Thursday, November 4, 2010

Social Media: Rights and Risks

I'm in a packed social media workshop down at the MASC/MASS conference (where, ironically, I have the only netbook or laptop...). I should note that the attorney immediately confessed that he does not himself social media
What are districts and employees using now?
  •  blogs
  • personal Facebook, Twitter, MySpace accounts
  • using online for background checks
MGL c.214, 1B: people have a right to privacy...there are issues of access. "if you're poking around on there, you need to be mindful of this."
list of statutes and laws that govern relationships around non-discrimination...defamation, libel..."a factually untrue statement on a blog or social media site" can be up for libel
social media policy "may be up for collective bargaining"
"protected, concerted activity"...teachers talking online about their contract is protected speech
obtaining unauthorized access to online storage is to commit a crime
TEACH act exempts from copyright liability  the transmission of a copyrighted work by an accredited non-profit educational institution to students in a class
BUT you must have a policy that governs the use of the copyright material AND you have to take reasonable controls around re-distribution
Communication between teachers and students around grades are "student records" and must be retained by the district
Note that First Amendment rights have never been unlimited (limited by time, place, and manner restrictions) AND while there is a Constitutional right to free speech, there is no Constitutional right to public employment
Once it is established that the speech goes to a matter of public concern, it must be determined if the government's interest outweighs the employee's First Amendment rights: balance of employee rights with disharmony of employer/government
In 2006, the so-called "Pickering" test was modified, in Ceballos, to protect only speech unrelated to employees' professional responsibilities (which was a close Supreme Court decision; it went 5-4). Be careful, therefore.
Associational Rights: to what degree does the right to associate become protected?
You should be able to demonstrate a connection between the conduct of concern and the job the person performs if you wish to take action on conduct that occurs out of work
"Don't be overly concerned about the First Amendment...consult with" legal
"Absolutely, positively" should have a written policy..."sometimes there's a real good use for social media in academics"
"no expectation of privacy in use of district resources"
parameters around teacher posting, "friending" students, use in curriculum, require access for administrators?
"Train, train, train" DON'T IGNORE THIS ISSUE
"a heavy dose of common sense"
Open meeting law and public record law APPLY when it's done as a district (or, for School Committee members, it rises to level of deliberations)

Student issues
"things that are said off-campus...can be sent around the world" now
"off-campus speech can become on-campus speech with the click of a mouse"
anti-bullying statute
model MASC policy...bullying regulations
free speech rights of students in a school are not "co-extensive" with those of an adult in the community
"a substantial disruption in the educational process" is the test on whether the speech is protected
Tinker v. Des Moines which is the black armbands during the Vietnam War; that was protected
Bethel v. Fraser found that vulgar, indecent, or disruptive speech is not protected
Hazelwood v. Kuhlmeier found that the school was not required to promote or sponsor such speech (school newspaper)
Morse v. Frederick  (you might remember "Bong Hits 4 Jesus") found that a principal restrict speech if it promotes illegal drug use
what about online speech? what about if it involves speech related to schools?
the short answer is that courts are deciding these things differently...they're in the process of trying to get case law interally consistent
In Massachusetts, you MUST be able to show that there is disruption to the educational process (per Pyle v. South Hadley)..just saying something outrageous, obnoxious, or obscene is not enough

What about teachers holding up posters during an assembly against war? The speech is protect, but the disruption should be handled as it would any other disruption.
Comment that there is a lot of breakdown in communication between parents and schools...texts over phones, Facebook over email...want to use all means possible to establish relationships.."it's counter to progress in terms of communication"
Student suspended for an innocent comment on Facebook made about a teacher's relationship...policies are not going to prescribe the answer for every question..."just because somebody does something wrong, doesn't mean the punishment shall be..."
"I have no problem on a ban on the use of social media, but I worry that by banning the tool..we cause more difficulty..a conversation about behavior that we don't want to's how it can and can't be used"
when the school has a FB page, what issues are there with taking things off? Resolved in favor of the district.."it's your property, it's your district"...make it clear there is filtering
"sense of place"
Manner of speech restricted more than the content
"evidence of students visibly distracted during classtime"
what about intent to be disruptive? No good have actually disrupt
it's about being proactive: training teachers, students, parents... "a social media night" "must educate the three distinct groups out there"
what about regulating teachers' photos online...can they really get in trouble for it?
"teachers as role-models in the community...about place"
a School Committee member comments that he's 28 and the next youngest member is 60..."there's a generation gap" MASC should have done a better job of educating members
"we are in the 21st century...have to write policy that's supportive of using technology in the right way..."

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