1. The Internet: Friend or Foe?
CASCWA Conference
Ronald D. Wenkart, General Counsel
Orange County Department of Education
October 28, 2016
©2016 by the Orange County Superintendent of Schools

2. The Internet: Friend or Foe?
Acceptable Use Policies
Student Monitoring
Student Searches
Student Discipline
Additional Resources

3. Acceptable Use Policies
The importance of acceptable use policies for students cannot be overstated.
Requiring a student and their parent to sign an acceptable use agreement puts the parent and student on notice of what is permitted and what is not permitted.
The signing of the acceptable use agreement lays the foundation for student supervision and student discipline, when necessary.

4. Acceptable Use Policies
Before a student is authorized to use district technology, the student and his or her parent or guardian shall sign and return the acceptable use agreement.
In that agreement, the parent or guardian shall agree not to hold the district or any district staff responsible for the failure of any technology protection measures or user mistakes or negligence, and shall agree to indemnify and hold harmless the district and district staff for any damages or costs incurred.

5. Acceptable Use Policies
In the acceptable use agreement, the district reserves the right to monitor student use of technology within the jurisdiction of the district without advance notice or consent.
Students shall be informed that their use of district technology, including, but not limited to, computer files, s, text messages, instant messaging, and other electronic communications, is not private and may be accessed by the district for the purpose of ensuring proper use.
Students have no reasonable expectation of privacy in the use of district technology.

6. Acceptable Use Policies
A student’s personally owned devices shall not be searched except in cases where there is reasonable suspicion, based on specific and objective facts, that the search would uncover evidence of a violation of law, district policy or school rules.

7. Acceptable Use Policies
Whenever a student is found to have violated board policy or the district’s acceptable use agreement, the principal or designee may cancel or limit a student’s user privileges or increase supervision of the student’s use of the district’s equipment and other technological resources, as appropriate.
Inappropriate use also may result in disciplinary action and/or legal action in accordance with law and board policy.

8. Acceptable Use Policies
The district shall regularly review and update procedures to enhance the safety and security of students using district technology and to help ensure that the district adapts to changing technologies and circumstances.
Input from students and appropriate staff should be solicited.

9. Acceptable Use Policies
The school district shall ensure that all district computers with Internet access have a technology protection measure that protects against access to visual depictions that are obscene, pornographic or harmful to minors, and that the operation of such measures is enforced.
To reinforce these measures, the district shall implement rules and procedures designed to restrict student access to harmful or inappropriate matter on the Internet and to ensure that students do not engage in unauthorized or unlawful online activities.

10. Acceptable Use Policies
Harmful matter includes matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. (Penal Code section 313.)
The dictionary defines the word “prurient” as something that appeals to an unwholesome interest or sexual desire.

11. Acceptable Use Policies
The acceptable use agreement prohibits students from accessing, posting, submitting, publishing, or displaying harmful or inappropriate matter that is threatening obscene, disruptive, or sexually explicit or that can be construed as harassment or disparagement of others based on their race, ethnicity, national origin, sex, gender, sexual orientation, age, disability, religion, or political beliefs.
Intentionally uploading, downloading, or creating computer viruses and/or maliciously attempting to harm or destroy district equipment or materials or manipulate the data of any other user, including “hacking,” are prohibited.

12. Acceptable Use Policies
Distributing personal identification information, including the name, address, telephone number, Social Security number or other personally identifiable information of another student, staff member, or other person with the intent to threaten, intimidate, harass, or ridicule that person is prohibited.

13. Acceptable Use Policies
The school district shall provide age appropriate instruction regarding safe and appropriate behavior on social networking sites, chat rooms, and other Internet services.
Such instruction shall include, but not be limited to, the dangers of posting one’s own personal identification information on line, misrepresentation by online predators, how to report inappropriate or offensive content or threats, behaviors that constitute cyber bullying, and how to respond when subjected to cyber bullying.

14. Acceptable Use Policies
Posting, displaying or otherwise using material that is discriminatory, libelous, defamatory, obscene, sexually explicit or disruptive is prohibited.
Bullying, harassing, intimidating or threatening other students, staff or other individuals (i.e., cyber bullying) is prohibited.

15. Acceptable Use Policies
Infringing on copyright, license, trademark, patent or other intellectual property rights is prohibited.
Intentionally disrupting or harming district technology or other district operations is prohibited.
Installing unauthorized software is prohibited.

16. Acceptable Use Policies
Hacking into the district operating system to manipulate data of the district or other uses is prohibited.
Engaging in or promoting any practice that is unethical or violates any law or board policy, administrative regulation or district practice is prohibited.

17. Acceptable Use Policies
The district may monitor student use of district technology at any time without prior notice for any legal purpose.
All passwords created for or used on any district technology are the sole property of the school district.
The creation or use of a password by a student on district technology does not create a reasonable expectation of privacy.

18. Acceptable Use Policies
If a student uses a personally owned device to access district technology, he or she shall abide by all applicable board policies, administrative regulations, and the district’s acceptable use agreement.
Any such use of a personally owned device may subject the contents of the device and any communications sent or received on the device to disclosure pursuant to a lawful subpoena or public records request.

19. Acceptable Use Policies
If a student becomes aware of any security problem (such as any compromise of the confidentiality of any login or accounting information) or misuse of district technology, he or she shall immediately report such information to a teacher or other district personnel.

20. Acceptable Use Policies
Violations of the law, board policy, or this agreement may result in revocation of a student’s access to district technology and/or discipline, up to and including suspension or expulsion.
In addition, violations of the law, board policy, or the district’s acceptable use policy may be reported to law enforcement agencies as appropriate.

21. Student Acknowledgment of the Acceptable Use Agreement
The student acknowledgment should indicate that the student has received, read, understands and agrees to abide by the acceptable use agreement and other applicable laws and district policies and regulations governing the use of district technology.
The student acknowledgment should also indicate that the student understands that there is no expectation of privacy when using district technology.
The student acknowledgment should also indicate that the student understands that any violation may result in loss of user privileges, disciplinary action or other appropriate legal action, and should be signed by the student and the parent.

22. Student Supervision
School districts have a duty to supervise students in their conduct and to enforce rules and regulations necessary for the protection of students.
School districts are not required to provide around-the-clock supervision on school premises.
However, school districts may be liable for injuries to students which occur during school hours or which result from the school district’s failure to warn parents of possible danger or provide reasonable supervision.

23. Student Supervision
Teachers and administrators are authorized to exercise reasonable control over students, but only such physical control as is necessary to maintain order, protect property, and the health and safety of other students. (Education Code section )
Parents are liable for damage or injury to pupils or school property willfully caused by a pupil up to the amount of $25,000. (Civil Code section )

24. Student Searches
The Fourth Amendment limits the ability of the government to search for and seize evidence without a warrant.
The U.S. Supreme Court has held that a seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property.
The interception of an intangible communication has also been held to be a seizure.

25. Student Searches
The courts have also held that a search occurs when the expectation of privacy that society has prepared to consider reasonable is infringed.
If the search does not violate a person’s reason-able expectation of privacy, then it does not constitute a Fourth Amendment search and no warrant is required.

26. Student Searches
A warrantless search that violates a person’s reasonable expectation of privacy will be held to be unconstitutional if it falls within an established exception to the warrant requirement.
While probable cause is required for a search outside the school setting, school administrators may search students if they have a reasonable suspicion that a student has violated or is violating either the law or the rules of the school. (New Jersey v. T.L.O.)

27. Student Searches
In New Jersey v. T.L.O., the U.S. Supreme Court sought to strike a balance between a student’s legitimate expectation of privacy and the school district’s equally legitimate need to maintain an environment in which learning can take place.
The Court concluded that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.

28. Student Searches
The Court held that the warrant requirement is unsuited to the school environment, and rejected the notion that a teacher or school administrator must obtain a warrant before searching a child suspected of an infraction of school rules or of criminal law, since this would unduly interfere with the maintenance of swift and informal disciplinary procedures needed in the schools.

29. Student Searches
The U.S. Supreme Court established a reasonable suspicion standard for determining the reasonableness of searches in the school setting, and held that the search of a student by a public school official is reasonable under the Fourth Amendment if it is both:
Justified at its inception, and
Reasonably related in scope to the circumstances which justified the interference in the first place.

30. Student Searches
In the context of searching student cell phones, the courts have applied the reasonable suspicion standard.
In Klump v. Nazareth Area School District, the court held that school officials need reasonable suspicion that a student was using the cell phone to buy or sell illegal drugs, engage in bullying or harassment, cheating on exams, sexting or committing a crime before school officials could search the phone, review the logs, text messages, voice messages, or photographs or videos on the phone.
The court held that the school could not search the cell phone for simply possessing a cell phone during school hours in violation of school policy, but that school officials could seize the phone.

31. Student Searches
In G.C. v. Owensboro Public Schools, the Sixth Circuit Court of Appeals held that school officials could not search a student’s cell phone simply because the student was sending a text message on his cell phone during class.
The Court of Appeals held that a search is justified at its inception if there is reasonable suspicion that a search will uncover evidence of further wrongdoing or injury to the student or another.

32. Student Searches
The Court held that using a cell phone on school grounds does not automatically trigger an unlimited right to search the content stored on the phone that is not related to the infraction.
The Court held that when a teacher confiscated the student’s cell phone, there was no indication that a search of the phone would reveal evidence of criminal activity or a violation of school rules or potential harm to anyone in the school.
Therefore, the Court of Appeals concluded the school district did not have reasonable suspicion to justify the search of the student’s cell phone at its inception.

33. Student Searches
While school administrators may not search a student’s cell phone for violating rules regulating the possession of a cell phone at school or the use of a cell phone at school, school administrators may confiscate or seize the phone for violation of school rules regulating the possession and use of cell phones at school.

34. Student Discipline
Education Code section sets forth the grounds for suspension and expulsion of students.
Among the grounds for suspension and expulsion are causing, attempting to cause or threatening to cause physical injury to another person, the sale of controlled substances, committing an obscene act, disrupting school activities, harassing, threatening or intimidating another student, or engaging in act of bullying.

35. Student Discipline
Education Code section 48900(r) makes bullying a disciplinary offense.
Bullying is defined as any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act directed toward one or more pupils that has or can be reasonably predicted to have an effect of one or more of the following:

36. Student Discipline
Placing a reasonable pupil or pupils in fear of harm to that pupil or the pupil’s person or property.
Causing a reasonable pupil to experience a substantially detrimental effect on his or her physical or mental health.

37. Student Discipline
Causing a reasonable pupil to experience substantial interference with his or her academic performance.
Causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services, activities or privileges provided by a school.

38. Student Discipline
An electronic act is defined as the creation of a transmission originated on or off the school site, by means of an electronic device, including, but not limited to, a telephone or other wireless communication device, compute or pager of a communication, including, but not limited to, any of the following:

39. Student Discipline A message, text, sound or image; or
A post on a social network or Internet Web site that creates a credible impersonation of another actual pupil, or creates a false profile for the purpose of bullying the pupil or another pupil.

40. Student Discipline
Assembly Bill 2536 added a definition of cyber sexual bullying to Education Code section 48900(r).
Cyber sexual bullying is defined as the dissemination of, or the solicitation or incitement to disseminate, a photograph or other visual recording by a pupil to another pupil or to school personnel by means of an electronic act that has or can be reasonably predicted to cause one of the effects of bullying mentioned in the previous slide.
A photograph or other visual recording shall include the depiction of a nude, semi-nude or sexually explicit photograph or other visual recording of a minor where the minor is identifiable from the photograph, visual recording or other electronic act.

41. Student Discipline
Cyber sexual bullying does not include a depiction, portrayal or image that has an serious literary, artistic, educational, political or scientific value, or that involves athletic events or school sanctioned activities.

42. Discipline of Students for Off-Campus Activity
Education Code section 48900(s) authorizes the discipline of students if the conduct is related to a school activity or a school attendance that occurred any time.
Related to school activity or school attendance includes, but is not limited to, conduct:
While on school grounds;
While going to or coming from school;
During the lunch period whether on or off the campus; and,
During, or while going to or coming from, a school-sponsored activity.

43. Discipline of Students for Off-Campus Activity
The federal and state courts in other states have interpreted similar language and have upheld discipline of students where a nexus could be shown to school activity or school attendance.

44. Discipline of Students for Off-Campus Activity
For example, a Pennsylvania state court upheld the expulsion of a student for selling marijuana to a fellow student while off campus.
The court found that the negotiations for the sale occurred during one of their classes.

45. Discipline of Students for Off-Campus Activity
In J.S. v. Bethlehem Area School District, the Supreme Court of Pennsylvania upheld the discipline of a student who created a Web site on his home computer and solicited donations for a hit man to kill his Algebra teacher.
The Web page also pictured the Algebra teacher decapitated with blood dripping from her neck, and also portrayed her face changing into that of Adolf Hitler.
The Supreme Court of Pennsylvania found that there was a sufficient connection between the Web site and the school campus to consider the conduct school related.

46. Discipline of Students for Off-Campus Activity
The Court noted that the off-campus Web site was accessed by the student at school and was shown to fellow students.
The student informed other students at school of the existence of the Web site.
Faculty members and school administrators also accessed the Web site at the school.
The Web site was aimed specifically at students and others connected with the school. and a teacher and the principal were the subjects of the Web site.

47. Discipline of Students for Off-Campus Activity
The Supreme Court also found that the Web site posted by J.S. disrupted the entire school community, including teachers, students and parents.
The Court found that the most significant disruption caused by the posting of the Web site to the school environment was the emotional and physical injury to the teacher.

48. Discipline of Students for Off-Campus Activity
The teacher was unable to complete the school year and took a medical leave of absence for the next year.
The teacher’s absence for over 20 days at the end of the school year necessitated the use of three substitute teachers that questionably disrupted the delivery of instruction to the students and adversely impacted the educational environment.
The Court noted that students were also adversely impacted.
A number of students expressed anxiety about the Web site and their safety.
Some students visited counselors.

49. Discipline of Students for Off-Campus Activity
The Court noted that the Web site was a topic of conversation at the campus and resulted in feelings of helplessness and low morale among the staff and students at the school.
The atmosphere of the entire school community was described by the Court as if a student had died.
The Court also noted that certain parents were understandably concerned for school safety and questioned the delivery of instruction by substitute teachers.

50. Discipline of Students for Off-Campus Activity
In summary, the courts have upheld disciplinary action for off-campus activity where disruption to the school environment could be shown.
Where the instructional process or the educational environmental of the school were disrupted, the courts have upheld the discipline.

51. Additional Resources
The California Educator’s Guide can be accessed at
Workbooks and other materials can be accessed at