Cyberbullying, Cell Phones and Other School Law Topics Susan Goldammer Missouri School Boards’ Association (800) 221-6722 firstname.lastname@example.org Bullying • §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 Cyberthreats” • Nancy Willard, M.S., J.D. • Center for Safe and Responsible Use of the internet • http://www.cyberbully.org/cyberbully/docs/c bcteducator.pdf 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 classmates • Happened off campus • Suspended for the rest of the year • Student sued, claiming violation of 1st Amendment 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 community 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 enough 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 hurt 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 defamation 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 unconstitutional - 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 possible Search & Seizure • Thompson v. Carthage School Dist. (8th Circuit 1996) – 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 weapons 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.