Presented by: Joshua Whiteside Best Practices for Responding to Social Media CASCWA State Conference May 10, 2018 Presented by: Joshua Whiteside 1

Presenter Joshua Whiteside Associate jwhiteside@lozanosmith.com Joshua Whiteside is an Associate in Lozano Smith’s Fresno Office. Mr. Whiteside provides a wide array of services to school district clients, with a focus on Labor and Employment, Special Education, and Student issues, such as employee and student free speech, IDEA and Section 504 compliance, immigration matters, social media use, and transgender student rights.

Social Media Today

Social Media Today

Unintended Consequences

Unintended Consequences  

The Impact of Social Media Today Galvanizes students to political activism. Redefines boundaries between students and employees. Changes the way schools talk to parents. Gives new tools to bullies. Can lead to interactive experiences in the classroom. Connects teachers around the world for lesson plan collaboration.

36% ONLY More than of students who are bullied report it one out of every five students are bullied of students who are bullied report it ONLY one in ten students report cyberbullying

Employees Have A Duty to Protect All Students Prevent and eliminate bullying based on a protected characteristic such as race, ethnicity, sexual orientation, gender, or religious belief

Bullying of Students Based on Immigration Status or Religious Beliefs Assembly Bill (AB) 2845 (2016) Increased monitoring of student bullying based on religious affiliation or perceived religious affiliation. AB 699 (2017) Schools may need to modify anti-bullying curricula and provide additional professional development to staff in order to address bullying based on immigration status or religious practices and customs.

Regulating Off-Campus Student Speech Must be connected to the school, or it must be reasonably foreseeable that the off-campus speech would impact the school

Focus on the Cause of Disruptive Behavior The Student Distant and sad Not involved in school activities Angry comments Why Disruptive? Mental health issues Home issues No community support No school connections

Hate Speech May Be Regulated if it “Impacts Others” If speech interferes with an identified or targeted student’s physical or psychological ability to attend/participate in school based on a student’s protected status (e.g. “Hate Speech”), a district may be able to regulate the speech and/or discipline the student Developing, unsettled law

Can We Stop Bullying? The precursors of bullying behavior begin in early childhood. Children as young as 3-6 years of age have well-developed gender stereotypes When kids step in to stop bullying, these incidents typically stop within 10 seconds more than 50% of the time.

Cell Phone Searches – Senate Bill 178 The law creates a requirement that a government entity generally must get a warrant or the “Specific Consent” of an “Authorized Possessor” before searching an electronic device. (Penal Code § 1546 et seq.)

District Owned Devices Chromebook Computer Lab

Social Media Monitoring as a Tool? No social media “fishing expeditions” without board consent and notice to students and parents

Responding to a School Shooting Threat Investigation Community Response Moving Forward

Responding to a School Shooting Threat School Safety Plan Tactical response plans are exempt from disclosure to the public http://www.lozanosmith.com/publicsafety.php

Social Media, Student Discipline, and Privacy Social media accelerates a student discipline story often without due process or verifiable facts. Family Educational Rights and Privacy Act (FERPA) – 1974 California Education Code §§ 49060 et seq.

Political Social Media Posts May employees post political social media comments or share/retweet/like political social media posts?

But I Did It At Home on My Computer Does it matter that an employee’s speech occurs off campus? If a nexus can be established between the speech and the employee’s position with the school district, discipline can follow.

Kennedy v. Bremerton Sch. Dist. Ninth Circuit Weighs in on Employee Religious Speech High School football coach was disciplined for praying on the 50-yard line after football games. Ninth Circuit ruled he was speaking as an employee. Discipline was not a violation of his free speech rights.

Teachers Can Be The Example Teachers are role models for students regarding media literacy and digital citizenship

Possible Liability and Consequences Violation of district policies and boundaries, which could lead to discipline Harassment and bullying Mandatory reporting obligations Public Records Act search

Systemic, Proactive Solutions Student, staff and community trainings. Curriculum changes: Instruction on civil discourse. Facilitate community resources and partnerships to hold anti-bullying activities and events on campus. Review the roles of student clubs. Parent training.

Questions

Disclaimer: These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please contact clientservices@lozanosmith.com or call (559) 431-5600. Copyright © 2018 Lozano Smith All rights reserved. No portion of this work may be copied, or sold or used for any commercial advantage or private gain, nor any derivative work prepared there from, without the express prior written permission of Lozano Smith through its Managing Partner. The Managing Partner of Lozano Smith hereby grants permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use such copy intact and solely for the internal purposes of such client. 571564