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Legal Dos and Donts: Cyberbullying, Social Media, Electronic Devices and Schools November 28, 2017 Copyright 2017 Foundation for Educational Administration, Inc. Disclaimer This presentation is intended as a summary of law only, and is not meant as legal advice. Please consult your attorney to obtain legal advice. 2 Copyright 2017 Foundation for Educational Administration, Inc. Overview of Topics First Amendment Rights and Cyberspeech

Fourth Amendment Rights and Electronic Devices HIB Case Law and New HIB Regulations Involving Law Enforcement Sexting, Threats, Bias Incidents, Anonymous Posts Other Relevant State and Federal Laws Policy Considerations Scenarios

Q&A Free Speech & HIB I have a 1st Amendment Right to say whatever I want 4 Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE The First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 5 Copyright 2017 Foundation for Educational Administration, Inc. Des Moines, 1965

Copyright 2017 Foundation for Educational Administration, Inc. Tinker v. Des Moines Independent Comm. School Bd. (1969) Students enjoy First Amendment protection Substantial Disruption Burden on School District Cannot prohibit speech simply to avoid discomfort or unpleasantness, or because the point of view expressed is unpopular Copyright 2017 Foundation for Educational Administration, Inc.

7 What Is Protected Speech? Matter of legitimate public concern No protection for threats of violence Copyright 2017 Foundation for Educational Administration, Inc. 8 Morse v. Fredrick (2007) 9 Copyright 2017 Foundation for Educational Administration, Inc.

Bethel Sch. Dist. No. 403 v. Fraser (1986) High School nominating speech Graphic, explicit sexual metaphors School may prohibit profanity and obscenity Copyright 2017 Foundation for Educational Administration, Inc. 10 11 Copyright 2017 Foundation for Educational Administration, Inc. Student Freedom of Speech

IBoobies! (Keep a Breast) bracelets Middle school students wore bracelets in school to bring awareness to breast cancer research Bracelets available through Keep a Breast Foundation School district banned wearing bracelets with word boobies Students suspended for refusing to remove them Federal judge found that the ban was not justified because language on bracelet not vulgar, lewd, indecent or plainly offensive, did not

disrupt school, and commented on a social issue Decision was upheld by federal appeals court, with a strong dissent B.H. v. Easton Area Sch. Dist. (3d Cir. 2013) , cert denied 2014 12 Copyright 2017 Foundation for Educational Administration, Inc. Testing the Limits What Next? How do we address ambiguously lewd speech? 13

Copyright 2017 Foundation for Educational Administration, Inc. Student Speech - Third Circuit Precedent Layshock ex rel. Layshock v. Hermitage School District (2011) (fake profile of principal created on grandmothers home computer) J.S. ex rel. Snyder v. Blue Mountain School District (2011) (8th grader used home computer to create fake profile, suggested that principal was a drug addict, pedophile) 14 Copyright 2017 Foundation for Educational Administration, Inc. What Student Speech is Protected? Speech that does not materially and substantially interfere with the operation of the school VERY BROAD

What Student Speech is NOT Protected? Threats of violence Communication takes many forms - words, symbols, clothing, etc. Promoting illegal drugs Lewd and vulgar language HIB that causes substantial disruption in school

Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE 15 Dunkley v. BOE of Greater Egg Harbor SD, 2016 WL 6134518 (D.N.J. 2016)(Oct. 20, 2016) HS student claimed 1st Amendment Right Defense after SD suspended him and filed a formal juvenile complaint with the Prosecutors Office Out of School YouTube Videos Out of School Twitter Posts SD determined HIB

District Court held that the students speech constituted HIB, and that the school was required by the Anti-Bullying Act to regulate such speech. Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE 55 Summer 2017 Little League spokesman Kevin Fountain gave the following statement to the Times-Dispatch: "After discovering a recent inappropriate social media post involving members of Atlee Little Leagues Junior League Softball tournament team, the Little League International Tournament Committee has removed the Southeast Region from the 2017 Junior League Softball World Series for violation of Little Leagues policies regarding unsportsmanlike conduct, inappropriate use of social media, and the high standard that Little League

International holds for all its participants. See Article in your Folder 17 Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE Students, Sportsmanship & Social Media Consider NJSIAAs Sportsmanship Statement "There will be no tolerance for negative statements or actions between opposing players and coaches. This includes Taunting, Baiting, Berating Opponents, TrashTalking or actions which ridicule or cause embarrassment to them. Any Verbal, Written or Physical Conduct related to Race, Gender, Ethnicity, Disability, Sexual Orientation or Religion shall NOT be tolerated, could subject the violater to Ejection, and may result in Penalties being assessed against your Team. If such comments are heard a penalty will be assessed immediately. We have been instructed not to issue warnings. It is Your responsibility (Coaches and Captains) to remind your team of this Policy.

A SIMILIAR PUBLIC SERVICE ANNOUNCEMENT IS TO BE READ AT ALL NEW JERSEY HIGH SCHOOL CONTESTS WHEN A PUBLIC ANNOUNCEMENT SYSTEM IS AVAILABLE! Taken from the NJISAA website: http://www.njsiaa.org/events-news-media/news/sportsmanship-bias-statement-pre-gam e-declaration 18 Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE Staff Speech Issues Pickering Balancing Test Did the statement concern a matter of concern? general public Was the employee speaking as a private citizen or during

the course of his duties? Was the statement likely to disrupt a close working relationship? 19 Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE Pickering Analysis Questions Does the Speech Interfere with: Employees daily duties in the classroom? Regular operation of the schools generally?

The working relationship between the speaker and the person or institution at whom the criticism is directed? Pickering v, Bd. Of Educ. Twp. High Sch. Dist. 205, 391 U.S. 563, 570-572 (1968). 20 Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE Pickering Analysis Questions Teacher cannot speak in a manner that: Is a reckless disregard for the truth; Creates disharmonious relations in the workplace;

Undermines the immediate supervisors discipline over the employee; Compromises the loyalty and confidence required of close working employees. Pickering v, Bd. Of Educ. Twp. High Sch. Dist. 205, 391 U.S. 563, 573 (1968). 21 Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE Speaking as a Teacher or a Citizen? An employee does not speak as a citizen when he is acting pursuant to his official duties.

Garcetti v. Celballos, 547 U.S. 410, 421 (2006) 22 Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE Staff and Social Media Use Vicki Knox - Union School District Made comments on social media Homosexuality is a perverted spirit that has existed from the beginning of creation. . . . a sin [that] breeds like cancer. Union is not South Orange/Maplewood where one out of four families consist of two Mommies or daddies Why parade your

unnatural immoral behaviors before the rest of us? I/we do not have to accept anything, anyone, any behavior or any choices! I do not have to tolerate anything others wish to do. Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE 23 In the Matter of the Tenure Hearing of Jennifer OBrien and the State-Operated School District of the City of Paterson 2011 WL 5429055 (N.J. Adm. 2011) Teacher writes post on her Facebook page: Im not a teacher Im a warden for criminals! They had a scared straight program in school -- why couldnt I bring 1st graders?

Teacher was not a novice She held a certification in elementary Education as well as a supervisory certificate and she had a Masters degree in education. Student body at the school where she taught was primarily Latino and African-American students and school was in an impoverished area fraught with crime. She taught 1st grade students were 6 year olds. News of the Facebook post spread quickly causing community outrage and much media attention. The atmosphere at the school was described as a Firestorm, which was a distraction for the entire school community including the administration, faculty and the students. OBriens Evaluations were Good to Glowing; she had no prior discipline She testified that she posted the comments because she had 6 to 7 students who were behavior problems. One student hit

her the day before she posted the comments; others stole from her and others; and they hit each other. She expressed shock that people were offended by her comments. OBrien was found guilty of conduct unbecoming a teaching staff member. Her comments about her students on Facebook showed a disturbing lack of self-restraint, violated any notion of good behavior and were inimical to her role as a professional educator. She was also found to violate District Police 3281 which proscribes Inappropriate Staff Conduct and prohibits inappropriate comments about pupils. Her termination was upheld. The ALJ found that OBriens conduct demonstrated a complete lack of sensitivity to the world in which her students live, raising concerns about her poor judgment to yet an even higher level. In the Matter of the Tenure of the Tenure Hearing of Paula Weckesser and the School District of the Township of Woodbridge 2013 WL 299675 (N.J. Adm. 2013) Teacher charged with unbecoming conduct for posting various

comments on Facebook. Teacher was friends with the student on Facebook. She responded to a post by a student with the comment LOSER!!! and again, with the comment See! Again! You ASSume. Comments occurred when school was out of session. Court found Weckessers comments arguably more egregious than OBriens comments because Weckessers comments were specifically directed at her students and she intended the students to see the comments The court found Weckesser was communicating inappropriately with students, and that constituted conduct unbecoming. Weckesser State Board of Examiners In April 2017, the State Board of Examiners issued a two-year

teaching certificate suspension Hearing had been held before the State Board of Examiners in 2016. http:// www.nj.com/middlesex/index.ssf/2017/04/fire_woodbridge_teacher_lo ses_teaching_licenses_fo.html Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE 27 Fourth Amendment Protects against unreasonable searches and seizures: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

Copyright 2017 Foundation for Educational Administration, Inc. Small Group Discussion What types of searches have you or others in your school/district had to conduct in the past two school years? What trends are you seeing? Who is authorized to conduct searches? What procedures are in place? What has been the most challenging aspect of conducting student searches? Copyright 2017 Foundation for Educational Administration, Inc.

NJ Requirements for Searches Must have specific procedures and persons responsible Questions should be directed to county prosecutor (and board attorney) May request that law enforcement assume responsibility (but ) May not impede law enforcement involved in lawful search, seizure, arrest (even without warrant) Permit law enforcement to assume responsibility upon arrival

See N.J.A.C. 6A:16-6.2(b)5 Copyright 2017 Foundation for Educational Administration, Inc. Other Sources for NJ Law on Searches Memorandum of Agreement Between Education and Law Enforcement Ban on Strip Searches School Search Policy Manual and Checklist (275 pages for full manual)

http://www.state.nj.us/lps/dcj/school/ Guidance on Emergency Preparedness and Response Case Law Copyright 2017 Foundation for Educational Administration, Inc. Searching Electronic Devices What special considerations come into play when dealing with electronic devices? What constitutes reasonable suspicion justifying a search of an electronic device?

Who should conduct the search if one occurs? What happens if a student refuses to cooperate? Has the district provided written notice to students and staff that district issued devices are subject to search and there is no expectation of privacy? 32 Copyright 2014 Foundation for Educational Administration, Inc. Searching Electronic Devices - Case Law Klump v. Nazareth Area School District, Pa (3rd Circuit)

Facts: Teacher and A.P. confiscated students cell phone because he displayed it during school hours, in violation of district policy. School officials then: called nine other student listed in the phones directory to determine whether they were also violating the schools cell phone policy; accessed students text messages/voicemail; and instant-messaged the students younger brother without identifying themselves. Copyright 2014 Foundation for Educational Administration, Inc.

33 Case Law (contd) District sued for invasion of privacy and for violating state wiretapping laws. HELD: The court concluded that the search violated the students Fourth Amendment rights, pointing out that school officials had no reason to suspect at the outset that such a search would reveal that [the student] himself was violating another school policy; rather, they hoped to utilize his phone as a tool to catch other students violations. 34 Copyright 2014 Foundation for Educational Administration, Inc. Cell Phone Searches Case Law

In a case where school officials took away a students cell phone after seeing him text during class, the Sixth Circuit Court of Appeals held that they violated the boys Fourth Amendment rights by proceeding to read all the text messages on his phone. The administrator claimed she was concerned because of the students history of suicidal thoughts and drug use. But the court found that the school didnt have to search the phones contents in order to find evidence that the student had broken the no-texting rule, and the school had no information to suspect that he was guilty of other misconduct. (G.C. v. Owensboro Public Schools, 711 F.3d 623 (6th Cir. 2013).) Cell Phone Searches Case Law After receiving a report that a student may have been smoking marijuana on the school bus, school officials violated the boys privacy rights by going through his phone. As the judge saw it, the phone wasnt related to the search for marijuana because it couldnt contain drugs. (Gallimore v. Henrico County School Bd., 38 F.Supp.3d 721 (E.D. Virginia 2014).)

In another case where school officials confiscated a students phone for violation of school policy on cell phone usethen searched the phone, found seminude pictures of the girl, and sent the phone to policea federal judge ruled that she could pursue a lawsuit against the school. (N.N. v. Tunkhannock Area School Dist., 801 F.Supp.2d 312 (M.D. Pa. 2011).) Case Law U.S. Supreme Court Riley v. California - Law enforcement may not search a cell phone without a warrant, absent exigent circumstances RATIONALE: Cell phone searches are like searching a house years ago. The "smart phones" that exist today were not conceived of at the time of Chimel. Cell phones can store a large quantity of text, pictures, videos and information, that can date back many years. The scope of privacy interests are further complicated by the fact that the data on many modern cell phones may be stored on a remote server. Today, searching a cell phone is akin to searching a person's home. It is permissible to search the physical phone itself or its casing, as that may be used as or could conceal a weapon. However, the "data" on the phone cannot endanger an officer.

Copyright 2017 Foundation for Educational Administration, Inc. 37 HIB Code Amendments Topics Initiation of HIB Investigation Role of Approved Private Schools with Disabilities Taking Into Account the Circumstances of Incident when Contacting Parents Timeline for Parental Appeals

School Safety / Climate Team Recognition of Power Imbalance Conflict of Interest Student with Disabilities Status Meeting on November 1, 2017 Scheduled to be effective July 1, 2018

Drop Box Enclosures See Chart Explaining Regulations Changes See Kimberly Harrington Memo and Attachment re: Adoption of Proposed New Rules with Substantive Changes Link to the full text of the code changes: 38 http://www.state.nj.us/education/sboe/meetings/2017/November/public/Item%20D%20Programs%20to% 20Support%20Student%20Development.pdf

Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE Initiation of HIB Investigation Current Regulation Principal shall initiate an investigation upon receipt of an allegation of HIB or when principal has reason to believe HIB has occurred. New Regulation Permits local board policy allowing the principal in consultation with ABS to make an initial determination as to whether reported incident is an act of HIB. In making determination, principal must assume the allegations are true. The parent may appeal the decision not to initiate an investigation to the

BOE. 39 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE Initiation of HIB Investigation Best Practice Have superintendent and/or Anti-Bullying Coordinator sign off on decision not to initiate HIB investigation Provide parents of alleged aggressor and victim with written notice of decision not to initiate HIB investigation 40 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE Role of Approved Private Schools for

Students with Disabilities (APSSDs) Current Regulation Indicates that APSSDs are governed by student discipline rules that apply to all public schools and holds PSSDs to same requirements as all boards of education. New Regulation Provides specific HIB rules for APSSDs and requires adoption of HIB policy. Requires sending district BOE of the alleged victim to take the lead in investigating incidents involving APSSD students when incident occurs: On BOE school bus,

At school-sponsored function and/or Off school grounds. Requires APSSD staff to cooperate with sending district in investigation. 41 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE Role of Approved Private Schools for Students with Disabilities (APSSDs) Best Practice Confirm that APSSDs have an ABS in place and that they understanding

their obligations Require appropriate personnel from APSSDs to be present and participate when questioning students When questions exist as to whether or not the alleged HIB started in school at the APSSD OR started on the bus or off school grounds conduct a joint investigation, rather than separate parallel investigations Review contract between sending district and APSSD and ensure that HIB reporting and investigation obligations are addressed 42 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE Taking Into Account the Circumstances of Incident when Contacting Parents

Current Regulation No specific provision New Regulation Requires the school district to take into account the circumstances of the incident when communicating with parents in order to protect the student. Does not define how a school district is to do this. The language was developed in response to concerns related to revealing student sexual orientation or gender identity/expression. 43 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE

Taking Into Account the Circumstances of Incident when Contacting Parents Best Practice When applicable, inform parent or guardian that the alleged HIB involves perceived sexual orientation or gender identity/expression, but do not share actual sexual orientation or gender identity/expression as part of HIB notice Be aware of other sensitive issues that may arise (interracial relationships, disputes related to religion, etc.) Ask the student about any issues in the home that the district should be aware when notifying parents and consider student requests regarding parental notice

44 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE Timeline for Parent Appeals Current Regulation Requires hearing to be held within 10 school days of the request. No deadline for when parent may request a hearing. New Regulation Establishes deadline for parent seeking to request a hearing before the BOE of no later than 60 calendar days after parent or guardian receives written notice of outcome of investigation. 45 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE

School Safety / Climate Team Current Regulation Refers to School Safety Team Outlines role of SST to address school climate, identify patterns of HIB, etc. New Regulation Revises name to School Safety/Climate Team Clarifies that parent shall not receive confidential student information and that other team members not authorized to do so shall not receive confidential information.

46 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE Recognition of Power Imbalance Current Regulation No reference to imbalance in power. New Regulation Requires every board policy to include a statement that bullying is unwanted aggressive behavior that may involve a real or perceived power imbalance. 47 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE Conflict of Interest Current Regulation

Does not address potential conflicts of interest New Regulation Prohibits a member of the same bargaining unit from investigating claim against fellow member. Best Practice - Do not investigate your boss! 48 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE Student With Disabilities Current Regulation Requires BOE policy to include certain factors when determining remedial action, but does not reference students with disabilities. New Regulation

Requires BOE policy, when considering remedial actions, to consider nature of disability. Requires APSSDs to consult with sending districts IEP teams as appropriate when considering remedial actions and consider role of I & RS. 49 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE Students With Disabilities Prior NJDOE/USDOE Guidance NJDOE view that if behavior otherwise would be HIB, still is HIB even if a manifestation of disability

USDOE guidance indicates that districts need to convene IEP or 504 Team if student with an IEP or 504 plan is the victim of bullying Under ESSA school districts need to consider if racial disparities exist in student disability regarding students with disabilities Best Practice Convene IEP team if student with disability is the aggressor, dont wait until 10 days of suspension 50 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE Lessons from Recent Case Law

If there is alleged cyberbullying, engage in due diligence to determine source S.J. v. Plumsted SD (Nov. 22, 2016) If the target is resilient, the behavior may not be HIB (D.K. v. Readington SD , Nov. 11, 2016) Asian student targeted, but no substantial disruption) The Road to HIB may be paved with good intentions! (K.C. v. Montgomery Twp. SD, Aug. 11, 2016) Expressing concerns about friend and possible eating disorder Distinguishing characteristics are defined very broadly (vegetarianism See Montgomery SD case, sports proficiency See Jefferson SD case) Staff members have due process rights, too See case involving

coach, and tenure cases alleging HIB 51 Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE Collaboration with Law Enforcement Copyright 2017 Foundation for Educational Administration, Inc. Rodriguez v. Edgewater BOE, et al Unpublished Decision September 1, 2017 Facts: 10 year old student called down for questioning re: a threatening email the SD believed she sent (cyberbullying) Questioning, led by the Police with SD personnel in attendance, only occurred when Mom was present Parents

claimed violation of students Due Process rights Claims: SD should have investigated more before questioning the student. SD should have considered the students age and discipline history when responding to the apparent threat of an email. Unfair questioning tactics (too aggressive, etc.) Holding: Summary Judgment for SD granted Analysis:

SD acted reasonably Police SD Department lead the investigation did not Copyright do anything malicious 2017 Foundation for Educational Administration, Inc. LEGAL ONE 53 Cyberbullying S.J. v. BOE of Plumsted, EDU 405 Agency Dkt. No. 44-2/16; C.D. (November 22, 2016) FACTS:

In January of 2015, a 10TH Grader was harassed on-line. SD and Ocean County Prosecutors Office could not identify any of the responsible parties. On February 19, 2015 , the SD BOE determined that after its investigation, it had insufficient evidence to substantiate a HIB claim. The BOE notified the parents in writing on April 20, 2015. On October 14, 2015, the Petitioner appeared at the BOE meeting and made a statement regarding this incident. On November 9, 2015, the BOE met with the family to further discuss the matter. Father formally requested an

appeal of the findings. An Appeal Hearing was conducted before the BOE on November 18, 2015. BOE reiterated that there was insufficient information to ID the responsible party. BOE advised family to let SD know if additional information became available, and the investigation would be reopened. Parents appealed. HOLDING: Affirmed Copyright 2017 Foundation for Educational Administration, Inc. LEGAL ONE 54

Key Aspects of Collaboration with Law Enforcement Maximize information sharing between education and law enforcement Such as principal being informed regarding ongoing investigations Ensure that all school leaders are aware of MOA Work through how you will address issues of sexting, other cyberincidents Incorporate required updates for 2017-18 when available

NJDOE working on guidance on reporting bias-related incidents New law on live streaming video surveillance 55 Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE Memorandum of Agreement Copyright 2017 Foundation for Educational Administration, Inc. Memorandum of agreement MOA is between school officials and law enforcement MOA & school searches - school officials can search without a police officer present

If CDS/firearms/drug paraphernalia found, must notify police If explicit photos involves, must let police do search If officials request drug-detection canines, need permission of county prosecutor Creation of Law Enforcement Unit created by board resolution, allows for sharing with law enforcement of surveillance video, visitor sign in journals Copyright 2017 Foundation for Educational Administration, Inc. WHEN DO YOU INCLUDE/EXLUDE LAW ENFORCMENT IN A SITUATION

The Uniform State Memorandum of Agreement is specific on if or when to notify law enforcement. In some cases reporting is required immediately. However in some cases the school can conduct investigations prior to notifying law enforcement. In some cases delaying notification to law enforcement can help an investigation. However it is highly recommended for schools to have a dialogue with their police department on when to report prior to the school year starting.

Copyright 2017 Foundation for Educational Administration, Inc. WHEN DO YOU INCLUDE/EXLUDE LAW ENFORCMENT IN A SITUATION Immediate Notification Suspected child abuse / Neglect Custody disputes / potential kidnapping Sexual Offense Firearms and Dangerous Weapons

Planned or Threatened Violence Copyright 2017 Foundation for Educational Administration, Inc. WHEN DO YOU INCLUDE/EXLUDE LAW ENFORCMENT IN A SITUATION Notification Offenses involving Controlled Dangerous Substance Possession of CDS or CDS Paraphernalia Bias Crimes

Copyright 2017 Foundation for Educational Administration, Inc. WHEN DO YOU INCLUDE/ EXLUDE LAW ENFORCMENT Not required Notification Alcohol Non-firearm weapon (i.e. Swiss-Army knife) Copyright 2017 Foundation for Educational Administration, Inc. Sexting 2012 New Jersey Law

Focus on education, avoid prosecution for 1st offense According to National Campaign to Prevent Teen and Unplanned Pregnancy 1 in 5 student sent or posted nude or semi-nude photos online 22% of teens have received such photos 15% of teens have forwarded such photos to someone they only know online Overall, 40% of teens have sent sexually suggestive messages 62 Copyright 2014 Foundation for Educational Administration, Inc. Consider Can the School District Do This? Bridgewater-Raritan Public Schools Students circulating nude selfies on a variety of social media

sites, including their own smart phones. Spring of 2014, the School District advised students (and their parents) to delete any student nude selfies by May 29, 2014. The School District also involved local law enforcement officials due to concern that the nude photos violated local child pornography laws. Discipline for a students failure to comply with this mandate could result in suspension, or not being allowed to attend the prom and/or graduation ceremonies 63 Copyright 2017 Foundation for Educational Administration, Inc. Relevant Federal & State Laws Childrens Online Privacy Act Web operators must obtain parental permission to collect personal information for student under 13 Parents have right to know what info collected and how used and to review any info collected

Childrens Internet Protection Act Restricts use of technology purchased or used through E-rate discounts Requires schools to adopt internet safety policies Electronic Communications Privacy Act Related NJ law Wiretapping and Electronic Surveillance Act 64 Copyright 2014 Foundation for Educational Administration, Inc. CIPA Requirements

Protect against visual depictions that are obscene, child pornography, inappropriate or harmful to minors May be forced to pay back E-Rate discounts for failure to comply Policies must have provisions for: monitoring online activities of minors Educating minors about inappropriate online behavior 65 Copyright 2014 Foundation for Educational Administration, Inc. NJ Wiretapping and Electronic

Surveillance Act N.J.S.A. 2A:156-1 Permits one party to a conversation to record conversation without informing second party Allows parent to give vicarious consent for a child to record a conversation if it is found to be in the best interests of the child Key provisions of Act Under both federal and state law, unlawful to secretly record conversations of third parties without prior knowledge and consent

HOWEVER, permissible to record conversations without prior consent IF you are a party to the conversation, UNLESS Intending to use recording to commit criminal or tortious act Exception Vicarious Consent Children lack legal capacity to consent Parent has the right to secretly record conversations involving minor child when it is in the best interests of the child Requires good faith basis that is objectively reasonable for believing that consent on behalf of the minor is necessary and in the best interests of the child

Not a sweeping exemption and need more than blanket allegations of best interest Case Law Vicarious Consent DOnofrio v. DOnofrio, 344 N.J. Super. 147 (App. Div. 2001) - Divorce case Father secretly recorded conversations between four daughters and mother Court noted father had good faith belief that mother was threatening, intimidating or verbally abusing the children Court noted that recordings were done in fathers own home

Cacciarelli v. Boniface, 325 N.J. Super. 133 (Ch. 1999) Divorce case Recordings permitted where children agitated and crying after telephone conversations with mother Extension of Vicarious Consent Statute has been traditionally applied to permit one parent to record another, usually in divorce proceedings, usually involving conversations taking place on home phone However, vicarious consent doctrine not inherently limited to spousal disputes Key test best interests of child

If parent has good faith belief that child is being harmed in school, compelling case for application of doctrine to childs interactions in school Child Study Team meetings N.J.A.C. 6A:14-2.3(k)8 Permits audio recordings of IEP team meetings but requires prior notice to all other participants in the meetings that such device is being utilized Special requirement not applicable in other school settings Cyberbullying Tips Searching electronic devices is permissible with reasonable suspicion but should be a last resort

Involve law enforcement if explicit photos are involved Contact the social media site and seek cooperation in removing objectionable content Preserve electronic evidence on district issued device, not personal device Address issue in curriculum, student handbook, parent handbook Document all steps in writing

Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE 72 Policy Considerations Clearly designate who is authorized to seize devices AND who is authorized to do student searches and the proper conditions for each Provide notice to parents and students that electronic devices may be subject to search Provide consequences for students who refuse to consent to a lawful search Involve law enforcement immediately where the search involves

explicit photos Provide notice to staff that district issued electronic devices may be subject to search Provide clear guidelines & approval process for district authorized use of social media, and ensure proper oversight SCENARIOS & ROLE PLAYS 74 Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE Video Exercise Stolen Identity Watch the Whiskers123 Video

In groups, discuss the following: How do we respond to claims of stolen identity? Based on what you know from the video, could this be a HIB incident / multiple HIB incidents? What is/are Chloes characteristic(s) for each incident identified? What would be the Substantial Disruption for each incident identified?

What additional information do you need? Where will you get this information? Who do you need to interview? Are there additional sources of information? What are the school culture / climate issues? How should these issues be addressed? Is there conduct that would be considered Code of Conduct violations, but not a HIB? 75

Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE Cyberbullying and Puberty Marco, a middle school student, sends a text message to two of his friends about a girl in his class, Laurie. He says Yeah, shes really into me. I can tell by how she checked me out this morning. I know she wants me. Marcos friend Billy then posts the comment online, under the hashtag #LaurieLUVSMarco. Several other students post derogatory comments about Laurie being promiscuous, with one student calling Laurie a slut. Lauries parents file an HIB claim against Marco, his friend Billy and everyone who commented on Billys post. What info do you need? What is the likely result? 76 Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE Cyberbullying and Relationship Disputes

While eating lunch in the school cafeteria, Jenny, an eighth grade student, receives a text message from a friend, Olivia, who is upset that her boyfriend just broke up with her. Olivia is angry at the new student in school, Sarah, who Olivia says stole her boyfriend, Matt. Olivia writes that Sarah is a whore and asks that her friends forward the message to everyone they know. Olivia texts this message to thirty of her friends. Jenny does not forward the message, but does tell several friends who were not on the original receiving list about it. That night, several of those kids send their own text messages, repeating different versions of what they heard from Jenny about what Olivia had said. Workshops & Online Courses Signs Matter: Early Detection NJs Anti-Bullying Bill of Rights online course

Affirmative Action Officer Certificate Program Anti-Bullying Specialist Certificate Program January 23, 24, 25 January 17, 18, 19 Register at www.njpsa.org/legalonenj Conclusion Thank you for choosing professional development with LEGAL ONE!

Visit our website for more courses that can support your work at http://www.njpsa.org/legalonenj/ Follow us on Twitter @LEGALONENJ If you have any questions about this presentation or suggestions for future seminars, please send an email to: [email protected] 79 Copyright 2017 Foundation for Educational Administration, Inc. - LEGAL ONE

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