Social Media and Social Networking ~Discipline Issues for

Students

1

School District Policies

Generally, school districts have policies regarding use of electronic devices by students in schools

2

Sample Policy

RESTRICTIONS ON USE OF ELECTRONIC DEVICES

Students may possess electronic devices including, but not limited to, cellular telephones, cameras and personal digital assistants with video/camera capabilities within all of the buildings owned by the District, on school grounds, in school vehicles and/or while participating in school-sponsored activities on or off school premises. The administration shall have the right to regulate the use of all electronic devices. In addition to limitations on use imposed by the school administration, possession of electronic devices is subject to the following restrictions:

3

School District Policy cont’d1. Electronic devices may not be used to conduct any activities which violate state and/or federal law, Board policy or school rules.

2. Electronic devices may not be used in any manner which interferes with, or is disruptive to, educational or extracurricular activities or events.

4

School District Policy cont’d3. Electronic devices must be turned off and stored when students are in restrooms, locker rooms and in other areas where individuals would have a similar expectation of privacy.

Notwithstanding the rules set forth above, electronic devices may be used at any time to respond to or report an emergency situation.

Violations of this policy may result in disciplinary action, including suspension and/or expulsion.

5

Student In-School Cyber-Speech

Subject to same regulation as other forms of student speech.

Protected by First Amendment

6

STUDENT EXPRESSION PROTECTIONS:

First Amendment Arm bands are protected expression. Tinker v. Des

Moines Independent Community School District, 393 U.S. 503 (1969) (substantial and material disruption standard; students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate)

Lewd or vulgar speech is not protected. Bethel School District v. Fraser, 478 U.S. 675 (1986)(school may restrict lewd, vulgar, indecent speech in school even without threat of substantial disruption)

7

Morse v. Frederick, 551 U.S. 393 (2007)(“BONG HiTS 4 JESUS” case; school district allowed to prohibit banner promoting illegal drug use at school-sponsored event)

Exceptions to Tinker standard are narrowly construed

Speech that constitutes a “true threat” is not protected

Rules may be subject to overbreadth challenge

8

Protections cont’d: State Board of Education Regulations:

“Students have the right to express themselves unless the expression materially and substantially interferes with the educational process, threatens immediate harm to the welfare of the school or community, encourages unlawful activity or interferes with another’s individual rights.” 22 Pa. Code § 12.9(b). (Substantial Disruption Test)

Students are not required to recite the Pledge or salute the flag. 22 Pa. Code § 12.10.

9

Student Discipline for In-School Speech A school may:

prohibit lewd, vulgar or profane language.

regulate school-sponsored speech (that is, speech that a reasonable observer would view as the school's own speech).

restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.

10

Student Discipline for In-School Speech May also be regulated if it would substantially disrupt

school operations or interfere with the rights of others.

Requires a specific and significant fear of disruption, not just some remote apprehension of disturbance.

School cannot be motivated by a "mere desire to avoid discomfort and unpleasantness."

11

Off-Campus Cyber-Speech

Under Pennsylvania law, a school district can discipline a student for out of school speech only if there is a sufficient nexus between the speech and the school campus to consider the speech to be on campus speech.

12

Off-Campus Cyber-Speech Typically, there is very little the school can do.

When an incident arises, it is imperative that the District obtain a copy of the website or emails at issue before they are taken off-line or changed. Print a hard copy of the material

Have technology department attempt to save the actual content of the material

If parents or students report such conduct, they should also print a copy of the material and provide it to the District.

13

Off-Campus Cyber-Speech If severe enough to constitute an immediate threat to

student safety, report incident to police (consult with Central Administration).

Talk to parents about issue.

Offer counseling services.

14

J.S. v. Blue Mt. Sch. Dist., 650 F.3d 915 (3d Cir. 2011) Middle school student used home computer during

non-school hours to create a MySpace.com internet profile featuring her principal. Student did not state principal’s name but used his photo from the school’s website. Student included profanity-laced statements and hinted that the principal was a sex addict and pedophile

Student was disciplined; 10 days out of school suspension

15

J.S. v. Blue Mt. Sch. Dist. cont’d. Student and parents sued school district in federal district

court for violation of First and Fourteenth Amendment rights

District court granted school district’s summary judgment motion, not under Tinker case, but under Fraser (school district may restrict lewd, vulgar speech even without substantial disruption)

Parents appealed to Third Circuit

Third Circuit court affirmed, then granted rehearing and vacated prior opinion

16

J.S. v. Blue Mt. Sch. Dist. cont’d No substantial disruption or “forecast” of substantial

disruption in school

Profile, though vulgar, so juvenile and nonsensical that no reasonable person could take it seriously

Access to MySpace blocked at school

School district could not punish student for use of profane language outside school during non-school hours

Out-of-school speech not turned into on-campus speech when student brought a printed copy to principal

17

Layshock v. Hermitage Sch. Dist., 650 F.3d 205 (3d Cir. 2011) Student created parody profile at home of principal

containing vulgar language on MySpace.com

Student accessed photo of principal from school district’s website

A number of student accessed MySpace, but couldn’t determine how many students access the profile at school

Student was given 10 days out-of-school suspension and other consequences for violation of discipline code

18

Layshock v. Hermitage Sch. Dist., cont’d. Parents brought action alleging First Amendment and

Fourteenth Amendment violations

District court granted parents’ summary judgment motion on First Amendment claim

Third Circuit affirmed (rehearing en banc)

No sufficient nexus established between speech and a substantial disruption of school environment under Tinker

School district did not have authority to punish student for out-of-school expression that district considered lewd and offensive

19

J.S. v. Bethlehem Area Sch. Dist.569 Pa. 638, 807 A.2d 847 (2002)

Eighth grade student created threatening website on home computer aimed at principal and a teacher

Website contained threatening language toward teacher; “why she should die” and requesting money to pay for hitman

Website was accessed at school

Teacher emotionally affected and took medical leave

Substitutes were required

20

J.S. v. Bethlehem Area Sch. Dist. Demoralizing impact

Student expelled from school; parents appealed to CCP Northampton County, which affirmed

Appeal to Commonwealth Court affirmed

PA Supreme Court affirmed

While statements did not constitute “true threat”, court found sufficient nexus between website and school campus

Website disrupted entire school community; adversely impacted the delivery of instruction

Satisfied Tinker standard

21

B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293 (3d Cir. 2013) “I boobies!(KEEP A BREAST) bracelets worn by

middle school students

Part of breast-cancer awareness campaign

School district banned bracelets

Parents sought preliminary injunction against ban

Eastern District Court granted preliminary injunction

Appeal to Third Circuit, affirmed

Violation of First Amendment

22

B.H. ex rel. Hawk v. Easton Area Sch. Dist. School district could not restrict speech that could

plausibly be interpreted as commenting on political or social issue

Bracelets not plainly lewd under Fraser

Ban failed under Tinker’s substantial disruption test

School district failed to establish Title IX-based defense of ban

Factors weighed in favor of granting preliminary injunction

23

Cyber Harassment – Standard Policy Language

“Cyber harassment” is defined as engaging in a continuing course of conduct with the intent to harass, annoy or alarm, by making any of the following, by electronic means, directly to another student or by publication through an electronic social media service:

(a) a seriously disparaging statement or opinion about the student's physical characteristics, sexuality, sexual activity or mental or physical health or condition; or

24

Cyber Harassment – Standard Policy Language

(b) a threat to inflict harm and which occurs in a school setting, and/or outside a school setting, that is severe, persistent or pervasive and has the effect of doing any of the following:

Substantially interfering with a student’s education;

Creating a threatening environment; or Causing substantial disruption of the orderly

operation of the school.

25