Education Law Insights

Supreme Court Refuses to Provide Clarity on Discipline for Off-Campus, Online Student Speech

Posted by EdLaw on February 29, 2016

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.

 

 

Is Google Illegally Spying On Your Students? New FTC Complaint Says It Is

Posted by EdLaw on December 8, 2015

Google Apps for Education has recently come under fire with a Federal Trade Commission complaint filed by a nonprofit organization, Electronic Frontier Foundation. In a press release issued last week, EFF claims that Google’s “Chrome Sync” function allows it to mine student data in violation the Student Privacy Pledge signed by Google earlier this year. If true, EFF’s claims could establish not only a violation of FTC rules, but also a violation of federal and some state laws. Google denies that the claims have any merit, claiming that it strips all identifying information from Sync data before using it for non-school purposes, and that it does not improperly advertise or market to students. At this time, there has been no finding that Google’s actions violate its Pledge or any other state or federal law. Understanding the issues at play in this case is essential for school leaders, however, who are tasked with ensuring that school-supplied electronic devices, software, apps, and services comply with relevant state and federal student data privacy laws.

The EFF says it came across concern with Google’s Apps for Education, or GAFE, while researching its “Spying on Students” campaign, which aims to raise awareness about privacy risks of school-supplied electronic devices and software. In the Complaint, EFF argues that Google is violating the Student Data Privacy in three ways:

• When students are logged in to GAFE, student personal information in the form of data about their use of non-educational Google services is collected, maintained, and used by Google for its own benefit, unrelated to authorized educational or school purposes.

• The “Chrome Sync” feature of Google’s Chrome browser, which is turned on by default on all Chromebook laptops, enables Google to collect and use students’ entire browsing history and other data for its own benefit, unrelated to authorized educational or school purposes. In its press release, EFF argued that Sync “allows Google to track, store on its servers, and data mine for non-advertising purposes, records of every Internet site students visit, every search term they use, the results they click on, videos they look for and watch on YouTube, and their saved passwords” without obtaining permission from students or parents.

• The administrative settings, which enable school administrators to control settings for all Chromebooks, allow administrators to choose settings that share student personal information with Google and third-party websites in violation of the Student Privacy Pledge. The EFF press release explains further that “the administrative settings Google provides to schools allow student personal information to be shared with third-party websites in violation of the Student Privacy Pledge. The ability to collect and potentially share student information follows children whenever they use Chrome to log into their Google accounts, whether on a parents’ Apple iPad, friend’s smartphone or home computer.”

If true, these allegations could establish not only a violation of FTC rules, but also potentially could establish a violation of federal laws, like the Family Educational Rights and Privacy Act (FERPA) and the Protection of Pupil Rights Amendment (PPRA), and some state laws, such as, in Illinois, the Illinois School Student Records Act (ISSRA) and specific student data privacy laws in other states. Such a violation might occur if the school did not obtain express prior written authorization from parents/guardians before requiring students to use GAFE, because in such cases, schools are required to ensure that the company offering the products only use personally identifying information collected from or created by students when using the products for the school’s purposes. This means personally identifying data and information cannot be used for any other purpose, including marketing or targeting ads to students.

Google, while commending EFF for its “focus on student data privacy,” completely denies the allegations, saying that its products and services “comply with both the law and our promises, including the Student Privacy Pledge….” Google defended its actions with the following description:

Personally-identifiable Chrome Sync data in GAFE accounts is only used to power features in Chrome for that person, for example allowing students to access their own browsing data and settings, securely, across devices. In addition, our systems compile data aggregated from millions of users of Chrome Sync and, after completely removing information about individual users, we use this data to holistically improve the services we provide. For example if data shows that millions of people are visiting a webpage that is broken, that site would be moved lower in the search results. This is not connected to any specific person nor is it used to analyze student behaviors. If they choose to, educators, students and administrators can disable Chrome Sync or choose what information to sync in settings whenever they choose. GAFE users’ Chrome Sync data is not used to target ads to individual students.

EFF has asked the FTC to investigate Google’s use of Sync and to, if warranted, initiate proceedings for injunctive relief to require Google to destroy all student data so far collected, maintained, or used in violation of the Student Privacy Pledge and to prevent Google from further improper collection or sharing of data in the future. At this time, however, there has been no finding of any wrongdoing by Google.

School leaders should still take note of this case, however, even assuming the FTC finds in Google’s favor. Google may be the most sophisticated Ed Tech company out there, and if they are being accused of failing to fully comply with the law, you can bet less sophisticated Ed Tech vendors are engaging in behavior that will cause concerns for community members and watch groups, too. School districts must be on high alert when it comes to contracts with all companies that require sharing, collection, or creation of student identifying data. If your district has not conducted an audit of existing contracts (which we discussed in an FR Alert earlier this year) and set up a process by which future contracts will be vetted by legal counsel, it may be asking for a student data privacy complaint of its own down the line.

School Leaders: Are Your Automatic Phone Messages and Texts Breaking The Law?

Posted by EdLaw on October 9, 2015

In the past few months, we’ve had a flurry of requests from schools about the legality of automated calls and text messages they are making to cell phones. The Telecommunications Consumer Protection Act (TCPA) governs the transmission of certain automated calls and text messages to cell phones, including calls and texts from public schools to parents. The TCPA law and implementing rules from the Federal Communications Commission (“FCC”), and specifically the interpretation of limits regarding public schools, have been on the books for years, but recent lawsuits against school messaging vendors and guidance from the FCC on the TCPA reaffirming the FCC’s position on school messages have led to renewed concern by schools that certain calls or texts may violate the law.

The most conservative approach under the TCPA is to obtain prior express written consent from parents for any phone number before placing any automated call or sending any automated text message to that number. Although there is an exception under the TCPA for informational calls to land lines from public schools, the reality in this day and age is that many parents do not have a home phone and provide their cell phone number as their home phone on school forms. Unless those forms or some other written authorization form makes it clear that informational calls or texts will be sent to the number provided, calls and texts to cellular numbers may be a violation of the TCPA if they are, even unwittingly, made to a cell phone.

Such a conservative approach can create serious health and safety concerns for schools, however, because of the impracticalities of obtaining consent. Failure to warn about a child’s absence from school or a school closing could place students in danger.

Such a conservative approach also may be unnecessary, because there is an exception to the cell phone call/text rule for “emergency” calls, which are defined by the relevant FCC regulations as “calls made necessary in any situation affecting the health and safety of consumers.” The Federal Communications Commission has suggested in guidance that it does not believe such language applies to all calls by schools, going so far as to say that informational calls about things such as school closures require prior express written consent. However, we believe that a strong argument can be made that many—or even all—school calls do fall under the emergency exception. Indeed, this is the position taken by a major education-notification company, Blackboard, Inc., in a FCC filing related to a TCPA lawsuit filed against Blackboard about calls and text messages it has sent on behalf of schools.

Even if a school district takes the conservative approach and adopts a policy that it will only send calls and texts to numbers on file for parents with prior written consent, it does not mean that it is precluded from sending all calls and texts to such numbers. Under the exception for emergency calls, there is no doubt that certain kinds of calls and texts from schools to cell phones about situations that are indisputably emergencies (like a school lockdown) are permitted without consent. Even schools that take the conservative approach to the TCPA may continue to make such emergency calls without parental consent. Because there are uncertainties about what constitutes an emergency, we advise that schools wishing to take the conservative approach work with legal counsel to determine what emergency calls should be made. For all schools, moreover, the flurry of warnings is a reminder to take steps to assess the types of automated calls and text messages that are being made to cell phones and to formulate a plan to mitigate or remove risks.

 

New Legislation Leaves Illinois Schools “Locked Out” of Student Social Media Accounts

Posted by EdLaw on September 1, 2015

Recent amendments to Illinois law draw back on rights of post-secondary, secondary, and elementary schools to request or require access to student social networking accounts such as Facebook and Twitter. School districts and nonpublic schools are now essentially “locked out” of student accounts, as they can no longer request or require access to the accounts even when there is reason to believe a violation of school rules has occurred. Now, schools can only require a student to “share the content” of an account, and only when the school has received a direct report of “specific information” about activity on the account that violates school rules or policies. The removal of the right to require a student to turn over password or other account information so the school can gain access to the student’s account or profile is a significant limit on schools’ ability to effectively address off-campus, online misconduct impacting Illinois schools, including cyberbullying and sexting.

The previous version of the Right to Privacy in the School Setting Act, which was signed into law in 2013 and became effective January 1, 2014, allowed post-secondary, secondary, and elementary schools to request or require a student to provide a password or other related account information where the school had “reasonable cause” to believe that the account contained evidence that the student had violated a school disciplinary rule or policy. Elementary and secondary schools were required to provide notice to parents of this right, which we advised be provided through student handbooks and formal school or school district discipline policy.

Recent amendments to the law in Public Act 99-0460 curtailed the rights so recently granted to schools. The amended law, effective August 25, 2015, now prohibits schools from requesting or requiring student password or other social media account information in any circumstance. Instead, schools only may require a student “to cooperate” in an investigation including social networking misconduct and only if there is “specific information about activity on the student’s account” that the student violated a school disciplinary rule or policy. The student may be required to “share the content that is reported” to help the school “make a factual determination,” but schools no longer have the right to “request or require” the student to relinquish his or her password or provide the school access to general account information.

Legislative history suggests that the goal of the amendments was to address interactions between the Right to Privacy in the School Setting Act and recent cyberbullying legislation passed in Illinois (Public Act 98-0801). This “Cyberbullying Bill” amended the School Code effective January 1, 2015, to make clear that student cyberbullying in “non-school-related locations” or via a student’s own personal technology is prohibited if the cyberbullying causes a substantial disruption to the educational process or orderly operation of a school. The Cyberbullying Bill stated that this prohibition applies to cases in which a school administrator or teacher receives a report that cyberbullying occurred and that districts and schools are not required to staff or monitor non-school related activities, functions, or programs. Illinois Representative Mike Fortner, who sponsored the Bill that amended the Right to Privacy in Schools Act, explained that the law “restricts the school’s ability to access Facebook to only those specific cases of cyberbullying which are either reported to the school or were observed by school personnel.”

The law unquestionably is a significant draw back on the tools available to schools to effectively address misconduct by students on social media. Schools now essentially must rely on the word of students that they have in fact turned over all requested content, as opposed to being able to verify that all content has been obtained directly through the student’s social media account. Notably, this is not the first time that schools have been locked out of social media accounts that may have a serious impact on schools. As I discussed in an article for the Illinois School Law Journal and an FR alert, a 2012 Illinois law essentially locked school districts out of employee social media accounts under very similar circumstances to those at issue in this student law. Although an amendment to that so-called Facebook Password Law went into effect January 2, 2014, as we reported at the time that amendment did not make clear what access was allowed.

Schools can thus rely on lessons learned from the employee Facebook Password Law to address how to respond to the new limitations in the student sphere. For example, when schools learn of a cyberbullying or other online, off-campus student issue, they can use tools such as interviewing students, looking for publicly available information online, obtaining relevant documents in possession of law enforcement, and determining if another party may provide access to the social media account information. This, in addition to demanding the student turn over the content at issue, will help ensure that the school has as much information as possible when addressing an online misconduct situation. As with the employee Facebook Password Law, schools should not hide behind the amended Right to Privacy in the School Setting Act as an excuse for failing to conduct a thorough and prompt investigation into misconduct affecting the school.

The Right to Privacy in the School Setting Act continues to require that elementary and secondary schools provide notice to parents before the school can obtain the access authorized by the Act. School districts and nonpublic schools recognized by the Illinois State Board of Education thus should take steps now to provide parents the required notice. We continue to recommend that the notice language be contained in both student handbooks and the district’s and/or school’s formal discipline policy. In light of the timing of this new law, which comes just after the start of the school year when student handbooks likely have already been distributed to students, we advise that school districts and schools move forward with amendments to their discipline policies to provide the required notice at this time.

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

Posted by EdLaw 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 EdLaw 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.

(more…)

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

Posted by EdLaw 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 EdLaw 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…)

Iowa Case Highlights Often Overlooked Risk of Releasing Personal Emails in Public Records Requests

Posted by Brian Crowley on May 28, 2014

As a frequent advisor to school districts on freedom of information requests, the question I face most often is how a public body can protect a sensitive document from release. Rarely am I asked what might happen if a public body decides to release a record that could have been protected under a freedom of information law. A recent decision from the Iowa Supreme Court is a reminder of the importance of focusing on that question when choosing to release records that might be subject to an exemption under a records request law.

The Case

In Sebring v. Des Moines Independent Community School District, a former Des Moines school district superintendent, Nancy Sebring, sued the school district and a number of its officials, including the former school board president and school attorney for invasion of privacy. The school district and its officials had released certain sexually explicit emails Sebring sent or received on the school district’s email servers in response to a request for records under the Iowa Open Records Law. The request, from the Des Moines Register, had sought emails relating to Sebring’s impending departure from the school district to serve as superintendent in Omaha, Nebraska. The sexually explicit emails were not related to Sebring’s departure for Omaha, but incidentally included the term “Omaha” and so were uncovered in a broad search by the school district’s information technology department. Despite the fact that the emails were not responsive to the request, the school district released them to the newspaper, anyway.

In April, an Iowa trial court ruled that Sebring had sufficiently alleged claims against the school district to move forward with her case. The court noted that when the school district uncovered the emails, officials recognized that the emails could be evidence of misuse of technology by Sebring, and so could have led to discipline for Sebring. In Iowa, documents related to disciplinary matters are exempt from disclosure under the public records law. Accordingly, the court held, the school district should not have produced the records.

The school district appealed the decision to the Iowa appellate court, and the case made its way up to the Iowa Supreme Court. Earlier this month, the Supreme Court reportedly decided that it would not hear the school district’s appeal. The trial court’s decision thus stands, and Sebring’s case can proceed to trial.

Insights for School Leaders

Our focus in public records cases usually is on finding an exemption that applies to the (often, sensitive) records that a public body does not want to release. But the Sebring case refocuses our attention on the potential fallout if a public body chooses to release a record that could be protected by an exemption. There are a couple of exemptions that are similar to the one addressed in Sebring in Illinois, for instance. Under our Freedom of Information Act (FOIA), not only are certain disciplinary records exempt from release through a cross-reference to the Personnel Records Review Act, but there is also a general catch all exemption for records the release of which would be an unwarranted invasion of personal privacy. Records that are not related to one’s public business may fall under that latter exemption. Notably, the decision whether or not to release exempt records typically is a choice for public bodies. Under the Iowa and Illinois public records laws, for instance, a public body may rely on an exemption to withhold a record, but it is not required to do so. The Sebring case is an important reminder that there can be legal risks in how public bodies exercise that choice, and specifically where a public body chooses to release a document that might be subject to an exemption. That release may not violate the public records law, but it might provide fodder for a lawsuit by the subject of the records released.

How Lessons Learned From “Yik Yak” Can Help You Address The Next Novel Social Media Bullying Trend

Posted by Brian Crowley on March 10, 2014

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.