100 International DriveSuite 340Portsmouth, NH 03801603-433-3317www.dwmlaw.com

New Hampshire ∙ Maine

SOCIAL NETWORKS-2013

Presented byMatthew H. Upton, Esq.

Copyright 2013 Drummond Woodsum. These materials may not be reproduced without prior written permission.

Personal information can be easily shared and forwarded to others.

Information can live on even after deletion.

You may not own the content. Terms of use can create a license for the

host site to use any content you or others post. (LinkedIn).

Cannot always be sure who you are communicating with (could be a minor or sexual predator).

Environment where lines between professional and personal lives easily blur.

Can result in the exchange of personally identifiable student information-FERPA violation.

Information about co-employees or subordinates can be a source of interpersonal issues and disputes.

May be monitored by parents and other concerned citizens.

Reply function “Like” or “Dislike” accompanying forwarded materials can result in unintentional membership in fringe organizations.

Associations with others can give rise to claims of instructional/administrative bias by parents and other concerned citizens.

Information about subordinate employees (venting) can amount to a breach of privacy.

Use of school resources (paid time or school computers) for social purposes can drain productivity and misuse of employer property.

Inability to properly monitor student-teacher interactions.

May send messages inconsistent with school policy or rules.

May result in generation of student records not maintained in accordance with FERPA or school’s record retention policy.

Even if it occurs after hours, conduct which causes disruption to workplace can subject the employee to discipline.

Students can use information posted to fabricate allegations or retaliate for bad grades/discipline.

As a teacher/administrator (and public servant) your actions are more closely scrutinized than others.

Certain employee communications may be protected by the First Amendment.

Curran v. Cousins, 509 F.3d 336 (1st Cir. 2007). Test:◦Whether the employee spoke as a citizen on a matter of public concern. If not, no First Amendment protection.

Discipline for purely private activity can expose District to damages (Papa Gino’s Case).

20% of employers use Social Networking sites to learn about prospective employees. 1/3rd of managers that use Social Networks have rejected an applicant based on postings.

Accessing social networks to learn about employee conduct is dangerous practice (membership in a protected classification, whistle blowing & other protected activity).

Access to stored electronic information without permission can violate the Federal Stored Communications Act, 18 U.S.C. §§ 2701-2712.

Generally, social networking which occurs off-campus that does not substantially disrupt the school environment is beyond the reach of the employer.

Likelihood of substantial disruption can be grounds for discipline.

Manifestation determination can be difficult for identified student.

Substantial disruption is hard to prove. The likelihood of substantial disruption is even more difficult.

Exception to the “substantial disruption” test is if the off-campus communication interferes with another pupil’s educational opportunities. RSA 193-F: 4, I (b).

Some courts are abandoning the Tinker substantial disruption test such that if it does not happen on school grounds it is out of bounds for school discipline. Layshock v. Hemitage Sch. Dist., (3rd Cir. June 13, 2011).

Examples of substantial disruption: J.S. v. Bethlehem Sch. Dist., 807 A.2d. 847 (Pa.

2002). Student created a website denigrated

principal and threatened another teacher with death. Principal required medical leave for a complete school year.

Given the impact to the principal, it was found to substantial disrupt the school environment.

Examples of substantial disruption: Donniger v. Niehoff, 537 F.3d 31 (2nd Cir.

2008). Student created a blog calling administration

“douche bags” urged students to contact school officials in protest to canceling a student council event.

Court found a likelihood of creating substantial disruption.

Examples of substantial disruption: Kowalski v. Berkeley County Schs, (4th Cir. July 27,

2011). US Supreme Court rejected the appeal. Student created webpage S.A.S.H. (Students

Against Sluts Herpes) where a classmate Shay N. was ridiculed suggesting she had herpes. Twelve other classmates joined the group and participated. It was reasonably foreseeable that the conduct would interfere and disrupt as described in Tinker.

Examples of no substantial disruption: J.S. v. Blue Mountain Sch. Dist., (3rd Cir. June

13, 2011). US Supreme Court rejected the appeal.

Layshock v. Hemitage Sch. Dist., (3rd Cir. June 13, 2011). US Supreme Court rejected the appeal.

Fake MySpace page denigrating principal with lewd and shameful personal attacks did not create substantial disruption even though viewed by fellow students.

Examples of substantial disruption: Mardis v. Hannibal Public Sch. Dist., (8th Cir.

August 1, 2011). Student sent text message from home that he

was going to get a gun and kill certain classmates and make sure his high school was known for something.

Court found that it was reasonably foreseeable that the threats could cause substantial disruption. More likely now then ever!

Examples of no substantial disruption: Neal v. Efurd, (W.D. Ark. Feb 15, 2005). Two students created websites critical of

their school, one website was violent and angry.

The apprehensions of a few teachers does not constitute substantial disruption.

Critical content of websites is something capable teachers deal with on a regular basis and does not constitute a true threat.

Matthew H. Upton, Esq.mupton@dwmlaw.com

603-433-3317

Copyright 2013 Drummond Woodsum. These materials may not be reproduced without prior written permission.