Our first post on this subject focused on how existing federal laws affect a school district’s ability to leverage social networking, and most Web 2.0 features such as blogs, wikis, RSS, etc. It is fair to summarize the issues exposed by the previous post as potentially overwhelming for most school districts. This post will focus on the issues of legal risk, primarily risk of lawsuit.
The legal risk to a school district begins first and foremost from a situation where a student is exposed to something negative, whether physical, emotional, or economic, where the exposure causes harm. A school must then be shown to have been negligent in order for the injured party to receive compensation from the school district for their injuries. However, the costs to a district of defending themselves in a lawsuit influence decision making.
So, we have three concepts to explore:
1) Potential risk
2) Negligence
3) Cost avoidance
Potential Risk
In the case of potential risk, any risk can be avoided by making a decision to not open up the school district to any potential risk. With respect to social networking or Web 2.0 features, if a school district blocks access to these technologies while at school, they may feel that they have then avoided the risk inherent in the technologies. Further, publishing statements in an acceptable use policy (AUP) that the use of such technologies is prohibited while on campus or while using school property (such as a laptop) may be seen to further prevent exposure to the district to risk.
However, there have been many incidents published where not only is this not really effective as a deterrent to lawsuit, but it is not effective as a way to keep the costs down either. Consider the real world example where two kids ride to school on a city bus and get into a fight. The students are not in school at the time, nor are they in a school provided vehicle. But, both students will be called into the school office upon arrival to answer for themselves. School officials will notify both sets of parents about the incident, and it is likely that both students will face some sort of disciplinary action. Why? This is due to the need for the school district to be diligent in its responsibility to protect both students from harm. If an incident like this occurs and the school chooses not to take any action, either parent could claim that the school district was being negligent since the students might continue the fight at school.
Consider another example from the virtual world. A student, using their own computer at home, posts an anonymous threat to another student on a made up MySpace account. The student who was threatened becomes aware of the threat and informs their parent. The parent informs the school that they believe a student was responsible because their child has “been having problems with several kids at school”. In this case, school officials must also take action in order to be diligent in their responsibility, even though the threat was on MySpace and not created on a school supplied piece of technology.
The strategy of avoiding risk by blocking student access to technology may not have as complete a result as the school district intended.
Negligence
For a most school district lawsuits, a plaintiff must be able to prove negligence on the part of the school district. Thus, school districts strive to be diligent (the opposite of negligent) in their approach to matters of student safety. Frequently, having a written procedure and then following that procedure when incidents occur is enough to show diligence unless there are steps that a reasonable person would have taken to prevent the incident from occurring. Cases of bullying are a part of all schools, so an incident of bullying is not enough to show negligence. A borderline situation is whether the school district should be held as negligent if they fail to have a plan to educate their students on the inappropriateness of bullying. This is a gray area and schools who wish to be conservative should take the approach that educating students (and teachers and parents) on how to avoid and handle situations involving bullying is recommended.
In the case of cyber-bullying using a social network, the parallels to the real-world are somewhat obvious. In many cases courts have not ruled districts to be negligent if they fail to deploy technology to quickly identify cases of cyber-bullying. Such technology, which involves monitoring content in an on-line system and comparing the language used to lists of potentially threatening phrases has not been proven to be effective enough as of yet. It can instead be used to search for phrases when school officials are notified by the threatened party that cyber-bullying is going on. A district who wishes to deploy social network software should make sure that the software allows a user to notify an administrator when inappropriate content of any type is present in the system.
Of course, all school districts should publish and regularly update their Acceptable Use Policy for technology. Courts have taken the stand that situations that clearly violate an Acceptable Use Policy are much less likely to show negligence on the part of the district. However, actively educating members of the school community (students, teachers, and parents) about issues such as cyber-bullying, copyright infringement, etc. does serve to strengthen the position of a district.
The Oklahoma State School Board association sponsors a site called celebrateoklahoma.us based on the ning social network platform. They published a memo to school districts addressing the safety of their site here. The memo said many things, but in part it said:
“All of the schools in our state receiving E-Rate funding provide some level of content filtering for students and teachers on their computing networks as required by law. Unfortunately, some leaders are mistakenly operating under the assumption that blocking access to websites which permit users to engage in social networking is a complete strategy for helping students become responsible and ethical decision makers as 21st century digital citizens. Limited content filtering on school networks IS important, but students and teachers MUST be provided with opportunities to practice safe and ethical social networking AT SCHOOL if we are to fulfill our obligations to provide students with a relevant education which prepares them for today as well as the challenges of tomorrow.”
The memo talks about the steps being taken to be responsible in light of digital safety concerns.
Cost avoidance / Risk Transference
The last aspect of this issue of risk that I would like to cover is that of cost avoidance. Essentially, the argument is that by blocking the use of social networking sites and other web services the district can avoid the cost of dealing with law suits and minimize the costs of dealing with incidents that occur. Earlier, I used the example of a MySpace post and how parents pulled the school district into the situation. Any conflict involving students whether occurring online or in real life, will inevitably bring school district personnel into the equation.
With respect to an increase in the potential of lawsuits as a result of deploying social networking or Web 2.0 software, a district must first determine whether their existing liability insurance would cover the costs of defending against such a lawsuit and cover the payment of any damages resulting from it. In many cases, the risks of bodily injury while attending a sporting event, or, recently, the specter of terrorist activity drive much of the cost of insurance schools have. While a school’s current policy may not be written to cover issues resulting from something like cyber-bullying, it is likely that the costs of adding such coverage will be relatively small in comparison to other costs.
What is the bottom line?
School districts face many risks as a result of the rise in the public’s use of litigation as a means of conflict resolution. In addition, schools must comply with many laws that seek to regulate aspects of their operation for the public good. While this is a very important and complex topic for schools, it is hopefully more important to get to a place where schools are able to “do the right thing” with respect to their first priniciple – provide a high quality education to every child to insure the presence of a well informed electorate capable of directing the future of our democracy. The debate about whether technology should be available in school should be directed towards whether schools have a responsibility to teach both the use of the technology AND whether that technology can be used to assist with the first principle and not, as is often the case towards whether the deployment of the technology is too risky.
