www.canfieldsolutions.com

Claims Professionals • Personnel Experts • Risk Managers

Disclaimer

Please understand that the purpose of this presentation and handout is educational. Nothing in either should be construed as specific legal advice for a particular situation. Sound legal advice requires an understanding of all the facts of a particular situation, something that cannot occur in an educational setting.

Technology in Athletics

Legal Duties

• To provide health care

• Provide a safe environment

• Warn of dangers

• Properly instruct

• Properly classify athletes

• Provide proper supervision

• Enforce rules and regulations

• Provide safe transportation

• Up-hold students rights and responsibilities

Providing a Safe Environment

• What are “Safe Environment” issues?• Facilities

– Unsafe equipment– Supervision issues

• Coaching Conduct– Harassment (including sexual harassment)– Hazing conduct– Misconduct issues– Bullying

Providing a Safe Environment

• NOTE: Most common request by building administration deals with bullying and harassment of coaches towards their players

• 160,000 kids a day avoid school because of bullying and harassment issues

What are our goals?

• Today 60% of all students view safety as the number one issue in schools today.

• Today 90% of parents feel safety is the number one issue today.

Bullying/Harassment

• 15 year old girl commits suicide after rape/harassment and bullying by other students in her school

• 13 year old Texas youth hangs himself after bullying by classmates

• 15 year old Colorado girl commits suicide after sending nude picture to boyfriend who sends it to others, harassment leads to her death

Providing a Safe Environment

• Administrators, teachers, coaches, classified staff need to WALK THEIR TALK!

• When a student sees an administrator berating, bullying or harassing a staff member, what is the message sent to students?

• When a student sees a staff member putting down another staff member, what is the message sent to the student?

• Students wonder why adults get away with improper behavior yet students get in trouble for the same actions!

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District Liability and Parent’s Expectations

• Parents have the expectation that their children will return to them in the same condition or better than when they left for school!

• Theory of “in loco parentis” (in the place of parents)

Types of Misconduct

• What is misconduct and how does it occur?

• Anything that occurs outside of your “Duty of Ordinary Care”

• A breech of your duty

• Types?

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Legal Terminology

• Deliberate indifference: – When a school district employee, agent or

volunteer chooses to act outside the policies, procedures of the district and/or the rules and regulations governing the activity, the person may be guilty of deliberate indifference and therefore exposing themselves to personal liability

Diary of a VictimSamples of Causes

• Bullying from peers

• Bullying from adults

• Harassment-including sexual

• Family issues including abuse/neglect

• Sexting

• Etc.

Diary of a VictimWhat do they do?

• Retaliates or Withdraws• Abuse pushes victim into

“Shell of Silence”• Socially Stymied• BUT, NOW (with access to a

variety of social electronic communications and networking)

• Victims don’t have to directly confront the problem

Social Media: What is it?

• Social Media is a method of mass communication in which collaborative online tools are used to aid individuals and businesses in the dissemination of information directly to the masses

An Antiquated Form of Communication: Norman Rockwell’s “The Gossips”

Information Athletic Administrators Gather from Electronic Sources

• Students using drugs or alcohol• Students involved in violent acts• Threats against other students• Threats against school or athletics

personnel• Harassment (aka “Cyberbullying”)• Sexual predators – major issue in California

schools sponsoring water polo

Why is it important?

• The Internet revolutionized the way in which we communicate. For interpersonal communication, the Internet is the most important invention since the printing press was invented in the 15th Century.

• Social Media further revolutionizes Internet communication by allowing everyone to use with little or no computing skills, and with little, or no additional cost

Technology and Communication in the 21st Century: A Menu of Options

Facebook (350 Million Users Worldwide)You TubeMy SpaceText MessagingOn-Line ScrapbookingBlogs Chat RoomsPhoto AlbumEmailTwitterCell Phones

How Social Media Impacts Your Organization

Pros:• Instant access to your content. Information is no

longer strictly limited to a computer monitor – Smartphone users can receive instant updates of your content (scores, press releases, etc)

• An organization can disseminate their message with limited resources – both manpower and monetary. It’s fast and in most cases…free.

• You are in control of the message and are no longer at the mercy of mass media.

• Allows you to be in front of the News Cycle – instant access means your audience doesn’t have to wait for the next TV newscast or daily newspaper.

How Social Media Impacts Your Organization

Cons:• Content must be timely. If you have

outdated content, you will lose your audience quickly.

• Content must be well produced and attractive. In most cases, the Social Media outlets do most of the visual work for you so you can focus on content (this has become a marketing tool)

How Social Media Impacts Your Organization

• Instant access to your content. This is a con as well as a pro. If you make a mistake, 10s or 100s of users can see it before you revise or delete the post. You are walking a a tight rope - if a user is receiving instant message Twitter updates, there is no way to take that tweet back.

Boundary Invasion

• Nearly every incident started with text messaging-IM or email.

• What is your district policy on:– Text students– Emailing students– Transporting students– NOTE: Remember, perception is reality

Boundary Invasion

• Every investigation our company has done in reference to boundary invasions, has had at least one person in the building who knew about the issue and did not act.

• Grooming the child– Identifying a vulnerable child– Engaging in peer like behavior– Desensitizing the child to touch– Isolating the child– Making the child feel responsible

Examples of Boundary Invasions

• Taking an undue interest in a student (i.e., having a “special” friend or a “special relationship” with a particular student)

• Engaging in peer like behavior with students (i.e., being cool by being like one of the kids)

• Being overly “touchy” with certain students

Examples of Boundary Invasions

• Engaging in inappropriate communications

• Talking to a student about problems that would normally be discussed with adults (e.g., marital problems)

• Talking to the student about the student’s personal problems to the extent that the adult becomes a confidant of the child when it is not adult’s job to do so

Examples of Boundary Invasions

• Favoring certain students by giving them specials privileges

• Favoring certain students by inviting them to come to the classroom at non-class times

• Allowing the student to get away with inappropriate behavior

• Being alone with the student behind closed doors at school

Examples of Boundary Invasions

• Engaging in talk containing sexual innuendo or banter with students

• Talking about sexual topics that are not related to a specific curriculum

• Using email, text-messaging, instant messaging or personal Web pages/social networking sites to discuss personal topics or interests with students

Examples of Boundary Invasions

• Invading the student’s privacy (e.g., walking in on the student in the bathroom)

• Showing pornography to the student

• Hugging, kissing, or other physical contact when the student does not want this attention

Examples of Boundary Invasions

• Initiating or extending contact with students beyond the school day

• Taking the student on outings, away from protective adults

• Giving students rides in the teacher’s personal vehicle

Avoiding Allegations of Misconduct

• Communications with students:– Emails: Do not use personal accounts– Test messages: Do not use– Phone calls: Avoid making personal phone

calls– Social Websites (e.g., MySpace/Facebook):

Set to private

Current Research

• Information from the Office of Professional Practices January 26, 2010

• Total number of misconduct offenders in the past 5 years that OSPI had to investigate-

• 532 investigations- 176 no guilt was found- 56 voluntarily surrendered their certificate

• Canfield investigated- 46 cases in the past 6 years- 34 were coaches, advisors or someone involved with extra curricular responsibilities

Current Cases

• Women’s basketball coach terminated for inappropriate contact

• Coach sued for requesting Facebook logins

• Teacher charged with inappropriate text messaging

Key Questions for Athletic Administrators to Consider

• What First Amendment rights may a student exercise in a school setting or as a member of an interscholastic athletic program?

• Can student-athletes expect a right to privacy?

• How can an athletic administrator enforce the athletic code effectively while still respecting student rights?

• How can policies be effectively written to account for the challenges posed by the use of technology?

• What are some effective pro-active and reactive strategies for meeting these challenges?

Recent Court Cases on Student Use of Technology and School Discipline

• Beussink v. Woodland R-IV School District (1998) – student Web page uses crude language to criticize high school

• Emmett v. Kent School District (2000) – “hit list”• Killion v. Franklin Regional School District (2001)

– posting of “top ten list” about athletic director

Recent Court Cases on Student Use of Technology and School Discipline

• Flaherty v. Keystone Oaks (2002) – student removed from volleyball team when making critical remarks about teacher on-line

• Layshock v. Hermitage School District (2007) – parody of school principal on MySpace

• Wisniewski v. Board of Education (2007) – student suspended for displaying an IM icon suggesting a staff member be killed

Educating Yourself about Technology

• Get your own Facebook page – learn how social networking sites operate

• Follow current court rulings, particularly in your state or circuit

• Attend workshops on the subject

Educating Yourself about Technology

• Have conversations with colleagues to learn how they address issues

• Examine sample policies from other schools (samples provided)

• WiredTrust.com –Internet risk management newsletters

Developing a Policy: Goals

• Explain district’s position on Web-based technology – what is considered “inappropriate”

• Explain what parameters are considered when handling potentially “inappropriate” communication

• Set protocols for determining how to handle scenarios in which information is obtained

Developing a Policy – Guidelines to Follow

• Engage key stakeholders in the process (school board, school administration, coaches, captains councils)

• Be careful to not be so vague that you do not communicate types of prohibited conduct to students

• Should not be designed to be a negative statement about technology, but how athletic code will be enforced when information is received from electronic sources

Communicating the Policy

• Students– Captains Council– Student-Athlete handbooks– Hazing statement

• Parents– Parent information night– Public presentations before school committee– Conversations with Parent Teacher Organizations

• Coaches– Coaches meetings – ensure that coaches

understand process

Educating Students About the Issue

Students know how to utilize the technology, but do not always understand the long-term impact of their decisions

Future employers check activity of potential employees

UnumProvident – Facebook used to check long-term disability claims

Educating Members of the Coaching Staff

Notify a member of school administration when concerns arisePersonal use of the

Internet for communication

Maintaining appropriate boundariesBe wary of becoming

“friends” of students on social networks

Educating Members of the Coaching Staff

Be careful when using technology as a means of business communication

Why the message?What is the message? (limit to name, rank and

serial number)Can you control the

outcome of the message?

Evaluating Information: Key Questions

• Is or was the safety of a student or students involved in the activity in jeopardy?

• Has an illegal act been performed?

• Are other students or staff possibly in danger?

Evaluating Information: Key Questions

• Does the nature of the information posted pose possible disruption to the order of the school?

• Is there evidence that the student has possibly violated the athletic code?

• Who has received training?

www.canfieldsolutions.com

Claims Professionals • Personnel Experts • Risk Managers