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.
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.
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…)
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.
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.
One final issue that we delved into at TechCon 2012 last month was discipline of students for off-campus, online misconduct. Stories of schools wrangling with the issue of whether they can discipline students for such misconduct are common, such the recent issue in Granite City, Illinois, in which a school reportedly suspended 21 students, including honor roll students and the homecoming king, for Tweeting, re-Tweeting, or “favoriting” Tweets including one making sexual comments about a female teacher. At TechCon, we discussed a couple of other interesting examples: students taking unflattering photographs of teachers and posting them online and students doing the same with videos of off-campus fights between other students. I made a shameless self-promotion at the presentation and suggested that participants read my recent blog post, Eighth Circuit: School Discipline of Missouri Students For Inflammatory Website Constitutionally Sound, to get some background on the issue. And we discussed that these questions are very fact-specific and must be considered individually as they arise. But we also discussed that school leaders generally need to ask themselves the following three questions with respect to discipline of off-campus, online misconduct.
- Does school board policy allow for discipline of the type of speech in question?
In all cases where discipline is imposed, including for off-campus, online misconduct, it is essential that the district have a clear policy allowing for discipline of the type of activity in question. Even if a school district may discipline a student without infringing on his First Amendment rights, the district still may face challenges if its policy does not allow—or does not clearly allow—for that discipline.
- Is there a sufficient connection between the off-campus, online speech and the school environment?
A sufficient connection, or “nexus,” exists between the off-campus, online speech and the school where it is reasonably foreseeable that the speech would reach and impact the school community. This is a very fact-specific analysis, but here are a few examples of questions that can help you determine whether a sufficient connection exists:
- Were the materials made “public” so they could be viewed by anyone on the Internet?
- Even if the materials were “private,” was access allowed to other students?
- Even if the materials were “private,” were they specifically aimed at the school environment in a way that would lead someone to reasonably expect members of the school community to find out about them?
- Is the speech of the type that can be disciplined in the school context?
Once it is established that the speech can be disciplined under school board policy and that there is a sufficient nexus with the school, the question becomes: Can the speech be disciplined under the First Amendment?
If the speech is “unprotected” speech under the First Amendment it can be disciplined, period. But there are only a few categories of speech that are unprotected, and they are quite rare. One example is speech encouraging illegal drug use, which the Supreme Court in a 2007 case (Morse v. Frederick) held could be disciplined in the school context.
Even if the speech is protected by the First Amendment, it can also be disciplined in the school context if it causes a substantial disruption or invasion of the rights of others, or causes a reasonable risk of a substantial disruption or invasion of the rights of others.
What does that mean? Like the connection/nexus inquiry, the issue is very fact-specific and should be dealt with on a case-by-case basis. The list of questions to ask is long, and the best person to guide you through the process is your school attorney. But here are a few questions that could suggest a substantial disruption if the answer is “yes”:
- Are the materials misleading or false, in a manner that would create a need for the school district to actively correct the misinformation?
- Is there evidence of a past disruption in a similar circumstance?
- Have a number of staff members or students expressed anxiety about the online materials or their safety because of the online material, or missed significant amounts of class because of their concerns about the material?
After discussing these standards for discipline, we also discussed what can (and should) be done if students cannot be disciplined for off-campus, online misconduct. School districts may still be required to respond to the misconduct, particularly if it is pervasive or relates to a protected characteristic such as race, sex, or disability. I suggested that participants review a recent Franczek Radelet Alert (and an OCR letter cited therein) that talks about responses that school districts can (and in some cases must) take in response to bullying and harassment, including online bullying and harassment. Notably, OCR made clear that these responses are available, and may even be required, even if the students who are responsible for the bullying and harassment cannot be disciplined.
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.
I was excited to speak to an engaged group of school leaders this past Friday at TechCon 2012. For those unfamiliar, TechCon is an annual conference that focuses on issues of technology in education and that is hosted and sponsored by the Illinois Association of School Business Officials (IASBO), the Illinois Chief Technology Officers (ILCTO), and Illinois Computing Educators. I participated in a panel discussion with Thomas Zelek of Elmwood Park CUSD 401 and Bill Spakowski of Single Path, LLC about social media policies. We addressed a number of interesting issues including whether school districts should have a social media policy at all, the implications of the recent Illinois Facebook Password law, and – a little off topic but interesting nonetheless – student discipline for off-campus, online misconduct. Over the next few weeks, I will blog on these issues and specifically on the topics we discussed at the conference. (more…)
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…)