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1S T E V E N M . B A U L E , P H . D .S U P E R I N T E N D E N T , N O R T H B O O N E C U S DJ U L I E E . L E W I S , E...
Schools & Social Networking Emerging area in bothpolicy development andthe law = no clear answers Cases regarding social...
3Scariano, Himes & Petrarca
Scariano, Himes & Petrarca 4
Acceptable Use Policy Should include: Scope of use – educational purposes only Prohibited uses but also how to use tech...
Scariano, Himes & Petrarca6
Basic Tenets of a Social Networking Policy1.Purpose of social networking for the organization2.Be responsible for what you...
Types of PoliciesEthics and new rules for educational ethicsAccess to Electronic Networks (Resources) - AUPsHarassment ...
Sample Policy Guidelines• Do not post any financial, confidential, sensitive or proprietary information about theDistrict ...
Sample Policy Guidelines, cont.• Be respectful of others. Think of what you say online in the same way as statements youmi...
First AmendmentWhat about a Facebook pagecreated by a school?14Scariano, Himes & Petrarca
First AmendmentPublic Forum Analysis Does the school allow the public to commenton its Facebook page? If so, a court cou...
First AmendmentAny prohibition of expression on adesignated public forum is subject to:Strict Scrutiny16Scariano, Himes & ...
First Amendment Strict Scrutiny Any content-based prohibition must be:Narrowly drawnEffectuate a compelling state inte...
First AmendmentSocial networking options for schools toavoid infringing on First Amendment rights:• Do not engage in socia...
Employee Social NetworkingThe Supreme Court’s holding:The Court assumed, but did notdecide, that Quon had a reasonableex...
 The Supreme Court’s holding:The employer’s search of the text messageswas reasonableNon-investigatory work-related pur...
Employee Social Networking Lessons for public employers from Quon: Have a clear policy that all employer-ownedcommunicat...
 Another reason to tread carefully whenconducting a search of employees’ socialmedia use: The Stored Communications Act,...
 What if an employer searches anemployee’s work computer, discoversthe employee’s username andpassword for electronic acc...
 This could be a violation of the federal StoredCommunications Act. The Act prohibits unauthorized access to an electron...
 To avoid a violation of the StoredCommunications Act: An employer should not examine an employee’sprivate electronic ac...
Employee Social NetworkingEmployment decisions based on socialnetworking26Scariano, Himes & Petrarca
Employee Social Networking What if an employee tweets a disparaging remarkabout her supervisor, the school principal?27Sc...
Employee Social Networking Disciplining her could violate her FirstAmendment rights.28Scariano, Himes & Petrarca
 Pickering v. Board of Education, 391 U.S. 563(1968) Teacher dismissed after writing a letter to the localnewspaper, whi...
Employee Social Networking Pickering v. Board of Education (1968) First Amendment rights violated when speaking : As a ...
 Balancing act: Even if an employee speaks as a privatecitizen on a matter of public concern,he or she may still be disc...
 Speech is not protected by the FirstAmendment when statements are madepursuant to public duties Garcetti v. Ceballos, 5...
Employee Social Networking What should a policy on employee socialnetworking include?33Scariano, Himes & Petrarca
All employer-owned communicationfacilities are subject to search – noexpectation of privacy.Employee Social Networking34S...
Any social networking activities donepursuant to the employee’s job duties orthat occur during working time or while atwo...
Whether and when employees may accesssocial media during working time?Employee Social Networking36Scariano, Himes & Petra...
 Even when engaging in social networking onyour own time, make clear that youropinions do not represent those of yourempl...
Students, Technology and Social Networking How should schools regulate this behavior? Can schools search cell phones and...
What conduct may schools regulate? This standard is not always easy to apply, see: Layshock v. Hermitage School Dist. 59...
Layshock Snyder In Layshock, the panel found thata ten-day, out-of-schoolsuspension violated the student’sfree speech rig...
What conduct may schools regulate? The full Third Circuit, sitting en banc, heard arguments onthese two cases in June of ...
What conduct may schools regulate?Scariano, Himes & Petrarca42 In the Blue Mountain case, in which the majority opinionin...
What conduct may schools regulate? The dissenting justices were of the opinion that theschool district had the right to d...
The Good News … Courts are less inclined to uphold students’ FirstAmendment rights in cases where students are discipline...
Kowalski v. Berkeley County Schools continued: School administrators determined that Kara had created a “hatewebsite” in ...
Avery Doninger v. Superintendent over “Jamfest” In Doninger v. Niehoff, 642 F.3d 334 (2nd Cir. 2011), cert.denied, Avery ...
Doninger v. Niehoff continued: Avery had accessed an e-mail account of the father of one ofthe students from the school’s...
For More Information!Scariano, Himes & Petrarca48
Questions or Comments?Steve Baulebaules@nbcusd.org815-765-3322Julie E. LewisTwo Prudential Plaza, Suite 3100180 N. Stetson...
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Social Media for IASA Kishwaukee

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  • Background: Deputy district attorney filed § 1983 complaint against county and supervisors at districtattorneys' office, alleging that he was subject to adverse employment actions in retaliation for engagingin protected speech, that is, for writing a disposition memorandum in which he recommendeddismissal of a case on the basis of purported governmental misconduct. The United States DistrictCourt for the Central District of California, A. Howard Matz, J., granted defendants' motion forsummary judgment, and district attorney appealed. The Court of Appeals for the Ninth Circuit, Reinhardt,Circuit Judge, 361 F.3d 1168, reversed and remanded. Certiorari was granted.Holdings: The United States Supreme Court, Justice Kennedy, held that:(1) when public employees make statements pursuant to their official duties, they are not speaking ascitizens for First Amendment purposes, and the Constitution does not insulate their communicationsfrom employer discipline, and (2) here, district attorney did not speak as a citizen when he wrote his memo and, thus, his speech was not protected by the First Amendment.
  • Part of social suspension- Kara was prevented from crowning the next “Queen of Charm” in that year’s Charm Review, having been elected “Queen” herself the previous year.
  • The school district had a policy in place regarding eligibility to represent its schools in elected offices that read as follows:All students elected to student offices, or who represent their schools in extracurricular activities, shall have and maintain good citizenship records. Any student who does not maintain a good citizenship record shall not be allowed to represent fellow students nor the schools for a period of time recommended by the student’s principal, but in no case, except when approved by the board of education, shall the time exceed twelve calendar months.Avery had signed the policy, attesting that she had reviewed it with her family.
  • Transcript of "Social Media for IASA Kishwaukee"

    1. 1. 1S T E V E N M . B A U L E , P H . D .S U P E R I N T E N D E N T , N O R T H B O O N E C U S DJ U L I E E . L E W I S , E S Q .S C A R I A N O , H I M E S & P E T R A R C A , C H T D .Policy and Legal Considerationsfor Social Networking in SchoolsScariano, Himes & Petrarca1
    2. 2. Schools & Social Networking Emerging area in bothpolicy development andthe law = no clear answers Cases regarding socialnetworking areconfusing/contradictory Must analyze how courtdecisions on other subjects willapply to this new frontierSocial networking is an emerging frontier2Scariano, Himes & Petrarca
    3. 3. 3Scariano, Himes & Petrarca
    4. 4. Scariano, Himes & Petrarca 4
    5. 5. Acceptable Use Policy Should include: Scope of use – educational purposes only Prohibited uses but also how to use technology Rules of use including full disciplinary options Liability - district is not liable for the accuracy of information on the web,etc. Privacy statement – that the e-mail and other resources accessed on thedistrict’s computers are district property and users should have noexpectation of privacy Password responsibility Cyberbullying and sexting should also be addressed specifically in yourbullying and harassment policies.Schwartz, Janes &Reed, A Principals’ Guide to Internet Policies & ElectronicCommunication, IASB Education Law October 2008Scariano, Himes & Petrarca5
    6. 6. Scariano, Himes & Petrarca6
    7. 7. Basic Tenets of a Social Networking Policy1.Purpose of social networking for the organization2.Be responsible for what you write3.Be authentic4.Consider your audience5.Exercise good judgment6.Respect copyright laws7.Protect confidential information8.Bring value to the organization7Scariano, Himes & Petrarca
    8. 8. Types of PoliciesEthics and new rules for educational ethicsAccess to Electronic Networks (Resources) - AUPsHarassment of studentsBullying and harassmentDiscipline codeBe specific about cyber bullyingElectronic devicesSextingRestrictions on publicationsSocial media contracts for staffSocial media purpose or mission statementSample Inclusive AUP http://www.nbcusd.org/board/policy/section6/6-235AcceptableUseofElectronicResources.pdfScariano, Himes & Petrarca.8
    9. 9. Sample Policy Guidelines• Do not post any financial, confidential, sensitive or proprietary information about theDistrict or any of our clients and candidates.• Speak respectfully about our current, former and potential customers, partners, employeesand competitors. Do not engage in name-calling or behavior that will reflect negatively onyour or the District’s reputations. The same guidelines hold true for vendors and businesspartners.• Beware of comments that could reflect poorly on you and the District. Social media sitesare not the forum for venting personal complaints about supervisors, co-workers, or theDistrict.• If you see unfavorable opinions, negative comments or criticism about yourself or theDistrict, do not try to have the post removed or send a written reply that will escalate thesituation.• If you are posting to personal networking sites and are speaking about job related contentor about the District, identify yourself as a District employee, use a disclaimer and make itclear that these views are not reflective of the views of the District.9Scariano, Himes & Petrarca
    10. 10. Sample Policy Guidelines, cont.• Be respectful of others. Think of what you say online in the same way as statements youmight make to the media, or emails you might send to people you don’t know. Stick to thefacts, try to give accurate information and correct mistakes right away.• Do not post obscenities, slurs, harass, or personal attacks that can damage both yourreputation as well as the District’s reputation.• Under no circumstances shall a staff member post any information about a specific studentwithout approval from the superintendent or designee.• When posting to social media sites; be knowledgeable, interesting, honest and add value.The District’s reputation is a direct result of our employees, students and their commitmentto uphold our core values.• Do not infringe on copyrights or trademarks.10Scariano, Himes & Petrarca
    11. 11. First AmendmentWhat about a Facebook pagecreated by a school?14Scariano, Himes & Petrarca
    12. 12. First AmendmentPublic Forum Analysis Does the school allow the public to commenton its Facebook page? If so, a court could find that the school intendsthe page to be a designated public forum The school has effectively granted permission tothe public to engage in expressive activity on thepage as a matter of course Caveat: a court has not ruled on this issue15Scariano, Himes & Petrarca
    13. 13. First AmendmentAny prohibition of expression on adesignated public forum is subject to:Strict Scrutiny16Scariano, Himes & Petrarca
    14. 14. First Amendment Strict Scrutiny Any content-based prohibition must be:Narrowly drawnEffectuate a compelling state interest17Scariano, Himes & Petrarca
    15. 15. First AmendmentSocial networking options for schools toavoid infringing on First Amendment rights:• Do not engage in social networking.• Engage in social networking, but disable“comments,” “wall posts,” and “discussions.”• Engage in social networking and allow comments,but do not remove comments on the basis ofcontent.18Scariano, Himes & Petrarca
    16. 16. Employee Social NetworkingThe Supreme Court’s holding:The Court assumed, but did notdecide, that Quon had a reasonableexpectation of privacy in his text messagesThe City had a no-privacy policy regardingcomputers and emails, but it did not explicitlyinclude text messages19Scariano, Himes & Petrarca
    17. 17.  The Supreme Court’s holding:The employer’s search of the text messageswas reasonableNon-investigatory work-related purposeJustified at its inceptionNot excessive in scopeEmployee Social Networking20Scariano, Himes & Petrarca
    18. 18. Employee Social Networking Lessons for public employers from Quon: Have a clear policy that all employer-ownedcommunication facilities are subject to search atany time and that no employee should have anyexpectation of privacy Only conduct a search if it is based on alegitimate, work-related purpose Make sure that the search is reasonable in scope– don’t be more intrusive than necessary21Scariano, Himes & Petrarca
    19. 19.  Another reason to tread carefully whenconducting a search of employees’ socialmedia use: The Stored Communications Act, 18U.S.C.A. § 2701, et seq.Employee Social Networking22Scariano, Himes & Petrarca
    20. 20.  What if an employer searches anemployee’s work computer, discoversthe employee’s username andpassword for electronic accountsunrelated to the employer’s system(For example, Facebook, Twitter,Gmail, or Hotmail), and thenexamines the employee’scommunications in the privateaccount?Employee Social Networking23Scariano, Himes & Petrarca
    21. 21.  This could be a violation of the federal StoredCommunications Act. The Act prohibits unauthorized access to an electronic“facility” to examine stored communications. It is a criminal offense with civil fines of $1,000 perviolation in statutory damages, without need for proof ofactual damages. It is unclear whether the act of access is a single violationor whether each communication retrieved and reviewedis a separate violation. The financial implications of this question are enormous.Employee Social Networking24Scariano, Himes & Petrarca
    22. 22.  To avoid a violation of the StoredCommunications Act: An employer should not examine an employee’sprivate electronic account without permission. If the investigation is criminal in nature, theaccess information should be given to police whocan then execute a warrant.Employee Social Networking25Scariano, Himes & Petrarca
    23. 23. Employee Social NetworkingEmployment decisions based on socialnetworking26Scariano, Himes & Petrarca
    24. 24. Employee Social Networking What if an employee tweets a disparaging remarkabout her supervisor, the school principal?27Scariano, Himes & Petrarca
    25. 25. Employee Social Networking Disciplining her could violate her FirstAmendment rights.28Scariano, Himes & Petrarca
    26. 26.  Pickering v. Board of Education, 391 U.S. 563(1968) Teacher dismissed after writing a letter to the localnewspaper, which criticized how the school boardand the superintendent handled funds. The Supreme Court held that this violated theteacher’s First Amendment rights.Employee Social Networking29Scariano, Himes & Petrarca
    27. 27. Employee Social Networking Pickering v. Board of Education (1968) First Amendment rights violated when speaking : As a citizen (not as part of theirduties as an employee), and onIssues of public concern30Scariano, Himes & Petrarca
    28. 28.  Balancing act: Even if an employee speaks as a privatecitizen on a matter of public concern,he or she may still be disciplined:Pursuant to an employer’s policy, andWhere speech infringes on theemployer’s operations or on its abilityto provide effective and efficientservices.Employee Social Networking31Scariano, Himes & Petrarca
    29. 29.  Speech is not protected by the FirstAmendment when statements are madepursuant to public duties Garcetti v. Ceballos, 547 U.S. 410 (2006) Schools should require that employees makeclear that they are not representing theiremployer when engaging in personal socialnetworkingEmployee Social Networking32Scariano, Himes & Petrarca
    30. 30. Employee Social Networking What should a policy on employee socialnetworking include?33Scariano, Himes & Petrarca
    31. 31. All employer-owned communicationfacilities are subject to search – noexpectation of privacy.Employee Social Networking34Scariano, Himes & Petrarca
    32. 32. Any social networking activities donepursuant to the employee’s job duties orthat occur during working time or while atwork are not private and are subject toemployer monitoring.Employee Social Networking35Scariano, Himes & Petrarca
    33. 33. Whether and when employees may accesssocial media during working time?Employee Social Networking36Scariano, Himes & Petrarca
    34. 34.  Even when engaging in social networking onyour own time, make clear that youropinions do not represent those of youremployer, and do not post anything thatundermines the ability of the employer tooperate effectively.Employee Social Networking37Scariano, Himes & Petrarca
    35. 35. Students, Technology and Social Networking How should schools regulate this behavior? Can schools search cell phones and other electroniccommunication devices? When can schools regulate off-campus conduct? The Standard: Tinker v. Des Moines, 393 U.S. 503 (1969) Material or substantial disruption rule: schools may limitstudents’ First Amendment or other constitutional rightsonly when the students’ conduct causes a material orsubstantial disruption in the orderly operation of theschool.Scariano, Himes & Petrarca38
    36. 36. What conduct may schools regulate? This standard is not always easy to apply, see: Layshock v. Hermitage School Dist. 593 F.3d 249 (3rd Cir. Feb. 4,2010) J.S. ex rel. Snyder v. Blue Mountain School Dist. 593 F.3d 286 (3rdCir. Feb. 4, 2010). Two cases: Same day Same circuit Opposite conclusions from panel of 3rdCircuitScariano, Himes & Petrarca39
    37. 37. Layshock Snyder In Layshock, the panel found thata ten-day, out-of-schoolsuspension violated the student’sfree speech rights under the FirstAmendment. The student set up a fake MySpaceprofile of his school principal. Theprofile, which the student createdon his grandmother’s computer athis grandmother’s house, referredto the principal as a “big steroidfreak,” a “big hard ass,” and a “bigwhore” who smoked a “big blunt.” In Snyder, the panel upheld aten-day, out-of schoolsuspension of the student. Using her parent’s computer, thestudent created a fake MySpaceprofile of the school principalwith a friend. The fake profile didnot state the principal’s name, butincluded a picture of the principalfrom the school district’s web-site. The profile included profanestatements suggesting that theprincipal was a pedophile.What conduct may schools regulate?Scariano, Himes & Petrarca40
    38. 38. What conduct may schools regulate? The full Third Circuit, sitting en banc, heard arguments onthese two cases in June of 2010. On June 13, 2011, theCourt ruled that the students could not be suspended forcreating the parody profiles on MySpace of their principalson home computers because there was not a sufficientnexus between their behavior and school. In Layshock, the Court ruled unanimously that thestudent’s First Amendment rights were violated when hewas suspended and stated, “[w]e do not think that the FirstAmendment can tolerate the School District stretching itsauthority into Justin’s grandmother’s home and reachingJustin while he is sitting at her computer after school.”41Scariano, Himes & Petrarca
    39. 39. What conduct may schools regulate?Scariano, Himes & Petrarca42 In the Blue Mountain case, in which the majority opinionincluded 8 of the 14 justices, the Court also found thatthe student’s First Amendment free speech rights wereviolated because “J.S. was suspended from school forspeech that indisputably caused no substantialdisruption in school and that could not reasonably haveled school officials to forecast substantial disruption inschool.” However, Judge D. Michael Fisher, who was joined byfive other justices, wrote the following about the majorityopinion in the dissent, “It allows a student to target aschool official and his family with malicious andunfounded accusations about their character in vulgar,obscene, and personal language.”
    40. 40. What conduct may schools regulate? The dissenting justices were of the opinion that theschool district had the right to discipline J.S. becausesubstantial disruption was reasonably foreseeable. The School District has decided to file a writ ofcertiorari with the U.S. Supreme Court to ask it toreview the decision of the Circuit Court of Appeals.Scariano, Himes & Petrarca43
    41. 41. The Good News … Courts are less inclined to uphold students’ FirstAmendment rights in cases where students are disciplinedfor ridiculing/bullying other students Kara Kowalski suspended for creating and posting toMySpace a discussion group web page that ridiculed afellow student and included pictures of her. After creatingthe group, Kara invited 100 people on her friends list tojoin. The next day, target’s parents, along w/ target, went tohigh school to file harassment complaint with viceprincipal. Kowalski v. Berkeley County Schools, 652 F.3d565 (4th Cir. 2011), cert. denied.Scariano, Himes & Petrarca44
    42. 42. Kowalski v. Berkeley County Schools continued: School administrators determined that Kara had created a “hatewebsite” in violation of school policy against “harassment, bullying andintimidation”; suspended her from school for 10 days, issued a 90-daysocial suspension and precluded her from participating on cheerleadingsquad for remainder of year. Kara sued alleging that suspension violated her free speech rightsunder the First Amendment and due process rights under FourteenthAmendment, but 4th Circuit held in favor of school and school officialsnoting that “there is surely a limit to the scope of a high school’sinterest in the order, safety, and well-being of its students when thespeech originates outside the schoolhouse gate,” but determined theywere “satisfied that the nexus of Kowalski’s speech to Musselman HighSchool’s pedagogical interests was sufficiently strong to justify theaction taken by school officials in carrying out their role as the trusteesof the student body’s well-being.”Scariano, Himes & Petrarca45
    43. 43. Avery Doninger v. Superintendent over “Jamfest” In Doninger v. Niehoff, 642 F.3d 334 (2nd Cir. 2011), cert.denied, Avery was punished for sending an e-mail tostudents and parents affiliated with the school and forposting a message on her personal blog criticizing theschool for cancelling a school event – “Jamfest” – anannual battle-of-the-bands concert that Avery and otherStudent Council members helped to plan. Avery called school officials “douchebags” on her blog andher e-mail encouraged people to contact thesuperintendent to “piss her off even more.”Scariano, Himes & Petrarca46
    44. 44. Doninger v. Niehoff continued: Avery had accessed an e-mail account of the father of one ofthe students from the school’s computer lab to send a masse-mail in spite of a school policy that specifically restricted“access of the internet or e-mail using accounts other thanthose provided by the district for school purposes.” Thenext day, the students gathered outside the administrationoffice to protest the cancellation. The Court concluded that the substantial disruption testestablished by Tinker was met and that school officialscould prohibit Avery from running for class secretary.Scariano, Himes & Petrarca47
    45. 45. For More Information!Scariano, Himes & Petrarca48
    46. 46. Questions or Comments?Steve Baulebaules@nbcusd.org815-765-3322Julie E. LewisTwo Prudential Plaza, Suite 3100180 N. StetsonChicago, IL 60601jlewis@edlawyer.com312.565.3100 x25449Scariano, Himes & Petrarca

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