IASBO, so hope many of you will come join the conversation then. (For attorneys, I will also be speaking on student data privacy at the ICSA Seminar on School Law that same week). What’s certain is that this issue is only going to grow in importance for school leaders, and staying on top of resources such as the Education Week Report is a crucial part of school leadership in the 21st century.
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.
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…)
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.
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…)
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…)
In a recent decision, Ollier v. Sweetwater Union High School District, the Ninth Circuit Court of Appeals upheld a trial court finding that a public school district intentionally discriminated and retaliated against female athletes on the basis of their sex, violating Title IX of the Education Amendments of 1972. The case is notable for finding that the three-part Title IX test generally applied to higher education entities also applies to high schools. The court also notably rejected the school district’s argument that there is no Title IX violation if there are more sports teams for female students at school than male students, even if there are fewer spots occupied by female students at the school.
In Ollier, the court found that female athletes at a high school were supervised by overworked coaches, provided with inferior competition and practice facilities, and received less publicity than male athletes. The court found that there were fewer athletic opportunities for female students as compared to their respective enrollments. The court rejected the school’s argument that there were more sports teams for girls than boys at the school, which was an attempt to justify the disparity between opportunity and enrollment. The court explained that the Title IX test requiring substantial proportionality between female athletic participation and enrollment generally applied to colleges and universities also applied to high schools, and that the test focuses on the number of participating athletes, not the number of available spots on girls’ teams. The court determined that because the inequalities were the result of systemic administrative failures and the failure to implement policies and procedures to cure the inequities, the school district illegally discriminated against female athletes in violation of Title IX.
The court also found that the school district retaliated against the female athletes by firing the girls’ softball coach just a few weeks after the father of two of the athletes complained about the perceived inequalities in the programs. The coach had been warned that he could be fired at any time for any reason, which he understood to be a threat that he would be fired if the female athletes continued to complain. The court explained that coaches are often the best advocates for female athletes and that employment decisions affecting them can negatively impact the athletes.
With Guest Bloggers Laura Knittle and Julie Heuberger Yura
According to the U.S. Departments of Justice and Education, U.S. school districts are discouraging student enrollment based on their parents’ illegal immigrant status. The Departments issued guidance, a frequently asked questions document, and a fact sheet with advice on how school districts can provide all students with equal educational opportunities, regardless of their immigration or citizenship status.
The guidance focuses on information school districts require parents and guardians to provide to establish residency and a student’s age. Most school leaders know that they cannot ask directly about a student or parent’s immigration status during the residency process. But the Departments warned that even less direct requests for information might impermissibly discourage enrollment by non-citizen parents.
The following is a summary of the key advice in the guidance:
- A district may require proof of residency, such as copies of phone and water bills and lease agreements, and may restrict attendance to district residents, but it is never relevant to inquire into a students’ immigration status to establish residency. A district should review the list of documents it requires to establish residency to ensure no required documents unlawfully bar or discourage non-citizens from enrolling in or attending school. For instance, the Departments warned against requiring a parent to provide a state-issued driver’s license or identification card to establish residency.
- With respect to establishing age, a school district may not bar a student from enrolling because he or she lacks a U.S. birth certificate; schools must also accept other documentation such as family bibles, medical records, and previous school records. Indeed, the guidance materials suggest that schools should take proactive steps to reassure parents that they can provide other documentation, such as a foreign birth certificate, without fear that it would lead to questions about the family’s immigration status. For example, the Departments suggest that schools should publicize that it will only use a foreign birth certificate, baptismal record, or alternative document to establish the age of the child and not for any other purpose. Notably, the guidance does not address whether the Illinois requirement that schools must ask for a copy of a student’s birth certificate at the time of enrollment and report the lack of a birth certification to law enforcement runs afoul of federal law.
- Schools may comply with their federal and state obligations to report data such as race and ethnicity of student population, but may not use information collected about students to discriminate against them or deny enrollment because a student’s parents refuse to provide the required data. The guidance suggests, but does not require, that schools should wait until after a student is enrolled to ask for additional documentation not necessary for the enrollment process, such as demographic information required by state or federal law, in order to “create a more welcoming and inclusive atmosphere for all prospective students.”
- A school district may not deny enrollment based on a lack of a social security number, and if it requests a social security number it must notify parents that the disclosure of the number is voluntary and refusal will not bar a child’s enrollment, provide a statutory basis for making the request, and explain what it will do with the number if provided. The Departments reminded schools that any policy related to collecting and reviewing social security numbers must be uniformly applied to all students and not applied in a selective manner to specific groups of students.
Based on this guidance, school leaders should review existing enrollment policies to determine whether any have the unintended consequence of discouraging enrollment of immigrant students to public schools.
The big news in education technology this week is Yik Yak, a free, anonymous social networking application that allows users to post comments that can be seen by others within a 5- to 10-mile radius. The app was intended for use by college students and is described as a localized Twitter for campus communities. But the anonymity of the app allows users to bully others without any risk of identification, and has led to reports of severe bullying in schools across the country. As the Chicago Tribune reported, Yik Yak disabled its app within the Chicago area after at least four schools had to address bullying concerns on the app with their students and parents.
One comment that has repeatedly been made about the recent Yik Yak scandal is that it shows how quickly social media moves and how difficult it is for school administrators to address new issues when they arise. For instance, the Yik Yak app only became popular within the last few months and so was not banned in many schools prior to these recent incidents. And even if banned and blocked through a school’s internet filters, if a school district allows students to access data plans on personal technology devices at school they still can access the app despite the filters and without school officials knowing.
The question arises, then: What can school leaders do to put themselves in the best position to deal with novel social media and technology issues when they arise? Here are a few ideas:
- In student handbooks or other informal guidelines, consider specifically banning student use of any social media program or other technology on school grounds or at school-related events and activities for the purpose of bullying other students. Also consider banning such use anywhere if it causes or reasonably could be foreseen to cause a material and substantial disruption to the school environment or invasion of rights of others in the school community. This way, discipline of perpetrators will be allowed even if a new program or technology used for bullying (such as Yik Yak) is not specifically prohibited and, if it is serious enough, even if it occurs off grounds.
- Also consider banning student use of data plans on personal technology devices at school. This will limit the circumstances when students can avoid a filter or other screening technology when implemented. It also allows school leaders to monitor student use of websites and technology through the Internet system, which is not possible when a student uses their own data plan.
- Educate students, parents, and other members of the school community about the harms that arise from bullying before an incident occurs. Such education should be broad enough to cover types of behavior that are now known or that may occur in the future. Your legal counsel is a good resource for training that meets these needs.
- Ensure that technology policies and procedures are up-to-date and broad enough to put the school district in the best position to address novel misconduct by students, staff, and other members of the school district community when it occurs. For school districts in Illinois, Franczek Radelet has a recent technology policy package created for that purpose.
Last week, the Department of Education issued a guidance package to help schools administer student discipline without discriminating against students on the basis of race, color, or national origin. The issue of discriminatory discipline is not new; indeed, the Franczek Radelet Education Insights blog warned about the issue early last year. Moreover, the guidance does not create any new law but rather provides information and examples of the Department’s expectations under existing law. Nonetheless, the new guidance is the first national guidance issued on school discipline and likely will be given some deference by courts interpreting the issue, and so is noteworthy and warrants particular attention from school leaders.
The core of the Department’s guidance can be found in a Dear Colleague Guidance Letter (DCL) that was prepared in conjunction with the Department of Justice. The DCL begins with the recognition that discipline is essential for the operation of safe and orderly schools. The DCL then cites statistics showing that discipline in public schools often falls disproportionately on students in minority groups and documents the harms on those students that results. The DCL warns that federal law prohibits discrimination by public schools in the administration of student discipline based on race, color, and national origin, and that the Department will investigate complaints of such discrimination and may require schools to take steps to remedy any issues it finds.
The DCL describes at length and provides examples of the types of discrimination that the Department investigates (“different treatment” discrimination, which is often thought of as intentional discrimination, and “disparate impact” discrimination, which results when there is not necessarily an unlawful intent behind discrimination but it nonetheless leads to an unlawful impact on a particular group). Notably, the DCL makes clear that discrimination can occur at all levels of the disciplinary chain of command, from the decision of a teacher to send a student out of class to the final disciplinary decision by administration. The DCL also clarifies that school districts can be responsible for discrimination not just by employees, but also by agents such as security guards or even law enforcement.
The appendix to the DCL provides recommendations for school districts, administrators, and teachers on how to avoid illegal discriminatory discipline. These recommendations fall into three categories: (1) climate and prevention, (2) clear, appropriate, and consistent expectations and consequences, and (3) equity and continuous improvement. A Guiding Principles document released with the guidance packet provides a succinct summary of these categories:
First, take deliberate steps to create the positive school climates that can help prevent and change inappropriate behaviors. Such steps include training staff, engaging families and community partners, and deploying resources to help students develop the social, emotional, and conflict resolution skills needed to avoid and de-escalate problems. Targeting student supports also helps students address the underlying causes of misbehavior, such as trauma, substance abuse, and mental health issues.
Second, ensure that clear, appropriate, and consistent expectations and consequences are in place to prevent and address misbehavior. By holding students accountable for their actions in developmentally appropriate ways, students learn responsibility, respect, and the bounds of acceptable behavior in our schools and society. This also means relying on suspension and expulsion only as a last resort and for appropriately serious infractions, and equipping staff with alternative strategies to address problem behaviors while keeping all students engaged in instruction to the greatest extent possible.
Finally, schools must understand their civil rights obligations and strive to ensure fairness and equity for all students by continuously evaluating the impact of their discipline policies and practices on all students using data and analysis.
Another key recommendation is to use law enforcement appropriately. This portion of the DCL and related materials has received significant media attention, including from the ACLU and the Associated Press. As Attorney General Eric Holder explained in a press conference, “A routine school disciplinary infraction should land a student in the principal’s office, not a police precinct.” The DCL recommends, among other things, ensuring that school officials only utilize law enforcement when there are major threats to school safety or serious-school-based criminal conduct that cannot safely and appropriately be managed by the school’s internal discipline policies.
Also key are recommendations that schools monitor the impact of discipline policies before a complaint is filed. The DCL recommends that schools collect and use multiple forms of data, including a discipline incident database, regarding discipline incidents and conducting additional investigation where necessary. Notably, the DCL makes clear that schools are responsible for the following: (i) developing and implementing uniform standards for the content of discipline files, (ii) developing and training staff on uniform standards for entry and maintenance of files, and (iii) keeping data on teacher referrals and discipline to assess whether particular teachers may be referring large numbers of students by race for discipline so that follow up with teachers can be taken as needed.
The guidance package includes, in addition to the DCL and the Guiding Principles document, other resources for schools in implementing fair discipline policies. These include a Directory of Federal School Climate and Discipline Resources and a Compendium of School Discipline Laws and Regulations.
As reported by the Washington Post, President Obama is expected to sign a bill into law encouraging states to require schools to take greater efforts to protect students with food allergies. The bipartisan bill was proposed by Illinois Senators Dick Durbin (D-IL) and Mark Kirk (R-IL) following the deaths of two girls in Illinois and Virginia from severe food allergies.
The bill comes at a time of heightened focus by the media and the government on the issue of childhood allergies. A recent New York Times Sunday Reviewarticle, for instance, delved into the connection between food allergies and the decline of agrarian culture. And the Centers for Disease Control and Prevention recently issued voluntary guidelines for schools regarding managing food allergies in educational programs (more information from the CDC can be found here).
The bill also is in addition to numerous State law requirements for schools regarding allergies. In 2011, for instance, Illinois school districts were first required to implement a food allergy management policy under Illinois law. As one source reports, the Illinois law “allows schools to maintain a supply of epinephrine on site and for school nurses to administer epinephrine to any student suffering from a severe allergic reaction.” The guidelines required under the Illinois law must comport with Illinois State Board of Education and Illinois Department of Public Health guidelines on food allergies that were published in 2010. In all, twenty-seven states reportedly have laws allowing schools to administer epinephrine to students without a prescription.
The bill would expand on state law by offering a financial incentive to states that require schools to do all of the following:
- Allow a wider array of trained school personnel to administer epinephrine to students reasonably believed to be having an anaphylactic reaction;
- Maintain a supply of epinephrine in a secure location that is easily accessible to trained personnel of the school for the purpose of administration to any student of the school reasonably believed to be having an anaphylactic reaction; and
- Have in place a plan for having on the premises of the school during all operating hours one or more individuals who are trained personnel to administer epinephrine.
Notably, although many students with severe food allergies bring their own epinephrine injectors to school, the bill reportedly nonetheless would help numerous children who do not know they have life threatening allergies. Approximately a quarter of recent administrations of epinephrine in the school setting involved students who were not previously aware of their allergies and so would not have had a personal supply of epinephrine.
If the bill is signed into law, additional state action will be required for the mandates of the bill to reach school districts. Even if a state implements the mandates of the bill, moreover, other issues relating to food allergies in schools – such as specifics of education and training, implementation of individualized health care and food allergy action plans, procedures for responding to life-threatening reactions to food, and protocols to avoid exposure to food allergens – are not covered by the bill and so will remain subject to state law or, where there is none, school district discretion.