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 Facts
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.
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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.
Locked Out….
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.
For those who follow me on Twitter and who follow this blog, you may have noticed a bit less content in the past two weeks than usual. I was busy assisting my colleague Shelli Anderson with a tenured teacher dismissal hearing and so was not as focused on Tweeting and blogging as I would usually be. Since I’ve been back, I have come across some interesting stories about teacher misconduct, including a teacher accused of locking students in a closet in Arizona, and a teacher who allegedly made the following comment on Twitter after Barack Obama’s presidential win:
Congrats Obama. As one of my students sang down the hallway, ‘We get to keep our fooood stamps’…which I pay for because they can’t budget their money…and really, neither can you.”
What better time than now to review a few tips and tricks for employee discipline investigations? As most school leaders know too well, the first step when you get an allegation of misconduct like those cited above is to conduct an investigation to determine if discipline is warranted. One of the first things you do in that process, moreover, is to conduct interviews of employees, including the employee about whom the allegation is made. Here are a few tips and tricks to keep in mind when completing this important step in the investigatory process.
Admonitions and Representation
The purpose of these initial meetings is fact gathering, so it is important to make that point clear to the subject of the interview. Always begin an interview by telling the employee that you are there to gather all the facts you can so that they understand the purposes of the interview. If an employee is hesitant to participate, moreover, you can remind them that this is the chance to tell his/her side of the story and to ensure the administration has the whole story when making decisions about the situation. And of course, always make sure the employee knows before the meeting about any rights to union representation and that the employee may have and make sure that any necessary representative is present during the interview. (more…)
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…)
