Season 2 Episode 5: What Can Schools and Parents Do When Kids Misuse Social Media?

How can parents monitor inappropriate app use? Why would we want to limit our digital footprints? What is the school district’s role in addressing technology misuse? Today’s episode addresses all of these questions and more. Attorney James McWeeney joins Lisa and Miriam to discuss how schools and families can work together to approach these challenges in a proactive way.

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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are attorneys at Walter | Haverfield in Cleveland Ohio. We practice school law and every so often, we get together and we chat about the latest legal developments.

Lisa: Today, we are continuing our series on social media to address what parents and schools can do to help protect students. Joining us again is James McWeeney, an attorney at Walter | Haverfield who frequently advises districts on legal issues such as technology. Welcome back.

Miriam: Welcome.

James: Thank you again for having me.

Miriam: If you in the audience did not listen to our previous episode on social media apps, you should go back and listen to it now. Last time we talked about quite a variety of apps that kids use and misuse, and some of the ways that that kids use these apps were really quite concerning. We talked about bullying, sexting, and sometimes these even led to suicides.

Today, we’re going to continue this conversation, but we’re going take a more proactive look at what schools and parents should be doing in response to these challenges. I guess my first question is about parents, James. What can parents do to protect our kids from the dangers that we discussed last time?

James: Completely and totally important question, because really that’s what we want to know. This is all out here. What can we do about it? I think to get there though we have to first, again, reiterate and understand what the nature of the problem is. The problem is that we’re dealing with apps that are pervasive in their extent. We’re not talking about bullying in the face to face context, we’re talking about things that can happen outside the school walls, in the home, in a student’s bedroom on their phone at 3:00 in the morning. First of all, the reach of the technology is all-encompassing. Also too, and we touched on this in our last episode, but the anonymity. The anonymity of using social media apps really takes things to a different level than you otherwise would experience in a face to face confrontation.

Miriam: Absolutely.

James: Finally, just again, cyberbullying itself it’s different. It’s not something with which we’re familiar, but the toll is emotional. The scars can be mental. We have to acclimate ourselves to that world and to the feelings that kids are experiencing that we aren’t as familiar with. I think we start with that broader conceptualization, and then, really you focus first on this bigger point which is that, if you are a parent, there are things you can do to minimize the problems that can result from the misuse of apps by students.

Miriam: I think I would even say, Lisa, I’m sure you agree with me, that parents are really in the best position to protect their kids. Parents have the most control over this much more so than school districts for reasons that we’ll get to in a minute. Parents are really in the best position to protect their kids.

Lisa: Yes, absolutely. It’s certainly where it all starts and then you have to have the whole community wrapped around it too. Yes, parents, you are giving them the devices, you have firsthand ability to monitor what they’re putting on their devices.

Miriam: To approve or disapprove of apps, right? James isn’t that one of the things parents can do, is to allow a child to download an app or disallow it?

James: Yes, absolutely. It’s difficult because the world is constantly changing, in terms of technology, in terms of apps. But if you start with the premise that you as a parent have the ability to control things, then you can start to take proactive steps. A related point to that, and you touched on this, is that we expect a lot from our schools. Now, we can talk about what schools can do, but we expect a lot of them. These things are not always taking place in the school. These things go beyond the classroom and the school building walls. As I said before, a bullying episode could commence at 3:00 AM between several students on an app. It’s very difficult for a school to be able to extend its control into that realm. Again, talking about what parents can do.

Number one, minimize your child’s digital footprint. It can be done. It’s not easy because technology is all around us, but you have the ability to control what your kids are accessing, what they’re downloading onto their phones. You have the ability to set limitations on phone usage, for example. You can minimize the digital footprint of your child just by setting boundaries on how frequently your child accesses technology.

Miriam: By digital footprint, I’m sorry…do you mean like what your child puts out there about him or herself, is that what mean?

James:  It encompasses that, but also too, just the extent to which we use technology. We see it with adults, people glued to their phones, they fall down the stairs because they’re looking at their phones, walking into the middle of the street. Look, we use it.

Lisa: I did that.

James:  Yes, yesterday on your way here, right? We do this. We understand why we do it. It’s interesting, it’s fun. We like technology, but just as we can set boundaries on ourselves, for instance, no phones at the dinner table; parents have the ability to also set limits on their children and how frequently they use their phones, they access computers or iPads. That’s something that certainly can be done.

Miriam: There are actually many apps and devices to help parents monitor their kids’ phones.

James: Yes. In addition to exerting just more general control, there are things that you can actually download onto your child’s phone, onto your child’s iPad or on your computer that can limit access to apps or to websites. An example could be like My Mobile Watchdog, PhoneSheriff, mySpy. There’s all kinds out there, and that list is not meant in any way to be exhaustive.

Miriam: We have one called Circle which actually connects to the WiFi in our house and it shuts down phones at a certain time every night and shuts down each child’s phone or whatever time I preset, and it limits which apps they can use and for how long.

James: That’s interesting because a lot of times when we have this discussion with parents or school districts, one of the things that they’ll say is, well, what do we do about the fact that you can get roaming? You can connect anywhere to the internet, so just because we shut down our WiFi, that doesn’t mean that my child is going to be precluded from getting online or accessing these apps. But that is a way that it can be done, it has to also be used in conjunction with, again, exerting additional control. Doing things like actually taking away your child’s phone for a period of time. Downloading some of these particular apps that can prevent access regardless of whether or not your WiFi is up and running.

That’s a great point because it’s just an example of what we can do. I just thought it would be interesting to show that there are folks out there who say, well, that’s not going to solve the problem in and of itself. They’re right. It’s all around us, so we have to do more than just that.

Miriam: Absolutely I agree with you.

Lisa: James, what about schools? What can they do proactively?

James: Again, I think you have to start with the premise that the school has a limited reach. A lot of this stuff is not taking place in the classroom during designated school hours, but that being said, there are things that schools certainly can do. Number one is teaming up with parents. When we’re working together, we’re going to have a better outcome regardless. That’s a general point, but working and collaborating as a team with parents, that’s where we want to be from just a perspective standpoint.

We talked about Yik Yak last time, in the last episode. A geofence was an example of something that a school could do to remedy a problem associated with a specific app. In that case, it was Yik Yak. That’s an example of what schools can do and have done. There are some folks too who talk about limiting the use of phones particularly in classrooms or in schools. This is a bit of an issue because with technology we can make learning more engaging.

Lisa: I was just thinking, schools now, many have tablets or ipads for other students. They just have a device available on a pretty regular basis. That seems like something that would be really difficult to get a community and parents and everybody on board with.

James: Yes. For me, I used to be a teacher, and when I taught, a lot of times when you did group activities, you would have people hold up their pencils or their hands to indicate what their answer to a question was. A lot of times now, teachers will incorporate the use of phones to send answers to questions. There are tallied results and graphics that come up on who answered what. It can be used for incredibly beneficial learning opportunities, but there are some folks who say, how much is too much? So that’s something also that schools can consider and think about. There also are discussions of acceptable use policies versus responsible use policies.

Miriam: Yes, I know many school districts have acceptable use policies and those focused on website access issues. We’re seeing a little bit of a trend now is that some school districts are also moving towards responsible use policies when it comes to technology. James, can you talk a little bit about the difference between acceptable use policies and responsible use policies?

James: Sure. Yes, and it’s a great question. Acceptable use policy is something that school districts are probably more familiar with. It’s what you can’t do. We are not going to access these particular websites. It’s much more focused on here’s what can’t be done in conjunction with technology or the internet.

Miriam: By can’t, you mean more so, if you do this, there might be discipline for that action.

James: Correct. The mindset is more prohibitory. It’s much more about what is incapable or impermissible. We are not going to allow students to access this during this time. Responsible use policies are different because they focus more on teaching digital literacy. In other words, teaching students how to properly and positively use apps and to properly and positively use the internet, things like that. It’s focused more on positive reinforcement behavior as opposed to prohibitory behavior.

Lisa: Yes, that seems like a really important proactive strategy that all districts really should be utilizing since technology is not going anywhere.

James: Right. To answer or to go with that last point, technology is not going anywhere. Another thing that can be done with schools is that they can hold and sponsor the kind of talk that we’re having right now. I’ve done it before where I’ve worked with parents and schools and we talk about the different kinds of apps that are out there, and again, because they’re always changing, the education that schools can bring into play with parents is pivotal.

Schools can sponsor talks, they can have folks come in and talk about the different kinds of apps that are out there to help educate parents so that they’re aware of not just the particular app that’s hot today, but the idea that they’ve got to stay on top of this for a long time.

Lisa: And how they can best educate their own children as to what’s out there and appropriate use and just positive strategies for the future.

James: Yes, it’s a joint effort. We talked about that in the beginning. This is not parent v school; this is parent and school working together to ameliorate what could potentially be concerning misuses of apps and technology.

Miriam: I think this also goes back to something we talked a few episodes back. Maybe episodes 9, 10. We did discuss bullying and we spoke about the need for schools to have not only anti-bullying policies forums but also anti-bullying programming. Lisa, you would agree with me, right? Any anti-bullying programming these days, any curricula that school districts present to students and parents should definitely have a component of cyberbullying, and like James was saying, reasonable use. Actually, teaching students not about what not to do, but more about how to behave when they’re online, when they’re on an app.

Lisa: Yes, I think that programming and educating is almost the key point with this technology piece because there’s so much of it that happens outside of school. There’s so many boundaries for what the districts can and can’t do to discipline, to prevent it, that you really just need the parents and the school working together; educating parents, educating students so that it is a very holistic approach instead of just parents being mad, “My kid’s being bullied on technology, District, solve the problem,” and the District is going, “Well, we have this restriction and this restriction and we don’t have the full answer.”

Miriam: Exactly. Let’s talk about some of those restrictions that you just mentioned. I think maybe in a previous episode we also touched on this on the First Amendment. The First Amendment sometimes bars school districts from disciplining students, especially if the behavior, conduct took place off grounds. James, can you talk a little bit more about that?

James: Just by way of background, when we’re talking the First Amendment here, we’re talking freedom of speech. Students, just like adults, have rights to free speech. In the school setting, that’s to some extent. We have free speech rights for students, but there are some limitations on the extent to which students can freely speak without government interference.

When we’re talking about on campus, schools have the ability to categorically prohibit certain kinds of speech that are coming from students. An example is going to be lewd or vulgar or profane speech. A school can come in and say, “Look, that is inappropriate. We are going to categorically prohibit it notwithstanding the First Amendment.”

Miriam: This is something that happens on school grounds, like in a classroom. If a child is using vulgar language, the school district can obviously discipline. Can say, “That’s an inappropriate conversation, you shouldn’t be saying those things. You get detention.” or whatever.

James: Correct. Right now we’re talking about on campus. If you think of it like a student in a classroom. A student in a classroom can’t just start cussing as part of a response to a question about the American revolution. There’s going to be discipline for that type of behavior because schools have the ability, despite the First Amendment, to categorically prohibit language that’s vulgar, inappropriate, that kind of stuff.

Miriam: Also language that substantially disrupts school operations or interferes with others rights.

James: Yes, that’s a great example, always fact-based. Any time we’re talking about the constitution, and of course school districts love to hear this, it depends. You have to have the substantial disruption, so you look into it: was there actually substantial disruption? That’s another great example of speech that could potentially be limited by a school district even in light of the First Amendment.

Lisa: Well, I think this is one of the prongs that really get difficult for districts to interpret when something happens, say, maybe at lunch with technology and then didn’t really disrupt the day. It really depends very specifically on the facts of that circumstance.

James: Yes, we’re talking about on campus. When you’re talking off campus, it gets a lot more complicated because traditionally, there was an issue or question about whether or not schools have the ability to discipline students for speech that takes place off-campus. In our current technological world, speech that takes place off-campus isn’t necessarily off-campus.

Miriam: Tell me what you mean.

James: What I mean by that is that because of the all-encompassing and extensive nature of these apps, a lot of times what can happen in a bedroom at 3:00 AM through a social media app can spill over into the school and into the school day. With our apps, with our technology, there is more of a blending about what is on campus and what is off-campus.

Miriam: In other words, if at 3:00 AM a child is harassing somebody else online, and then the next day they come into school and there are kids who are crying or leaving school and the teacher has to actually stop class and address whatever conflict is going on, that was actually started at home. That would be an example of something spilling over into the school day and maybe substantially disrupting it.

James: Correct. When we talk about what speech is protected under the First Amendment, I think there’s a question as to whether harassing speech, in general, is going to get the favoritism that you would have under the First Amendment but the question still remains, is there a blending of on-campus and off-campus when we’re dealing with these digital apps that really just are going to always go beyond the school building walls?

Lisa: In talking about the constitution and the First Amendment, we have that issue, but there’s also the Fourth Amendment with searches and seizures. I’m thinking districts are definitely at a disadvantage that they can’t just confiscate all these kids’ phones, to say, “What happened?” or “I’m going to delete this post you made,” or anything like that.

Miriam: Can that happen, James? Let’s say a kid is texting, can a teacher just say, “Well, you’re violating our acceptable use policies, so I now take your phone and now you’re also going to suspended.”

James: Great question because it comes up. It’s a real issue. When we were talking about the First Amendment, we were talking about free speech. To what extent does a student have a right to speak in the school and/or off-campus if it affects the school? Now we’re talking about the Fourth Amendment which protects people from unreasonable searches and seizures from government.

A phone is your private property and it’s very private. Some people treat their phones equally as important as their children. If you lose your phone, it’s like, “Where is my phone?” It’s like, “Where is my child?” Phones increasingly contain a number of private, highly sensitive pieces of information from passwords, to personal communications, to text messages.

The issue that we have is that there can be instances of discipline that a school would say, “Look, we need to get in and look at this phone of this student.” Hold that thought if that’s what you’re thinking because, you school districts are the government. You cannot search and/or seize that phone without having reasonable suspicion.

The Fourth Amendment requires that it’s protecting individuals like that student against government interference. When we look at the Fourth Amendment, you have to ask yourself a couple of questions: Is the search reasonable? Was it reasonable at its inception, and was the scope and the extent of the search justified in the first place? Those are very complicated questions. They’re intensively fact-dependent.

In this world of technology, we feel a guttural reaction saying like, “Get the phone, look at the text message, see what he said, delete the post.” Again, if that is your initial reaction, it is best to check that reaction. It is best to sit back wait and think and say, “Do we have a possible Fourth Amendment issue here? Am I justified in looking at this phone? This private phone of this student?” It certainly is an issue that requires the attention of school districts and their legal counsel.

Miriam: I recently read an interesting case on this. I was taking a look at the GC v. Owensboro Public School case from 2013, the Sixth Circuit. This is a cellphone case. This was a situation where there was a high school student, he had a history of depression. A history of suicidal ideations, and a little bit of drug use. At some point, he was using his cellphone in school, in class when he wasn’t supposed to, and that was the infraction. He wasn’t supposed to have a cellphone, but he took it out and he was using it. The teacher took the cellphone and went through the messages.

The teacher looked at the messages and then justified it by saying that “Well, I wanted to make sure that he was safe and he wasn’t going to hurt himself because I know he has this history of suicidal thoughts.” The student and his family eventually sued and the Sixth Circuit said that the search was unjustified. There was no reason to think that just because a student has a history of drug abuse or depressive tendencies that, that would enable school official. That that would warrant a search when there was no other concerns at the time. It was just that this child had a history, but the cellphone search and seizure was found unconstitutional by the Sixth Circuit.

James: Right, and the bigger picture is that if you’re the government, and school districts are the government, to the extent that you feel the need or you feel as if you need to get into a student’s phone, just remember that the Fourth Amendment to the United States constitution says: Hold on a second. This has to be reasonable because we’re protecting the person and their property from unreasonable government interference. Again, it’s a gut check, it’s a gut check reaction. We may have a natural inclination get in there and to get the information or delete it, but we have constitutional protections against those types of actions.

Lisa: I’m thinking about these conversations we’ve just had about the First Amendment and Fourth Amendment, and now I’m going districts, okay a parent calls you and says, “Handle this cyber bullying incident.” You’re going to have problems investigating. Well, not even so much just problems but just super restrictions as far as what information you can get, how you can address it. How you can discipline, if you can even discipline in the first place. It puts them in a really tight position.

Miriam: Parents are really in the best position to protect their children, and schools can definitely do a lot, but because the constitution and other federal and sate laws restrict school districts, parents are really in the best position to protect their children when it comes to social media.

James: I think that parents, absolutely play a pivotal role. There is no doubt about it, they play a pivotal role in ensuring the safety and the well-being of their own children.

The point that I would emphasize and add to that is what we began with which is the concept of teamwork. It’s the concept of teaming up with parents that it can’t the the school district alone who solves the problem. As you said, there are actual limitations on the ability of the school district to do certain things, and those protections are constitutional, they’re enshrined in the constitution, but there are things that each of them can do together when working together. I think, for parents, the most important thing is to understand that it can’t just be the school district. There are too many limitations both legal, geographical, timewise that it’s got to be an effort that is joined on the part of every party involved.

Lisa: On the other side of that, while the districts do find themselves in a quite limited sense of how they can respond, it’s going to be really important for them to limit the technologies on their grounds in their policies doing these proactive approaches such as programming and educating parents and students, and making sure that they are aware of these limitations constitutionally to balance all of that out.

James: Yes, it’s all part of the, again, the teamwork, the discussion. To the extent that parents are aware that a school district just can’t get into a phone and do whatever it wants to a student’s phone because the Fourth Amendment is there and protects against just that, yes, that helps facilitate different manners and mechanisms to resolve any type of digital related problem.

Miriam: All right, thanks for joining us, James, by the way. Thank you.

James: Yes, thank you so much.

Lisa: Thank you.

Mirram: Next time I think we will talk about what happens when school board member themselves use social media. What are the potential pitfalls, for example, of a school Facebook page? In the mean time please comment, rate us on iTunes or Stitcher or wherever you get your podcasts. Thanks to everyone who has sent us emails and letters so far. We appreciate your questions and your comments. Have a great day.

Disclaimer: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advise of legal council. Walter | Haverfield does not guarantee the accuracy of information contained in this podcast.