Drafting a Social Networking Policy

Issues for districts considering whether and how to regulate employees’ electronic communications

By Joshua D. Herman

joshua.herman@mhtlaw.com

Social networking platforms and personal technology devices provide unique opportunities to educate and interact in the modern age. Unchecked, the same technology can also lend itself to unprofessional behavior by employees and the publication or exposure of records and information to the public that could subject the district or its employees to liability.

Most districts considering a social networking policy are concerned with preventing misuse of district resources and preventing inappropriate communications by employees.  In drafting a social networking policy, a district may want to consider starting with the new Illinois Association of School Boards’ PRESS policy 5:125. This policy attempts to establish the boundaries of professional behavior by district employees without going astray of the First Amendment. Depending on your district’s goals, you may find that the PRESS policy goes too far, or not far enough.  Regardless of what position your district takes, the following matters should be considered when drafting a social networking policy.

Ethical Conduct

A district should consider how to help ensure district employees do not violate their legal and ethical obligations when using social networks or personal technology. One way is to require district-related communications be open and transparent, as well as accessible to relevant district employees, including supervisors and administrators.  Additionally, noting within the policy that the district may search for and review any social networking or other electronic posts to ensure compliance with the policy may help to prevent inappropriate conduct by employees.

Types of Communications Allowed

A district might also consider requiring employees to use only district-supported technology for district- related communications (district email, homework forums, etc.). This restriction should help to avoid misuse of district resources while giving the district greater opportunity for investigation and review if any issues arise. Further, restricting employee communication with students to only district-supported technology should greatly reduce the potential for unprofessional or peer-like interactions to occur. However, some districts do not have such technology and others may allow or even encourage employees to engage students using other common methods of communication. Districts should consider whether and when an employee may conduct district business outside of district-supported technology and explicitly address these exceptions.

Private Contact Information

To prevent private, personal, and peer-like communications between employees and students, a district may also want to consider prohibiting employees from providing their private contact information, such as email and personal phone numbers, to students. Such a provision would likely require specific exceptions because, for example, traveling sports and competitive teams often benefit from the quick communication allowed by mobile phones. If a district authorizes such communications with private devices, a policy may require prior approval by administration before private contact information is shared with a student. A policy may also require that a copy of the information given to the student is given to both the employee’s supervisor and the student’s parent, with an explanation of why the information was shared, as well as when and in what circumstances that form of contact will be used.

Responsibility For Publicizing Information

While a district cannot prevent an employee from using social networks, it can notify employees that they are responsible for what they post. Consequently, a district should consider explicitly stating within the policy that employees who use social networks are responsible for the content and consequences of their communications. A social networking policy may make clear that it is the employee’s obligation to read and understand the terms of use for each forum used. A social networking policy should also make clear that employees shall not post information that would violate student records laws or privacy concerns, or divulge other confidential district information.

Professional v. Peer

Usually, the primary purpose of a social networking policy is to avoid an appearance of impropriety by district employees.  To this end, many districts consider restricting social networking and personal technology use during the school day.

A district may also consider prohibiting a direct social networking relationship with current students (such as “friending”), with some exceptions. A total ban would likely violate the First Amendment, as the state of Missouri recently discovered when it recently passed a law stating: “No teacher shall establish, maintain, or use a non-work-related internet site which allows exclusive access with a current or former student.” In August 2011, a circuit court judge issued an injunction, preventing the new law from going into effect because its restriction was so sweeping that it would have a chilling effect on speech. In addition to potentially violating the law, a total ban might also have the unintended effect of preventing a district employee from “friending” their own child or other relative, church youth group member, etc. Consequently, any limitation on social networking interaction must be carefully crafted.

Disclaimer

Although the district has an interest in providing a framework for employee behavior in the public arena, the First Amendment prevents the district from completely banning an employee’s use of social networking sites. However, districts need not become associated with every public word posted by their employees. Thus, many districts require social networking employees to provide a disclaimer.  This provision would require district employees who, through their use of social media, refer to the district or may be identified as a district employee, to provide a disclaimer that any opinions are those of the individual and are neither endorsed by the district nor representative of the district’s views or policies.

Bargaining

Any policy a district does choose to implement regarding employee use of social networking and personal technology will likely touch upon, if not change, the terms and conditions of employment; therefore, such a policy may have to be bargained.  A district may avoid issues at bargaining by seeking input from employees who regularly use social networking prior to the policy drafting stage.

Conclusion

A district implementing a social networking policy can avoid legal missteps by remembering throughout the process that the policy is not meant to control all on and off campus communications, but to ensure professional relationships between district employees, students, and their parents.

 

Joshua Herman - Young Lawyer of the Year

Joshua Herman named Young Lawyer of the Year by ISBA

Miller, Hall & Triggs LLC congratulates Joshua D. Herman on being named the 2011 Young Lawyer of the Year by the ISBA.

Selection is based upon the lawyer’s particular achievements in the practice of law, including excellence in advocacy, counseling, or litigation; contributions to the advancement of the Bar of Illinois and the legal profession generally; and service to the community.

One of the letters in support of Josh’s nomination wrote, “Joshua is respectful to the litigants as well as to opposing counsel. He is always well prepared and provides competent guidance to the Court when there is a unique or complicated legal issue.” Another supporter wrote, “Joshua Herman possesses all of the necessary qualities embodied in this Award. His hard work ethic and tough-minded, yet realistic approach to the law make him an excellent candidate.”

Congratulations, Joshua!

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Click here to read the appellate court’s opinion.

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Read the appellate court’s now-invalid decision here.

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richard.joseph@mhtlaw.com

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richard.joseph@mhtlaw.com

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richard.joseph@mhtlaw.com

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jay.greening@mhtlaw.com

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