Trend Lines: Creating Policies for Social Media Discipline

Spring 2020

By Mark E. Brossman, Donna Lazarus, Diane Rosen

Most educators agree that teaching social media in school is as important as teaching traditional subjects like math and science. The impact of social media on independent schools is ubiquitous, challenging, and often contentious. They include inappropriate communications among students; circulation of racist, anti-Semitic, or sexist comments, “jokes,” and images; threats of violence; explicit sexual images; and bullying or other types of intimidation or shaming. While there is usually no intention for the offending posts to be seen by anyone other than one person or a small group of friends, increasingly, they are often widely distributed and cause an uproar in the school community. What to do in these circumstances falls on the school, even when the matter occurs outside of school.

So how do leaders and administrators create policies that set forth appropriate use of the school’s technology and student-owned technology at school? Should schools develop policies that address social media use on student-owned technology off-campus? And how do schools handle discipline when students violate those policies? Many school leaders find that they are creating policies or trying to apply other school policies to social media use in the thick of a crisis. Instead, schools should be proactive about this rapidly evolving area.

The Issues at Hand

Most education attorneys use the U.S. Department of Education's definition of social media: “forms of communication either internet- or text-based that support social interactions of individuals.” Students of all ages use social media with increasing frequency for social networking (Facebook, LinkedIn), microblogging (Twitter, Tumblr), photo sharing (Instagram, Snapchat, Pinterest), and video sharing (YouTube, Facebook Live, Periscope, Vimeo), according to “Teens, Social Media & Technology 2018,” a Pew Research Center report. Ninety-five percent of teenagers have a smartphone or access to one, and 45% say they are online “almost constantly,” according to the Pew report. New apps are constantly evolving, and it’s clear that social media is here to stay. So are the issues that schools are facing. And from a legal perspective, the most common problems they are grappling with include cyberbullying, sexting, and threats (of violence and self-harm).

As a way to begin understanding the issues, we suggest considering state and local laws—which don’t necessarily apply to independent schools—for guidance. As schools delve into the issue of cyberbullying, for example, they can explore the laws related to harassment and bullying. New York’s Dignity for All Students Act describes cyberbullying as “harassment or bullying by any form of electronic communication” and “includes incidents occurring off school property that creates or would foreseeably create a risk of substantial disruption within the school environment.”

Acts of bullying include, but are not limited to, those acts based on an actual or perceived power imbalance or based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex. Where the acts are based on a personal characteristic protected by law, it may also be considered harassment. The New York State Education Department has noted that “cyberbullying includes sending, posting, or sharing negative, harmful, false, or mean content about someone else. It can include sharing personal or private information about someone else to cause embarrassment or humiliation.” Some cyberbullying may be criminal.

The use of social media to send sexual images, or sexting, has become an issue for which schools often require legal assistance. The act may constitute a crime under state and federal pornography laws, so schools that come in possession of an image of a child that may constitute child pornography should seek counsel.

Meanwhile, we’ve also seen students use social media to make threats to commit acts of violence against other students, faculty, or the school itself. In this age of mass shootings, it’s critical to understand that all such threats need to be taken seriously. Some schools engage outside “threat assessment” experts to advise them on specific incidents and more broadly. For some schools, when they perceive a threat, they may suspend the child, pending an opinion from a mental health professional that the student does not pose a risk to themselves or others. In some other cases, law enforcement may be notified.

Another type of threat—students expressing thoughts of suicide, self-harm, eating disorders, and other mental health concerns via social media—requires the school’s awareness, attention, and sometimes legal help as well. In some cases, students will see a post from another student and will share it with the school. Understanding student health and well-being, as well as having a plan to support students, can be the first step to protecting the school community. 

When Should Schools Get Involved?

Student use of electronic communication that is school-owned or regulated, or that occurs on campus or at a school event or activity, clearly requires involvement and oversight by schools. The more challenging questions revolve around whether a school should become involved in regulating off-campus social media interactions. And if so, when and to what extent?

Some schools attempt to avoid involvement in off-campus activity, including social media matters, reasoning that parents, not schools, should address such behavior. These schools either don’t address off-campus social media and electronic communication issues in their policies, or they include language in their enrollment contract that releases their school from claims arising off campus. Other schools, particularly boarding schools, are very involved in student electronic communication and social media use, even if it’s off campus.

Most schools, however, land somewhere in the middle and become involved in off-campus electronic communication and social media use when it impacts the school environment, such as in the case of cyberbullying or harassment among students. While the activity and interactions may have occurred off campus, it involves the ongoing relationship of the students at the school. In these circumstances, the parents of the child being harassed or bullied expect the school to “protect” their child. Schools also become involved when they learn of social media messages that involve a safety issue or threat (suicide or violence) or unlawful activity (drug use and dealing).

Best Practices

School policies will vary based on the age of school populations, applicable law, and school culture, but all schools should have an Acceptable Use Policy (AUP) in student/family handbooks, which students and parents can sign off on. At a minimum, the policies can include guidance regarding passwords and privacy (keeping passwords confidential, not attempting to guess another person’s password, etc.); intellectual property and academic honesty/plagiarism; hacking and viruses (barring distribution of viruses, listing ways students can avoid hacking sites, etc.); internet restrictions for educational use; and an explanation that technology resources must be used in compliance with all other school rules and community standards (banning harassment, discrimination, bullying, etc.).

An AUP should also explain that students don’t have any right to privacy on school-owned technology or when they’re using their own devices on the school’s networks, and that the school may monitor or search for such use at its discretion. If inappropriate use, such as playing video games or accessing inappropriate sites or images, is found, students may be disciplined.

It is important to anticipate and prepare for the inevitable social media-related student crisis or discipline situation. To do so, in addition to an AUP, schools should create specific policies around issues. For example, a policy can make it clear that cyberbullying is not acceptable, regardless of where the incident begins. Cyberbullying also may be addressed in a more extensive bullying policy that defines or describes cyberbullying; provides a reporting mechanism for students, parents, and faculty; describes a procedure for investigation and remedial or disciplinary action; and prohibits retaliation against an accuser. Student codes of conduct also should state that violations of the school’s behavioral expectations can occur electronically or via social media (whether generated during school hours and/or on school property).

While robust policies and procedures are a critical enforcement tool for schools, educating students, faculty, and parents about the proper use of social media is critical. Schools should teach students in a proactive, age-appropriate way about the school’s policies, the laws, and the nuances and implications of the effects of what they post. Schools should provide ongoing, mission-aligned training about how to use social media as well as how to identify the dangers. (For more on social media education, read "The Future of Social Media," a Summer 2018 Independent School magazine article.)

Often, it’s difficult to determine who may be the author or creator of offensive comments or images, and who may have been involved in sending them to other students at the school or elsewhere. It’s important to have procedures and resources in place for investigations before a crisis arises, including a chain of command for social media-related situations with reporting to a division or department head or principal and ultimately the head of school. Schools should also seek guidance from experts at the school (psychologists, guidance counselors, IT, and others) as well as outside resources (investigation firms, forensic computer consultants, local police departments, school counsel, and others). 

On Discipline

Because social media use—and abuse—is rapidly evolving, school officials need to create policies that give them sufficient discretion to address social media violations and consequences as they see appropriate based on their expertise. Disciplinary consequences for social media violations, like other consequences, may range from warnings, reflections, educational training, detentions, suspensions, and expulsions. It will vary by school, but schools should set a policy that ensures consistency and nondiscriminatory action, which is essential in all discipline.

In our experience, schools discipline students based on the disruption caused in the community—intent is not the issue. Intent may be considered a factor in determining consequences, however. Many social media-related issues with children reflect immaturity, not malice, but when made public within the community, the reaction can be harsh. Many parents want those involved to be expelled. For many independent schools, however, expulsion is not necessarily the go-to response. This tension often results in criticism of the school as the parents of the disciplined student want a more lenient consequence, and other parents may believe the consequences should be stronger.

Social media disputes frequently spread like wildfires—everyone has an opinion, and the school is often placed in the middle. Schools will inevitably be confronted with controversial and difficult social media issues. Schools must be proactive and be prepared to deal with the wide variety of issues that will ultimately arise.
Mark E. Brossman

Mark E. Brossman is a partner at Schulte Roth & Zabel in New York, New York, where he represents numerous independent schools.

Donna Lazarus

Donna Lazarus is a special counsel at Schulte Roth & Zabel in New York, New York, where she represents numerous independent schools.

Diane Rosen

Diane Rosen is counsel to Ortoli Rosenstadt, a mediator, executive coach, and consultant in New York, New York.