July 15, 2024
Hot Topics: Action Plans for Current Issues & Those to Anticipate, Part 2:

Student & Employee Use of Technology

Student Use of Technology in Schools WASDA Conference

Last September, at the WASDA Fall Conference, Kirk Strang spoke about hot topics in Wisconsin school districts. In an effort to share this information with more superintendents, faculty and school administrators, we’re recapping Kirk’s presentation here in its entirety (be sure to click on the link below if you missed Part 1).

This five-part series dives into each of the following hot topics:

  • Part 1: Search & Seizure
  • Part 2: Student & Employee Use of Technology
  • Part 3: Gender Identity
  • Part 4: Public Comment
  • Part 5: Public Access to School Grounds

In Part 2, our focus shifts to student and employee use of technology, specifically:

  • Student Use of Technology
    • Cellular Phones
    • School Devices
  • Employees & Technology
    • Privacy Standard
    • Inappropriate Use of Computers

Student Use of Technology

CELLULAR PHONES

  1. Schools may institute cell phone-use policies, including prohibiting use during class time.
  2. School cell phone policies have to balance culture, security, politics and parent relations, education, disruption, and other important variables. Even if the perfect policy can be written, your constituent groups won’t accept it.
  3. School cell phone policies used to be written to capture misconduct generally. Increasingly, specific types of conduct are making it into cell phone policies (e.g., “cell phones may not be used on school premises to … bully or further the bullying of another student …”). The trend requires careful written work, but isn’t necessarily problematic.
  4. Accordingly, you can still take double-secret probation seriously.
  5. Confiscation of cell phones: in general.
    1. Confiscation generally should be limited to one day, namely, the day of the offense. Do not use escalating periods of confiscation as penalties for cell phone violations (unfortunately, that leaves more traditional penalties as the primary disciplinary tools). There can be safety and other liability exposure that follows from doing so.
    2. If confiscation is done to investigate other misconduct, any search of the phone must have “reasonable suspicion” and be “narrowly tailored” to seek specific information. Looking at other areas while searching is not permitted unless the course of the investigation creates reasonable suspicion.
    3. If legitimate evidence of other misconduct is found incident to a lawful search, that evidence can be used to support other action.
    4. If there is any evidence of trauma, abuse, or any other serious student welfare issue, act immediately.
    5. After confiscating a cell phone, make sure it is secure. 
    6. Preserve the chain of custody.
    7. Do not make copies of content or have images sent to you (especially when pornographic; other procedures apply then).
    8. Pornographic images should be immediately reported to law enforcement. In almost all circumstances, the phone should be physically handed over to law enforcement as soon as possible.
  6. Searching through a cell phone’s content:
    1. It is a search. Therefore, all the rules regarding the conduct of searches apply.  
      Searches of cell phones must be narrowly tailored. A cell phone will almost always contain information in which the student has a legitimate expectation of privacy (and whether that can be yielded through a conditional waiver is unclear).
    2. The search has to be mindful of the way cell phone technology works to make sure no legal boundaries are crossed. The District can’t say “oops.” The
    3. District must tailor the search with due regard for how proposed search protocols will reveal information and whether less intrusive alternatives are available.
    4. Searches that are properly tailored can result in discovery of information regarding other misconduct. If the search was lawful, the fruits of the search are generally usable.

SCHOOL DEVICES

  1. Handheld devices, such as tablets, are generally subject to the same rules as school computers under an AUP.
  2. These devices are the property of the school, not the student. The school has the right to search the devices and revoke a student’s access.
  3. Students should sign an Acceptable Use policy before devices are issued.  
    Tip: Make sure your policy covers all personal tech devices used on school premises, during school hours, and for established school purposes (e.g., an online class), at school activities, etc. A fair number of more severe tech crimes against other kids are committed on students’ personal devices, not school devices, but a school district retains jurisdiction over such misconduct if it occurs on school grounds or under the supervision of school authorities.

Employees and Technology

PRIVACY STANDARD

  1. Electronic Surveillance/Searches.  
    In O’Connor v. Ortega, the Supreme Court held that the Fourth Amendment right to be free of unreasonable searches and seizures applies to information obtained through electronic surveillance of employees by government employers. 
  2. When determining whether a government employer’s intrusions are lawful, the court first considers whether “[t]he operational realities of the workplace” indicate that the employee has a reasonable expectation of privacy.
  3. If so, the court then applies the standard of reasonableness. A government employer’s intrusion must be reasonable under the totality of the circumstances. O’Connor v. Ortega, 480 U.S. 709, 716 (1987).  
    Both the inception and the scope of the employer’s intrusion must be reasonable. Ask:
    1. Is the intrusion justified at its inception? Are there reasonable grounds for suspecting that the search will turn up evidence of work-related misconduct?
    2. Is the scope of the search reasonably related to the circumstances that justified it? Are the measures “reasonably related to the objectives of the search and not excessively intrusive in light of ... the nature of the [misconduct]?”

INAPPROPRIATE USE OF COMPUTERS

If an allegation of inappropriate use is presented, the District will want to know:

  1. What happened and on what device?
  2. Can our IT Department guarantee that everything on an individual hard drive is also stored on the server or other master system. If not, we also have to quarantine the hard drive:
    1. Have one person and two witnesses;
    2. Take the computer hard drive out, unplug, and store in a locked facility, drawer, or other container; and
    3. Devise a verifiable, recordable means of accessing the hard drive.
  3. Is administrative leave appropriate? This can be a possible sting scenario if the misconduct is solitary. However, the possibility that efforts will be made to tamper with evidence can be high.
  4. Procedure for imaging files. 
    1. Always work with copies generated by imaging. Avoid working with the original electronic evidence.
    2. If the investigation implicates law enforcement because of, e.g., child pornography, law enforcement will take the lead and can authorize procedures that do not corrupt the original evidence.
  5. Do not copy, send, or otherwise adulterate any files that contain illicit material.

This brings us to the end of our discussion on student and employee use of technology. In Part 3 of our series, we’ll turn our attention to the hot topic of gender identity.

Additional articles based on WASDA Conference presentations that may be of interest:

© 2022, Strang Law LLC