Ohio Association for Career and Technical Education Connections to Education Conference July 28, 2015

Teacher & Student Misconduct

Presented By Laura G. Anthony, Esq. [email protected]

Bricker & Eckler LLP Columbus · Cincinnati-Dayton · Cleveland www.bricker.com 100 South Third Street Columbus, Ohio 43215 (614) 227-2300

9075 Centre Pointe Dr. 1001 Lakeside Ave. East, Suite 440 Ste. 1350, Cleveland 44114 West Chester, Ohio 45069 (216) 523-5405 (513) 870-6700

258 Front Street Marietta, Ohio 45750 (740) 374-2248

I.

Social Media for Students and Teachers. Social Media include platforms such as:     

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Facebook Twitter LinkedIn YouTube Shutterfly

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Pinterest Instagram Reddit Snapchat Whisper

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Secret Blogs or “Weblogs” (personal or corporate)

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II.

Why Is Any of This Relevant to You? Almost everyone in your building – teachers, staff, and students – has a cell phone in their pocket. If you are a school administrator, you are supervising the teachers using these devices, and you are simultaneously responsible for supervising the students who use these devices.

III.

Let’s Talk About Teacher-Student Boundaries and Teachers Who Cross Them. Studying media reports of sex crimes against students, former U.S. Department of Education chief of staff Terry Abbott found there were nearly 800 such reports in 2014 alone, 37 of which were in Ohio.1 (As only an estimated 38% of child sexual abuse victims report or disclose their abuse, it’s likely that’s only the tip of the iceberg.2) Abbott found that over a third of the media reports he reviewed involved social media, and 20% of the cases involved coaches. A.

Two Types of Abusers: 1. The Fixated Abuser – usually considered an excellent teacher in the community; they work hard to be likable. Retired FBI special agent and child sex crimes expert Jim Clemente noted that “[m]ost offenders are nice people, professional, good at what they do and loving towards children. … I have arrested some ‘teachers of the year’ over the course of my career. The ones who have the most victims are often the most popular.”3 When a fixated abuser is accused, victims protect them, parents refuse to believe the accusations, communities support them, and juries acquit them. They are hard to detect because they gain parents’, teachers’, and children’s trust over time, as they break down boundaries. 2. The Opportunistic Abuser – adults who take sexual advantage of a situation; they tend to be adults who are emotionally arrested. They have boundary and judgment problems and tend to spend a lot of time around groups of students – talking with them, going to the same places they go, and trying to blend in. They are the teachers who want to be seen as cool. They are adults who comment on the attractiveness of the students.

For more information, see: http://www.vocativ.com/usa/education-usa/teacher-student-sex-crimes-becomenational-crisis/ 2 London, K., Bruck, M., Ceci, S., & Shuman, D. (2003) Disclosure of child sexual abuse: What does the research tell us about the ways that children tell? Psychology, Public Policy, and Law, 11(1), 194-226. 3 See footnote 1. 1

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3. The Targets (of Fixated Abusers): a. Research reveals that the student often (but not always) comes from a broken home, where a parent is often grateful that a highly regarded teacher is taking an interest in their student. b. Abusers tend to choose students they think will not tell or say “no.” i. Abusers also tend to target students they believe they will get to spend time alone with. 4. The Undeniable Role of Electronic Communication: a. Updating “Lolita” or “Don’t Stand So Close to Me” -Teachers soliciting sex from students is not new. However, when it is done via electronic communication, it creates an electronic paper trail. b. “Blurred Lines” -- Contact between teachers and students outside the classroom is not only easy but, in many cases, also actively encouraged – school web portals on which teachers and students can upload and download assignments, email each other questions and answers, post announcements, and sometimes even chat in real time are increasingly the norm. Teachers and coaches have the cellphone numbers of students to notify them quickly of cancelled practices, etc. The lines between professional and private, home and school, formal and informal, are increasingly blurred. c. The “Online Disinhibition Effect” (or “Dude, Where’s Your Filter?”) 

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In August 2013, a Broward County teacher in Florida was not only fired, but also arrested, for on-line solicitation of a student. In a Facebook message, Stevie Glasspool wrote to her 17 year-old student, “I do not want you to fall in love with me, but I do not want you to hit it and quit it either.” In another post she told her student “you will be graded on your performance.”

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In March 2013, a teacher in Aurora, Colorado, Carly McKinney, was fired after her “stay sexy…stay high…stay drunk” tweet was discovered by students. She also tweeted at 10:00 am on a Monday that she was high while grading papers. Her Twitter handle was “Carly Crunk Bear.”

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Consider the 2012 Alabama Teacher of the Year who was texting her student about a sexual rendezvous, while the student was in police custody for shoplifting condoms.

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An oldie but a goodie: In Escambia, Florida, according to an arbitrator’s report addressing a veteran teacher’s termination, William Aydelott (the teacher) and a student exchanged over 241 text messages in a nine day period.

And remember, with Social Media, things happen fast: 

In December 2013, a special education teacher in Torrance, California posted on Facebook at 9:00 a.m., that she was about to go into an IEP meeting with “lawyers and crazy parents” to discuss a student with autism that she described as a “hot mess but so sweet!” By 9:15, parents of another child shared the post with her principal and by the next morning she had been removed from the classroom.

5. What Sources Define Inappropriate Boundaries? a. Board Policies that Address Boundaries i. Often these policies will define “Inappropriate Boundary Invasions.” Another term often used is “Sexual Grooming.” ii. Experts tell us that abusers victimize by “grooming.” If the policy focuses on and prohibits inappropriate boundary invasions, it goes a long way toward preventing abuse by educators.

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E.g., NEOLA’s AG 3362, Anti-Harassment – prohibits hugging, kissing, telling sexual jokes, using sexual innuendo, talking about sexual topics not related to the curriculum, showing pornography to a student, taking an undue interest in a student, initiating contact beyond the school day, sending email or text to discuss personal topics, giving students rides in a personal vehicle without prior permission, going to a student’s home for non-educational purposes, inviting students to staff member’s home, giving gifts or money to a student without a legitimate purpose, being overly touchy with students, talking with students about issues that would normally be discussed with adults, counseling to a student regarding a personal problem, and being alone with a student behind closed doors.

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E.g., OSBA’s GBH, Staff-Student Relations – prohibits the exchange of gifts, staff-sponsored parties with students in attendance unless part of the school program, fraternization, dating, associating with students in a situation which could be considered sexually suggestive, sending students on personal errands, and the attempt to diagnose, treat, or counsel students’ personal problems related to sexual behavior.

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Often the District’s Acceptable Use Policies (AUP) or Social Media Policies address fraternization between student and teachers. Such policy may: o Define what types of electronic communications between teachers and students are acceptable. o Define the medium – Will it only be those approved by the District? o Define acceptable topics for communication – Will it only be about school sponsored activities?

iii. All Policies should: 

Define the consequences for violations

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Identify to whom complaints should be directed.

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Outline the requirements for investigation and reporting.

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Ensure everyone recognizes that reporting of child abuse/neglect and felonies is mandatory.

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Include ongoing training requirements

b. Ohio’s Licensure Code of Professional Conduct. Under Ohio’s Licensure Code of Professional Conduct for Educators, the board of education of each school district shall promptly submit a report to the Superintendent of Public Instruction whenever:

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The board of education, governing board, or chief administrator has initiated termination or nonrenewal proceedings … because the board of education, governing board, or chief administrator has reasonably determined that the employee has committed an act that is unbecoming to the teaching profession….

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The employee has resigned under threat of termination or nonrenewal for an act that is unbecoming to the teaching profession….

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The employee has resigned because of or in the course of an investigation by the board of education, governing board, or chief administrator regarding whether the employee has committed an act that is unbecoming of the teaching profession

Conduct unbecoming includes: i.

Article 1 Professional Behavior. § 1(g) Using technology to intentionally host or post improper or inappropriate material that could reasonably be accessed by the school community;

ii.

Article 2 Professional Relationships with Student. Educators shall maintain a professional relationship with all students at all times, both in and out of the classroom. § 2(a) Committing any act of sexual abuse of a student or minor or engaging in inappropriate sexual conduct with a student or minor. § 2(c) Soliciting, encouraging, engaging or consummating an inappropriate relationship with a student or minor. § 2(e) Using inappropriate language, gestures or signs at any school-related activity such as racial slurs, biased, lewd or lascivious expressions. § 2(g) Failing to provide appropriate supervision of students, within the scope of the educator’s official capacity, which risks the health, safety, and welfare of students or others in the school community. §2(h) Knowingly contributing to or knowingly failing to intervene in the harassment, intimidation or bullying of a student. § 2(i) Using technology to communications with students.

promote

inappropriate

Article 6 Use, Possession, or Unlawful Distribution of Alcohol, Drugs, and Tobacco. § 6(a) Being under the influence of, possessing, using or consuming illegal or unauthorized drugs.

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§ 6(b) Furnishing or providing tobacco, alcohol, or illegal/unauthorized drugs to any student, minor, or underage person. c. Union Guidance. In 2007, the Ohio Educational Association (OEA) issued a memorandum to its members after the adoption of the Code of Professional Conduct, strongly encouraging teachers not to fraternize with students using SNSs: “These sites, when used appropriately, can be powerful tools for sharing information and building community around important issues, including public education. Nonetheless, the use of social networking sites may expose members to unintended consequences which could impact jobs and careers …. Members should not post, do, say or write anything on a social network that they would not want to see on the front page of the local newspaper or would not say or do in front of students, parents, or the board of education. Members should not post material to their sites that may be considered inappropriate or unprofessional, including pictures and links.” (Emphasis added). d. Ohio Statutes:

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i.

Duty to Report Child Abuse – R.C. § 2151.421(A)(1)(a) requires school psychologists, school teachers, school employees, school authorities, social workers, professional counselors, and others acting in an official or professional capacity to immediately report to the children’s services agency or a municipal or county peace officer when they know or suspect that a child under 18 (or under 21 if disabled) “has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child.”

ii.

Duty to Report Felonies – R.C. 2921.22(A) – No person, knowing that a felony has been or is being committed, shall knowingly fail to report such information to law enforcement authorities.

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R.C. § 2907.03 Sexual battery. (A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply: *** (7) The offender is a teacher, administrator, coach, or other person in authority employed by or serving in a school for which the state board of education prescribes minimum standards ***, other person is enrolled in or attends that school, and the offender is not enrolled in and does not attend that school. (B) Whoever violates this section is guilty of sexual battery. Except as otherwise provided in this division, sexual battery is a felony of the third degree. If the other person is less than thirteen years of age, sexual battery is a felony of the second degree.... e. Applicable Case Law: Flaskamp v. Dearborn Public Schools. [2004 U.S. LEXIS 20760 (6th Cir., Oct. 5, 2004)]. The Court indicated approval of a rule which would prohibit sexual relationships between school employees and students for up to two years following the student’s graduation from high school. f. Federal Statutes: Title IX of the Education Amendments Act of 1972 (“Title IX”), 20 U.S.C. §1681 et seq.,

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Title IX is a Federal civil rights law that prohibits discrimination on the basis of sex in education. All districts receiving Federal funds must comply with Title IX.

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Under Title IX, discrimination on the basis of sex can include sexual harassment or sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion.

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A school has a responsibility to respond promptly and effectively. If a school knows or reasonably should know about sexual harassment or sexual violence, the school must take immediate action to eliminate it, prevent its recurrence, and address its effects.

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IV.

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Even if a student or his or her parent does not want to file a complaint or does not request that the school take any action, if a school knows or reasonably should know about possible sexual harassment or sexual violence, it must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.

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Every school must have a Title IX coordinator who is to receive all complaints.

Let’s Talk about Teachers Who Blog or Publicly Post Information E.g., employees disparaging their supervisors online, harassing a co-worker, posting personally identifiable information about a student, etc. Many of these situations can be and should be dealt with by policies that the District already has in place, including but not limited to the District’s antiharassment and discrimination policies, and student records and confidentiality polices. The imposition of discipline, up to and including termination, may be made easier by the existence of social networking policies. A.

Public Employees Have Free Speech Rights. Pressing the “Like” button on Facebook is protected speech. In Bland v. Roberts, 2013 U.S. App. LEXIS 19268 (4th Cir. 2013), a Sherriff running for re-election noticed that two of his deputies had “liked” his opponent. After he was re-elected, the Sheriff chose to remove the deputies. One deputy argued that pressing the “like” button on Facebook was speech protected by the First Amendment. The lower court held that merely “liking” a Facebook page was insufficient speech to merit constitutional protection. But the Fourth Circuit Appellate Court held that “liking” something on Facebook is a form of speech protected by the First Amendment.

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The speaker must be speaking on a matter of public concern. Threats are not protected speech, nor is speech that is disruptive to the educational process.

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Simply put, if the speech is not a matter of public concern, it is not protected speech.

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V.

VI.

Even when the employee’s speech is protected under the First Amendment, Courts will balance the employee’s right to speak against the employer, and the employer being able to continue in its public work. (E.g., does it create problems in maintaining discipline; upset harmony in the workplace; impede the ability to get the job done.)

Creating Legitimate Connections with Parents/Students. A.

Innovative teachers want to meet their students where they are already spending much of their time.

B.

Many teachers create a “professional” page that is only used for communication with parents and students and is not linked to their personal pages.

C.

This is what the New York City Department of Education did in Social Media Guidelines it adopted in May of 2012. Teachers are required to have “Professional” social media accounts, and to register those with the Department, if they wish to communicate with students over social networks. The “Professional” social media accounts must be kept completely separate from “Personal” social media accounts. The Guidelines even provide a sample response for an educator to send to students who may request to “friend” an educator on their “Personal” social media account.

Let’s Talk about Students and Social Media – Where Is the Schoolhouse Gate? A.

No Consensus. After several years of student social media cases, our nation’s courts tend to be all over the map. Unfortunately, there are no bright-line rules for determining when schools can and or cannot sanction a student for statements made online. A review of the most notable reported cases, however, does shed some light on what the issues are and what factors the courts find most important in reaching their decisions.

B.

The Tinker Standard. The leading case on this subject is still Tinker v. Des Moines. Tinker held that students do not enjoy the same breadth of free speech rights that adults do when that speech does two things:

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“materially and substantially disrupts the work and discipline of the [public] school” or

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“impinges on the rights of others.”

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C.

The Supreme Court After Tinker. The Supreme Court has recognized several other exceptions where a school may regulate or restrict student “speech” even without the threat of a substantial disruption. 1. Bethel School District v. Fraser, 478 U.S. 675 (1986). Permits school officials to regulate “'lewd,' 'vulgar,' 'indecent,' and 'plainly offensive' speech in school” that undermines a school’s basic educational mission. Note that the case did not involve off-campus speech, but rather, on-campus speech. 2. Hazelwood School District v. Kuhlmeier 484 U.S. 260 (1988). Permits school officials to regulate school-sponsored speech (that is, speech that a reasonable observer would view as the school's own speech – for example, that published in the student paper) on the basis of any legitimate pedagogical concern. 3. Morse v. Frederick, 551 U.S. 393 (2007). In a very narrow ruling, the Court held that school administrators could restrict off-campus speech that encourages the use of illegal drugs. “The special characteristics of the student environment … and the governmental interest in stopping drug abuse…allow schools to restrict student expression that they reasonably regard as promoting illegal drug abuse.”

D.

The Lower Courts: Can educators sanction students for comments posted to their social media accounts while at home, after school? 1. Wisniewski v. Board of Educ. Of Weedsport Central, 494 F. 3d 34 (2nd Cir. 2007). Eighth grade student sent IM icon drawing of pistol firing at a person’s head with the message “Kill Mr. VanderMolen” to 15 classmates. Mr. VanderMolden takes a leave of absence. Court holds that the disruption was “reasonably foreseeable” and the off-campus speech was actionable. 2. Using Tinker’s second prong, some appellate courts have recognized a duty to regulate off-campus online student speech that affects the rights of others, namely speech that is bullying and/or harassing in nature. (See, Kowalski v. Berkeley Co. Schools, 652 F. 3d 565, (4th Cir., 2011)).

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3. Off-campus comments that pose a “true threat to others” may also be regulated under Tinker. In Mardis v. Hannibal Public School Dist. 2011 WL 3241876 (8th Cir., 2011), the Court held that “The First Amendment did not require the District to wait and see whether D.J.M.’s talk about taking a gun to school and shooting certain students would be carried out.” It was reasonably foreseeable that threats about shooting specific students in school would be brought to the attention of school authorities and would create a risk of substantial disruption within the school environment. 4. But the nation’s appellate courts appear to disagree with one another more than they agree. a. JS v. Blue Mountain School Dist., 650 F. 3d. 915 (3rd Cir., 2011). Student creates a fake MySpace profile at home about her principal. The profile insinuated she was a sex addict and pedophile. The District was alerted by another student, but conceded no actual disruption as the profile was so outrageous “no one could take it seriously.” Nevertheless, the Court determined that Tinker applied to off-campus speech because it was reasonably foreseeable the profile would cause disruption. The Court also held that Fraser did not apply to justify school’s punishment of vulgar or profane off-campus speech. b. But see, Layshock v. Hermitage School Dist., 650 F.3d. 205 (3rd Cir., 2011). Another fake MySpace profile for a principal created at home. The District argued it was reasonably foreseeable the speech would cause a disruption; however, the evidence showed it only caused a teacher to tell students to quit chattering about it in class. Therefore, the Court held Tinker did not apply. c. Lowery v. Jefferson Co. Board of Educ. (6th Cir., 2007). In the Lowery case the Court reviewed the conduct of several football players who had started a petition among the football team that would be presented to the school principal calling for the football coach’s resignation. When the coach discovered the petition, several players apologized for signing the petition; those who did not apologize were dismissed from the team.

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The Lowery Court was persuaded that the petition was “reasonably likely to cause disruption” to the football team (using the Tinker standard as applied to extracurricular activities) and determined that the petition was not protected speech under the First Amendment. The Sixth Circuit indicated the case was “not about the right to express one’s opinion, but rather the ability of the government to set restrictions on voluntary programs….” d. But see, TV v. Smith-Green Comm. Schools, 807 F. Supp. 2d 767 (ND Ind. 2011). In this case, the Court determined that “although the girls’ photos were ridiculous and inappropriate” they were nevertheless expressive and subject to First Amendment protection and the athletes could not be removed from their extracurricular activity. 5. Until the Supreme Court speaks on the issue of student online speech, what is and is not protected speech may depend more on the jurisdiction than the facts. 6. The only thing we can be sure of in social media cases is that the courts undoubtedly will examine the school’s handbook or policy language to determine whether it sets forth the District’s clear expectations of users, or is “overbroad” or “vague.” Accordingly, adopting language that clearly defines exactly what will not be tolerated is very important. VII.

What Are the Top Five Things I Need to Know? A.

Know What Your Handbooks and Board Policies Say About the Use of Social Media. Some policies are narrowly tailored and are drafted to prohibit communications between students and educators on social media that are not related to a school-sponsored activity or event. Others address the employee’s use of social media when the result is a substantial disruption to the school environment (and this may include conduct that occurs off school property, not during work time, and on the employee’s personal computer).

B.

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Know That There Is NO Expectation of Privacy When at School, or When Using District Tools and Technology.

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C.

Exercise Caution Before Requiring a Student or Employee to Divulge a Username or Password to Access Online Content. Maryland, Delaware, Illinois, and Ohio have all introduced legislation that would prevent employers from seeking such information.

D.

E.

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Know What Conduct Is Strictly Prohibited, Whether On or Off School Premises. Some of the most troublesome issues facing employers in this area arise from off-duty social networking activity by employees using their own technology. Blogs, Facebook posts, or tweets that have a direct and negative impact on the school district are a good place to start. Educators should keep in mind these types of unwise behavior: 

Unauthorized disclosures of a student’s confidential information;

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The posting of false or defamatory information about your school district or its employees;

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Engagement in inappropriate social media relationships with students (e.g., boundary violations, online flirting, bantering with sexual overtones, sharing of explicit, discriminatory, or obscene jokes, solicitation of a personal or sexual relationship with a student, invitations to parties, etc.);

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Posting of material that causes a disruption within the school setting or affects an employee’s ability to perform his/her duties in the workplace.

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Social media use that violates the school district’s other policies (discrimination, harassment, etc.);

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Use of school district e-mail addresses to register for social media sites;

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Using the school district’s logo, mascot, or other protected marks.

Understand Your Obligation as a Mandatory Reporter.

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