Article by David Wolowitz, McLane Middleton
This information is provided for general educational purposes only. It should not be relied upon as, or in place of, professional advice. Readers are encouraged to work with their schools’ lawyers when addressing specific issues.
Just as technology has transformed classroom learning and independent school operations, so too has it opened up areas of risk. Given that schools’ reliance on technology will continue to grow, it’s important that school leaders review their processes to ensure they mitigate risk in these key areas. These measures are by no means exhaustive, and school should seek consultants as appropriate.
Mishandling Litigation Holds
When a school faces a threat of litigation, it is now common practice for the opposing attorney to issue a directive to the school to secure all electronic data potentially related to the matter. Failure to do so can have severe legal and financial consequences.
We live in an age of increased threats of litigation. As the use of technology has spread to every aspect of our lives, litigation practices have evolved to include so-called “litigation holds.” When a school faces a threat of litigation, it is now common practice for the opposing attorney to issue a directive to the school to secure all electronic data potentially related to the matter. This means that all relevant email, texts, electronic files, etc. on school and personal devices must be isolated and preserved. Failure to do so can have severe legal and financial consequences. Courts have ruled that failure to preserve evidence pursuant to a litigation hold can result in a presumption that the missing evidence would have been favorable to the other side. Additionally, courts have ordered entities that fail to preserve electronic data to pay the costs of electronic searches performed by third party experts. These costs can be tens of thousands of dollars and may not be covered by insurance.
Schools should prepare in advance with their IT support and attorneys for possible litigation holds. Schools should include in their employment policies information about storing and preserving electronic data relating to school business. Employee training about appropriate use of technology should include information about the potential of a litigation hold and the duty to cooperate.
Student–Student “Sexting”
Any students who have smart phones are susceptible to creating, sending or receiving graphic sexual images. The issue is so common that the term “sexting” was coined to describe the activity. The legal issues related to sexting are complex. For example, there have been criminal prosecutions of students for transmitting or receiving child pornography.
Schools should educate students about the appropriate use of technology and the associated risks of sexting. Schools should also have protocols in place for handling devices or electronic messages that contain suspected sexting. Destroying, copying or forwarding what may be child pornography can violate state and federal criminal laws and put teachers or administrators at legal risk of prosecution. Key administrators should be trained in how to respond to suspected sexting, including reporting obligations, notification of police, parental notification and supporting impacted students.
Teacher-Student Texting
Texting is a classic example of how technologies can impact behavior. The current generation of students and their parents routinely use texting to communicate not only with each other, but with teachers and administrators as well. Many schools that have tried to implement no-texting policies have met with resistance from parents, students and young faculty. Unfortunately, texting between teachers and students creates potential behavioral risks by breaking down boundaries, confusing roles and contributing to peer-like relationships. Cases of serious educator misconduct often involve excessive and undisclosed text messaging.
Schools should create behavioral standards for all types of teacher-student interactions. Schools should also include in their appropriate use policies prohibitions of private and personal text messaging. Ideally, schools should implement school-based texting apps, similar to school-based email systems, so that all communications are clearly school-related, archived and capable of being monitored.
Social Media Misconduct
Risks associated with social media are varied and significant. School community members can attack individuals on social media, often anonymously, causing significant emotional harm. Misinformation can spread almost instantaneously through an entire school community and be difficult to correct. Such behavior can be extremely disruptive to school activities and has the potential to significantly harm a school’s reputation.
Schools should make certain that they own and control school-based social media. They should have policies and guidelines about appropriate use of school-based social media and enforce those policies. Schools should have policies which give them at least discretionary jurisdiction over student misconduct on non-school social media that adversely impacts the school or the school community. Schools should also educate employees about appropriate use of personal social media.
Lax Cybersecurity
Schools rely increasingly on electronic networks for handling communications and administrative tasks. Network failures can cripple the operations of a school. With so many students, employees and parents accessing a school’s networks, potential for all types of cyber breaches is significant.
Most schools have appropriate use of technology policies, but these alone are insufficient. Schools should implement mandatory, repeated, online cybersecurity training for employees, and, ideally, for students. Training should be supplemented with the requirement to change to passwords on a scheduled basis. Safe use of technology should be treated as an essential life-skill for students and employees. Schools should undertake regular cybersecurity audits and review their insurance coverage. Protocols should be in place for handling cyber breaches.
David Wolowitz is co-chair of the Education Law Group of McLane Middleton, P.A., with offices in New Hampshire and Massachusetts. Wolowitz consults with independent schools nationally and internationally.
