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Congress recently passed the “Protecting Children in the 21^stCentury Act” as part of a larger bill dealing with broadband access. The child protection provisions call for a nationwide collaborative effort directed by the Federal Trade Commission (FTC) to increase public awareness and provide education on effective strategies that promote safe use of the Internet by children. The Act also calls for annual reporting of such efforts and establishing an “Online Safety and Technology” working group to study and assess the national efforts and technologies designed to improve child safety. In addition, each school applying for federal E-rate funding (pursuant to the Children’s Internet Protection Act) must additionally certify that

“as part of its internet safety policy [it] is educating students about appropriate online behavior, including interacting with other individuals on social networking websites and in chatrooms and cyberbullying awareness and response.’’

Read the legislation (PDF).

Tort Liability: Special Education Teacher not Immune from Tort Claims for Physical and Emotional Abuse. Farrell v. Transylvania County Board of Education, No. COA08-310 (NC App. Dec. 2, 2008).

A North Carolina special education teacher was sued after allegations surfaced that a student in her classroom was the victim of physical and emotional abuse including being force fed to the point of choking, being yelled at with abusive language, and having his hair pulled and head “violently jerked back” while his face was washed. The child was so traumatized by the abuse that he stopped eating, was hospitalized as a result, and ultimately had to have a feeding tube inserted for approximately six months.

The teacher claimed public official immunity from state claims against her under the State Tort Claims Act and qualified immunity from the student’s federal civil rights claims. A trial court denied the teacher’s claims of immunity and the Court of Appeals affirmed. The court held that the teacher was not entitled to public official immunity because a teacher is not a ‘public official’ according to North Carolina law. Under North Carolina law, a public official is 1) a position created by constitutional or statutory authority, 2) exercises sovereign power, and 3) exercises discretion as compared to performing ministerial duties. Thus, while ‘teacher’ is statutorily defined, it is not statutorily created, and therefore does not satisfy the first prong of the public official test. On the other hand, ‘school administrator’ (including principal, assistant principal, and superintendent) is statutorily created, and individuals in these positions would be public officials in the state. The Court also found that teachers, in general, do not satisfy the second or third prongs of the public official test, either, stating “although teachers serve a vital role in the public education of the children of this state, they do not meet the test for public official immunity.” Lastly, the Court denied the teacher’s claims of federal qualified immunity on many of the same grounds. Read the case.

Personnel—FMLA: Department of Labor Issues New Regulations

The Department of Labor’s recently issued regulations under the Family and Medical Leave Act of 1993 (FMLA) contain a number of provisions pertaining to schools. These include definitions of serious health condition and chronic condition, consequences for interfering with FMLA rights, waiver of FMLA rights, and fitness for duty requirements. One particularly relevant change is that after January 16, 2009, when the new regulations take effect, employers can require employees to follow call-in policies to provide notice of planned leave instead of employees being allowed to wait two days after an absence to notify his/her employer. Source: NSBA Legal Clips, Nov. 20, 2008. Read the regulation: 73 Fed. Reg.67934 (Nov. 17, 2008).

Student Privacy—FERPA: Department of Education Finalizes FERPA Regulations

The Department of Education finalized regulations pursuant to the Family Educational Rights and Privacy Act (FERPA), some of which were designed to provide greater clarity regarding concerns that FERPA may have previously prevented disclosures that could help avoid tragedies like the Virginia Tech University shootings. Additionally, two United States Supreme Court decisions, the USA PATRIOT Act, and the Campus Sex Crimes Prevention Act resulted in new exceptions that permit the disclosure of personally identifiable information from educational records without consent. Effective January 8, 2009, the regulations clarify the scope of permissible disclosures to parents of students as well as disclosures to contractors involved in institutional services and functions; they also revise the definitions of attendance, disclosure, personally identifiable information, and other key terms. Source: NSBA Legal Clips, Dec. 11, 2008. Read the regulations: 73 Fed. Reg. 74,806 (Dec. 9, 2008).

CyberSpeech—Social Networking: Charlotte Teachers’ Facebook Posts Result in Disciplinary Action

Several teachers in the Charlotte-Mecklenburg school system have been investigated and some disciplined for posting inappropriate images and material on social networking sites like Facebook. For example, a black teacher used the “N” word, several teachers posted images of themselves in sexually suggestive poses, one teacher referred to her school as “the most ghetto school in Charlotte” and to her students as “chitlins,” and a special education teacher stated, "I hate my students!"

Some of the teachers were suspended with pay pending investigation. Some faced dismissal for violations, in part, of the district’s code of conduct prohibiting “unethical or lascivious conduct,” and others faced lesser disciplinary actions. The district reports that it must address these types of problems each year. It was sending a memo to all 19,000 of its employees reminding them of appropriate personal web practices. Source: Charlotte Observer, Nov. 12, 2008.

Cases and News of Interest from Other Jurisdictions

(Not binding on North Carolina Schools)

Free Speech—Religion: U.S. Supreme Court Rejects Appeal of Michigan Grade School Case Involving Candy Sales with Christian Message

The United States Supreme Court refused to consider a case on appeal from the Sixth Circuit Court of Appeals in which a school principal refused to allow a student to sell candy with a Christian promotional message attached to other students. The circuit court ruled the principal’s actions did not violate the First Amendment rights of the student because the restriction was reasonably related to the legitimate pedagogical concerns of not offending other students or parents and prevented subjecting young children to unsolicited religious promotional messages that might conflict with what they were taught at home. Source: Westlaw Watch, Dec. 13, 2008. Read the 6th Circuit decision.

CyberSpeech—Student Discipline: High School Student Suspended for Facebook Posting about Teacher

A Florida charter high school student sued her principal after being suspended after posting to her Facebook page a picture of a teacher she described as “the worst teacher I’ve ever met.” The principal suspended the student for three days for actions he deemed ‘cyberbullying harassment towards a staff member’ and ‘disruptive behavior.’

Attorneys for the student countered by claiming the Facebook posting was protected First Amendment speech because it occurred off campus, was devoid of threats of violence, and did not disrupt school activities. The student’s suit sought the revocation of the three day suspension from her permanent record. Source: NSBA Legal Clips, Dec. 11, 2008. Read the story.

CyberSystems—Copyright Infringement: Law Professor Taking on Recording Industry

Charles Nesson, a Harvard law professor, has agreed to defend a Boston University graduate student accused of violating copyright law by participating in unlawful music file sharing activities. Under the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, Nesson argues the Recording Industry Association of America (RIAA) is essentially empowered to enforce a criminal law civilly by exacting payments from violators. This arrangement, he argues, is unconstitutional. He also contends that the RIAA has abused the legal process by intimidating violators and pressuring them to settle out of court.

RIAA officials, on the other hand, maintain their response has been warranted in light of the industry’s multi-billion dollar losses stemming, in part, from illegal online file sharing. Source: eSchool News Online, Nov. 24, 2008.

CyberSafety—Social Networking: Recent Study Reveals Some Benefits to Teen Online Social Networking

A recent study of 800 students and parents examining 5000 hours of social networking use revealed that the extent of some perceived dangers and downsides of social networking may be overblown and that we may have confused notions about how many students are using these sites. Essentially, the study describes how teens are using social networking sites; however, it cautions that little evidence exists to gauge the long-term effects. The study highlighted the literary, technological, and socialization benefits social networking sites offer, and confirmed teen habits of weaving networking into their daily routines, often beginning and ending their days with such use. The study showed teens using these sites to learn from one another or groups of like-minded individuals, developing skills in setting up a web site and presenting themselves, learning to interact with one another, and respecting others’ interests. Source: Raleigh News & Observer (N.Y Times), Nov. 20, 2008.

CyberSafety—Social Networking: Student Posts His Suicide Online While Others Observe

Abraham Biggs, a 19-year old bipolar college student in Florida, committed suicide by drug overdose in front of an online audience that watched his death live via webcam. Viewers could “tune in” during a 12-hour period prior to, during, and after the death, and could post text comments. Eventually a user notified web host officials who tracked down the location and notified police who found Biggs after it was too late. The news report states that some online users encouraged Biggs to go through with it, some tried to persuade him to stop, and others did not realize it was anything more than a prank until his death was apparent, to which at least one viewer posted her reaction in horror: “OMG.” One popular culture expert noted how common such public displays of intimate details are becoming, stating "If it's not recorded or documented, then it doesn't even seem worthwhile. For today's generation, it might seem, 'What's the point of doing it if everyone isn't going to see it?' " Source: News and Observer (AP), Nov. 22, 2008.

CyberSafety—Social Networking: Social Websites Potentially Problematic for Job Applicants and Employees

Social websites are growing in popularity. Increasingly, employers and others are searching these sites to gather information about job applicants and other people of interest. Teachers in the Charlotte School System, Durham police officers, and a college football player are just some of the recent examples of individuals suffering the consequences of such postings. One report indicates that over 70 million users have registered for Facebook accounts this year alone; a remarkable fact given Facebook’s introduction just five years ago. Source: Raleigh News & Observer, Nov. 18, 2008.

CyberSafety—Privacy: Bug-sized Flying Spy Drones on the Drawing Board

United States military researchers are developing plans to create miniature drones. The Micro Aerial Vehicles (MAVs) are designed to “fly” into suspected enemy quarters to video- and audio-record data about, and even potentially attack, enemies. Some designs call for a bumble bee-sized drone. Development of bird-sized drones is anticipated by 2015 and of bug-sized drones by 2030. Source: News and Observer (AP), Nov. 22, 2008

CyberSchooling—Online Instruction: High School Students in Alabama Required to Pass Online Course to Graduate

Beginning with the 2009-2010 school year, Alabama high school students will be required to pass an online distance learning class in order to graduate. Many schools, especially small ones where students may not have access to some advanced elective courses, already offer these courses where teacher and student may not ever meet face-to-face. Source: Source: NSBA Legal Clips, Nov. 20, 2008. Read the Story.

CyberSafety: Digital Identification Services Present Challenging Dilemmas to Schools

As child safety advocates seek new and improved ways to keep children safe online, a method known as “digital identification” has sparked controversy among some school officials. eGuardian, a new digital identification provider, claims its product keeps children safe by communicating with search engines and social networking sites and preventing children from accessing inappropriate content based on their age. The controversy stems primarily from eGuardian’s use of school systems to verify information provided to it by parents who purchase the online child protection system. In essence, eGuardian pays schools to verify the information subscribers submit about their children. eGuardian also actively seeks to partner with schools, promising the school $13 of the $29 registration fee for each child subscribed.

Some school officials, though, are hesitant to become involved in any process whereby the school divulges student information to third parties, even in the name of online student safety. One skeptical official stated, “[s]chool systems need to ensure that student information is kept private as required by the Family Education Rights and Privacy Act. Parents can make individual choices if they wish to use digital ID software without school involvement.” Source: eSchool News Online, Nov. 17, 2008. Read the story.

CyberSafety: Student Security Concerns Accompany Online Courses

As schools seek to simultaneously enhance course offerings and trim budgets, online courses have become increasingly popular. However, this has also sparked concerns about the online safety of students enrolled in such classes. Source: eSchool News Online, Nov. 17, 2008. Read the articles.

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