February 17, 2010 School Digest

February 17, 2010

NHSBA SCHOOL DIGEST
SCHOOL LAW SUMMARIES FOR SCHOOL BOARD MEMBERS

School boards must govern their districts within a legal environment that grows more complicated each year and in a modern world that increasingly encourages litigation. It is important that school board members have an understanding of the issues that your district may face, and an idea of the general legal principles under which schools operate. Because of this, our members have requested that we provide them concise summaries of major school law developments and trends.

In this first issue of the NHSBA School Law Digest, we attempt to tackle the topic of student and employee use of digital devices- both at and away from the school setting. By summarizing representative cases from across the United States, we hope to raise your awareness of the many legal issues posed by "digital dangers." In addition, where appropriate, we have referenced New Hampshire School Boards Association Sample Policies- for your review and potential use to address the issues highlighted here.

We anticipate that this will be the first in a regular series of NHSBA School Law Digests-all geared towards our members.

Best wishes-
Ted Comstock, NHSBA Executive Director

School Boards Nationwide Grapple With Technology-Related Legal Issues

The following articles were taken from "Legal Clips" - a service of the National School Boards Association Office of General Counsel.

Washington state middle school students facing felony charges in "sexting" incident. Three students were formally charged in juvenile court with felonies stemming from a "sexting" incident in which they allegedly sent nude photos of a 14-year-old girl via their cell phones. Copies of the photo spread from phone to phone among a large number of North Thurston middle school students, according to police. The charge is a felony, carrying a maximum penalty of 30 days in juvenile detention. Anyone convicted of the offense is required to register as a sex offender. After breaking up with the victim, her ex-boyfriend sent the photo to one of the girls charged in the case. That girl sent it to the other girl who has been charged, and she sent it to other students, according to police. The prosecuting attorney believes a crime was committed. He said, however, that he doesn't think consenting teen couples that exchange nude photos of themselves should automatically be arrested, because it "doesn't really fit the elements of the crime." But when nude photos of someone are sent and resent multiple times, maliciously and without the consent of the photo's subject, it rises to the level of a crime, he said. Source: News Tribune, 1/30/2010

Federal appeals court considers whether sexting teenagers can be prosecuted for pornography. The U.S. Court of Appeals for the Third Circuit has heard arguments in a case involving three Pennsylvania teenage girls threatened with criminal prosecution on pornography charges after taking sexually provocative photos of themselves on their cellphones. The girls have not been accused of disseminating the photos.

After a number of sexting photos were found on student phones in the school district, teachers notified the County District Attorney, who threatened to prosecute 16 teens for child pornography unless they attended what their lawyers called "re-education" classes and wrote an essay about why sexting was wrong. Most agreed, but three girls and their parents obtained an injunction from the lower court preventing the prosecutor from either forcing them to take the class or charging them with child pornography. This is the first appeals court case concerning sexting, the reach of the state child-pornography law, and the First Amendment, said lawyer Michael J. Donohue.

A study released last month by the Pew Research Center's Internet and American Life Project said 4% of teens reported they had sent out sexually explicit photos or videos of themselves. Some 15% of cell-phone-owning teens ages 12 to 17 had received nude or nearly nude photos by phone, the report said. Source: Philadelphia Inquirer, 01/16/2010.

ACLU investigating suspension of Pennsylvania teacher over Facebook photo of her with male stripper. The American Civil Liberties Union (ACLU) is looking into the case of a high school teacher who was suspended from her job after someone posted photos of her with a male stripper to an online social networking site. "We're investigating the situation and are deeply troubled by the school district's disciplinary action against an employee for purely private, off-duty conduct," said Witold "Vic" Walczak, the ACLU's legal director in Pennsylvania.

The district superintendent imposed the 30-day suspension in early January. The school board president said he has seen the photos and supports the superintendent's decision. The teacher is fully clothed, and no students were present when the photos were taken, but the woman is depicted in a sexually suggestive pose with the stripper. School officials have been advised not to reveal details involving the suspension or the photos, especially since the teachers' union has filed a grievance. Other district employees who were present when the photos were snapped at a bachelorette party received disciplinary letters. Only one teacher was suspended because she is the only one visible in the photos.

On its Web site, the Pennsylvania State Education Association advises teachers to use caution when using online social networking sites such as Facebook because "an inappropriate page on one of these sites could lead to disciplinary action or dismissal." Source: Pittsburgh Tribune-Review, 01/27/2010

NHSBA Sample Policy References: NHSBA Sample Policies EGA, JICDD, and JICJ all relate to various technology student-related issues, including acceptable internet use provisions, cyberbullying, and improper use of electronic communication devices. NHSBA Sample Policies GBEB and GBEBD relate to staff and conduct and staff use of social networking websites. Additionally, NHSBA has worked closely with other state agencies in training and awareness to help school boards address these issues, how to prevent them, and develop appropriate responses.

District violated student's free speech rights when it disciplined him for non-disruptive off-campus online speech. In a unanimous decision, a federal appellate court ruled that a Pennsylvania school district violated the free speech rights of a high school student who was disciplined for creating an off-campus parody MySpace profile of the school's principal. The panel also ruled that the school district's discipline did not violate his parents' Fourteenth Amendment substantive due process right to determine how to raise their child. The profile contained a photograph of the principal imported from the school's official website. As word of the profile spread through the student body, students began accessing it on school computers. When school officials discovered that a student was responsible for creating the profile, they placed him in an alternative education program.

The Court rejected the school district's argument that the speech subject to discipline actually began when the student entered school property, i.e. the school web site, and misappropriated a photo of the principal. It rejected the district's attempt to equate the act of copying and pasting from a website to the physical breaking into the principal's office or a teacher's desk. It found that the relationship between the student's conduct and the school was so attenuated that it could not allow the district "to stretch its authority so far that it reaches [the student] while he is sitting in his grandmother's home after school." The Court concluded that allowing the district to discipline the pupil for conduct engaged in off campus and on a personal computer would set such a precedent and constitute a violation of the free expression guaranteed by the First Amendment.

District was justified in disciplining student for off-campus online speech because it reasonably forecast speech would cause substantial disruption in school. In a 2-1 split, a federal appellate court has ruled that a Pennsylvania school district did not violate a student's free speech rights when it disciplined her for creating, off campus, a parody online profile of her principal. Although the profile was created at J.S.'s home, word of its existence spread the next day at school and sparked a general "buzz" throughout the school. The principal determined that J.S. had violated the school discipline code, which prohibits the making of false accusations against school staff members, as well as the district's computer use policy. The latter policy was violated, according to the district, because the students had obtained the photo of the principal from the school's website, and the district has the sole permission to use and display photographs contained on that website.

When the student received a 10-day out-of-school suspension, she sued, alleging that the district had violated the First Amendment. The Court affirmed the lower court's decision that the school district had not violated the student's free speech rights when it disciplined her for her off campus online speech. Regarding the free speech claim, it concluded that the profile created by the student fell within the realm of student speech subject to regulation under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). It noted that school officials are not left powerless to discipline a student "simply because the disruption to the learning environment originates from a computer located off campus." It stressed that school officials need not wait for substantial disruption to occur, provided they have facts that lead them to reasonably forecast such disruption will occur.

The Court agreed with the district's argument "that, given the immediate impact of the profile on the Middle School, absent McGonigle's quick corrective actions to curb its effect, the profile's potential to cause a substantial disruption of the school was reasonably foreseeable." The Court was "persuaded that the profile presented a reasonable possibility of a future disruption..." Because of the lewd and vulgar nature of the profile, along with the potential for rapid dissemination via the Internet, the panel held "that off campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker." acknowledging that student speech critical of school officials is protected, it stated: "We simply cannot agree that a principal may not regulate student speech rising to this level of vulgarity and containing such reckless and damaging information so as to undermine the principal's authority within the school, and potentially arouse suspicions among the school community about his character."

Implications in New Hampshire: The contrasting decisions in these two cases, interestingly decided by the same federal court, clearly demonstrates the difficulty that courts are having with balancing a school district's right/duty to provide a safe school environment (through disciplining students for disruptive actions) against student free speech rights. We have no specific case law yet in New Hampshire on these types of issues, so there is simply no clear cut answer.

However, to assist in providing general guidance, NHSBA Sample Policy JICDD states that the school board reserves the right to impose discipline for off-campus student behavior that either has or has the potential to cause a significant disruption or substantial interference with the school's educational mission, purpose, or objectives. Under the decisions of either of the cases summarized above, it is imperative for administrators to establish a nexus between the off-campus behavior and the disruption to school district operations.

Student Rights and Discipline - Dress Codes and Board Policies

Student's suit prompts Pennsylvania district to consider revising dress code and anti-bullying policies. Pennsylvania's Patriot-News reports that a school board was considering changes to four district policies, including two that were challenged in a lawsuit in the fall. The suit was brought by the parent of a middle school student who was told to turn an anti-abortion T-shirt inside out because school officials thought it might offend other students. The policy revisions are the quid pro quo for dropping the suit.

The district is proposing changes to its dress and grooming policy, student expression policy harassment policy, and anti-bullying policy. Source: Patriot-News, 01/21/2010.

NHSBA Policy Reference: NHSBA Sample Policy JICA pertains to student dress code, while Sample Policy JICK pertains to student harassment and bullying. Also, the New Hampshire Legislature is currently reviewing proposed changes to the state's bullying statute. HB 1523 seeks to dramatically amend the current definition of bullying by adding provisions relative to harassment and cyberbullying. We encourage you to check the NHSBA Legislative Bulletin as this bill progresses through the Legislature.