School Business Affairs January 2021

36 JANUARY 2021 | SCHOOL BUSINESS AFFAIRS asbointl.org LEGAL ISSUES judicial precedent in their circuits and/or jurisdictions as well as state statutes and/or regulations limiting boards from adopting and enforcing policies govern- ing the expressive out-of-school conduct of students involved in extracurricular activities. 3. Policies should specify that “good behavior” provisions apply regardless of whether stu- dents are, for instance, in games, practices, or rehearsals, whether on weekends, in-season, or out-of-season. 4. To the extent possible, policies should provide clear example of forbidden speech and expressive activity, a point the Mahanoy court relied on in invalidating the student’s punishment. 5. Policies should direct school officials such as coaches and moderators to conduct informa- tion sessions with students and parents about rules for their activities. 6. Policies should require parents and students to sign a form indicating that they will observe activity and school rules. As an added precaution, policies should have students and parents ini- tial key provisions such as those subject to litigation in Mahanoy , expecting students to avoid foul language and inappropriate ges- tures, particularly when their postings on social media can be readily associated with their schools and activities. 7. Policies should address the due process rights of students who violate the rules. When impos- ing punishments, policies should include progressive levels of discipline, outlining sanctions for first and subsequent offences during the same academic year. Moreover, policies should address whether, and how, students can appeal their punishments. 8. Coaches and moderators should keep parents and students informed about policies by including them in student hand- books, materials sent home, and/ or on district websites, particu- larly those associated with their activities. 9. Because extracurricular activities are integral to student develop- ment, SBOs, their boards, and other educational leaders should review, and, if necessary, revise, their policies during summer retreats to ensure their smooth operations. It is better to not review policies during or shortly after controversies, because plac- ing a ‘cooling off period’ between conflicts and reviews affords bet- ter perspective. Another value in reviewing poli- cies regularly is that in the event of litigation, evidence of their having been updated can help to convince courts that educators did their best to be current, while safeguard- ing student rights in the face of rapid changes in both the law and social media. Conclusion The Supreme Court has yet to accept a case on student (mis)use social media, which changes so rapidly, perhaps rendering a case moot by the time it reaches the Justices. Still, the Court’s inaction on social media has resulted in conflicting judicial judgments throughout the nation such that the Justices will eventually have to intervene. Until such time as the Supreme Court accepts a case, education lead- ers must keep themselves up-to-date on the status of litigation, legislation, and regulations in their states and circuits about the rights of students in extracurricular activities who (mis)use social media. References Bethel School District No. 403 v. Fraser , 478 U.S. 675 (1986). Kowalski v. Berkeley County Schools , 652 F.3d 565 (4th Cir. 2011), cert. denied , 565 U.S. 1173 (2012). Layshock ex rel. Layshock v. Hermitage School District , 650 F.3d 205 (2011), cert. denied , 565 U.S. 1156 (2012). Levy v. Mahanoy Area School District , 376 F. Supp.3d 429 (M.D. Pa. 2019), 964 F.3d. 170 (3d Cir. 2020). J.S. ex rel. Snyder v. Blue Mountain School District , 650 F.3d 915 (3d Cir. 2011), cert. denied , 565 U.S. 1156 (2012). Palmer v. Merluzzi , 868 F.2d 90 (3d Cir. 1989). Tinker v. Des Moines Independent School District , 395 U.S. 503 (1969). Wisniewski ex rel. Wisniewski v. Board of Education , 494 F.3d 34 (2d Cir. 2007), cert. denied , 552 U.S. 1296 (2008). Charles Russo , legal issues liaison for ASBO’s Education Committee, is Joseph Panzer Chair of Education in the School of Education and Health Sciences (SEHS), Director of SEHS’s PhD Program in Educational Leadership, and research professor of law in the School of Law at the University of Dayton, Ohio. Email: crusso1@udayton.edu INDE X OF ADVERT I SERS ASBO Books/Rowman & LIttlefield. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 29 ASBO Certificate of Excellence (COE) �� . . . . . . . . . . . . . . . . . . . . . . . inside front cover ASBO Eagle Institute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 40 ASBO Learn �� . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .page 3 ASBO Membership �� . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .page 4 ASBO Meritorious Budget Award (MBA) �� . . . . . . . . . . . . . . . . . . . . . . inside back cover ASBO SFO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 1 ASBO Global School Business Network. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 32 Digital SBA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 43 Equitable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . back cover Synovia Solutions �� . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 21

RkJQdWJsaXNoZXIy NTMyNTY4