Loose Lips Sink Ships: Things That Can Get Educators In Legal Hot Water-part I

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.

Contributors:

Diana D. Halpenny Attorney at Law

Kronick, Moskovitz, Tiedemann & Girard, Inc.

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Pamela Parker Attorney at Law

Austin, Texas

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Bradford A. King, Esq. Thompson McMullan, P.C.

Richmond, Virginia 23219

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Mark Joel Goldstein Attorney

Milwaukee, WI 53217

Copyright (c) 2010 AIMHI Educational Programs

by: Susan Fitzell

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