‏ Technology, the Law, and Schools: Emerging Issues Annual Conference of the South Dakota Association of School Business Officials Pierre, South Dakota September 28, 2011 Charles J. Russo, J.D., Ed.D. Panzer Chair in Education University of Dayton (937) (ph)

Outline I. Introduction II. Technology and Students a) Internet and Related Technologies b) Cell Phones III. Employees and Technology IV. Recommendations a) Internet b) Cell Phones

II. Students a) Internet, Related Technologies Key Issues 1.Student Free Speech v. Need to Maintain Safe and Orderly Learning Environment 2.Who Owns the Computers/ Systems? 3.Where did the message Come From? (home, school)

II. Students a) Internet, Related Technologies Schools Win (2011) Kowalski v. Berkeley County Schools (WVA 4th Cir. 2011) (created fake profile of classmate) D.J.M. ex rel. D.M. v. Hannibal Pub. School Dist. No. 60 (MO, 8th Cir. 2011) (used “instant messaging” to communicate a “true threat” to a friend about his desire to bring weapons to school to harm others In re Keelin B. (N.H. 2011) (affirmed a student suspension for sending s containing sexually explicit language to principal and teacher under the name of a peer)

II. Students a) Internet, Related Technologies Students Win 2011 Layshock ex rel. Layshock v. Hermitage School District (PA, 3d Cir. 2011) (fake vulgar profile of principal created on grandmother’s home computer) J.S. ex rel. Snyder v. Blue Mountain School District (PA, 3d Cir. 2011) (8 th grader used home computer to create fake profile, suggested that principal was a drug addict, pedophile).

II. Students b) Cell Phones Key Issue 1.Student Free Speech v. Need to Maintain Safe and Orderly Learning Environment

II. Students b) Cell Phones Cell Phone Ownership Data % adults45% teens (12-17) % adults65% teens “Teens and Mobile Phones Over the Past Five Years: Pew Internet Looks Back” (August 2009)

II. Students b) Cell Phones Schools win 5 of 6 cases

III. Employees On the one hand, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969)

III. Employees But, on the other hand, “[a] teacher's employment in the public schools is a privilege, not a right.” Board of Education of City of Los Angeles v. Wilkinson, 270 P.2d 82, 85 (Cal. Ct. App. 1954)

III. Employees Thus, who wins.... balancing rights Pickering v. Board of Education of Township High School District, 391 U.S. 563 (1968) to Garcettit v. Ceballos, 547 U.S. 410 (2006)

III. Employees Dismissals San Diego Unified School District v. Commission on Professional Competence (Cal. Ct. App. 2011) (fired for posting graphic photographs of himself on Craig’s List soliciting sex) Snyder v. Millersville University (E.D. Pa. 2008) (student teacher dismissed for posting” Drunken Pirate” Pictures on My Space)

III. Employees License Issues Professional Standards Commission v. Adams (Ga. Ct. App. 2010) (one year suspension for failing to investigate students’ sex video properly) Wax v. Horne (Fla. Dist. Ct. App. 2003) (revocation for sending profanity-laced, sexually explicit material to 16 7 th graders) Stueber v. Gallagher (Fla. Dist. Ct. App. 2002) (revocation for inappropriately accessing pornographic Internet sites on a school computer)

III. Employees Teachers, Students, and Facebook... A state trial court in Missouri enjoined a state statute forbidding teachers from “friending” students while the Dayton (OH) Board of Education recently enacted such a policy.

IV. Recommendations-AUPs 1.Acceptable use policies (AUPs) should restrict computer access to legitimate academic, instructional, or administrative purposes. 2.Students, parents, and teachers, should sign AUPs at the beginning of each school year. AUPs should make it clear that those who refuse to sign or fail to comply will be denied access to district-owned technology, especially the Internet.

IV. Recommendations-AUPs 3.To the extent that that they are bought/ maintained with board funds, AUPs should state that use of computers/ tech can be limited. This is important since by clarifying ownership, officials have greater latitude in regulating access to and use of tech. 4.AUPs should consider differentiated provisions based on student age.

IV. Recommendations-AUPs 5.AUPs should warn against visiting inappropriate websites and transmitting materials such as viruses, jokes, and the like. 6.AUPs need to address privacy and use limits such as preventing teachers from using school computers to conduct for-profit businesses while clarifying reasonable expectations of privacy, especially as it relates to sending and receiving messages.

IV. Recommendations-AUPs 7. AUPs should identify possible sanctions ranging from loss of computer privileges to suspensions for students to like penalties leading to dismissal for teachers who commit more serious offenses. 8.AUPsshould be reviewed annually, typically between school years, not during or immediately after controversies.

IV. Recommendations-Cell Phones 1.Subject to controlling statutes, leaders should begin by considering whether there is public support for policies designed to ban/ limit cell phone use in schools

IV. Recommendations-Cell Phones 2. If communities are likely to support cell phone policies, educational leaders should ensure that they involve representatives of key constituencies in crafting guidelines, both when they are first developed and when they are being revised, because ensuring such agreement can be of invaluable assistance.

IV. Recommendations-Cell Phones 3.Policies should clarify whether students are forbidden from merely possessing cell phones or from using them in schools.

IV. Recommendations-Cell Phones 4.Key due process elements that policies should include are that they should specify circumstances under which cell phones can be taken away, who can take them away, who can hold phones once they are taken way from students, how long officials can maintain possession of phones, in addition to specifying when and to whom they can be returned.

IV. Recommendations-Cell Phones 5. Policies should address what must occur before student cell phones can be searched. 6. Policies should be reviewed annually, typically between school years, not during or immediately after controversies.