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MISCONDUCT, discipline and the law When does a school district ess than a decade ago, school dis vided greater speech protections to students trict technology use policies essen for cyber speech than school teachers and have jurisdiction to tially focused on school computer employees. Two recent decisions found that labs and the prohibition of cell a school district overstepped its bounds in discipline astudent or phones on campus. Today, as schools inte disciplining students for cyber speech. In grate technology into classroom instruction those cases, the courts found that the school employee for cyber speech? and school operations, districts are moving district violated student FirstAmendment quickly to implement policies to encourage rights by disciplining the students, as the digital citizenship throughout the school cyber speech did not cause a substantial community. One particular challenge disruption at school and itwas not reason school administrators face is determining ably foreseeable that substantial disruption whether a school district has jurisdiction to would occur. Whereas, a recent employee discipline a student or employee for cyber dismissal was upheld by a court where the misconduct. cyberspeech-which was not viewedbystu Typically, it is not difficult for a school dents-caused the principal to lose confi district to establish jurisdiction to disci dence in the employee as a role model. pline students and employees for cyber What the court said misconduct that occurs on campus or from school-based technology. Conversely, the In ].C. v. Beverly Hills Unified School issue of when a school district can disci District, students made a four-and-a-half pline a student or employee for off-campus minute video after school that bullied a cyber speech poses a significant challenge to school administrators. Interestingly, courts have seemingly pro ByGretchen Shipley 14 Leadership middle school student, calling her a •stut." Following the J.C. v. Beverly Hills Unified posted a graphic, vulgar ad soliciting sex on "spoiled" and "ugly." They later posted the School District and J.S. v. Blue Mountain Craigslist-San Diego Unified School Dis video toYouThbe-J.C. v. Beverly Hills Uni School District decisions, school districts trict v. Commission ofProfessional Com fied School District (2010) 711 F.Supp.2d should carefully evaluate whether off-cam petence (2011) _ Cal.Rptr.3d _ [2011 1094. The video clip was viewed 90 times on pus cyber misconduct causes a substantial WL1234686]. The ad contaiJled photos of the night it was posted on YouTube.After the disruption at school.orwhetheritis reason the employee's nude bodyand his face. The parents ofthe victim complained, the stu ably foreseeable that such substantial disrup ad did not identify the employee by name, dent who created and posted the video was tion will occur. School districts should also nor did it state that he was an employee or suspended from school for two days. identify the school where he worked. The Thecourtfoundthatthe suspension vio Craigslist ad was on a page that prohibits lated the student's First Amendment rights viewing by persons under the age of 18 and because the video, in the court's opinion, therefore, it is presumed that no students did not cause a substantial disruption and it viewed the site. was not reasonably foreseeable thatitwould The school received an anonymous call cause a substantial disruption atschool. The reporting the ad. The school district dis court held that addressing concerns ofan missed the employee for evident unfitness to upset parent, having five students miss a por serve and immoral conduct, and the court tionoftheir classes, and a fear that students upheld the dismissal on these grounds. In would gossip was not substantial enough to evaluatingthe "nexus between conduct and warrant school district jurisdiction to sus abilityto teach" factor ofthe eight Morrison pend the student. factors, the courtheld that his conduct was, "detrimentalto the mission and functions •substanUal vs. dlsn~ptlon• •n~mbllnga• of [his] employer." The posting was vulgar, Similarly,inJ.S. v. Blue Mountain School inappropriate and demonstrated "a serious District. a middle school girl created a MyS lapseingood judgment." pace parody profile ofher principal from Acautionary tale her home computer-J.S. v. Blue Mountain School District, No. 08-4138 (3d Cir. June 13, Thead causedthe school principal tolose 2011). The profile included theprincipal's of confidence in the teacher's ability to serve as ficial school photo and descriptions ofhim consider whether other means ofinterven a role model. "The conduct itselt together such as "being a tight ass, spending time with tion may be appropriate, such ascounseling, with [the teacher's] failure to accept respon mychild (who looks like a gorilla), hitting on meeting with parents, cease and desist or sibility or recognize the seriousness of his students and their parents, sex addict, per ders, injunctive relict and/or referralto law misconduct given his position as a teacher vert, I love children, sex (any kind), and my enforcement. and role model, demonstrates evident unfit darlingwife (who looks likea man)." ness to teach." The school district suspended the student Nu.us between~·conduct and the school The case serves as a cautionary tale to for creating the profile. The profile was the While the legality ofa teacher dismissal public school teachers that online conduct source of"general rumblings'" at school, in for immoral conduct is evaluated under a is often a public communication and school cludingsixorseven students talking inclass, different test than student discipline, the teachers may be held to a high standard for resulting in a teacher telling them to stop issue ofnexus between the conductand the their speech because oftheir position as a three times; two other students reporting school is also one ofthe factors courts con teacheranda role model. Onthe other hand, theprofile to another teacher; andthe school siderinemployee discipline cases. While the a school district's ability to lose confidence counselor having to reschedule several ap J.C. v. Beverly Hills Unified School District in a teacher based on their cyber speech is pointments. and J.S. v. Blue Mountain School District a subjective standard and a difficult one to Despite the"general rumblings" atschool cases, discussed above, appear to require a measure. Therefore, school districts should about the profile, the 3rd Circuit Court of strong nexus between the cyber misconduct be mindful that discipline ofa teacher solely Appeals found that it was not reasonably andschool, a recent employee dismissal case based on the content oftheir cyber speech foreseeable that the MySpace profile would concerning cyber activity bad a very tenuous may be an insufficient basis to dismiss a cause a substantial disruption at school connection between the cyber conduct and teacher for evident unfitness to teach and and thus, the discipline was not warranted. the school immoral conduct. The court held that the school district vio In San Diego Unified School District v. Each cyber misconduct case, whether lated the student's First Amendment rights CommissionofProfessional Competence, a studentoremployee, should be evaluated on by disciplining her for creating the profile. middle school teacher and dean ofstudents its own set offacts and may require advice September/October 2011 1& oflegal 4:ounsel to determine whether the sues andcontract matters that arise from the many existing district policies, including but s4:hool district bas jurisdiction to move for integration oftechnology into public school notlimited to document retention, code of ward with discipline. settings. From this experience, I offer some conduct, publishing, cheating, plagiarism practical tips for your consideration: and homework policies. General advice, "Notnecessarilylegal adwlce" • lnte1rate acceptable tecllnoloty uae • Shift from bulldlnt pollcl.a around de As co-chair of Fagen Friedman 8t Ful Into olatlnl policy. Now that technology use .tc.a. With the rapid advancement oftech frost's eMatters Practice Group, I work is intertwined into all aspects ofclassroom nology, it can be challenging for school closely with numerous organizations and and school operations, acceptable use of disuicts to continually update policies cre associations onthe wide range ofpolicyis technology principles may beintegrated into ated around specific devices. For example, most cell phone polices prohibit students from making phone calls during class time; whereas, smartphones now offer video, photo, audio recording, texting, video game and Internet access capabilities to students during class time. Rather than a specific cell phone policy, acceptable use ofte4:hnology policies should be broadened to govern all forms oftechnol ogy on campus, including smartphones. Similarly, ifa school district adds electronic textbooks to its instructional toolbox, the district should integrate expectations for properuseandhandlingintopolicythatcur rently addresses expectations for how text booksand other supplies are to be treated. • Pro11ote dllltal cltfzenalllp In the school community. Today's challenge is to teach everyone - students and employees - the appropriate use of technology and con sequences for abusing technology. Many school districts are embarking on campaigns to promote digital citizenship, including re sponsible use ofcampus Facebook pages, ACSA MEMBERS DESERVE SPECIAL TREATMENT. cyberbullying reporting protocols, and po tential consequences ofsocial networking, ACSA Members are among the most competent and responsible individuals in the workforce Twitter, and online speech. These are 21st and, according to our research, behind the wheel as well. 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