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Loose Lips Sink Ships – Things That Can Get Educators in Legal Hot Water!

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Remember those World War II posters that warned, “Loose Lips Sink Ships?” Well, that dire wisdom is just as urgent today. It is possible that a comment ingenuously made in the faculty room, in an email, during an IEP meeting or a phone call can cause a teacher embarrassment, at best, or a district to become embroiled in a lawsuit, at worst. Caution to be professional at all times as well as ever mindful of confidentiality laws has always been a top priority of school districts. However, in our digital age, this issue has taken on a new meaning and has escalated caution to another level.


In order to ferret out the most critical concerns facing schools today and some tips for how to deal with these concerns, I spoke with four lawyers who work with schools on a regular basis. Following are some of the insights gleaned from those conversations.


What is considered written documentation?

Anything and everything written about a student on school grounds can be subpoenaed for use in court. Attorney Dianna Halpenny of Sacramento, California, reinforces that anything in writing with a student’s name in it is part of the official student record. It is not necessarily true that if teachers keep it at home that it is not a student record.


Email Communication

When faced with the challenge of keeping email private on school servers, teachers used to be advised to use web mail versus a downloadable email client such as Microsoft Outlook, Eudora, or Thunderbird. The belief was that web mail such as Yahoo mail; Hotmail, Mail2Web, etc. were safe.
Attorney Pamela Parker of Austin, Texas, reveals another, less known, fact: even web-based email is forensically accessible. Web-based email history may still be on the school server. Parker acknowledges that schools are not necessarily monitoring emails; however, a forensic computer specialist can recreate the emails if necessary. The reality of today’s world is that everything that is digital lives forever. Parker employs a sound analogy, “Having a conversation by email or text message is no different than having a private conversation on stage at Carnegie hall in front of a full house. Most people won’t pay attention, but some will.”


Teachers may send an email to a parent, colleague, supervisor, etc. believing that the email will remain confidential between them. However, there is no guarantee that the recipient of an email will respect that confidentiality or realize the importance of keeping the interaction private. Sometimes, despite all good intentions, emails are forwarded accidentally. This easily happens when the writer uses “reply all” or continues to respond to an email that has the entire thread attached. I’ve been amazed at what I’ve had included in a message to me when I have been added as a recipient midstream in an email conversation. When I scroll down, I might read conversation to which I should not have been privy. Here’s a tip: Look at what’s attached to the bottom of your email before you hit “send!”


Phone Messages

Another consideration is phone messages. Not only can they be overheard, they can be forwarded. Parker contends that even a teacher’s children might see and pass on text messages or phone emails. Parker advises educators to have critical conversations in person.
Attorney Brad King of Richmond, Virginia, goes on to explain that even messages on personal phones, especially those regarding relationships with students, can become public domain. He explains that teachers’ phone records can be involved in litigation. Again, the digital age brings a new level of accountability to the issue. Digital phone messages, as well as text messages, are easily forwarded and potentially retrieved.


Text Messages

Have you ever gotten a text or sent a text that was meant for someone else? Are you sure that deleted texts are not potentially accessible if a related case was brought to court? How much text messaging is available is dependent on your telecommunication carrier. There may be information out there that you do not know is there.


What is the Law?

Add to this reality the latest federal rules of discovery. Mark J. Goldstein, an attorney based in Milwaukee, Wisconsin educates his clients to understand that these rules incorporate all kinds of regulations to get electronic information. Consequently, the reality is that the ‘rules of discovery’ mean that any information regarding students and/or teachers that one might presume to be private is subject to discovery in litigation. Goldstein emphasizes that the courts have held consistently that emails and text messages are not private, such that they may be subject to discovery in litigation (balanced, of course, against student privacy rights).
Halpenny affirms that the legal ramifications are very clear: A teacher’s right to free speech is limited in the employment context, as it relates to their personal grievances. The courts have consistently held that a teacher does not have a free speech right and it is not constitutionally protected if they are expressing a personal wrong. If teachers protest publicly at a board meeting or speak derogatorily about an administrator, the courts say they do not have the rights to free speech. Comments are only held up by the courts if it’s a matter of public concern. Otherwise, the courts say teachers do not have the right to free speech (in the employment context). A public concern is a grievance that affects the public: The teacher’s students, the school community, the public. Personal grievances that only affect the teacher are not protected under free speech. Basically, the courts do not typically side with the teacher.


Pay Attention to Professional Standards of Communication

Therefore, what might be stated in conversation, or written in an email, can cause havoc if care or inattention to professional standards are not employed.

What about Verbal Conversation?

In School
King stresses that teachers might vent in the faculty room, hall, or office believing that they are in safe territory and in trustworthy company. They might comment while scheduling an IEP meeting, “Oh, this is that ‘high maintenance parent.’” If that comment is overheard and related back to that parent through the grapevine, it might cause the parent to be inflamed, at the least.


At home
Educators frequently talk about personal information when venting and it can, and often does, come back to haunt them. If teachers need to vent, vent at home without mentioning specifics about, or identifying, the student with whom they are having issues.


In the Community
Halpenny adds that it’s important to be aware of surroundings outside of school, too. For example, a teacher’s conversation with a friend in the grocery store may easily be overheard.


Consequences of Venting


In some cases, it’s natural for teachers to vent frustration over behavior by students or parents that feels unjust, provocative, and problematic. However, if teachers express that frustration in writing, without reserve, using language that is perceived as derogatory, profane, or slanderous they are at risk of that written documentation being discovered and forwarded to unintended recipients.
Goldstein reiterates that in a faculty room, conversation can be a matter of perception in the moment (complimented by tone of voice and body language). However, in the digital age, there may be a record of it and, without any accompanying tone of voice or body language, that record can be more easily misinterpreted or mis-portrayed. The consequence might be as light as a reprimand and embarrassment or as dire as job dismissal. As King explains, it’s considered disrespectful to the people that teachers are supposed to serve when that teacher berates or publicly criticizes those very people.


Another common area of trouble for teachers is when they vent online regarding an issue that they feel is unjust towards them, thereby circumventing due process and appropriate hierarchical chains of command. Goldstein explains there is a grievance process framed by set lines of authority and a clear hierarchy. The process gets undermined when you use digital information. When teachers broadcast their vent online, the proper protocol is undermined. It’s possible that the very people that are in a position to help will not be able to support the teacher because the issue has been muddied by emotional statements posted online.


Protocol for Necessary Conversations

Do these recommendations only apply to situations where teachers might be tempted to vent? Not according to Parker. She emphasizes that teachers should not talk about disciplinary issues, educational matters, or medical information with people who are not directly related to providing services to that student.
Parker explains that sometimes this ‘chat’ is innocent; however, in those informal chats teachers will be less conscious about talking about the issue in a professional way. If they are discussing these things with someone who is not involved in providing service, that person may not be as conscious of confidentiality and may pass the information around.


Teacher-Student Relationships

Even when a teacher’s intentions are good, they can find themselves in hot water. Halpenny adds that when teachers try to be a friend to students who have emotional problems it can backfire, a situation as precarious as when a teacher starts engaging a student too much outside of school.
There was a time when teachers were free to give a student a ride home in their car, take students out for lunch, or to play pool after school to build relationships, or even make home visits. Those times have essentially passed. Teachers put themselves at risk if they interact with students outside of school boundaries.


When I was in high school, my speech coach took me and another male student to the beach. At the time, I thought nothing of it. She was simply a young, “cool” teacher. Nothing inappropriate happened. However, looking back at the situation, I now realize that she took a risk, albeit at that time a small one. Today, that would be a huge risk.

Social Networking

Educators’ involvement in social networking also poses new challenges for school districts. There have been many cases throughout the country where teachers have been threatened for dismissal because of Facebook content. King explains that the basic premise is that teachers’ free speech cannot be curbed unless their conduct compromises their ability to be role models.

However, young teachers who grew up with social media may not comprehend or consider the ramifications of publishing certain content online in social forums like Facebook or a personal blog. People will write things, blog things, or text things that they would never say face to face. Goldstein’s advice is concise and easy to understand: If you would be uncomfortable having your thoughts printed on the front page of The New York Times, then don’t write them down!

Imagine the scenario where a parent takes issue with a teacher and deliberately searches the Internet, including Facebook, to try to validate their negative perception. The image that the teacher puts forth on social networking sites defines that teacher’s identity.

Goldstein alleges that there is a perception of anonymity online that encourages a level of intimacy. Privacy settings create a sense of security. The reality is that most of our online interactions are held by third party providers. What we learned in the wake of 9/11 was that many of these providers caved and gave over information when pushed. People are not shielded by anonymity. The idea that what we post online cannot be traced back is not true.

Students, Cell Phones, and Cameras

There is a camera in the student’s pocket. Most of us have seen or heard of teachers being caught on a student’s cell phone video camera behaving in a compromising way and then having that video show up online in places like YouTube.
In large classrooms, it’s almost impossible to catch every student using their phone during instruction. Teachers have to presume that they are under a technological microscope all of the time.

In my work as a teacher’s coach, I have observed students using their phones in the classroom while the teacher was not looking. They put their purse or backpack on the desk and text message with their hands inside the bag. Students can easily record the teacher’s voice in this manner. In addition, if a teacher is in a verbal confrontation with another student, that teacher is likely not paying attention to the camera that might be pointing at him from across the room.

Attorney Pamela Parker of Austin, Texas, agrees. She warns that being recorded is the number one danger for teachers right now. Even students who do not have malicious intent are recording things that they think are funny. They forward the video or post to everyone or online. This is much more dangerous because what has been recorded can be out of context, yet some people think that what is recorded is the truth. Kids treat it as a parlor trick – “OK, I have this statement, what can I turn it into?”

Allow Time for Reflection
Teachers should be acting and speaking in a professional way – at all times. The informality that our society is moving towards cannot invade a teacher’s professional demeanor.

Take the Time to Think before Responding

No matter how urgent you or anyone else believes an issue is, take the time to think before you respond. When asked to speak about someone, take the time to marshal your thoughts and consider your words carefully. Parker shares an example from her experience: An upset parent comes to talk to you about an incident without an appointment. Teachers need to know that it is OK to say, “I understand your concern. I want to help you. Let me look into this and I will get back to you.” In addition, sometimes, the teacher should not be the one addressing the issue. Teachers need to know that they can be attentive to a parent without getting into a conversation in that moment. Teachers need to speak with an “office type” demeanor.

In Conclusion
Since the days of Socrates, educators have been taught to consider the profound effect of their words. Despite the revolutionary changes in teaching strategies and the explosion of communicative technologies and social networks, those lessons still apply today. You may think that all of these caveats may affect the quality of your teaching. Perhaps you see them straitjacketing your behavior in and out of the classroom. On the contrary, use them as guidelines to sharpen your professional performance and to ensure that your words and actions reflect the gifts that you bring to the classroom.

Contributors:

Diana D. Halpenny
Attorney at Law
Kronick, Moskovitz, Tiedemann & Girard, Inc.
Sacramento; CA
Ms. Halpenny is an attorney of-counsel with the firm who has 30 years of practice in education law. Her areas of practice include personnel matters, labor relations and collective bargaining, student rights and discipline, governance and open meeting laws, charter school matters, as well as numerous general education issues.
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Pamela Parker
Attorney at Law
Austin, Texas
Teacher Law to include: Personnel Issues, Employee Grievances, Teacher Certification Actions, Special Education Hearings, Disciplinary Hearings
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Bradford A. King, Esq.
Thompson McMullan, P.C.
Richmond, Virginia
Mr. King is a member of the Virginia State Bar, past-president of the Council of School Attorneys (COSA), and a Hearing Officer for the Virginia High School League.
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Mark Joel Goldstein
Attorney
Milwaukee, WI
General Counsel and labor and employment lawyer to small and mid-sized businesses.

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