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.
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.
Discriminatory discipline has been a hot topic this year in public schools, and the focus on this topic makes it one that school leaders should not ignore.
A Spotlight on Discriminatory Discipline
In January, a major study showed, among other findings, that black and Hispanic students are suspended at higher rates than their non-Hispanic white counterparts, and that the differences often are not attributable to different levels of misbehavior.
In late March, a Mississippi school district entered into a consent decree with the U.S. Department of Justice to address reported discriminatory use of “exclusionary discipline” such as suspension, expulsion and school-based arrest, often for minor infractions, among black students, and use of harsher discipline for black students, even when white peers of similar ages and with similar disciplinary histories committed comparable misbehavior at the same schools.
In April, the Legal Aid of North Carolina filed a complaint with the Department of Education’s Office for Civil Rights (OCR) alleging that a North Carolina district violated a civil rights law, Title VI of the Civil Rights Act of 1964, by suspending black students and students with disabilities at far higher rates than white students and students without disabilities.
Finally, this week parents and students reportedly filed a lawsuit against police officers and the school board in Compton, California, seeking $41.4 million in damages for disproportionate use of unlawful arrest, excessive force, racial profiling, and racial discrimination by police and police liaison officers in schools.
Tips and Tricks
Although the severe abuses alleged in these cases are extreme, and although disproportionate disciplinary numbers do not always establish discrimination, the spotlight on discriminatory discipline make clear that schools and school districts with disproportionate disciplinary records are at risk of legal challenges from all directions.
Here are a few tips and tricks for school leaders who wish to take a proactive approach to prevent students of one group from being disciplined more or more harshly than others and to mitigate the risk of lawsuits and complaints like those described above:
The media coverage of the Sandy Hook school shooting is tapering down, but the lessons for school administrators in its wake are just beginning. One such lesson comes after a California school suspended a high school senior for writing a poem about the Connecticut tragedy. The case provides an opportunity to consider the standards for when student speech is protected, even if it is controversial, and when it is a red flag warranting discipline and other school action.
In late December, the Life Learning Academy suspended a 17-year old student for a poem she wrote about the shooting at Sandy Hook Elementary School in Newtown, Connecticut. The poem included lines such as “I understand the killings in Connecticut. I know why he pulled the trigger.” The student told ABC News that the meaning of the poem is about society and how she understood why things like the incident happened. She explained that she wasn’t agreeing with the actions of the shooter, but “that’s how the school made it seem.” She stated that she’d written poems about suicide and sadness in the past because it is a genre that she likes, comparing herself to Stephen King who “writes weird stuff all the time. That doesn’t mean he’s going to do it or act it out.”
The student reportedly neither turned in the poem to school employees nor distributed it to others in the school community. Rather, a teacher came across the poem in a notebook and turned it into the school’s principal. According to one account, the school—which is a non-residential high school located on Treasure Island, a former US Navel base in the middle of the San Francisco Bay—and the San Francisco Unified School District are reportedly considering expelling the student. The school has a zero tolerance approach to violence or threats of violence.
As Education Week recently reported, the Eighth Circuit Court of Appeals has held that two high school students from Missouri were unlikely to establish a First Amendment violation for discipline based on an inflammatory website they posted off-campus on their own time. In S.J.W. v. Lee’s Summit R-7 School District, the court approved of the school’s discipline even though the bulk of the disruption caused by the website was the result of a post by an unrelated third party. The Court also rejected yet another attempt by proponents of student speech such as the American Civil Liberties Union (ACLU), to argue that all off-campus student speech should be off limits for discipline by public schools. The case provides guidance to school leaders on the challenging question of when discipline is warranted for off-campus, online misconduct by students.
In December, 2011, two male high school honor students, who were twin brothers, posted racially and sexually charged slurs on a website. The website – northpress.tk – was reportedly created on a Dutch server that could not be found on a Google search. The boys took this step with the intent of limiting access to six or seven friends and preventing the website from reaching a broader school audience.
A third, unrelated student added a post titled with the N-word which was accessed by multiple students at school and led to a disruption in school that one teacher compared to the aftermath of the September 11 attacks. As the brothers alleged in their complaint, the twins were not aware of the post, which was only on the site for approximately 12 hours before being removed by the third student. The twin brothers were nonetheless suspended, first for 10 days and then for 180 days, when the school found out about the website and a disruption ensued. The boys’ school gave them the option to attend an alternative school, but their parents reportedly filed a lawsuit in March because they believed the academics and extracurricular activities at the alternative school were not up to their standards.
A federal District Court determined that, although the website created a substantial disruption, the students were likely to succeed on the merits of their First Amendment claim and were entitled to an injunction. This decision was important because, with the injunction and the long life-span of federal trials, the students were likely to graduate before the trial court weighed in with a more permanent decision. The Eight Circuit, however, disagreed and held that the students were not likely to succeed on the merits of their claim and, so, were not entitled to an injunction. (more…)