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June 2010
But they do grind. And thus we see that even the U.S. Supreme Court is now immersed in analyzing the legality of city officials searching for the text messages one of its police officers sent and received on his city-issued device (City of Ontario v. Quon). "Tech Toolbox" columnist Terry Morawski and I are writing about electronic communications this month — he from the tech guru perspective and me from the legal side. And my first point is that we lawyers can and will bow to the inevitable: Resistance to using these technologies is futile! Lawyers are paid to see problems in the gestation stage; we are apt to say "no" just to buy time. So, when email, text messaging, smartphones, Facebook, YouTube and Twitter established a beachhead in our schools, many school law firms advised their clients to avoid such "tools of the devil." Dangerous devices, we said. Be careful. Better stick to the tried and true, we advised. Well, that’s not going to work anymore. Once that smartphone slips seductively into the palm of your hand, you are not going to let it go. There is no doubt that 21st century schools are going to employ 21st century tools. We cannot turn back the clock, nor should we. Therefore, we lawyers need to help you figure out how to use these tools wisely and legally. Point No. 2: Let’s not forget the PIA! The Public Information Act in Texas begins with a lofty statement that sounds like it was lifted from either a Boston Tea Party flyer or the writings of Thomas Jefferson. It reads: "The people, in delegating authority, do not give their public servants the right to decide what is good for them to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy." With this in mind, teachers and staff need to be reminded often that any electronic communication pertaining to district or school business will likely be considered "public information," regardless of where or how the communication was generated. The simplicity of email and text messaging lends itself to informality, irreverence and sometimes awkward attempts at humor. Most of us have experienced sending a well-intentioned email to a friend, only to learn that our friendly "e-poke" to the ribs felt more like an "e-stab" in the back to the recipient. We should remember to be thoughtful and professional when communicating in writing — even in electronic communications. Point No. 3: Don't forget FERPA! If you use electronic communications to discuss individual students, be aware that the stakes are even higher because the Family Educational Rights and Privacy Act comes into play. I recently got a call from a school district about a teacher who had posted on Facebook, for the whole world to see, the following: "I've been moved up to high school! I still have Tiffany Sue, though." (Name changed to protect the guilty.) If you were Tiffany Sue's mom or dad, would you construe that remark as disparaging? I would. Teachers and administrators need to be reminded that parents have almost unfettered access to school records pertaining to their children. What it truly comes down to is using good judgment and common sense. Let's use our new toys responsibly, and we are likely to stay within the bounds of the law. JIM WALSH is editor in chief of Texas School Business. Also a school attorney, he co-founded the firm of Walsh, Anderson, Brown, Gallegos & Green, P.C. He can be reached at jwalsh@wabsa.com or by visiting www.walshanderson.com. |
Lawyers are, by nature, a conservative lot, grounded in tradition and precedent. "Stuck in the mud" might be another way of saying that. Thus, when it comes to the dizzying rate of change in the high tech world, we lawyers are lost little lambs. Sure, we hear a lot about these new tech toys and "apps," but we prefer books and legal pads. Meanwhile, the wheels of justice grind ever so slowly.