Legal Lookout: Where Higher Education, Social Media and the Law Collide

The tools social media provides higher education have implications for students, faculty, administrators, academic institutions, and beyond. The more each of these groups understand these tools, the more the field of education will learn in balancing related legal issues.

Over the last decade, numerous studies have pointed to positive student outcomes from integrating social media into academic courses, campus life and student outreach. Some of these include community building, connecting with campus resources and connection with faculty.

As these tools increase in usage, university users and institutions may find themselves at greater risk for legal matters. Like most legislative literature, this post is content heavy. It is meant to be a resource that will be built upon as additional federal and state polices are applicable.

Please note: I am not a lawyer. I am a doctoral student in Higher Education Leadership, with 10 years experience working at college campuses. My research is based in social media in higher education.

With that out there, I offer what I have collected in my Higher Education Policy Development, as well as Higher Education Law course work. A variety of court cases have risen in the last decade surrounding social media where both students and educational institutions have taken up legal action based around online behavior. In addition, state governments have responded swiftly in creating bills that fall under social media use. The state of California has two recent examples of these:

  • Assembly Bill 1844: Employer Use of Social Media
  • Senate Bill 1349 Social Media Privacy: Postsecondary Education

There also remain long-standing national policies that can seriously impact usage of social media and technology, both in the classroom and throughout campus, including:

  • National Labor Relations Act
  • First Amendment, Freedom of Speech
  • Americans Disabilities Act (ADA)
  • Family Educational Rights and Privacy Act (FERPA)
  • Copyright and Digital Millennium Act

California AB 1844

Under the Assembly Bill 1844, called Employer Use of Social Media (2012), California employers are not allowed to require, or even request, applicants or employees social media log in information. This bill applies to Division Two of the Labor Code, and protects employees from being fired (or threatened) for not providing such information. The act defines social media as,

“Electronic service or account, or electronic content, including but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations” (Employer Use of Social Media, 2012, p. 1).

The details of the bill include applicants and current employees who do not need to give their usernames or passwords for the employers’ access. It also states that employers cannot ask for access in the presence of an employee. For example, asking an employee to show them their Facebook profile during a meeting, interview, etc.

The bill clarifies that those employees who are issued an electronic device, such as mobile phone or laptop, may still be required for information. Finally, there are terms where employers can use social media activity with their employees. For example, if it is relevant in an investigation of allegations. The bill concludes with a section that reads,

“An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section…” (Employer Use of Social Media, p. 2).

The addition of this bill to California law now protects all applicants and employees at higher education institutions from being asked for private information. What is not clear is if, for example, a faculty or staff chooses to use their social media accounts for work related functions, such as in their courses or departments, if institutions could still require access. What appears to be the tipping point for employees is if they are issued a phone or computer. Faculty must be aware of their actions on university provided technology, especially if their online behavior includes both personal and professional use.

Keep in mind, this bill is only for the state of California. Various other states have taken up similar legislation. Do some research based upon your location.

California SB 1349

The same time as AB 1844 was adopted, Senate Bill 1349 called Social Media Privacy: Postsecondary Education (2012) was passed. This bill was specifically written to protect students in postsecondary institutions. It keeps higher education employers or representatives from requesting or requiring any student (current or applicant) or student group to give social media information. Schools cannot threaten students for access, nor take action if students or students’ groups refuse access. The bill acknowledges that evolving technologies and social media capacities creating challenges to protect students,

“It is the intent of the legislature that public postsecondary educational institutions match compliance and reporting requirements for private nonprofit and for-profit educational institutions imposed in this act” (2012, p. 1).

It also adds a requirement that requires nonprofit and for-profit institutions to post their social media privacy policy on their website.

With similar language to AB 1844, students cannot be required to give usernames or passwords of their social media accounts, nor be asked to log in to their profiles by a university employee (2012). In addition, students are not required to provide any social media personal information.

The second part of the bill creates limits to higher education judicial sanctions of social media, specifically, as recourse of not providing account information. However, the last section does allow institutions to act against student social media misconduct that violates laws and regulations. Meaning, if misbehavior occurs online that violates campus policies, the bill would not restrict universities to respond and adjudicate based on current judicial codes.

The importance of this bill for faculty, administrators, and students at college campus is significant. All must be made aware of student rights, as well as, responsibilities for usage. When the rights of students are violated is when legal action has been documented, in such protections as the first amendment.

National Labor Relations Act

Exploring online professionalism and social media, Greysen, Kind and Chretien (2010) cited, “School teachers and lawyers across the country have been sanctioned or fired for online indiscretions felt to violate societal expectations for how they represent personal lives in the pubic sphere” (p. 1227). In fear, many professionals have pulled back on usage, not knowing what may or may not constitute employer response.

The National Labor Relations Act (NLRA), overseen by the National Labor Relations Board (NRLB), can intervene at higher education institutions. The act went into law in 1935 to protect employees and employers. In particular section 7, gives employees the right to organize and engage in concerted activities (National Labor Relations Act, retrieved at http://www.nlrb.gov/national-labor-relations-act). As found on the NLRA website,

“The National Labor Relations Act protects the rights of employees to act together to address conditions at work, with or without a union. This protection extends to certain work-related conversations conducted on social media, such as Facebook and Twitter” (National Labor Relations Act, U.S.C. 29, C. 7).

As mentioned by Graumich and Phinyowattanchip (2013), the NRLB intervened on a case related to a Facebook where a social service professional at Hispanics United of Buffalo, Inc. and several other colleagues were fired for what the nonprofit deemed against the ‘bullying and harassment,’ as well as, ‘zero tolerance’ policies. While at home, an employee posted on her Facebook page complaining about her coworkers and claiming she was going to tell her boss. One of the coworkers responded in a separate post, which resulted in a number of other coworkers joining in the heated online debate. After the terminations, the NRLB stepped in to declare it was unlawful to fire the employees, even if they violated company policy.

How this was unlawful was the type of behavior observed, which fell under the Act’s protection. “It is an unfair labor practice for any covered employer (of NLRA) to interfere with, restrain, or coerce employees in the exercise of their right…to engage in concerted activities for the purpose of…mutual aid or protection” (Graumlich & Phinyowattanchip, 2013, p. 1).

In this case, the act was a concerted activity (not alone) with the aim to protect and aid themselves. Examples such as this give institutions of higher education direction on how to or how not to respond to similar situations.

First Amendment, Freedom of Speech

A number of lawsuits have risen from both secondary and higher education institutions. Most are from students suing their schools actions against social media use, claiming that their first amendment rights were violated. The first amendment, as defined by the US Constitution, states the following protections under Amendment I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (Retrieved from http://uscon.mobi/usc/a/1.html)

Looking at the legal implications of student social media use both in the United States and United Kingdom, Davis and Less (2008) discussed a number of cases. Snyder v. Millersville University was related to student performance and an off-campus teacher placement. Student Snyder that filed the case against the university was observed unable to maintain appropriate distance from her student, as was found on Facebook. Because of this, she received low scores on her teacher evaluation. Based upon poor evaluations, she did not meet the requirements to receive a teacher certificate. While she was awarded of Bachelor of Arts in English, Snyder would not be certified to be a teacher.

In response, she sued the university, faculty, as well as, administrators for violating her first amendment rights, as well as fifth and 14th related to due process. She believed that it was due to her activity through Facebook that she was penalized. A non-jury trial evaluated her first amendment claim, finding no violations present.

“It was the school districts’ negative evaluation of Snyder that led the university to give her a failing grade in her student teaching assignment. The university lacked the authority to grant Snyder the BSE degree, according to the court” (2008, p. 264).

This case backed the university in their decision-making. If she sued the high school that evaluated her poorly based upon her social media interactions, the case may have played out differently.

There are very few examples of college students being sued by their institutions for social media activity. There does exist a case, Crosby v. South Orange County Community College District, where a student challenged a library computer policy. Here, Crosby challenged that the computers could only be used for educational and employment purposes. Even knowing this policy, the student used Facebook and as a result, their records were held until they would meet with a college administrator. While the student did do this and was not disciplined, he sued.

Crosby cited a California statute that “prohibits public colleges from punishing a student for on-campus conduct that would be protected by the First Amendment had it occurred off campus” (Davis and Less, 2008, p. 264). The student won and the college had to amend the policy for library computer use. The importance of access was upheld, a similar challenge that the American with Disabilities Act enforces considering technology and social media tools.

Americans with Disabilities Act (ADA)

Looking at this act through the operations of a college classroom, access and accessibility is of concern with technology integration. Americans with Disabilities Act (ADA) requires educators to offer adjustments for academic learning. “Faculty members need to consider a chosen medium’s ability to accommodate students’ diverse learning needs, which include accessibility as defined by the ADA” (Rodriquez, 2011, p. 6). Unfortunately, this is not always the common practice, even without the inclusion of social media in the classroom.

Failure to offer accommodations have resulted in legal action, not only by student response, but organizations whose mission is to serve populations at greatest need of ADA. For example, Rodriguez (2011) cited that the National Federation of the Blind, claiming technologies used discriminated against blind students, was suing both Pennsylvania State University and Arizona State University.

ASU was using Kindle technology to provide electric textbooks instead of printed textbooks; Penn was being sued by their overall use in technology including on their websites. Penn State websites were found to be inaccessible to a blind student. Unfortunately, the same can be true with many social media sites, including Facebook and YouTube, as found on Ability Net, a disability chart from the UK (Rodriguez, 2011).

Both faculty and administrators need to keep this act on the forefront of understanding and enforcement. The key is keeping student needs and protections a priority when integrating social media into the curriculum.

Family Educational Rights and Privacy Act (FERPA)

This law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. It is a federal law that protects the privacy of student education records (Rodriguez, 2011). Considering privacy and security on the Internet and through technology, there are many methods that a students’ personal identifiable content may be reveled. While most of the act provides clarity with parental and guardian communication with the institution, it also calls attention to faculty who have certain information on students.

Faculty should not post confidential information about students through social media platforms, nor should curriculum using social media tools require students revile such content. If in question, written permission may need to be obtained. Adding to complication, is understanding and adherence to copyright requirements.

The US Copyright Act

Another reason that higher education institutions may waver at utilizing social media communication tools is to protect intellectual property. This is being challenged from digital technologies, both from the originator and those that are interested in using an original works in the classroom (Rodriguez, 2011). Best practices for educators is to always give credit to original sources, as well as having an understand of both copyright and digital millennium copyright acts.

Copyright protects original works in a variety of mediums, from literary, movies, music, and architecture. As found in the 17 US code, section 104, copyright also covers unpublished and published works. This would fall under faculty use of social media tools, to place original works. Section 107 of the code also provides limits on exclusive rights for educational works. Since faculty and possibly even higher education administrators fall under this educational works, they usually will be protected for usage. Digital ‘copies’ however are making it more challenging considering perfect copies are more sharable (Rodriguez, 2011). Caution should be used in upload or sharing a perfect copy, as it pertains to Digital Millennium Copyright Act (DMCA).

“Recognizing the ease with which digital content can be copied, remixed, and reused in what to facilitate discussions or assign readings about ownership and attribution, addressing ethical and legal content use” (Rodriguez, 2011, p. 5).

DMCA allows copyright holders to initiate the removal of content they claim to infringe their copyright, through digital forms (2011). This act was added to the US Copyright Act in 1998 as a response to the emerging technologies available for content sharing. A best practice for faculty is always acknowledging original sources of content, even better to seek approval for the educational use of content.

Risk is Involved, Now What?

Risk is involved in every area of campus. From student activities events, residence halls, outside speakers, academic buildings and supervising students, risk management is at play. Leaders in higher education must not be crippled in fearing this risk, but using knowledge as fuel to bring out rewards of social media.

Those on campus who embrace and advocate for emerging technologies in and out of the classroom can serve as models for positive online behavior and integration of successful social media initiatives. This also includes challenging campus social media/technology practices that might fall into the yellow or red zone of any state or federal policies, such as ADA. Adopters and supporters should also be willing (and ready) to explain technologies to colleagues an especially senior administrators, being prepared to validate digital communication tools through the lens of campus, state and national policies. Answering the question, is it worth the risks?

Previous research on social media usage of students and faculty, in addition to applicable laws and regulations that interact with online communication tools, offer some direction for higher education leaders to respond. What needs to be addressed is a policy that speaks to the mission, student population, and technological capacities at each campus. Based on Malesky and Peters (2011) study of faculty professional behavior with university students on social networking sites, they suggest

“Institutions of higher education need to develop policies and procedures addressing the issues. At the very least, it is recommended that universities develop guidelines to define what constitutes appropriate and inappropriate SNS usage in their academic setting” (p. 145).

Building off of the authors’ recommendations, a social media policy and staff and faculty professional development should be quickly implemented. Both of these topics will be addressed in future posts on this blog.

References

Davis, M. R. & Lee, B. A. (2008). The legal implications of student use of social networking sites in the UK and US: current concerns and lessons for the future. Education and the Law, 20(3), 259-288.

Employer Use of Social Media, California Assembly Bill 1844. 2012, c. 613, California Legislative Information, retrieved from http://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml

Graumich, B. and Phinyowattanchip P. (2013). Private colleges and universities should , in the age of social media, devote increasing attention to the “labor” portion of labor and employment law. Higher Education Council, retrieved from elahighereducationcouncilreport.com/tag/social-media/-

Greysen, S. R., Kind, T., & Chretien, K. (2010). Online professionalism and the mirror of social media. J Gen Intern Med, 25(11), 1227-1229.

Malesk, L. A. & Peters, C. (2012). Defining appropriate professional behavior for faculty and university students on social networking websites. High Educ, 63, 135-151.

National Labor Relations Act, United States Code 29. 1935, c. 7, retrieved from http://www.nlrb.gov/national-labor-relations-act.

Rodriguez, J. (2011). Social media use in higher education: key areas to consider for educators. MERLOT Journal of Online Learning and Teaching, 7(4), 1-12.

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