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As a followup to our last blog post, we’d like to share some more guidance to keep in mind as you are updating and refining your school’s policy related to Facebook (and other social networking sites). We hope this is helpful for you. Please remember, though, that you must do a lot more than policy enhancements to be in compliance with the FCC’s new mandates, and to make a meaningful difference in protecting students and avoiding liability issues. Thanks again to Mike Donlin for his excellent summary on these matters!

Preliminary Guidance on the use of Facebook, MySpace and other Social Networking Sites in Schools

- Recognizing the value of social networking in 21st century education,

- Recognizing that social networking is specifically mentioned in Protecting Children in the 21st Century Act and FCC guidance,

- Recognizing that the FCC guidance states specifically that filtering of Facebook, My Space and other social networking sites is not necessarily required, and finally,

- Recognizing that there are potential safety, security and liability issues, the following is preliminary guidance for educators on the use of social networking sites in schools:

1. Check and follow your most current district / school policies and procedures on the use of social networking tools in schools. The policy you may be called by some variation of your district’s Internet Use, Network Use, Internet Access, or Network Access policy. You will also want to check your district’s Internet or network use/access agreement for students and staff.

2. Keep personal and professional/educational accounts separate.

a. There might be different, separate accounts through the same service, however.

b. Do not use social networking sites which do not come through your district network.

3. Never friend a student on a personal site.

4. Do not share personal information on your professional/educational site.

5. Remember: using a social networking site for educational purposes has the potential for extending your school day beyond the school day and the school walls.

- It also has the potential of exposing students to your own or to others’ personal information, even inadvertently.

6. All rules which apply to your bricks-and-mortar classroom and school apply to the online, social networking environment: bullying, harassment, courtesy, appropriate language, timeliness, etc.

7. Inform and involve school administration

8. Inform and involve parents/guardians as appropriate. However, this also may be problematic:

a. Inviting parents to join/participate would be tantamount to inviting parents to be involved in your classroom every day.

b. The parents would have to know that they should not join using their ‘personal’ sites.

c. Remember: there are students from broken, blended or other non-standard families, as well as some with no-contact orders. The teachers would have to be able to negotiate through all that in some, not too demanding way.

d. This might involve a small number of students, but potential risk and liability issues arise.

9. Do not friend other adults on your educational site.

a. Allow for the possibility of inviting “special guests” for specific educational purposes.

b. For such a professional guest profile-type, establish a vetting process, done by the educator using some sort of rubric.

c. Establish what the expert guest would need to agree to be involved.

d. Consider the involvement of teaching team members, student teachers, specialists, counselors and/or administrators

10. Read, become familiar with all site-related Terms of Use documentation.

Our colleague Mike Donlin and I have been talking out some issues related to public education and teen technology use. He has recently pointed out that there are certain points that the FCC would like schools to know as it relates to their intersection with and use of social networking sites. Specifically, schools need to be very familiar with the Protecting Children in the 21st Century Act, and that it:

1. Adds statutory language to existing FCC rules for implementing the Children’s Internet Protection Act

2. Has an impact on eRate compliance

3. Requires that school districts’ board policies provide for the education of minors regarding appropriate online behavior including interacting with other individuals on social networking websites and in chat rooms, and regarding cyberbullying awareness and response

4. This requirement is in addition to existing Children’s Internet Protection Act requirements (requiring blocks/filters, and education of staff, students, parents, etc.)

Also, in addition to policy language, it is important to note that the FCC also specifically mentions Facebook and MySpace, as well as addressing other social networking sites. The FCC finds that:

1. Individual pages on Facebook or MySpace might be potentially harmful to minors, but

2. these sites are not “harmful to minors”, per se, and

3. do not fall into a category of websites which must be blocked.

4. Further noting recent work by the Department of Education, the FCC and the DOE suggest that “social networking websites have the potential to support student learning…” (FCC 11-125 Report and Order, p.8)

So, what are the implications of all of this?

1. By July 1, 2012, School Boards will have to create or update current Internet Use policies to include wording that they are teaching Internet safety

2. Districts will have to decide how, who and with what they will implement this new requirement

3. With the comments on Facebook and other social networking sites, and with the inclusion of social networking within required Board policy language, education and training around both appropriate and pedagogical uses of social networking resources will be critical

4. Districts and schools will need background and training on issues, materials, approaches, resources

5. Cyberbullying awareness and response will need to be included within ongoing harassment, intimidation and bullying training and program implementation

6. As the education of minors about appropriate online behavior, digital citizenship, cyberbullying, etc., covers a wide range of issues and topics, it will be very important for prevention-intervention, school safety, counseling, educational technology and content specialists to work closely to create as effective and all-encompassing digital safety education program as possible

So, the major question are as follows: Is your district positioned to address all of these requirements? How specifically are you making this happen? What will you use to educate staff and students? What protocols are currently in place as it relates to prevention, investigation, and response? Are they ideal? I know that many states just wrapped up standardized testing, and are just trying to make it through the end of the school year. These matters, though, will have to be addressed before administrators take a break for the summer.

We’ve talked in great detail about students bringing their personal electronic devices at school and the complications that may result.  We have also covered standards for searching these devices, and have provided a cell phone search checklist which may help administrators in these situations. In keeping with these discussions, I wanted to take some time to focus in on seizure – or confiscation – of these devices while bracketing the thorny subject of search for a while.  Specifically, I want to be clear and state that even with a suspected or actual policy violation by a student, it may not be in your school’s best interests to seize that student’s device.

I recently chatted this out with Mark Trachtenbroit, Assistant Principal at Wheeler High School in Georgia.  He remarked that his school used to take students’ personal devices when they were displayed or used between the morning bell and the afternoon bell because that contravened the formal rules their school had in place. However, it became a huge chore, leading to many of the complications I wrote about last week and the huge hassle of trying to warehouse, label, and manage all of the confiscated devices (and deal with angry parents who demanded their kid’s device be returned).

As such, the school decided that they would no longer confiscate phones, but just apply moderate penalties to students who broke the rules.  For instance, the first violation would be a stern verbal warning.  The second violation would lead to Saturday school.  The third violation would lead to In-School Suspension.  This tended to work in that it reduced the number of negative outcomes but seemed to be a less-than-ideal solution.  Administrators felt they were, as they say, cutting off their nose to spite their face because punishing teens in this way kept them out of the classroom where they would be learning.  This directly ties into the No Child Left Behind Act and the Adequate Yearly Progress measurement that allows our US Department of Education to determine how each school and school district is doing when it comes to properly educating our students (to do well academically on standardized tests) and meeting annual targets for reading, math, and graduation.  The consequences for failing to meet these goals and targets are simply not worth risking, and it just doesn’t make sense to sternly discipline kids in the 21st Century from being kids in the 21st century.  That is, the big-picture costs of punishing teens for being tethered to their technology is not worth potentially compromising the achievement of federally-mandated requirements.

This is an extremely important point, and one that many people do not seem to understand.

Perhaps the bottom line is that you cannot keep or deter all students from using their phones at school.  It is going to happen.  You can therefore decide to be prohibitive or permissive.  You can officially ban them from campuses, or allow them during certain times (or all times).

Whatever you do, though, you will have to figure out a way to get students, educators, and parents on board, and probably approach it in a way that represents the climate you are trying to build and maintain.  This climate should be all about encouraging the positive and responsible use of technology, and dissuading its misuse and abuse.  We’ll be giving you specific advice to make this happen in weeks ahead.

As regular readers of this blog will know, Sameer and I have had a long partnership with Jostens. When I was in high school in the mid-1990s, our class rings and yearbooks came from Jostens, so I knew of the brand. About four years ago, Charley Nelson, who is the director of educator services for Jostens, contacted me to talk about our cyberbullying work. Little did I know that in addition to their yearbooks and rings (they designed the 2011 Super Bowl ring!), they also coordinate a number of professional development activities for educators, mostly centered on cultivating a positive school climate. Their Renaissance Program emphasizes academic achievement, encourages student and staff recognition, and promotes school pride. We’ve worked with them over the last year to develop materials for “Pause Before You Post” – a campaign to educate teens about responsible personal publishing (online and off). See our “Student Guide to Personal Publishing” here.

The flagship event for Jostens Renaissance each year is their national conference, which draws over 1000 educators and student leaders from around the United States. I have been fortunate to have been a presenter at this conference for the past three years and I will tell you that it is flat out the best educator conference that I have been a part of. The positive energy is palpable and I leave the conference inspired and reinvigorated. There is a lot of learning and networking, infused with A TON of fun. This year, the conference is in Anaheim (July 15-17) and both Sameer and I will be there, presenting on issues related to cyberbullying, sexting, and responsible social networking. Headline speakers include Bill Walton (basketball Hall of Famer) and Liz Murray (Homeless to Harvard). If you have never been to this conference, you need to attend – and there is still time to sign up. I personally guarantee that you will not be disappointed. If you have attended in the past, leave a comment with your experience. If you will be there this year, stop by and say hello. If you are a Facebook follower, find me and mention this blog and I’ll give you a gift (while supplies last!). Hope to see you in Anaheim!

As we have discussed several times on this blog in recent years, there are two cases that addressed issues with off-campus online speech by students that resulted in seemingly conflicting responses by the same court. They potentially have implications for how schools can respond to cyberbullying incidents, so are important to follow. To refresh your memory, Layshock v. Hermitage School District involved Justin Layshock, the 17-year-old Hickory High School senior who in 2005 created a “nonthreatening, non‐obscene parody profile making fun of the school principal” from his grandmother’s home using her computer. The school suspended Layshock for 10 days, which was initially upheld in a 2006 hearing, but later overturned by the judge in the case, saying the school went too far. In February of 2010, a panel of judges from the Third U.S. Circuit Court of Appeals weighed in and agreed. In this case it appeared the school failed to effectively argue that Layshock’s actions caused a substantial disruption at school – the standard that was established in the seminal Supreme Court case Tinker vs. Des Moines (1969). According to Tinker, school administrators can discipline students for off-campus behavior if it can be demonstrated that such behavior resulted in a “substantial and material disruption” of the school environment.

In the other case (Blue Mountain School District v. J.S.), a 14-year-old eighth-grade student from Blue Mountain Middle School also created a MySpace profile of the principal which included, among other things, an accusation that he was a “sex-obsessed pedophile.” This student was also suspended for 10 days for violating the school’s discipline code and for using the schools copyrighted material (the principal’s picture from the school’s web site) without permission. The lower court refused to grant the student a temporary restraining order or preliminary injunction ruling that schools can in fact discipline students for lewd off-campus behavior, even if such behavior doesn’t cause a substantial disruption. Another, separate panel from the Third U.S. Circuit Court of Appeals agreed with the lower court in an opinion that seemed inconsistent with the Layshock ruling.

To resolve these disparate views, the Third Circuit agreed to review the cases collectively (“en blanc”) to offer a perspective. In short, there is nothing too surprising about the remarks of the majority opinions released on Monday. The court re-asserted that schools cannot punish students for off-campus behavior or speech without evidence of a substantial disruption at school (or a high likelihood that such a disruption will occur).

In the Layshock case, the school district conceded that the creation of the MySpace parody profile did not cause a disruption at school. So it is clearly outside the boundaries of formal school discipline. The court also listed several cases where schools were allowed to discipline students for the off-campus behavior (J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002); Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007); and Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), noting that “each of those cases involved off campus expressive conduct that resulted in a substantial disruption of the school, and the courts allowed the schools to respond to the substantial disruption that the student’s out of school conduct caused.”

In the other case, the Bethlehem Area School District did initially attempt to argue that J.S.’s activities resulted in a significant disruption at school, though neither the District Court nor the Third Circuit Court of Appeals accepted that argument so they backed off. In the original hearing, the District Court supported the disciplinary actions of the school, not because there was evidence of a substantial disruption, but because the content of the off-campus speech was “vulgar, lewd, and potentially illegal.” This was consistent with Supreme Court decisions in Fraser (1986) and Morse (2007). In its review, however, the Third Circuit noted that in both of these cases, the speech was delivered at school (Fraser) or a school sponsored activity (Morse). As such, the vulgarity of the speech was irrelevant and therefore the singular issue is to consider is whether the off-campus speech resulted in a substantial disruption. Therefore, in a divided opinion (8-6) the Third Circuit overturned the District Court, concluding that: “…the school district violated J.S.’s First Amendment free speech rights when it suspended her for speech that caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school.”

Judge Jordon noted in a concurring opinion, however, that: “The issue is whether the Supreme Court’s decision in Tinker, can be applicable to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.” So students can be punished for off-campus speech or behavior (consistent with Tinker’s disruption clause).

So where does this leave us. Well, the key issue to keep in mind, it seems, is whether a student’s off-campus speech or behavior results, or has a high likelihood of resulting in, a substantial disruption at school. We have little additional clarity regarding what that actually looks like, but we know a bit more about what it isn’t. Staff accessing a harassing profile at school does not constitute a substantial disruption. A student bringing a printed copy of a Web site to school at the request of staff does not cause a substantial disruption. A few students talking in class does not equal substantial disruption.

It also appears that vulgarities directed toward school officials from an off-campus location are not automatically subject to school discipline. Now, if that speech substantially and/or materially disrupts the learning at school, it may be fair game for sanction. It is interesting that free speech advocates are touting this as a victory for students, suggesting these opinions are evidence that there are no conditions under which schools can discipline students for their off-campus speech. This is clearly an incorrect interpretation of the facts. We have long known that students have free speech rights. We also know that those rights are constrained a bit while at school and where the speech substantially disrupts the school environment. That hasn’t changed.

It is important to also point out that both of these cases involved students who were targeting staff. I would be very interested to see if the opinions changed if all players involved were students. If a student creates a Facebook parody profile about another student, could the target’s ability to learn at school be substantially disrupted? It sure seems so. But it remains to be seen whether the higher courts would agree with this rationale.

I encourage you all to read the full versions of the opinions (over 100 pages in total). Layshock is available here and Blue Mountain is here. And feel free to weigh in with your thoughts.