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

Loose Lips Sink Ships: Things That Can Get Educators in Legal Hot Water
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,
lesser 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.

Source: http://jannetworld.blogspot.com/2010/08/loose-lips-sink-ships-things-that-can.html