How to develop social media policies for schools and how to understand the legal issues surrounding the same.

1. Policy and Legal Considerations
for Social Networking in Schools
1
STEVEN M. BAULE, PH.D.
SUPERINTENDENT, NORTH BOONE CUSD
JULIE E. LEWIS, ESQ.
SCARIANO, HIMES & PETRARCA, CHTD.
Scariano, Himes & Petrarca

2. Schools & Social Networking
2
Social networking is a new frontier
 Emerging area in both
policy development and
the law = no clear answers
 Cases regarding social
networking are
confusing/contradictory
 Must analyze how court
decisions on other subjects will
apply to this new frontier
Scariano, Himes & Petrarca

3. 3
Scariano, Himes & Petrarca

4. Acceptable Use Policy
4
 Should include:
 Scope of use – educational purposes only
 Prohibited uses
 Rules of use including full disciplinary options
 Liability - district is not liable for the accuracy of information on the
web, etc.
 Privacy statement – that the e-mail, etc used on the district’s computers are
district property and users should have no expectation of privacy
 Password responsibility
 Cyberbullying and sexting should be addressed specifically as well as in your
bullying and harassment policies.
Schwartz, Janes &Reed, A Principals’ Guide to Internet Policies & Electronic
Communication, IASB Education Law October 2008
Scariano, Himes & Petrarca

5. 5
Scariano, Himes & Petrarca

6. Basic Tenets of a Social Networking Policy
6
1.Purpose of social networking for the organization
2.Be responsible for what you write
3.Be authentic
4.Consider your audience
5.Exercise good judgment
6.Respect copyright laws
7.Protect confidential information
8.Bring value to the organization
Scariano, Himes & Petrarca

7. Types of Policies
7
Ethics and new rules for educational ethics
Access to Electronic Networks (Resources) - AUPs

Harassment of students
Bullying and harassment
Discipline code
Be specific about cyber bullying, etc.
Electronic devices
Sexting
Restrictions on publications
Social media contracts for staff
Social media purpose or mission statement
Scariano, Himes & Petrarca
.

8. Illinois Policy Guidelines
8
The IASB PRESS service includes several policies which relate to social
networking:
5:120 Ethics and new rules for educational ethics
5:125 Personal Technology and Social Media; Usage and Conduct
6.235 Access to Electronic Networks
Change networks to electronic resources
6.235 AP Access to Electronic Networks
7.20 Harassment of Students
7.180 Bullying and Harassment
7.190 Discipline Code
Be specific about cyber bullying, etc.
7.190 – AP 5 Electronic devices
7.190 – AP 6 Sexting
7.310 Restrictions on Publications
Don’t currently have any specific guidance regarding social networking
Scariano, Himes & Petrarca

9. IASB Policy 7:310
9
Non-School Sponsored Publications Accessed or Distributed On-Campus
For purposes of this section and the following section, a publication includes, without limitation: (1) written
or electronic print material, and (2) audio-visual material, on any medium including electromagnetic media
(e.g. images, MP3 files, flash memory, etc.), or combinations of these whether off-line (e.g., a printed
book, CD-ROM, etc.) or on-line (e.g., any website, social networking site, database for information
retrieval, etc.).
Creating, distributing and/or accessing non-school sponsored publications shall occur at a time and place
and in a manner that will not cause disruption, be coercive, or result in the perception that the distribution
or the publication is endorsed by the School District.
Students are prohibited from creating, distributing and/or accessing at school any publication that:
1. Will cause substantial disruption of the proper and orderly operation and discipline of the school or school
activities;
2. Violates the rights of others, including but not limited to material that is libelous, invades the privacy of
others, or infringes on a copyright;
3. Is socially inappropriate or inappropriate due to maturity level of the students, including but not limited
to material that is obscene, pornographic, or pervasively lewd and vulgar, contains indecent and vulgar
language, or sexting as defined by School Board policy and Student Handbooks;
Scariano, Himes & Petrarca

10. 7:310 Continued
10
4. Is reasonably viewed as promoting illegal drug use; or
5. Is distributed in kindergarten through eighth grade and is primarily prepared by non-students, unless it is
being used for school purposes. Nothing herein shall be interpreted to prevent the inclusion of material from
outside sources or the citation to such sources as long as the material to be distributed or accessed is
primarily prepared by students.
Accessing or distributing “on-campus” includes accessing or distributing on school property or at school-
related activities. A student engages in gross disobedience and misconduct and may be disciplined for: (1)
accessing or distributing forbidden material, or (2) for writing, creating, or publishing such material
intending for it to be accessed or distributed at school.
Non-School Sponsored Publications Accessed or Distributed Off-Campus
A student engages in gross disobedience and misconduct and may be disciplined for creating and/or
distributing a publication that: (1) causes a substantial disruption or a foreseeable risk of a substantial
disruption to school operations, or (2) interferes with the rights of other students or staff members.
Scariano, Himes & Petrarca

11. Sample Policy Guidelines
11
• Do not post any financial, confidential, sensitive or proprietary information about the
District or any of our clients and candidates.
• Speak respectfully about our current, former and potential customers, partners, employees
and competitors. Do not engage in name-calling or behavior that will reflect negatively on
your or the District’s reputations. The same guidelines hold true for vendors and business
partners.
• Beware of comments that could reflect poorly on you and the District. Social media sites
are not the forum for venting personal complaints about supervisors, co-workers, or the
District.
• If you see unfavorable opinions, negative comments or criticism about yourself or the
District, do not try to have the post removed or send a written reply that will escalate the
situation.
• If you are posting to personal networking sites and are speaking about job related content
or about the District, identify yourself as a District employee, use a disclaimer and make it
clear that these views are not reflective of the views of the District.
Scariano, Himes & Petrarca

12. Sample Policy Guidelines, cont.
12
• Be respectful of others. Think of what you say online in the same way as statements you
might make to the media, or emails you might send to people you don’t know. Stick to the
facts, try to give accurate information and correct mistakes right away.
• Do not post obscenities, slurs, harass, or personal attacks that can damage both your
reputation as well as the District’s reputation.
• Under no circumstances shall a staff member post any information about a specific student
without approval from the superintendent or designee.
• When posting to social media sites; be knowledgeable, interesting, honest and add value.
The District’s reputation is a direct result of our employees, students and their commitment
to uphold our core values.
• Do not infringe on copyrights or trademarks.
Scariano, Himes & Petrarca

13. First Amendment
13
What about a Facebook page
created by a school?
Scariano, Himes & Petrarca

14. First Amendment
Public Forum Analysis
14
 Does the school allow the public to comment
on its Facebook page?
 Ifso, a court could find that the school intends
the page to be a designated public forum
 The school has effectively granted permission to
the public to engage in expressive activity on the
page as a matter of course
 Caveat: a court has not ruled on this issue
Scariano, Himes & Petrarca

15. First Amendment
Public Forum Analysis
15
 What about other modes of social
networking?
Scariano, Himes & Petrarca

16. First Amendment
16
Any prohibition of expression on a
designated public forum is subject to:
Strict Scrutiny
Scariano, Himes & Petrarca

17. First Amendment
17
 Strict Scrutiny
 Any content-based prohibition must be:
Narrowly drawn
Effectuate a compelling state interest
Scariano, Himes & Petrarca

18. First Amendment
18
Social networking options for schools to
avoid infringing on First Amendment rights:
• Do not engage in social networking.
• Engage in social networking, but disable
“comments,” “wall posts,” and “discussions.”
• Engage in social networking and allow
comments, but do not remove comments on the
basis of content.
Scariano, Himes & Petrarca

19. OMA
19
 Comments or posts on a social
networking site could be
considered a gathering by
electronic means, and thus, be
considered a meeting under the
OMA where a quorum of a public
body comments or posts for the
purpose of discussing public
business.
Scariano, Himes & Petrarca

20. OMA ~ Considerations
20
 Members of public bodies of the school district
should be aware of this potentiality of a violation of
the OMA when engaging in social networking
activities.
 They should refrain from posting, commenting, or
discussing public business via Facebook or other
social networking platforms, especially if other
members have already commented on the same
topic.
Scariano, Himes & Petrarca

21. Employee Social Networking
21
 The Supreme Court’s holding:
 The Court assumed, but did not
decide, that Quon had a reasonable
expectation of privacy in his text messages
The City had a no-privacy policy regarding
computers and emails, but it did not explicitly
include text messages
Scariano, Himes & Petrarca

22. Employee Social Networking
22
 The Supreme Court’s holding:
 The employer’s search of the text messages
was reasonable
Non-investigatory work-related purpose
Justified at its inception
Not excessive in scope
Scariano, Himes & Petrarca

23. Employee Social Networking
23
 Lessons for public employers from Quon:
 Have a clear policy that all employer-owned
communication facilities are subject to search at
any time and that no employee should have any
expectation of privacy
 Only conduct a search if it is based on a
legitimate, work-related purpose
 Make sure that the search is reasonable in scope
– don’t be more intrusive than necessary
Scariano, Himes & Petrarca

24. Employee Social Networking
24
 Another reason to tread carefully when
conducting a search of employees’ social
media use:
 The Stored Communications Act, 18
U.S.C.A. § 2701, et seq.
Scariano, Himes & Petrarca

25. Employee Social Networking
25
 What if an employer searches an
employee’s work computer, discovers
the employee’s username and
password for electronic accounts
unrelated to the employer’s system
(For
example, Facebook, Twitter, Gmail, o
r Hotmail), and then examines the
employee’s communications in the
private account?
Scariano, Himes & Petrarca

26. Employee Social Networking
26
 This could be a violation of the federal Stored
Communications Act.
 The Act prohibits unauthorized access to an electronic
“facility” to examine stored communications.
 It is a criminal offense with civil fines of $1,000 per
violation in statutory damages, without need for proof of
actual damages.
 It is unclear whether the act of access is a single violation
or whether each communication retrieved and reviewed
is a separate violation.
 The financial implications of this question are enormous.
Scariano, Himes & Petrarca

27. Employee Social Networking
27
 To avoid a violation of the Stored
Communications Act:
 An employer should not examine an employee’s
private electronic account without permission.
 If the investigation is criminal in nature, the
access information should be given to police who
can then execute a warrant.
Scariano, Himes & Petrarca

28. Employee Social Networking
28
Employment decisions based on social
networking
Scariano, Himes & Petrarca

29. Employee Social Networking
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 What if an employee tweets a disparaging remark
about her supervisor, the school principal?
Scariano, Himes & Petrarca

30. Employee Social Networking
30
 Disciplining her could violate her First
Amendment rights.
Scariano, Himes & Petrarca

31. Employee Social Networking
31
 Pickering v. Board of Education, 391 U.S. 563
(1968)
 Teacher dismissed after writing a letter to the local
newspaper, which criticized how the school board
and the superintendent handled funds.
 The Supreme Court held that this violated the
teacher’s First Amendment rights.
Scariano, Himes & Petrarca

32. Employee Social Networking
32
 Pickering v. Board of Education (1968)
 First Amendment rights violated when speaking :
 As a citizen (not as part of their
duties as an employee), and on
Issues of public concern
Scariano, Himes & Petrarca

33. Employee Social Networking
33
 Balancing act:
 Even if an employee speaks as a private
citizen on a matter of public
concern, he or she may still be
disciplined:
Pursuant to an employer’s policy, and
Where speech infringes on the
employer’s operations or on its ability
to provide effective and efficient
services.
Scariano, Himes & Petrarca

34. Employee Social Networking
34
 Speech is not protected by the First
Amendment when statements are made
pursuant to public duties
 Garcetti v. Ceballos, 547 U.S. 410 (2006)
 Schools should require that employees make
clear that they are not representing their
employer when engaging in personal social
networking
Scariano, Himes & Petrarca

35. Employee Social Networking
35
 What should a policy on employee social
networking include?
Scariano, Himes & Petrarca

36. Employee Social Networking
36
 All employer-owned communication
facilities are subject to search – no
expectation of privacy.
Scariano, Himes & Petrarca

37. Employee Social Networking
37
 Any social networking activities done
pursuant to the employee’s job duties or
that occur during working time or while at
work are not private and are subject to
employer monitoring.
Scariano, Himes & Petrarca

38. Employee Social Networking
38
 Whether and when employees may access
social media during working time?
Scariano, Himes & Petrarca

39. Employee Social Networking
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 Even when engaging in social networking on
your own time, make clear that your
opinions do not represent those of your
employer, and do not post anything that
undermines the ability of the employer to
operate effectively.
Scariano, Himes & Petrarca

40. Students, Technology and Social Networking
40
 How should schools regulate this behavior?
 Can schools search cell phones and other electronic
communication devices?
 When can schools regulate off-campus conduct?
 The Standard:
 Tinker v. Des Moines, 393 U.S. 503 (1969)
 Material or substantial disruption rule: schools may limit
students’ First Amendment or other constitutional rights
only when the students’ conduct causes a material or
substantial disruption in the orderly operation of the
school.
Scariano, Himes & Petrarca

41. What conduct may schools regulate?
41
 This standard is not always easy to apply, see:
 Layshock v. Hermitage School Dist. 593 F.3d 249 (3rd Cir. Feb.
4, 2010)
 J.S. ex rel. Snyder v. Blue Mountain School Dist. 593 F.3d 286 (3rd
Cir. Feb. 4, 2010).
 Two cases:
 Same day
 Same circuit
 Opposite conclusions from panel of 3rd
Circuit
Scariano, Himes & Petrarca

42. What conduct may schools regulate?
42
Layshock Snyder
 In Layshock, the panel found that  In Snyder, the panel upheld a
a ten-day, out-of-school ten-day, out-of school
suspension violated the student’s suspension of the student.
free speech rights under the First  Using her parent’s computer, the
Amendment. student created a fake MySpace
 The student set up a fake MySpace profile of the school principal
profile of his school principal. The with a friend. The fake profile did
profile, which the student created not state the principal’s name, but
on his grandmother’s computer at included a picture of the principal
his grandmother’s house, referred from the school district’s web-
to the principal as a “big steroid site. The profile included profane
freak,” a “big hard ass,” and a “big statements suggesting that the
whore” who smoked a “big blunt.” principal was a pedophile.
Scariano, Himes & Petrarca

43. What conduct may schools regulate?
43
 The full Third Circuit, sitting en banc, heard arguments on
these two cases in June of 2010. On June 13, 2011, the
Court ruled that the students could not be suspended for
creating the parody profiles on MySpace of their principals
on home computers because there was not a sufficient
nexus between their behavior and school.
 In Layshock, the Court ruled unanimously that the
student’s First Amendment rights were violated when he
was suspended and stated, “[w]e do not think that the First
Amendment can tolerate the School District stretching its
authority into Justin’s grandmother’s home and reaching
Justin while he is sitting at her computer after school.”
Scariano, Himes & Petrarca

44. What conduct may schools regulate?
44
 In the Blue Mountain case, in which the majority opinion
included 8 of the 14 justices, the Court also found that
the student’s First Amendment free speech rights were
violated because “J.S. was suspended from school for
speech that indisputably caused no substantial
disruption in school and that could not reasonably have
led school officials to forecast substantial disruption in
school.”
 However, Judge D. Michael Fisher, who was joined by
five other justices, wrote the following about the majority
opinion in the dissent, “It allows a student to target a
school official and his family with malicious and
unfounded accusations about their character in vulgar,
obscene, and personal language.”
Scariano, Himes & Petrarca

45. What conduct may schools regulate?
45
 The dissenting justices were of the opinion that the
school district had the right to discipline J.S. because
substantial disruption was reasonably foreseeable.
 The School District has decided to file a writ of
certiorari with the U.S. Supreme Court to ask it to
review the decision of the Circuit Court of Appeals.
Scariano, Himes & Petrarca

46. The Good News …
46
 Courts are less inclined to uphold students’ First
Amendment rights in cases where students are disciplined
for ridiculing/bullying other students
 Kara Kowalski suspended for creating and posting to
MySpace a discussion group web page that ridiculed a
fellow student and included pictures of her. After creating
the group, Kara invited 100 people on her friends list to
join. The next day, target’s parents, along w/ target, went to
high school to file harassment complaint with vice
principal. Kowalski v. Berkeley County Schools, 652 F.3d
565 (4th Cir. 2011), cert. denied.
Scariano, Himes & Petrarca

47. Kowalski v. Berkeley County Schools continued:
47
 School administrators determined that Kara had created a “hate
website” in violation of school policy against “harassment, bullying and
intimidation”; suspended her from school for 10 days, issued a 90-day
social suspension and precluded her from participating on cheerleading
squad for remainder of year.
 Kara sued alleging that suspension violated her free speech rights
under the First Amendment and due process rights under Fourteenth
Amendment, but 4th Circuit held in favor of school and school officials
noting that “there is surely a limit to the scope of a high school’s
interest in the order, safety, and well-being of its students when the
speech originates outside the schoolhouse gate,” but determined they
were “satisfied that the nexus of Kowalski’s speech to Musselman High
School’s pedagogical interests was sufficiently strong to justify the
action taken by school officials in carrying out their role as the trustees
of the student body’s well-being.”
Scariano, Himes & Petrarca

48. Avery Doninger v. Superintendent over “Jamfest”
48
 In Doninger v. Niehoff, 642 F.3d 334 (2nd Cir. 2011), cert.
denied, Avery was punished for sending an e-mail to
students and parents affiliated with the school and for
posting a message on her personal blog criticizing the
school for cancelling a school event – “Jamfest” – an
annual battle-of-the-bands concert that Avery and other
Student Council members helped to plan.
 Avery called school officials “douchebags” on her blog and
her e-mail encouraged people to contact the
superintendent to “piss her off even more.”
Scariano, Himes & Petrarca

49. Doninger v. Niehoff continued:
49
 Avery had accessed an e-mail account of the father of one of
the students from the school’s computer lab to send a mass
e-mail in spite of a school policy that specifically restricted
“access of the internet or e-mail using accounts other than
those provided by the district for school purposes.” The
next day, the students gathered outside the administration
office to protest the cancellation.
 The Court concluded that the substantial disruption test
established by Tinker was met and that school officials
could prohibit Avery from running for class secretary.
Scariano, Himes & Petrarca

50. Can schools search students’ cell phones?
50
 The T.L.O. standard is applicable to a school official’s
search of a student’s cell phone.
 Klump v. Nazareth Area School District, 425 F. Supp. 2d 622
(E.D. Pa. 2006).
 Seizure of a student’s phone is justified if the student is using it
in violation of school rules.
 Further search of the phone is only justified if there are
reasonable grounds for believing that the search will turn up
evidence that the student has violated or is violating either the
law or the rules of the school.
Scariano, Himes & Petrarca

51. Can schools search students’ cell phones?
51
 Proceed with caution:
 If sexting is involved, a school official performing a cell phone
or other electronic communication device search could cross
the boundary from investigator to possessor of child
pornography.
 Recently, a lawsuit was filed against a school in Pennsylvania
on behalf of a student who claimed the principal illegally
searched her phone and found nude pictures of her on it. The
district denied any liability or wrongdoing, but did pay
$33,000 to the student and her attorneys in order to resolve
the dispute.
Scariano, Himes & Petrarca

52. Legislation
52
Scariano, Himes & Petrarca

53. Sexting
53
 Public Act 96-1087 amends the Juvenile Court Act of 1987. It provides
that a minor shall not distribute or disseminate an indecent visual
depiction of another minor through the use of a computer or electronic
communication device.
 It also provides that a minor who violates any of these provisions may
be subject to a petition for adjudication and adjudged a minor in need
of supervision.
 Finally, it provides that a minor found to be in need of
supervision under this provision may be:
 (1) ordered to obtain counseling or other supportive
services to address the acts that led to the need for
supervision; or
 (2) ordered to perform community service.
(705 ILCS 405/3-1 and 3-40)
Scariano, Himes & Petrarca

54. Sexting, Cont.
54
 Information on sexting prevention is available:
 http://www.aap.org/advocacy/releases/june09socialmedia.ht
m
 http://www.connectsafely.com/Safety-Tips/tips-to-prevent-
sexting.html
Scariano, Himes & Petrarca

55. Illinois Internet Safety Education Act
55
 Public Act 95-0509 states that each school may adopt an age
appropriate curriculum for Internet safety instruction of students in
grades kindergarten through 12.
 Beginning with the 2009-2010 school year, a school district must
incorporate into the school curriculum a component on Internet safety
to be taught at least once each school year to students in grades 3
through 12. 105 ILCS 5/27-13.3.
Scariano, Himes & Petrarca

56. Illinois Internet Safety Education Act
56
The Statute recommends that the unit of instruction include
the following topics:
(1) Safe and responsible use of social networking websites, chat rooms,
electronic mail, bulletin boards, instant messaging, and other means of
communication on the Internet.
(2) Recognizing, avoiding, and reporting online solicitations of students,
their classmates, and their friends by sexual predators.
(3) Risks of transmitting personal information on the Internet.
(4) Recognizing and avoiding unsolicited or deceptive communications
received online.
(5) Recognizing and reporting online harassment and cyber-bullying.
(6) Reporting illegal activities and communications on the Internet.
(7) Copyright laws on written materials, photographs, music, and video.
Scariano, Himes & Petrarca

57. Overhaul of Bullying Statute
57
 The State of Illinois overhauled its bullying statute, cited as
Public Act 96-952. (105 ILCS 5/27-23.7)
 The new bullying law defines the act of bullying to include
cyberbullying for the first time.
 Illinois districts are required to update bullying policies
every two years
Scariano, Himes & Petrarca

58. Gross Disobedience Perpetuated by Electronic Means
58
 Public Act 97-340 amends 105 ILCS 5/10-22.6 and enables
school boards to expel pupils guilty of gross disobedience or
misconduct, including gross disobedience or misconduct
perpetuated by electronic means.
 Explicit threat on an Internet website against school
employee, student, school-related personnel;
 Internet website was accessible within school at time threat
was made or available to third parties within school at time
threat was made; and
 Threat could be reasonably interpreted as threatening to
safety and security of threatened individual .
Scariano, Himes & Petrarca

59. Questions or Comments?
59
Steve Baule
baules@nbcusd.org
815-765-3322
Julie E. Lewis
Two Prudential Plaza, Suite 3100
180 N. Stetson
Chicago, IL 60601
jlewis@edlawyer.com
312.565.3100 x254
Scariano, Himes & Petrarca