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Students and Cyberspace

ACSA 2014 Every Child Counts Symposium

Jonathan P. ReadJanuary 16, 2014

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What We’ll Cover Today

Sexting and Cell Phone Searches & Seizures

Bullying and CyberbullyingDenial of FAPE for Students with

Disabilities Disciplining Students for Cyber-Speech

Case Law: Balancing School Safety and Free Speech in Making Decision to Discipline Students

Rules Applicable to Students with Disabilities

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What Would You Do?

A 13 year-old student “sexts” a topless photo to a boyfriend

She is being harassed and ridiculed by other students because of the texted image

A teacher reports seeing shallow cuts on the student’s thigh

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Witsell Case Example In Witsell, a school social worker

provided mental health counseling and had the student sign a “no-harm” contract.

The social worker did not notify site administrators or student’s parents of the counseling or cuts

The following day, the 13 year-old hung herself and died

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Lessons Learned from Witsell

Sexting prevention Bullying prevention Search & seizure Protecting victims Negligent supervision liability

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Sexting in Schools

School districts will typically learn of sexting from:Cell phone search

& seizureReports of

bullying

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Cell Phone Search & Seizure

Search & seizure of student personal property must be: Justified at inceptionReasonable in scope

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Policy Pointer

School district cell phone policies should not permit search and seizure at any time for any reason

Klump v. Nazareth Area School District

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What Would You Do?

What should a school district do if search & seizure of a student’s cell phone reveals evidence of sexting?Seal the evidence and contact

policeChild pornography implicationsReport to CPS?Don’t pass on!

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Policy Pointer

School district cell phone policies should not promise return of a confiscated cell phone at the end of class or the end of day, because confiscated cell phones may contain evidence of a crime and must be turned over to the police

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Policy Pointer

Cell phone policies should be updated to address all functions of smart phone technology

Cell phone policies may be blended with or at least make reference to the district’s video/photo waiver

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Campus-Wide Search of Student Cell Phones

Work with police Justified at inception Request voluntary deletion Education regarding

potential criminal punishment for possession of sexting images

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Cyber Misconduct as “Bullying” If misconduct at issue does not meet

the definition of bullying, it may be grounds for discipline as sexual harassment under the Education Code.

District should also consider alternative means of intervention, i.e. counseling

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Cyber Misconduct as “Bullying” Bullying defined: Ed. Code § 48900(r)

Severe or pervasive physical or verbal conduct

Has, or could have, the following effects: Places a reasonable student in fear of harm to

person or property Substantially detrimental effect on physical

or mental health Substantial interference with academics

or with school services, activities, or privileges

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“Bullying” – General Definition Ed. Code§48900(r)

What is a “reasonable pupil”?One who exercises average care, skill and

judgment in conduct for a person of his or her age, or for a person with his or her exceptional needs

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“Bullying” – Policy Requirements AB 9 (became effective July 1, 2012,

amending Ed Code§234) Requires schools to

adopt a policy prohibiting bullying

Requires a schools to adopt a process for receiving and investigating complaints

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One of the First Laws in the Nation to Address Cyberbullying . . . Assembly Bill 86

Amended Education Code §48900, which identifies grounds for suspensions and expulsions

Provides school administrators authority to suspend or recommend for expulsion those students who bully others by means including, but not limited to, an “electronic act”

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What Is an “Electronic Act” Definition:

Transmission of a communication, including, but not limited to, a message, text, sound or image, by means of an electronic device, including, but not limited to, a telephone, wireless telephone, or other wireless communication device, computer or pager

AB 256 (effective January 1, 2014): Transmission can originate either on or off the school site

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“Electronic Act”

Also includes, “posting on a social network site” including:Posting to or creating a burn page

(Internet Web site created for the purpose of bullying)

Creating a credible impersonation of another student

Creating a false profile

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Characteristics of Cyberbullying Different than traditional bullying

Indirect, usually off-campusAffects broader audienceHarder to pinpoint victimsHarder to prevent ANONYMOUS

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Misconduct Related to School Activities “A pupil may not be suspended or

expelled . . . unless that act is related to a school activity”

Related to a school activity includes, but is not limited to: While on school grounds While going or coming from school During lunch period on or off campus During, while going to or from, a school

sponsored activity

(Ed. Code, § 48900)

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Misconduct Related to School Activities When is misconduct via an electronic

act “related to a school activity”? Harassing text messages by student while

on-campus?Misconduct on school e-mail account from

home?Threats posted on MySpace from home,

which causes victim to miss school?A student starts a blog from home

computer to post obscene jokes about another student?

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Bullying, Students with Disabilitiesand FAPE Joint OSERS/OSEP August 2013 “Dear

Colleague” letter Encompasses cyberbullying Discussed FAPE impact in much more

significant detail than earlier guidance Three issues addressed:

FAPE standard IEP team responsibilitiesPlacement considerations

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Dear Colleague Letter – August 2013 FAPE standard

“Whether or not the bullying is related to the student’s disability, any bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE under the IDEA that must be remedied”

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Dear Colleague Letter – August 2013 FAPE standard

Note differences from 2000 letter Not necessary for bullying to be related to

disability to deny FAPE Application of “meaningful educational

benefit” standardFootnote: “Teacher-student disability

harassment also may constitute denial of FAPE”

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Dear Colleague Letter – August 2013 IEP team responsibilities

Determine if bullying has resulted in an IEP that is no longer designed to provide meaningful educational benefit

If so, determine additional/different services necessary and revise IEP accordingly

If student who engages in bullying is a student with a disability, determine additional supports necessary to address inappropriate behavior

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Dear Colleague Letter – August 2013 Placement considerations

“Exercise caution when considering a change in placement or location of services”

Attempt to keep targeted student in original placement unless FAPE cannot be provided

Movement to more restrictive setting to avoid bullying behavior may deny FAPE

“Schools may not attempt to resolve bullying situation by unilaterally changing frequency, duration, intensity, placement or location” of services

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Cyber-Speech Cases

Courts look at . . . True threats to school safetyMaterially and substantially

disruptiveSufficient nexus to school activity

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True Threats Schools can regulate student expression on

web pages or in emails in which they pose a “true threat” to a person or group

“True threat” = statement where the speaker means to communicate a serious expression of an INTENT to commit an act of unlawful violence to a person or group

Viewed in factual context

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Wynar v. Douglas County SD (9th Cir.

2013) Students in Nevada high school turned in

classmate for graphic messages about school violence posted on MySpace

Mentioned people he wanted to shoot Brought to District’s attention by another

student Suspended for one semester 9th Cir – Not protected speech

Applied “substantial disruption” testDistinguished case from those in which

students merely use the Internet to post mocking remarks about school officials

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Wynar v. Douglas County SD (9th Cir.

2013) 9th Circuit’s rule… Schools can regulate off-campus

speech that:Substantially disrupts or interferes with

school activities; or Interferes with rights of other students to

be secure and left alone

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Off-Campus Sexting

Protected speech under Wynar?

Apply substantial disruption test/right of other students to be secure

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LaVine v. Blaine School District (9th

Cir. 2001) Student wrote poem at home, titled “Last Words”; not part of curriculum.

Wrote in first person, depicting feelings a student has after killing several classmates

Student had expressed suicidal feelings to counselor

Counselor knew student had a fight with his father and recently broken up with his girlfriend

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LaVine v. Blaine School District (9th

Cir. 2001) Brought poem to school and showed

teacher 9th Cir -- Off-campus speech

Applied “substantial disruption” test School rightfully expelled student

Substantial likelihood of disruption “When considered in totality of other

relevant factors”Constituted a threat to himself or

others

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What Would You Do? After school, students go to a restaurant

One student films others making derogatory statements about a 13-year-old, calling her a “slut” and “ugly,” among other insults

Student who filmed posts it to YouTube from a home computer.

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What Would You Do?

Next day, victim & parent bring video to the school’s attention.

Parent and student are very upset. Staff have heard “buzz” about the video,

even during class time, and fear that students on campus are “taking sides” in the rift.

What would you do in response to the video?

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J.C. v. Beverly Hills USD (711 F.Supp.2d 1094

(2010))

In J.C. v. Beverly Hills USD, the school gave the student who created and posted the You Tube video a two-day suspension

The disciplined student sued the school district alleging that the discipline violated her 1st Amendment right to free speech and prevailed

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J.C. v. Beverly Hills USD (cont’d) Court reasoned that there was no actual or

reasonably foreseeable risk of substantial disruption

Unlike other cases where actual disruption was found, the video was not violent and did not contain threats

There was no evidence that the video had a substantial effect on classroom activities; and

School officials’ fear of gossip, note passing and students “taking sides” failed to rise to that level

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School Safety v. Free Speech School districts in difficult position of trying to

prevent bullying without infringing on free speech rights

Schools often err on the side of school safety, as the consequences of bullying can be more severe than infringing on free speech rights

If it is questionable whether off-campus speech is likely to create a substantial disruption on campus, schools should consider alternative means of intervention such as counseling, parent involvements, and behavior contracts

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Additional Considerations . . . Students with Disabilities

If student being suspended for cyber-speech activities is a student with disabilities, remember that:Manifestation determination may be

required first if removal will constitute a change in placement

10 consecutive days More than 10 cumulative days that constitutes

a pattern

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Manifestation Determination Within 10 school days of removal decision

that will constitute change in placement:

School district, parents, and relevant members of IEP team . . .

Must review all “relevant” information, including the student’s IEP, teacher observations, and relevant information provided by parents

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Manifestation Determination

Based on that review, the district, parents, and other IEP team members determine:

If the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability?

If the conduct in question was the direct result of the school district’s failure to implement the IEP?

If answer to either question is yes, conduct is a manifestation of disability

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Manifestation Determination

If conduct is not a manifestation of disability

General disciplinary rules apply.

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Manifestation of Disability If conduct is manifestation of disability,

District must: Conduct FBA (if not already done so)Develop and implement BIP If BIP already exists, review and modify as

necessary Return Student to placement from

which he/she was removed, unless District and Parents agree to change placement

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Things to Consider. . .

True threat? Caused a substantial

disruption? Was a disruption highly

likely? Sufficient nexus to school

activities and attendance? Student with disabilities?

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School districts must understand the limitations of their ability to monitor and discipline students in cyber-space

Balance . . .

Students retain 1st Amendment protection for online speech that does not create (or is not likely to create) a substantial disruption to school activities and does not interfere with rights of other students to be secure or left alone

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

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