Springfield Cyberbullying Cell Phones and Other School Law

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					Cyberbullying, Cell Phones and
   Other School Law Topics
            Susan Goldammer
    Missouri School Boards’ Association
              (800) 221-6722
• §160.775, RSMo. – must have a policy
  prohibiting and requiring all employees to
  report when the employee has firsthand
  knowledge. Includes cyberbullying.
• JFCF – Hazing and Bullying
• Bullying: intimidation or harassment of a
  student or multiple students perpetuated by
  individuals or groups.
          Cyberbullying (JFCF)
• HB 1543 (2010) amended law to include
  cyberbullying BUT already addressed
• Cyberbullying: “sending or posting harmful or
  cruel text or images using the Internet or
  other digital communication devices.”
• Cyberthreats: “online materials that threaten
  or raise concerns about violence against
  others, suicide or self-harm.”
    Training (Staff and Students)
• “Educator’s Guide to Cyberbullying and
• Nancy Willard, M.S., J.D.
• Center for Safe and Responsible Use of the
     Issue: Off-Campus Conduct
• HB 1543 (2010) amended §160.261 to allow
  for districts to discipline students “for off-
  campus conduct that negatively affects the
  educational environment to the extent
  allowed by law.”
• What law? First Amendment, reasonable
  scope of powers
• Should you? How far do you want to reach?
 Mardis v. Hannibal Public School Dist.
• Student instant messaged another student
  that he was going to get a gun and kill certain
• Happened off campus
• Suspended for the rest of the year
• Student sued, claiming violation of 1st
 Mardis v. Hannibal Public School Dist.
• “True threat” not protected
• True threat: a serious expression of an intent
  to commit an act of unlawful violence to a
  particular person or group
  1. Intent to communicate: should have
  foreseen it would be spread to school
  2. Reasonable recipient’s perception: Close
  case, but state of mind and access to gun
 Mardis v. Hannibal Public School Dist.
• Can discipline for speech if substantially
   disruptive to the educational environment
 - Around 30 parents called wanting to know
   how district was addressing
- Administrators time occupied with parents
   and media
- Significant increase in security at the school
 J.C. ex rel. R.C. v. Beverly Hills Unified
              School Dist. (CA)
• Students recorded video clip disparaging
  another student, posted on YouTube, and
  contacted classmates to watch
• No substantial disruption
  a) Mere offense at off-campus speech not
  b) No safety concern, student came to school
  c) Was not accessed at school
   Factors to Consider to Determine
   Disruption of Off-Campus Activity
• More than mild distraction or curiosity - fact
  that students are discussing not enough
• Violent or threatening speech more likely to
  be disruptive (or true threat)
• Were school officials pulled away from regular
  work to address?
• Past history of disruption in similar cases?
• Parent concerns, absenteeism, students
  missing class
              Other Options
• Law enforcement notified
• Frank conversation with parents/student and
  discussion of potential defamation issues,
  Internet use by employers and others
• Frank conversation that problem will be dealt
  with immediately if it happens at school
• Contact Facebook or other service provider
  and ask to remove/block access
             Law Enforcement
• Criminal Harassment: §565.090 includes:
  a) Knowingly communicates a threat to commit
  any felony to another person and in so doing,
  frightens, intimidates, or causes emotional
  distress to such other person;

  b) Knowingly communicates with another person
  who is, or who purports to be, seventeen years of
  age or younger and in so doing and without good
  cause recklessly frightens, intimidates, or causes
  emotional distress to such other person
            Not Just Students
• Creating websites, blogging, sending negative
  messages regarding teachers/principals
• Can legally disrespect your teacher/principal
  off of school property or express a negative
  opinion! Protected by First Amendment.
• Problem: Staff do not understand and are
                  What to Do
•   Look for nexus or impact to school
•   Law enforcement notified
•   Frank conversation with parents/student
•   Contact Facebook or other service provider
•   Encourage staff member to take legal action
•   Send official letter to parents regarding
       Sexting Rules (We Think)
• Electronic possession same as physical possession
• Turn over to SRO to determine if criminal and as a
  witness of the image
• Write description of what you see
• If image of student, contact parents. Show them
  image? (distribution concerns)
• Show image to parent of student possessing for
  due process purposes and delete
• Issue: Possession or distribution of porn
         Searching Cell Phones
• Fourth Amendment U.S. Constitution:
  “The right of the people to be secure in their
  persons, houses, papers and effects against
  unreasonable searches and seizures shall not
  be violated, . . .”
• Article I, Section 15 Missouri Constitution:
  “[We declare] That the people shall be secure
  in their persons, houses, papers and effects
  from unreasonable searches and seizures; . . .”
           2 Kinds of Searches
• Suspicion-based
  – Reasonable suspicion or probable cause
  – Reasonable determined by balancing individual
    privacy interests with governmental interests
• Suspicionless (Random)
  – Higher level of justification required to overcome
    lack of reasonable suspicion
  – Ex. Drug testing for extracurricular activities
     Standard for School Officials
• New Jersey v. T.L.O (1985)
  – Searches by school officials covered by the Fourth
    Amendment of the US Constitution
  – “Reasonable” is different in schools
     • Lower privacy expectation
     • Need to maintain discipline
     • No need for warrant or probable cause
• Standard is “reasonable in inception and
  reasonable in scope”
             Search & Seizure
• Safford Unified School District v. Redding (U.S.
  Supreme Court 2009)
- Student suspected of selling drugs told to
  remove clothing to search for drugs
- Enough to search backpack and outer clothing
- Scope excessively intrusive
- Unjustified: drugs not dangerous, small
  amounts, no evidence carrying at that time
             Search & Seizure
• §167.166, RSMo. Prohibition on strip searches
• School employees and volunteers cannot conduct
  unless police not immediately available and the
  employee believes a student possesses a
  weapon, explosive, or substance that poses
  imminent harm
• Commissioned law enforcement officer can, but
  district must attempt to notify parents as soon as
             Search & Seizure
• Thompson v. Carthage School Dist. (8th Circuit
  – General search of all students’ coat pockets
    reasonable in light of suspicion that weapons
    were on campus
  – Suspension of student for drugs found in pocket
    while looking for weapons upheld as reasonable in
    inception and reasonable in scope
  – Note: Government interest in protecting from
             Search & Seizure
• Doe v. Little Rock School Dist. (8th Circuit 2004)
  – Random suspicionless search of students’
    belongings unreasonable
  – No evidence that there was an extreme problem
    that would justify this invasion of privacy
  – Unlike student drug testing programs, this applied
    to all students
  – Policy language does not cure
                Think About
• What facts exist that indicate there has been a
  violation of policy or law?
• How serious is the suspected violation?
  (dangerous drugs, weapons – or just missing
  property, etc.?)
• How invasive is the search?
• What am I looking for? (limit the scope)
          Should You Search?
• Student caught using phone in classroom
  before test. Phones cannot be used during
  academic time.
• A cell phone is found in the hallway.
• Student is caught with drugs. Principal wants
  to search phone to determine if student is
  selling to other students.
            Should You Search?
• Student’s phone falls out of pocket in gym. Not
  supposed to have, so teacher confiscates and
  gives to principal. Principal wants to search.

• Student becomes unconscious after taking some
  drug, but other students do not know what.
  Principal wants to search phone to see if there is
  more information about what the student took.
        Other Electronic Issues
• Staff use of Facebook, MySpace
• “Friending” students
• Staff giving out cell phone numbers/e-mail
  addresses to students
• Staff collecting cell phone numbers/e-mail
  addresses of students
• Concern: Grooming
    New Laws You Need to Know
• §160.263: Must have policy on seclusion and
  restraint by July 2011
• §167.208: Must have policy on allergy
  prevention and response, including food
  allergies, by July 2011
• Must notify all teachers in an attendance area
  of an act of school violence. Other employees
  on a need to know basis. HB 1543 (2010)
    New Laws You Need to Know
• Students prohibited from being 1,000 feet from
  school property also prohibited from being 1,000
  feet from the location of an activity and must
  receive permission from superintendent to be
  present even with parents/another adult
• Immunity for employees administering medicine
  or administrating CPR or other lifesaving
  measures if in good faith and in accordance with
  medical standards
    New Laws You Need to Know
• Expanded law on self-administration of
  medicine to include chronic health conditions
  other than asthma or anaphylaxis
• Trained persons other than the school nurse
  can administer an epi pin.
• New rules on issuing work certificates.
  Principals may issue, but must self-certify they
  know the law and provide copies to
  superintendent (HB 1892)
    New Laws You Need to Know
• Employees entitled to “reasonable break
  time” to express breast milk for up to one year
  after birth.
• District must provide a place other than a
  bathroom for an employee to express breast
  milk that is shielded from view and free from
  intrusion from coworkers and the public.