1. Students and Cyberspace
ACSA 2014 Every Child
Counts Symposium
Jonathan P. Read
January 16, 2014
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2. What We’ll Cover Today
Sexting and Cell Phone Searches & Seizures
 Bullying and Cyberbullying

 Denial

of FAPE for Students with Disabilities
Disciplining Students for Cyber-Speech
 Case
Law: Balancing School Safety and Free
Speech in Making Decision to Discipline Students
 Rules Applicable to Students with Disabilities
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3. What Would You Do?
A 13 year-old student “sexts” a
topless photo to a boyfriend
 She is being harassed and
ridiculed by other students
because of the texted image
 A teacher reports seeing
shallow cuts on the student’s thigh

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4. Witsell Case Example
In Witsell, a school social worker provided
mental health counseling and had the
student sign a “no-harm” contract.
 The social worker
did not notify site
administrators or
student’s parents of
the counseling or cuts
 The following day,
the 13 year-old hung herself and died

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5. Lessons Learned from Witsell
Sexting prevention
 Bullying prevention
 Search & seizure
 Protecting victims
 Negligent supervision liability

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6. Sexting in Schools

School districts will
typically learn of
sexting from:
 Cell
phone search
& seizure
 Reports of
bullying
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7. Cell Phone Search & Seizure

Search & seizure of student personal
property must be:
 Justified
at inception
 Reasonable in scope
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8. Policy Pointer
 School district cell phone policies should not
permit search and seizure at any time for
any reason
 Klump v. Nazareth Area School District
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9. What Would You Do?

What should a school district do if search &
seizure of a student’s cell phone reveals
evidence of sexting?
 Seal
the evidence and contact
police
 Child pornography implications
 Report to CPS?
 Don’t pass on!
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10. Policy Pointer

School district cell phone policies should not
promise return of a confiscated cell phone at
the end of class or the end of day, because
confiscated cell phones may contain
evidence of a crime and must be turned
over to the police
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11. Policy Pointer
Cell phone policies
should be updated
to address all functions
of smart phone technology
 Cell phone policies
may be blended with
or at least make
reference to the district’s
video/photo waiver

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12. Campus-Wide Search
of Student Cell Phones
Work with police
 Justified at inception
 Request voluntary deletion
 Education regarding
potential criminal punishment
for possession of sexting images

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13. Cyber Misconduct as “Bullying”
If misconduct at issue does not meet the
definition of bullying, it may be grounds for
discipline as sexual harassment under the
Education Code.
 District should also consider alternative
means of intervention, i.e. counseling

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14. Cyber Misconduct as “Bullying”

Bullying defined: Ed. Code § 48900(r)
 Severe
or pervasive physical or verbal conduct
 Has, or could have, the following effects:
 Places
a reasonable student in fear of harm to person
or property
 Substantially detrimental effect on physical
or mental health
 Substantial interference with academics
or with school services, activities, or privileges
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15. “Bullying” – General Definition

Ed. Code§48900(r)
 What
is a “reasonable pupil”?
 One who exercises average care, skill and
judgment in conduct for a person of his or her
age, or for a person with his or her exceptional
needs
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16. “Bullying” – Policy Requirements

AB 9 (became effective July 1, 2012,
amending Ed Code§234)
 Requires
schools to
adopt a policy
prohibiting bullying
 Requires a schools to
adopt a process for
receiving and investigating
complaints
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17. One of the First Laws in the Nation to
Address Cyberbullying . . .

Assembly Bill 86
 Amended
Education Code §48900,
which identifies grounds
for suspensions and expulsions
 Provides school administrators
authority to suspend or
recommend for expulsion
those students who bully others by means
including, but not limited to, an “electronic act”
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18. What Is an “Electronic Act”

Definition:
 Transmission
of a communication, including, but
not limited to, a message, text, sound or image,
by means of an electronic device, including, but
not limited to, a telephone, wireless telephone,
or other wireless communication device,
computer or pager
 AB 256 (effective January 1, 2014):
Transmission can originate either on or off the
school site
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19. “Electronic Act”

Also includes, “posting on a social network
site” including:
 Posting
to or creating a burn page (Internet
Web site created for the purpose of bullying)
 Creating a credible impersonation of another
student
 Creating a false profile
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20. Characteristics of Cyberbullying

Different than traditional bullying
 Indirect,
usually off-campus
 Affects broader audience
 Harder to pinpoint victims
 Harder to prevent
 ANONYMOUS
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21. Misconduct Related to School Activities


“A pupil may not be suspended or expelled . . .
unless that act is related to a school activity”
Related to a school activity includes, but is not
limited to:
While on school grounds
 While going or coming from school
 During lunch period on or off campus
 During, while going to or from, a school sponsored
activity

(Ed. Code, § 48900)
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22. Misconduct Related to School Activities

When is misconduct via an electronic act
“related to a school activity”?
 Harassing
text messages by student while on-
campus?
 Misconduct on school e-mail account from
home?
 Threats posted on MySpace from home, which
causes victim to miss school?
 A student starts a blog from home computer to
post obscene jokes about another student?
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23. Bullying, Students with Disabilities
and FAPE
Joint OSERS/OSEP August 2013 “Dear
Colleague” letter
 Encompasses cyberbullying
 Discussed FAPE impact in much more
significant detail than earlier guidance
 Three issues addressed:

 FAPE
standard
 IEP team responsibilities
 Placement considerations
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24. Dear Colleague Letter – August 2013

FAPE standard
 “Whether
or not the bullying is related to the
student’s disability, any bullying of a student
with a disability that results in the student not
receiving meaningful educational benefit
constitutes a denial of FAPE under the IDEA that
must be remedied”
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25. Dear Colleague Letter – August 2013

FAPE standard
 Note
differences from 2000 letter
 Not
necessary for bullying to be related to disability
to deny FAPE
 Application of “meaningful educational benefit”
standard
 Footnote:
“Teacher-student disability
harassment also may constitute denial of FAPE”
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26. Dear Colleague Letter – August 2013

IEP team responsibilities
 Determine
if bullying has resulted in an IEP that
is no longer designed to provide meaningful
educational benefit
 If so, determine additional/different services
necessary and revise IEP accordingly
 If student who engages in bullying is a student
with a disability, determine additional supports
necessary to address inappropriate behavior
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27. Dear Colleague Letter – August 2013

Placement considerations
 “Exercise
caution when considering a change in
placement or location of services”
 Attempt to keep targeted student in original
placement unless FAPE cannot be provided
 Movement to more restrictive setting to avoid
bullying behavior may deny FAPE
 “Schools may not attempt to resolve bullying
situation by unilaterally changing frequency,
duration, intensity, placement or location” of
services
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28. Cyber-Speech Cases
 Courts
look at . . .
 True
threats to school safety
 Materially and substantially disruptive
 Sufficient nexus to school activity
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29. True Threats



Schools can regulate student expression on web
pages or in emails in which they pose a “true
threat” to a person or group
“True threat” = statement where the speaker
means to communicate a serious expression of an
INTENT to commit an act of unlawful violence to a
person or group
Viewed in factual context
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30. Wynar v. Douglas County SD





(9th Cir. 2013)
Students in Nevada high school turned in
classmate for graphic messages about school
violence posted on MySpace
Mentioned people he wanted to shoot
Brought to District’s attention by another student
Suspended for one semester
9th Cir – Not protected speech
 Applied “substantial disruption” test
 Distinguished case from those in which students
merely use the Internet to post mocking
remarks about school officials
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31. Wynar v. Douglas County SD
(9th Cir. 2013)
9th Circuit’s rule…
 Schools can regulate off-campus speech
that:

 Substantially
disrupts or interferes with school
activities; or
 Interferes with rights of other students to be
secure and left alone
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32. Off-Campus Sexting

Protected speech under Wynar?

Apply substantial disruption test/right of
other students to be secure
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33. LaVine v. Blaine School District
(9th Cir. 2001)
 Student
wrote poem at home, titled “Last
Words”; not part of curriculum.
 Wrote
in first person, depicting feelings a
student has after killing several classmates
 Student
had expressed suicidal feelings to
counselor
 Counselor
knew student had a fight with his
father and recently broken up with his girlfriend
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34. LaVine v. Blaine School District
(9th Cir. 2001)
Brought poem to school and showed teacher
 9th Cir -- Off-campus speech
 Applied “substantial disruption” test
 School rightfully expelled student
 Substantial likelihood of disruption
 “When considered in totality of other
relevant factors”
 Constituted a threat to himself or others

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35. What Would You Do?

After school, students go to a restaurant

One student films others making derogatory
statements about a 13-year-old, calling her a
“slut” and “ugly,” among other insults

Student who filmed posts it to YouTube from
a home computer.
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36. What Would You Do?




Next day, victim & parent bring video
to the school’s attention.
Parent and student are very upset.
Staff have heard “buzz” about the video, even
during class time, and fear that students on
campus are “taking sides” in the rift.
What would you do in response
to the video?
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37. J.C. v. Beverly Hills USD
(711 F.Supp.2d 1094 (2010))

In J.C. v. Beverly Hills USD, the school
gave the student who created and
posted the You Tube video a two-day
suspension

The disciplined student sued the
school district alleging that the
discipline violated her 1st Amendment
right to free speech and prevailed
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38. J.C. v. Beverly Hills USD (cont’d)




Court reasoned that there was no actual or
reasonably foreseeable risk of substantial
disruption
Unlike other cases where actual disruption was
found, the video was not violent and did not
contain threats
There was no evidence that the video had a
substantial effect on classroom activities; and
School officials’ fear of gossip, note passing and
students “taking sides” failed to rise to that level
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39. School Safety v. Free Speech



School districts in difficult position of trying to prevent
bullying without infringing on free speech rights
Schools often err on the side of school safety, as the
consequences of bullying can be more severe than
infringing on free speech rights
If it is questionable whether off-campus speech is likely
to create a substantial disruption on campus, schools
should consider alternative means of intervention such
as counseling, parent involvements, and behavior
contracts
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40. Additional Considerations . . .
Students with Disabilities

If student being suspended for cyber-speech
activities is a student with disabilities,
remember that:
 Manifestation
determination may be required
first if removal will constitute a change in
placement
 10
consecutive days
 More than 10 cumulative days that constitutes a
pattern
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41. Manifestation Determination

Within 10 school days of removal decision that will
constitute change in placement:

School district, parents, and relevant members of IEP
team . . .

Must review all “relevant” information, including the
student’s IEP, teacher observations, and relevant
information provided by parents
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42. Manifestation Determination

Based on that review, the district, parents,
and other IEP team members determine:



If the conduct in question was caused by, or had a
direct and substantial relationship to, the student’s
disability?
If the conduct in question was the direct result of the
school district’s failure to implement the IEP?
If answer to either question is yes, conduct
is a manifestation of disability
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43. Manifestation Determination
If conduct is not a
manifestation of
disability
General
disciplinary
rules apply.
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44. Manifestation of Disability

If conduct is manifestation of disability,
District must:
 Conduct
FBA (if not already done so)
 Develop and implement BIP
 If BIP already exists, review and modify as
necessary

Return Student to placement from which
he/she was removed, unless District and
Parents agree to change placement
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45. Things to Consider. . .
True threat?
 Caused a substantial
disruption?
 Was a disruption highly
likely?
 Sufficient nexus to school
activities and attendance?
 Student with disabilities?

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46. Balance . . .


School districts must understand the limitations
of their ability to monitor and discipline students
in cyber-space
Students retain 1st Amendment
protection for online speech that
does not create (or is not likely to
create) a substantial disruption to
school activities and does not
interfere with rights of other
students to be secure or left alone
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47. Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.
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48. Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.
48

49. Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.
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