THE UBIQUITOUS TECHNOLOGY

Cell Phones and Smart Phones and ‘all that stuff’:Blessing or Curse?

Fall 2013

In general, parents seem to have become convinced that their children need cell phones!!!!

Recent St. Tammany case that effected a SLU Graduate Student St. Tammany has a “no cell phone

policy” 4th grader comes into class with her cell

phone obviously on and showing recent text messaging

the teacher takes the phone and views the recent text messages, finding some sexually explicit texts from another student

She then turns the phone in to the school office.

Where does this teacher stand legally?

Fall 2013

CELL PHONES AND THE SCHOOL Pew Internet & American Life Project Research of

2010 and in Summer 2011 another survey was completed and in Nov. 2013 another.

The Project first surveyed teenagers, ages 12-17, about their mobile phones in 2004 when a survey showed that 45% of teens had a cell phone.

Since then mobile phone use has climbed steadily among teens to:

63% in 2006 71% in 2008 75% in 2010 In Nov. 2013 78% of teens used “Smart Phones”

while 58% of adults have “Smart Phones”!!!

Fall 2013

Fall 2013

Households with income more than $75,000 report 99% internet usage!Ages 18-29 report 97% usage!

Most schools treat the phone as a disruptive force that must be managed and often excluded from the school and the classroom. Even though most schools treat the phone as something to

be contained and regulated, teens are nevertheless still texting frequently in class.

12% of all students say they can have their phone at school at any time.

62% of all students say they can have their phone in school, just not in class.

24% of teens attend schools that ban all cell phones from school grounds.

Still, 65% of cell-owning teens at schools that completely ban phones bring their phones to school every day.

58% of cell-owning teens at schools that ban phones have sent a text message during class.

43% of all teens who take their phones to school say they text in class at least once a day or more.

64% of teens with cell phones have texted in class; 25% have made or received a call during class time.

Fall 2013

EVEN NEWER PEW DATA

http://pewinternet.org/Commentary/2012/March/Pew-Internet-Social-Networking-full-detail.aspx

Fall 2013

LOUISIANA REVISED STATUES ARTICLE 17

§239.  Prohibition against unauthorized use of electronic telecommunication devices; exceptions; penalties A.  Effective beginning with the 2003-2004 school year and

thereafter, no student, unless authorized by the school principal or his designee shall use or operate any electronic telecommunication device including any facsimile system, radio paging service, mobile telephone service, intercom, or electro-mechanical paging system in any public elementary or secondary school building or on the grounds thereof or in any school bus used to transport public school students.

D.  Nothing in this Section shall prohibit the use and operation by any person, including students, of any electronic telecommunication device described in Subsection A of this Section in the event of an emergency.  Emergency means an actual or imminent threat to public health or safety which may result in loss of life, injury, or property damage.

Fall 2013

POLICIES ON DIGITAL COMMUNICATIONS Some possible policies are:

No electronic devices on campus. Unless the system has a policy, these

devices are prohibited in Louisiana schools!

No use of electronic devices on campus, however possession is acceptable.

Make the use of electronic devices part of the school program with a detailed policy on use.

Fall 2013

STATE LAWS == SEXTING LSA-R.S. 14:81.A defines and

criminalizes “sexting”. It is applicable to person under 17

years of age.

Jessica Logan Case – committed suicide after sending pictures of herself

Penn. Case 18 year old now a ‘sex offender’. East Thibodeaux Middle School case!!!

Fall 2013

Klump v Nazareth Area Sch. Dist, 425 F Supp 2d 622 (ED Pa, 2006)– Student’s cell phone was dropped (the school had a ‘no cell phone’ policy) and it was confiscated! Searched by teacher and A.P. Confiscation was proper, not searching!

Based on TLO*, you need a reasonable cause to search the cell phone.

Hypothetical Case: School has a no cell phone policy—student comes into class with a cell phone in hand, turned on. Can it be confiscated and could you then search the phone?

*NEW JERSEY V T.L.O. 469 U.S. 325 (1985)

Fall 2013

J. W. v DeSoto County School District – 2010 U.S. Dist. LEXIS 116328 Student had his cell phone out receiving

a text in class ( school had a ‘no cell phone’ policy).

Student was expelled after a search of the phone revealed what was considered to be gang activity.

Search was legal because the phone was on and in use!

Judge admonished the district, while within its jurisdiction, was extremely harsh in ruling an expulsion for this offense!!!

Fall 2013

OK now we know now that:

If the phone is off, don’t turn it on and search!

If the phone is on then the school can search the phone!

Last year one of the partners at Hammond and Stills agreed with this!

“NOT SO FAST MY FRIEND”

Fall 2013

G.C., V. OWENSBORO PUBLIC SCHOOLS, 6TH CIRCUIT COURT OF APPEALS (MARCH 2013)

While not empowered to overturn Klump (this case was in the jurisdiction of the 5th Circuit), a three judge panel of the 6th Circuit suggested that the fact that the cell phone was turned on did not give the principal “carte blanche” to search the phone. The 2-1 ruling the suggested that they would overturn the J.W. decision it came to them!!!!

Fall 2013

This ruling and other court actions suggests they the courts may be trending to require that, before a cell phone can be searched, the school officials may need something akin to the specificity required for a search warrant called for in the 4th Amendment!!!!

For the school to search, if this is the trend, you would need to show specifically what you are expecting to find.

Fall 2013

RELATED CASES  Riley v. California and U.S. v. Wurie 573

U.S. ___ (2014) Decided together from 9th and 1st Circuit

Courts of Appeal Was evidence of further violations obtained

from the search of a smart phone admissible?

Did such a search require a warrant? In a unanimous decision the court ruled that

the nature of “smart phone” made them much more than just a phone and thus the smart phone search, even though the arrest was legal, was not legal.

Fall 2013

WHAT IS “REASONABLE CAUSE”?

Is possession of a phone (which is against school rules) reasonable cause to search the phone?

Is a turned on phone (which is against school rules) reasonable cause to search the phone?

Are there circumstances where one would have reasonable cause to search a turned off phone?

Fall 2013

CYBERSPACE—SOCIAL MEDIA—SCHOOLS

CAN THEY COEXIST?THE CENTRAL ISSUES

1. TO WHAT EXTENT IS WHAT IS POSTED IN CYBERSPACE, THAT IS ON SOCIAL

NETWORKING SITES PROTECTED FREE SPEECH?

2. HOW MUCH FREEDOM OF SPEECH DO STUDENTS HAVE IN THEIR STATUS AS

STUDENTS?3. UNDER WHAT CONDITIONS CAN THE

SCHOOL TAKE DISCIPLINARY ACTION AGAINST A STUDENT FOR ACTIONS IN

CYBERSPACE?

Fall 2013

Tinker to Fraser to Kuhlmeyer to Morse – What are the ‘Supremes saying’?

On whole they seem to be decreasing the free speech rights of students and this can be assumed to apply to digital communications.

Tinker Test* -- The Court held that in order for school officials to justify censoring speech, they "must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," allowing schools to forbid conduct that would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.“ (Emphasis added)

* Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733 (1969)

Fall 2013

Bethel School District v. Fraser, 478 U.S. 675 (1986), -- School had the right to control inappropriate in-school speech.

HAZELWOOD SCHOOL DISTRICT ET AL. v. KUHLMEIER ET AL. 484 U.S. 260 (1988) -- Supremes confirmed the right of the school to control and sensor school publications.

Morse v. Frederick, 551 U.S. 393 (2007) – Supremes confirmed that the school could control out of schools speech seen to encourage drug use.

Fall 2013

. In a concurrence Justice Thomas “I join the Court's opinion because it erodes Tinker's hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.”

Many saw this as a ‘Draconian’ attitude!!!

What would school leaders say about this suggestion?

Fall 2013

Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765 (2007) 5th Circuit – Student’s expulsion was upheld when a diary he kept chronicling violence toward faculty and students was discovered.

Fall 2013

ON-CAMPUS OR OFF-CAMPUS SPEECH Porter v. Ascension Parish Sch. Bd.,

393 F.3d 608 (2005) 5th Circuit Student off campus drawing not a basis

for expulsion. Principal had qualified immunity

because he acted in good faith with reasonable judgment

Fall 2013

Wisniewski v. Board of Education 494 F.3d 34 (2007) 2nd Circuit -- Judge Newman held that it was constitutional for a public school to punish eighth-grade student Aaron Wisniewski for sending instant messages from his home computer to fifteen friends (some of whom were classmates) with an icon depicting a pistol firing a bullet at a person’s head and the words “‘Kill Mr. VanderMolen,’” Wisniewski’s English teacher.

“[t]he fact that [the student]’s creation and transmission of the IM icon occurred away from school property does not necessarily insulate him from school discipline.” because it was “reasonably foreseeable” that Wisniewski’s icon would come to the attention of school authorities and that it would “‘materially and substantially disrupt the work and discipline of the school.

Fall 2013

SCHOOL ACTIONS FOR OF CAMPUS ACTIONS

In order to discipline a student for on campus postings their content must:

Be obscene, lewd, or plainly offensive (Bethel School District v. Fraser)

Promotes illegal activity (Morse v. Frederick)

And Creates a material and substantial disruption to the school environment (Tinker)

Fall 2013

Davis v Monroe County School Board 120 F. ed 1390 (1999)

Court said a school could be held responsible for the actions of a third party against a student!!

This is taken to include harassment and bullying!

This suggests the school must act on knowledge of these actions.

Fall 2013

Emmett v Kent School District No. 415 (U.S. Dist. Court, WD Wash,) (2000)

Student could not be disciplined for an “unofficial school web site” which poked fun at the school and published obituaries of current students.

Site was outside of school supervision Was not show to threaten anyone.

Fall 2013

WHEN CAN SCHOOL INTERVENE?

Free speech rights are generally up held unless it can be shown the actions: substantially or materially disrupt

learning Interfere with the educational process

or school discipline Use school-owned technology to

harass, or Threaten other students or infringes on

their civil rights.

Fall 2013

BUT MAYBE NOT!!!! J.C. v Beverly Hill Unified School District

WD Calif. (2009) You tube posting called an 8th grader

“spoiled”, “a brat”, and a “slut” was punished as cyber bulling and poster suspended for 2 days.

Federal district court over turned the suspension on free speech grounds saying the school could not prove “substantial disruption” and student could not be disciplined for hurting the other student feeling!

Fall 2013