Education Law Insights

Is Your School District’s Lack of Social Media Guidelines Putting the District at Risk?

Posted by Jackie Wernz 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.


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

Posted by Jackie Wernz 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 Jackie Wernz 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…)

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

Posted by Jackie Wernz 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.

Sixth Circuit Rules School’s Search of Student Cellphone Violated Fourth Amendment

Posted by Jackie Wernz on April 23, 2013

In a recent decision, the first federal appellate court to address the rights of school officials to search student cell phones held that a student’s violation of a school rule regarding technology did not justify a general search of the student’s cell phone by Kentucky school district employees. The case is an important reminder to school leaders that they can search student technology in certain circumstances, but they must respect the fine line between a justifiable search and a search that violates a student’s constitutional rights.

The Decision

The case, G.C. v. Owensboro Public Schools, dealt with a student, G.C., who was involved in a string of disciplinary incidents and had communicated to school officials that he was suicidal. During his freshman year, school officials searched G.C.’s phone after an incident where he walked out of a meeting with a prevention coordinator, left the school building without permission, made a phone call to his father in the parking lot and was found in the parking lot with tobacco products in plain view. The school official who searched the phone cited concerns that the student was going to harm himself as a basis for conducting the search.

That fall, at the beginning of his sophomore year, G.C. violated the school cell phone policy by using his phone to send text messages during class. His teacher confiscated the phone and delivered it to another administrator. The administrator read four text messages on the phone in an effort to see if there was evidence that he was going to harm himself. Although no evidence of misconduct was found on the phone, G.C., who was attending the school as an out-of-district student, was told that he had lost his privileges to attend Owensboro High School because of his behavior.

The Sixth Circuit Court of Appeals, addressed a number of issues in its decision, including whether the school district was required to provide G.C. a hearing before telling him he could not attend the high school (it was) and whether the school discriminated against him based on Section 504 of the Rehabilitation Act (it did not). But the most interesting element of the decision dealt with whether the school officials were justified in searching the student’s cell phone.


Are Emails, Texts, Tweets, and Other Digital Communications Student Records Under FERPA and State Law?

Posted by Jackie Wernz on February 20, 2013

As schools increase the use of technology to communicate with and about students, questions arise about the intersection between the data created and student records laws, such as the Federal Educational Rights and Privacy Act (FERPA). States also have similar laws that may provide greater protections than their federal counterpart. Are emails, texts, Tweets, and other digital communications between teachers, administrators, parents, and students “educational records” under FERPA and related state laws?

Let’s address the following questions: (1) Why does it matter? (2) Are digital communications student records? and (3) How do I respond to a broad student records request for digital communications? (more…)

Legal Issues for BYOD and 1:1 Programs in Schools: #Edchat Follow-Up

Posted by Jackie Wernz on February 12, 2013

Each Tuesday the #Edchat hashtag brings together educators from across the globe to discuss education-related topics on Twitter. (For those wondering “What is #Edchat,” one of the founders describes the movement here.) Last week one of the questions on #Edchat was “How do we train educators to teach in programs like BYOD and 1:1?” The chat was timely because the Internet is abuzz with questions about whether BYOD programs and 1:1 programs have a place in the classroom. BYOD programs are programs through which schools tell students “bring your own devices” to the classroom for pedagogical use, and 1:1 programs are programs through which schools equip each student with a school-owned electronic device for school-related use.

As the transcript shows, there was a lively conversation with hundreds of Tweets discussing the benefits of BYOD and 1:1 programs. For instance, participants pointed out that BYOD and 1:1 programs allow technology to be more seamlessly integrated into the classroom in ways the traditional computer lab never allows. Participants also noted that use of technology in the classroom can help turn students from “tech comfy” to “tech savvy.” (The idea is described more here.)

The participants also pointed out some of the risks of BYOD and 1:1 programs. As one participant put it, “Moving forward with 1:1 without preparing teachers properly creates school culture and pedagogical problems.” But there are also important legal risks, and school districts should not move forward with BYOD or 1:1 programs without preparing educators to understand those risks, as well. I pointed this out in a few Tweets, and was asked by some participants to provide some resources about those legal risks.


TechCon 2012 Recap: Social Media Policies and Other Law and Technology Issues

Posted by Jackie Wernz on November 1, 2012

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…)

For School Tablet Computer Rollouts, Don’t Forget Potential Legal Stumbles

Posted by Jackie Wernz on September 6, 2012

The Illinois Association of School Administrators recently alerted followers on Twitter (@IllinoisASA) to an interesting blog entry by Eric Lai for UberMobile entitled “Four Reasons Why School Tablet Rollouts Can Stumble – Or Fail.” In the blog, Lai explains why even the best technology can’t overcome poor planning and lack of follow-through when it comes to 1:1 technology programs in schools. The entry is timely in light of national news that Apple’s iPad is overtaking PC sales in schools and local news of schools swapping textbooks for tablet computers/laptops (examples here and here).

Lai’s entry hits the mark with respect to technological and pedagogical issues that schools may face. Yet, school leaders should also consider potential legal challenges when implementing 1:1 technology programs in schools.

Here are just a few of the issues about which school leaders should keep alert:

Filtering or Blocking

Technology that students take home with them is subject to the same monitoring requirements applicable to technology within a school. For example, the Children’s Internet Protection Act (CIPA), which applies to schools that receive universal service (“E-rate”) discounts, would apply to tablet and laptop computers sent home with a student just as it does to computers in a school’s library.

Privacy Issues

School leaders should consider carefully how to balance the need to monitor students on district issued technology with any rights of privacy that the students may claim. Although privacy concerns might not be as sensational as this webcam spying case from 2010, schools should work carefully to strike the right balance with 1:1 technology issued to students.

Fee Waivers

Illinois requires that public schools provide fee waivers to eligible students for essential materials like textbooks (here is a summary provided by ISBE). Even in states without such provisions, schools should take steps to ensure that any fee policies for required 1:1 technology (such as deposits for use of a tablet and insurance premiums for a laptop) are not out of reach for students whose parents lack the means to pay for them.

By both following the technological and pedagogical advice from Lai’s blog and carefully planning ahead with legal counsel regarding legal issues, school leaders can set up their 1:1 programs for success from all angles.