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.
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.
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.
Earlier this month, a New Jersey appellate court affirmed the dismissal of a tenured teacher for comments she made about her students on Facebook. Good summaries of the case, In re O’Brien, can be found through the National School Boards Association and Education Week (subscriber access only). But the case warrants a closer look for school leaders and employees who wish to better understand First Amendment protections of school-employee speech on the internet. Although the school district was allowed to dismiss the teacher in this situation, where she criticized her young students in an inflammatory way, there is a blurry line between protected and unprotected employee online speech that administrators must be careful to understand. Below are a summary of the facts in the case, the relevant legal standard and its application to O’Brien’s situation, and some lessons that school administrators and employees can learn from the ruling.
In 2010-2011, Jennifer O’Brien was a veteran teacher with over a decade of experience in the Paterson, New Jersey public schools. At the start of the 2010-2011 school year, Paterson unexpectedly was assigned to teach first grade at a new school that was predominately comprised of minority students, including African-Americans and Latinos. All of the students in her class, in fact, were either Latino or African-American.
O’Brien began to believe that six or seven of the students in her class had behavioral problems, which were having an adverse impact on her classroom environment. One student struck her, another stole money from her and other students, and some students hit each other.
O’Brien responded to these issues by sending disciplinary referrals to the school administrators on several occasions, but she thought the referrals had not been addressed adequately. O’Brien then posted two posts on her Facebook page relating to the issues:
“I’m not a teacher—I’m a warden for future criminals!”
“They had a scared straight program in school—why couldn’t [I] bring [first] graders?”
O’Brien said she posted the statement that her students were “future criminals” because of the behavior of some – but not all – of the students, not because of their race or ethnicity. News of her posts spread quickly throughout the school district, however. Two angry parents went to her principal’s office to express their outrage, and one parent threatened to remove her child from school. The school also received at least a dozen irate phone calls. Twenty to 25 people gathered outside the school to protest because of the statements, and news reporters and camera crews from major news organizations descended upon the school. At the next Home-School Council meeting, the majority of the meeting was devoted to O’Brien’s posts and parents expressed their outrage over the posts. When O’Brien was made aware of the outrage against her posts, she was surprised that her posts had led to such a reaction. (more…)
A recent Illinois Attorney General opinion addressed an interesting question: Can a public entity delete comments by community members from its Facebook page? Although the public entity at issue was a municipality, the opinion raises a number of interesting issues for public schools. The Attorney General addressed the question under the Illinois Open Meetings Act (the OMA), and found no violation under that specific law. But, if a court were to address the issue under the First Amendment of the federal Constitution, it is less clear that the public body would prevail. Notably, the First Amendment issue – discussed in part 3 below – is relevant even for school districts outside of Illinois. The decision is a warning to public entities, including school districts, across the country to carefully consider the basis of a decision to delete a user comment from a social networking page.
The opinion centered around criticism by a community member about a village’s Facebook page. An article in the Daily Herald provides the back story. The page came under scrutiny after the village trustee, who maintains the village’s Facebook page, deleted some items and comments from the page. As with most Facebook “fan” pages, users are allowed to comment on the “wall” of the page, but those comments can be deleted unilaterally by the person who maintains the page. The trustee justified the deletions by pointing to an uptick in negative comments and to complaints by other community members that they were reluctant to subscribe to the Facebook page because of negative comments.
The community member that brought the action, a former part-time police officer of the village, was one of the individuals whose comments were deleted. He complained on his blog about his comments being removed. In one post, he said that he would “be exploring remedies for [the village’s] action of censorship on a ‘supposed’ public site.” The Attorney General request for review appears to have been the individual’s first efforts at finding such a remedy.
Another hot topic that came up at our TechCon 2012 presentation on social media policies (which I blogged about earlier this month here) is whether to allow teachers to use social media in the classroom. Reports about why social media belongs in the classroom (such as this one from NBC News, which was later picked up by the Huffington Post) make compelling points about the need to meet students where they are and teach them how to use (and responsibly use) technology such as social networking. But there are serious legal concerns school districts should consider. At the conference, we discussed some of these concerns.
Age Appropriate Behavior?
For instance, some students, particularly at the elementary level, may be too young to establish a page on a social media website without violating the terms and conditions of the website. Teachers shouldn’t use social media pages for classroom activities if student participation would violate those sites’ policies. Our conclusion on this point: teachers probably should not be allowed to use any social media websites that have age restrictions for younger students. That means no Facebook, friends. Does that mean there must be a brick wall between elementary school students and technology? Not at all. There are fantastic free social media tools for teachers out there that are not open to the public in the same way as Facebook, and so do not have the same age restrictions.
We also discussed that teachers’ use of personal social networking websites can create issues for schools that need to supervise or investigate such use. This is especially true in states like Illinois that have laws prohibiting public employers from asking for passwords to social networking accounts, even if they are used for a business purpose. School districts in Illinois and other states with similar laws may find themselves in a bind if they need to access the social media websites to investigate misconduct, for litigation purposes or to respond to a public records request. Notably, the Illinois law suggests that public employers can’t even ask for information from social networking pages of employees. This could prohibit school districts from asking teachers to make their personal social networking pages accessible to administrators when used for classroom purposes. I wrote on this topic in the most recent issue of the Illinois Association of School Board Journal in an article titled Locked out…Strategies for complying with the Facebook Password Law.
Now, there are arguably very good reasons for locking school administrators (and other employees) out of employees’ personal social networking websites. Another education blogger, @mcleod, made the analogy on my Twitter profile between laws like the Facebook Password Law and laws against wiretapping educators’ phones. If employees are choosing to use personal media or their personal telephones for personal use, I think there are very few (if any) who would suggest that school administrators should have access to those personal methods of communication. Simply because you sign up to be a public teacher should not mean that you give up all rights to a private personal life.
But once a teacher chooses to use those private, personal methods of communication to communicate with students on school business, I think their right to privacy must end. The Illinois Facebook Password Law does not recognize this reasonable distinction, and raises serious concerns as to how school districts can respond if they have a legitimate need to access school-related content on a teacher’s personal social networking account.
The easiest way to get around these concerns, and a good practice even in states that do not have Facebook password laws, is to have teachers create a “group” page on social media using their business e-mail account. In those cases, the page is arguably that of the school district and so does not fall under the prohibition in Facebook password laws. The use of a business account also helps prevent the line-blurring that can occur when a teacher uses her personal social media account with students. It can be hard to tell teachers and students that the teacher is an authority figure, not a friend, when the two are friends on personal social networking programs.
A recent @IlPrincipals tweet identified an interesting USA Today article: “Should parents ‘friend’ their child’s teacher?” At this time of year when social media policies, procedures and guidelines are being reviewed across the country, another important question school leaders should ask is what they should do if such “friendships” occur.
The “Parental Paparazzi”
Perhaps the most important thing school leaders should do is to educate teachers of the risks they face if they agree to such “friendships.” If teachers and parents become “friends,” and the parent brings in evidence of what they believe to be misconduct by the teacher on his or her social networking website, the school district may be able to – or even have to – discipline the teacher for that online activity.
It’s not true, as one commentator suggested on NPR’s Talk of the Nation, that “anything that a parent might object to in your life can be the basis of discipline.” But there are risks from what is becoming known as the “parental paparazzi.” Teachers should be informed that if they agree to online relationships with parents, they are potentially opening their lives to the “paparazzi.” (more…)