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Legal Pitfalls

An Instagram post with a reference to school shooting led to criminal charges for students at Findlay High School in Ohio. (Source)

On this page, you'll find some of the five legal pitfalls school districts encounter. Those legal pitfalls include the following:

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1- Compliance with Privacy Laws

When we think about compliance with privacy laws, where do federal laws come into play? Put another way, what applicable federal law is there?

FERPA governs the use and dissemination of student education records and personally identifiable information (PII). Be ware of Directory Information opt out and personal use.

The Protection of Pupil Rights Amendment (PPRA) applies to the programs and activities of a state education agency (SEA), local education agency (LEA), or other recipient of funds under any program funded by the U.S. Department of Education. It governs the administration to students of a survey, analysis, or evaluation that concerns one or more of the following eight protected areas:

political affiliations or beliefs of the student or the student’s parent;
mental or psychological problems of the student or the student’s family;
sex behavior or attitudes;
illegal, anti-social, self-incriminating, or demeaning behavior;
critical appraisals of other individuals with whom respondents have close family relationships;
legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers;
religious practices, affiliations, or beliefs of the student or student’s parent; or
income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program).

PPRA also concerns marketing surveys and other areas of student privacy, parental access to information, and the administration of certain physical examinations to minors.

The rights under PPRA transfer from the parents to a student who is 18 years old or an emancipated minor under state law. (Source)

Children's Online Privacy Protection Act (COPPA)

Governs online collection of personal information from children under thirteen. COPPA imposes certain requirements on operators of websites or online services directed to children under 13 years of age, and on operators of other websites or online services that have actual knowledge that they are collecting personal information online from a child under 13 years of age.

Children's Internet Protection Act (CIPPA)

The Children's Internet Protection Act (CIPA) requires that K–12 schools and libraries in the United States use Internet filters and implement other measures to protect children from harmful online content as a condition for federal funding.

Schools and libraries subject to CIPA are required to adopt and implement an Internet safety policy addressing:

Access by minors to inappropriate matter on the Internet;
The safety and security of minors when using electronic mail, chat rooms and other forms of direct electronic communications;
Unauthorized access, including so-called “hacking,” and other unlawful activities by minors online;
Unauthorized disclosure, use, and dissemination of personal information regarding minors; and
Measures restricting minors' access to materials harmful to them.

Schools and libraries must certify they are in compliance with CIPA before they can receive E-rate funding.

CIPA does not apply to schools and libraries receiving discounts only for telecommunications service only;
An authorized person may disable the blocking or filtering measure during use by an adult to enable access for bona fide research or other lawful purposes.
CIPA does not require the tracking of Internet use by minors or adults.

Districts must certify compliance with CIPA when applying for E-Rate funding
Requires development and enforcement of an Internet Safety Policy
Applies generally to District’s use of technology, but particularly challenging for District-sponsored/sanctioned use of social media 10
Elements of Internet Safety Policy:
- Monitoring the online activities of minors
- Implementing technology protection measures that protect against access by adults and minors to visual depictions that are obscene, child pornography or, with respect to use of computers with Internet access by minors, harmful to minors (i.e., block or filter access)
- Educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms, cyberbullying awareness, and response
- Limit use to District-issued devices)
- Encourage use of separate District/professional accounts
- Appoint administrator to join groups (e.g., Like, Follow), or otherwise monitor
- Work with provider to gain access/monitor
- Train employees and students on proper use
- Cyberbullying
- Appropriate content
- Inform parents about social media use and accounts 12

Avoid the Violation of Constitutional Rights

Avoid requesting access to, or otherwise attempting to control, students’ or employees’ personal accounts
Do not search students’ cell phones without reasonable suspicion
Beware of social media monitoring companies 13

Texas Code

Texas Education Code Sec. 26.009.

An employee of a school district must obtain the written consent of a child's parent before the employee may . . . make or authorize the making of a videotape of a child or record or authorize the recording of a child's voice

Not required to obtain consent if the videotape or voice recording is to be used only for:

purposes of safety, including the maintenance of order and discipline in common areas of the school or on school buses;
a purpose related to a co-curricular or extracurricular activity;
a purpose related to regular classroom instruction; or ◦ media coverage of the school

Disclosure still subject to FERPA 7

Texas Penal Code § 33.07(a)

◦ A person commits an offense if he uses the name or persona of another person to:

Create a web page on a commercial social networking site or other internet website; or
Post or send one or more messages on or through a commercial social networking site or other internet website, other than on or through an electronic mail program or message board program;
Without obtaining the other person’s consent; and
With the intent to harm, defraud, or intimidate, or threaten any person (Penalty: 3rd degree felony 8)

Vendor Terms and Conditions

Some of the key points to keep in mind with vendor terms include:

Establishing clear guidelines as to ownership of data
Distinguishing between anonymized data, metadata and personally identifiable information (PII)
Vendor Access, Use, and Disclosure
PII – District purposes only

Additional concerns include being careful that data mining of protected or sensitive information is not done.

Monitor and restrict access to data for Monitoring, Records Retention, and Open Records Requests
Transfer or Deletion of Data Upon Assignment/Termination

Student Speech (On/Off Campus)

When Can On-Campus Speech Be Regulated?

New: Impact of "David's Law" (Source: Texas Schools, Bullying, and the Law)
Speech causing a Substantial Disruption (Source: Tinker v Des Moines ISD (1969))
Lewd or Vulgar Expression (Source: Bethel School District No. 403 v Fraser (1986))
School-Sponsored Speech (Source: Hazelwood Sch. Distr. vs Kuhlmeier (1988))
Speech Promoting Illegal Drug Use (Source: Morse v Frederick (2007))

When Can Off-Campus Speech Be Regulated?

True Threats (Source: Morse v Frederick (2007))
Special Danger (Source: Ponce v Socorro ISD (2007))
Speech causing a Substantial Disruption (Source: Tinker v Des Moines ISD (1969))

Recommendations:

All improper, off-campus speech should be investigated and documented.
True threats or potential active shooter situation, report to police immediately
Develop and communicate policy and procedure in advance of situations
Safeguard sensitive data by enacting policy and taking action

Employee Speech (On/Off Campus)

Employee speech can be regulated in these instances:

When speech is in line with official duties
If the matter in question is NOT a matter of public concern*

Note: When speech IS a matter of public concern and involves the interests of the District as an employer and the employee as a citizen. In the case of the latter, First Amendment rights apply

References

Special thanks to Diana Benner and Lena Engel for sharing their insights via their TCEA presentations.

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