METRO BUREAUWEDNESDAY, DECEMBER 10, 2014

Facebook, Twitter, and Their Friends:Effectively Navigating Employee and Student Issues

in the Era of Social Media

Presenter:

Kevin T. Sutton

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How Social Media Questions Make Us Feel …

How We Hope To Feel by Lunch Today …

How Do We Get There?

Syllabus for Today Controlling the Use of Technology First Amendment Considerations Fourth Amendment Implications Limitations on Employee Discipline Permissible Scope of Student Discipline Cyberbullying On-Campus v. Off-Campus Conduct Use of Evidence Gathered Online Relying on Social Media in Hiring

Review of Recent Decisions/Case Law

Challenges

Uncertainty in Law Lack of cohesion from state to state Lack of consistency from court to

court Balance of private rights v. obligation

to community Blurred lines (public v. private)

Why? Law moves slowly Social media outlets emerge too fast Example: Snapchat Districts forced to be reactive instead

of proactive

Intersecting Concepts

Free Speech

Policy

Search & Seizure

Privacy

Discipline

Safety

Hiring/Firing

Cyber-Bullying

Disruption

Evidence

We used to think we had a pretty good grasp on this stuff …

But “Social Media” is so much more than most people think …

Social Media Permeates … Everything

Always On Accessible on mobile devices Live tweeting Interactive television

Universal Everyone wants to “connect” “Grandma joined Facebook!” iPhone 6 … 10 million orders

Consequences Example – game attendance Deterioration of soft skills “If you can’t say something

nice ….”

Where Do We Start?

First Amendment Overview

This is Speech After All … Right?!?

Tinker v. Des Moines Ind. Sch. Dist. (1969) USSC recognizes students’ right to free speech on and

off campus Students have right to free speech unless it

“materially disrupts class work or involves a substantial disorder or invasion of the rights of others”

Hazelwood Sch. Dist. v. Kuhlmeir (1980) First Amendment protections did not compel a public

school to affirmatively sponsor speech that conflicts with its “legitimate pedagogical goals” even though same speech could not be regulated outside of school

Analysis of Speech

Key Question:

Does the speech from outside school walls cause a substantial disruption in

school?

If YES, discipline may be appropriateIn NO, discipline not likely appropriate

Recent Cases

S.J.W. v. Lee’s Summit R-7 School Dist. 696 F.3d 771 (8th Cir. 2012)

Kowalski v. Berkeley Cty. Schools 652 F.3d 565 (4th Cir. 2011)

J.S. v. Blue Mountain Sch. Dist. 650 F.3d 915 (3rd Cir. 2011)

Layshock v. Hermitage Sch. Dist. 650 F.3d 205 (3rd Cir. 2011)

J.C. v. Beverly Hills Unified Sch. Dist. 711 F.Supp.2d 1094 (C.D. Calif. 2010)

Recent Cases

Evans v. Bayer 684 F.Supp.2d 1365 (S.D. Fla. 2010)

Doninger v. Niehoff 527 F.3d 41 (2nd Cir. 2008)

J.S. v. Bethlehem Area Sch. Dist. 807 A.2d 847 (Pa. 2002)

Basic Principles Extracted

Assessing a “Substantial Disruption” Use Caution Be Realistic Inconvenience not enough Embarrassment not enough Key elements

Violence Threats Safety Criminal Activity

Courts Don’t Always Cooperate

Fourth Amendment Issues

Internet Privacy Protection Act

Public Act 478 of 2012 Sec. 4. An educational institution shall not do any of

the following: (a) Request a student or prospective student to grant

access to, allow observation of, or disclose information that allows access to or observation of the student’s or prospective student’s personal internet account.

(b) Expel, discipline, fail to admit, or otherwise penalize a student or prospective student for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the student’s or prospective student’s personal internet account.

NOTE: Sec. 3 provides similar restrictions for employers

Search & Seizure - Students

Standard for Police Warrant for search

Standard for School Administrators Two-Step Inquiry [TLO v. New Jersey]

Reason to suspect student violated SCC? Reason to suspect evidence of violation of SCC exists in

the area you want to investigate/look? Confirmed by GC v. Owensboro Public Schools (March

2013)

Search & Seizure

Practical Examples: Things v. Information

Things Search for Stolen iPad Search for a Weapon Search for Drugs

Information Law Not Well-Developed

• Search for Texts• Search for Photos

Consent Issues Can be addressed via policy Reasonable expectation of privacy? Use what you have at your disposal!

R.S. v. Minnewaska Area Sch. Dist.

Factual BackgroundFactors to consider to determine if search is

reasonable: The scope of the legitimate expectation of privacy at issue The character of the intrusion complained of The nature and immediacy of the governmental concern at

issue and the efficacy of the means employed dealing with itBottom Line – They Went Too FarIPPA Implications in MI

Citation: 894 F.Supp.2d 1128 (D. Minn. 2012)

Chaney v. Fayette County Pub. Sch. Dist.

County-wide “Community Awareness Seminar”Presentation included picture of 17 year old female

student in a bikini found on FBPicture included student’s full name Student alleged violation of her Constitutional right

to privacy under the 4th and 14th amendments Court dismissed her claims because she had no

expectation of privacy in a picture she posted to “friends” and “friends of friends” (broad privacy setting)

Citation: 977 F. Supp. 2d 1308 (N.D. Ga. 2013)

Rosario v. Clark County Sch. Dist.

Student tweets

“Mr. Isaacs is a b*tch too” “I hope Coach brown gets f*ck*d in tha *ss by 10 black d*icks” “F*ck coach browns b*tch *ss” “AND Ms. Evans b*tch *ss boyfriend too He a p*ssy *ss n*gg* tryna talk sh*t”

Student argued school violated his Fourth Amendment rights by searching his Twitter account

Court finds student had no reasonable expectation of privacy in his tweets Student had private Twitter account but court says that’s irrelevant The school accessed his tweets through one of student’s followers Where person tweets to his friends he runs the risk that the friend will

turn it over to the government Note: First Amendment protections applied

Citation: 2013 US Dist. LEXIS 93963 (D. Nev. 2013)

“Schools pay $70k to Minnesota student forcedto give up Facebook password”

Headline - March 27, 2014School officials and police made female student, Riley,

give up her password and look through her accountNo parent present Riley made post about a mean teacher’s aide and got in-

house suspension Mother of a different student found out about sexual

online chat between Riley and her son; Riley’s account was searched

Riley switched to home school because of it allNew school policy: students’ electronic records can only

be searched when reasonable suspicion that school rules have been violated

“Employer demandsFacebook login credentials during interview”

Headline - Feb. 20, 2011Officer for Maryland Division of Corrections (DOC)

forced to hand over login credentials during interview

DOC wanted login information for background checks

Difference between checking what job applicant posted publicly online and private information

Officer had highest privacy settings, likened it to government agency going through his personal mail

Federal Stored Communications Act implications

Search & Seizure - Employees

Investigating computer activity is often essential; factors in determining an employee’s expectation of privacy on his/her work computer include: Whether the employer/district maintains a policy banning

objectionable use Whether the employer/district actually monitors the use of

the employee’s computer activities Whether third parties (such as IT Departments) have the

right of access to the employee’s computer Whether the employer/district placed the employee on notice,

or the employee was aware of the monitoring policies Employers should obtain consent, either through

acknowledgment or notification

Practical Guidance

Staff Activities on District Network District AU and Other Policies Rule

Tougher standards Less wiggle room Easier to investigate Easier to discipline Recent examples

Porn Search at Work

Responding to Employee Online Conduct

Employee/Staff Issues

Problematic, Though Generally Less Pervasive Intentional v. Unintentional Recent examples

Clear Expectations Acceptable Use Policies Digital Communications & Social Media Policies

Guidance Often Ignored “I won’t be the one …” “Everyone else has it …” “No one will ever see my posts …”

Consequences, Be Damned! Freedom of speech/privacy advocates

Generational Issues?

Central Question:

What are the standards that govern employee conduct?

Free Speech Has Its Limitations

Assumptions Don’t Match Reality

Speech of Public Employees is Closely Scrutinized Garcetti v. Ceballos (2006)

A public employee’s speech concerning his or her job duties was not entitled to First Amendment protection

Lane v. Franks (2014) A public employer may not retaliate

against a public employee for giving truthful testimony, under subpoena and under oath, where testifying in court is not part of the employee’s job

Social Media and Tenured Teachers

Relative to the World of Social Media …The Case of Anna Land

The “Jobbie Nooner Case” Middle school teacher, tenured “A simulated act of fellatio with a male mannequin” Photos posted to Internet Images spread like wildfire – community concerns, etc. Terminated by District Dismissal reversed by State Tenure Commission (Early

2009) STC decision affirmed by Michigan Court of Appeals

(May 2010)

What We Think We Know:Guiding Principles from Land

Adverse Effects Doctrine (Beebe)

Given the presumption of fitness engendered by tenure status, 'just and reasonable cause' can be shown only by significant evidence proving that a teacher is unfit to teach. Because the essential function of a teacher is the imparting of knowledge and of learning ability, the focus of this evidence must be the effect of the questioned activity on the teacher's students. Secondarily, the tenure revocation proceeding must determine how the teacher's activity affects other teachers and school staff.

[T]he likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood of the recurrence of the questioned conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers.

What We Think We Know:Guiding Principles from Land

Misconduct Needed Too Absent misconduct, consideration of negative

publicity surrounding a teacher's behavior would run afoul of the purpose of the Teachers' Tenure Act to protect the rights of competent teachers to teach. Thus, while we agree that it was unfortunate that students gained access to the photographs in this case, we expressly disavow any suggestion that negative publicity alone, absent a showing of underlying professional misconduct, can provide reasonable and just cause for discipline under the Teachers' Tenure Act.

What We Think We Know:Guiding Principles from Land

Adverse Effects + Misconduct =Grounds to Terminate

Specific to tenured teachersSpecific to offsite, electronic

communications, outside District network Not exactly the slam dunk we would hope for

Reason to Hope?

Might Land be an aberration?Things to consider …

Just Cause v. Arbitrary & Capricious Discharge/Discipline now a prohibited subject of

bargaining More favorable STC Overall tenor of discussion, increased knowledge about

online activitiesWould the outcome be different today?

Tough to predict Above items suggest yes, but case language a challenge

Illustrative Cases

Federal suit charges district’s superintendent failed to end sexting by teacher Substitute teacher / nephew of Superintendent “Thousands” of graphic messages sent through text,

email, and chat to female students, all minors Superintendent, teacher, and Board member all aware No action taken against substitute teacher … at first After substitute arrested, District terminated him Federal civil rights lawsuit, alleging sexually hostile

educational environment

Geissler v. Independent School District #2154

Teacher seen viewing pornography on computerInvestigation revealed 200,000 pornographic

web site visits in 15 monthsUse of District systemTerminated; termination sustained - misconductThe frequency with which the claimant violated

the school district’s policies and the subject matter of the computer use was a serious violation of the standards of behavior the school district had the right to reasonably expect of the employee

Illustrative Cases

ISD #284 No just cause to discharge teacher, even though he spent

inordinate amount of time on computer when he should have been concentrating on teaching students

Chart used by District to show time spent on web was exaggerated

Discipline not warranted under progressive disciplineMonterey County

No just cause to discharge employee who read and printed out co-worker’s email, even though email related to investigation of employee, where employee had permission to get on co-worker’s computer for anti-virus work

AUP did not provide that info on computers was private

Munroe v. Cent. Bucks. Sch. Dist.

Teacher with a personal blogNegative blog posts about administration and studentsTerminated; sued alleging First Amendment

harassment and retaliationPostings were “far from implicating larger discussions

of education reform, pedagogical methods, or specific school policies” and “mostly complained about the failure of her students to live up to her expectations”

Case dismissed

Citation: 2014 U.S. Dist. LEXIS 101571 (E.D. Penn. July 25, 2014)

Rubino v. City of New York

Student drowned during field trip Next day teacher posted on Facebook “the beach sounds like a

wonderful idea for my 5th graders! I HATE THEIR GUTS!” “Friend” commented “you would let little Kwame float away” to which teacher

responded, “Yes I wouldn’t throw a life jacket in for a million!” Postings shown to administration and investigation began Teacher admitted to writing the postings at a hearing Teacher argued termination would be arbitrary and capricious; she

had clear employment history, and her comment bore no relation to teaching ability

Alleged infringement of First Amendment rights Court held termination was not arbitrary and capricious but the

punishment was not proportionate to her offense; termination was inconsistent with first amendment freedom of speech

Citation: 34 Misc. 3d 1220(A) (N.Y. Sup. Ct. 2012)

Medina County Board of Education (Arb)

Students added inappropriate programs (violent games) to their computers

Teacher responsible for supervisionWritten reprimand Discipline was not arbitrary and capriciousEven if not an expert in computers, teacher

should have maintained a more watchful eye on student activities

Practical Guidance

Strong Policies All communication driven through District network All communication educational in nature only Dilemma – 21st Century Learning v. Inappropriate

Actions Prohibition on connecting with current students

(encourage?) Twitter assignments/communication Training / Communication of Expectations is Paramount

Need for open dialogue with staff/EA

Investigation Conversation with employee Case by Case on how hard to push

Practical Guidance

Social Media in Hiring Background Checks

What are you looking for?

Beware - Discrimination Issues

Remember IPPADiscipline/Discharge

Look for nexus between conduct and educational impact

Misconduct?

Dealing With Student Issues

Student Issues Abound

Sampling of recent headlines … Lawsuit alleges Mississippi district

expelled him for online posting of nude photo of classmate

New Jersey district settles lawsuit with student disciplined for profane off-campus tweet about principal

Parents file claim against San Diego district after cyberbullying incident led to student’s suicide

Father of bullied student who committed suicide sues Illinois district and producers of anti-bullying video

Oregon district settles student’s lawsuit over high school dance team’s social media policy

Former student sues Minnesota district after “sarcastic” tweet leads to seven-week suspension

… from the past 5 months

Keys to Student Issues

District PolicyStudent Code of ConductLimit Usage of Cell Phones in SchoolLimit Expectation of PrivacySeek ConsentApply TLO two-part analysisSeek legal counsel

On-Campus v. Off-Campus Conduct

Remember …

First Amendment considerations Tinker Hazelwood

Can police off-campus speech “Substantial Disruption” Consider safety, threats, violence Nexus to school activities

Nixon v. Hardin County Bd. of Educ.

Student tweeted about shooting/killing another student First Amendment concern – can schools regulate off campus

online speech by students?Held:

Speech (tweets) had no connection to school other than speaker and target being students there

Speech not at school, directed at school, or involved school time or equipment. There was no disruption to school.

School’s Motion for Summary Judgment on First Amendment claim denied

Hard to explain outcome; Court was wrong

Citation: 988 F.Supp.2d 826 (W.D. Tenn. 2013)

Wynar v. Douglas Cty. Sch. Dist.

Student sent “increasingly violent and threatening” messages via Myspace from home about weapons and threatened to shoot people at school on a specific date

Threats are definitely speech that would reasonably lead school officials to “forecast substantial disruption”

Citation: Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062 (9th Cir. 2013)

Cyberbullying

Cyberbullying Defined

“Willful and repeated harm inflicted through the use of computer, cell phones, and other electronic devices”

T.K. v. NYC Dept of Ed, 779 F.Supp.2d 289 (E.D.N.Y. 2011)

“When the Internet, cell phones, or other devices are used to send or post text or images intended to hurt or embarrass another person”

www.ncpc.org/cyberbullying

How is Cyberbullying Different?

Attacks can be anonymousBullying can go viralBully does not see emotional toll the bullying

createsAbsence of monitoring / lack of knowledge by

parents, teachers24/7 in nature2010 Study – 10-18 years old

20.8% cyberbullied in lifetime 7.5% cyberbullied in last 30 days 16% of high school students cyberbullied in past year

Cyberbullying Examples

Megan Meier, Missouri

Ryan Halligan, Vermont

Jessica Logan, Ohio

Responses to Cyberbullying

State laws Matt’s Safe School Law, MCL 380.1310b

District-level policiesConsider “substantial disruption” on school

environmentPractical approach to resolution, if possibleEducation

Use of Evidence Gathered Online

Legal Standards for Evidence

Evidence must be properly authenticated FRE 901 MRE 901

 MRE 901(a): authentication is evidence

sufficient to support finding that the matter in question is what its proponent claims

Illustrative Cases

In the Matter of RussellNo. 303586, 2012 Mich. App. LEXIS 1418 (Mich. Ct. App. July 24, 2012) Court allowed in evidence of mother on a website soliciting prostitution in

parental termination case The evidence was admitted because a witness confirmed that the individual

on the website was the mother through their direct correspondence  In the interest of ADW821 N.W.2d 778 (Iowa Ct App 2012) Parental rights termination case Court did not allow into evidence picture from mother’s FB of a marijuana-

growing operation because the state (who offered it into evidence), could not authenticate it

The state had no personal knowledge about the picture, did not know who posted it, and had nothing to prove the mother even knew it was on her profile

Illustrative Cases

Parker v. State85 A.3d 682 (Del. 2013) Appellant argued lower court erred by entering statements posted on her FB profile She argued for the court to use the Maryland approach: social media evidence can

only be authenticated through testimony of the creator, documentation of internet history or hard drive of creator’s computer, or information obtained directly from social networking site

Ct adopted Texas approach: proponent can authenticate social media evidence using any type of evidence so long as he can demonstrate that a jury could reasonably find the evidence is authentic

 People v. DabishNo. 301622, 2013 Mich. App. LEXIS 1384 (Mich. Ct. App. Aug. 13, 2013) Defendant sought to introduce emails from murder victim to show victim’s state of

mind Emails excluded because defendant could not authenticate them. He could prove his

receipt of them but he could not prove that they were written and sent by who he purported they were written and sent by

Giacchetto v. Patchogue-Medford Sch. Dist.

Elementary school teacher diagnosed with adult ADHD Claims she was mocked by the principal when reported diagnosis Disability discrimination claims against the school Issue: School district motion to compel plaintiff to provide authorizations for the

release of all records from her social media accounts (Facebook, Twitter, etc.) “The fact that the information [Defendant] seeks is in an electronic file as

opposed to a file cabinet does not give [it] the right to rummage through the entire file”

The fact that an individual may express some degree of joy, happiness, or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress. If the Court were to allow broad discovery of Plaintiff's social networking postings as part of the emotional distress inquiry, then there would be no principled reason to prevent discovery into every other personal communication the Plaintiff had or sent since alleged incident.

Teacher had to produce posts that specifically related to her emotional distress claims she suffered or treatment she received in connection with them

the Court sees no basis at this time why Defendant should go through a third-party provider to access Plaintiff's social networking postings when Plaintiff has access to this information herself

The Anonymous Tip/The Provided Info

Information often comes to District without being aware of it otherwise

Take it as you get itCan’t turn a blind eyeCan’t be the parentRealistic/practical

limitations on what actions can be taken in response

Clear as …

Questions?

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