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Cyber Misconduct, Discipline and the Law

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September/October 2011 15 middle school student, calling her a "slut," "spoiled" and "ugly." They later posted the video to YouTube – J.C. v. Beverly Hills Uni- fied School District (2010) 711 F.Supp.2d 1094. The video clip was viewed 90 times on the night it was posted on YouTube. After the parents of the victim complained, the stu- dent who created and posted the video was suspended from school for two days. The court found that the suspension vio- lated the student's First Amendment rights because the video, in the court's opinion, did not cause a substantial disruption and it was not reasonably foreseeable that it would cause a substantial disruption at school. The court held that addressing concerns of an upset parent, having five students miss a por- tion of their classes, and a fear that students would gossip was not substantial enough to warrant school district jurisdiction to sus- pend the student. "Substantial disruption" vs. "rumblings" Similarly, in J.S. v. Blue Mountain School District, a middle school girl created a MyS- pace parody profile of her principal from her home computer – J.S. v. Blue Mountain School District, No. 08-4138 (3d Cir. June 13, 2011). The profile included the principal's of- ficial school photo and descriptions of him such as "being a tight ass, spending time with my child (who looks like a gorilla), hitting on students and their parents, sex addict, per- vert, I love children, sex (any kind), and my darling wife (who looks like a man)." The school district suspended the student for creating the profile. The profile was the source of "general rumblings" at school, in- cluding six or seven students talking in class, resulting in a teacher telling them to stop three times; two other students reporting the profile to another teacher; and the school counselor having to reschedule several ap- pointments. Despite the "general rumblings" at school about the profile, the 3rd Circuit Court of Appeals found that it was not reasonably foreseeable that the MySpace profile would cause a substantial disruption at school and thus, the discipline was not warranted. The court held that the school district vio- lated the student's First Amendment rights by disciplining her for creating the profile. Following the J.C. v. Beverly Hills Unified School District and J.S. v. Blue Mountain School District decisions, school districts should carefully evaluate whether off-cam- pus cyber misconduct causes a substantial disruption at school, or whether it is reason- ably foreseeable that such substantial disrup- tion will occur. School districts should also consider whether other means of interven- tion may be appropriate, such as counseling, meeting with parents, cease and desist or- ders, injunctive relief, and/or referral to law enforcement. Nexus between the conduct and the school While the legality of a teacher dismissal for immoral conduct is evaluated under a different test than student discipline, the issue of nexus between the conduct and the school is also one of the factors courts con- sider in employee discipline cases. While the J.C. v. Beverly Hills Unified School District and J.S. v. Blue Mountain School District cases, discussed above, appear to require a strong nexus between the cyber misconduct and school, a recent employee dismissal case concerning cyber activity had a very tenuous connection between the cyber conduct and the school. In San Diego Unified School District v. Commission of Professional Competence, a middle school teacher and dean of students posted a graphic, vulgar ad soliciting sex on Craigslist – San Diego Unified School Dis- trict v. Commission of Professional Com- petence (2011) _ _ Ca l.Rptr.3d _ _ [2011 WL1234686]. The ad contained photos of the employee's nude body and his face. The ad did not identify the employee by name, nor did it state that he was an employee or identif y the school where he worked. The Craigslist ad was on a page that prohibits viewing by persons under the age of 18 and therefore, it is presumed that no students viewed the site. The school received an anonymous call reporting the ad. The school district dis- missed the employee for evident unfitness to serve and immoral conduct, and the court upheld the dismissal on these grounds. In evaluating the "nexus between conduct and ability to teach" factor of the eight Morrison factors, the court held that his conduct was, "detrimental to the mission and functions of [his] employer." The posting was vulgar, inappropriate and demonstrated "a serious lapse in good judgment." A cautionary tale The ad caused the school principal to lose confidence in the teacher's ability to serve as a role model. "The conduct itself, together with [the teacher's] failure to accept respon- sibility or recognize the seriousness of his misconduct given his position as a teacher and role model, demonstrates evident unfit- ness to teach." The case serves as a cautionary tale to public school teachers that online conduct is often a public communication and school teachers may be held to a high standard for their speech because of their position as a teacher and a role model. On the other hand, a school district's ability to lose confidence in a teacher based on their cyber speech is a subjective standard and a difficult one to measure. Therefore, school districts should be mindful that discipline of a teacher solely based on the content of their cyber speech may be an insuff icient basis to dismiss a teacher for evident unfitness to teach and immoral conduct. Each cyber misconduct case, whether student or employee, should be evaluated on its own set of facts and may require advice

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