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

2. 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.

3. Social Media Today

4. Social Media Today

5. Unintended Consequences

6. Unintended Consequences

7. 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.

8. 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

9. 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

10. 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.

11. 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

12. 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

13. 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

14. 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.

15. 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.)

16. District Owned Devices
Chromebook
Computer Lab

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

18. Responding to a School Shooting Threat
Investigation
Community Response
Moving Forward

19. Responding to a School Shooting Threat
School Safety Plan
Tactical response plans are exempt from disclosure to the public

20. 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 §§ et seq.

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

22. 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.

23. 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.

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

25. 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

26. 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.

27. Questions

28. 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 or call (559)
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