PAGE 1 AN ANALYSIS OF THE FIRST AMENDMENT IN PUBLIC SCHOOLS AND AN EXAMINATION OF HOW IT WILL BE APPLIED TO ELECTRONIC COMMUNICATION OFF SCHOOL HOURS FOR TEACHERS AND STUDENTS By LEANNA C. RODRIGUEZ A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF EDUCATION UNIVERSITY OF FLORIDA 2020 PAGE 2 © 2020 Leanna C. Rodriguez PAGE 3 To Alexis, Brooke, and Evan, thank you for your patience while I undertook this monumental task over the last four and a half years, I hope that I have inspired you to become whomever you want to be in life and have learned that through hard work and dedicati on, anything is possible ; t o Greg, without your love, support and encouragement, I know that this would never have been possible. Thank you for always waiting for me if I should fall behind ; t o my parents for teaching me to always strive for greatness and ; f inally, to my grandparents, aunts, uncles, and cousins, thank you for your unconditional support and for keeping me grounded PAGE 4 4 ACKNOWLEDGMENTS I would like to thank the faculty and staff at the University of Florida for their guidance and dedication throughout this process. Special thanks to my doctoral committee: Dr. Thomas Dana, Dr. Christopher Redding, Dr. David Miller, and Chair Dr. Linda Eldridge, whose hours of advice and direction helped me complete this dissertation. PAGE 5 5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ ............... 4 LIST OF TABLES ................................ ................................ ................................ ........................... 7 LIST OF FIGURES ................................ ................................ ................................ ......................... 8 ABSTRACT ................................ ................................ ................................ ................................ ..... 9 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ .................. 11 Area of Research ................................ ................................ ................................ ..................... 11 The First Amendment in the Courts ................................ ................................ ................ 13 First Amendment Issues in the Media ................................ ................................ ............. 16 Social Media in Schools ................................ ................................ ................................ .. 20 Organization of the Study ................................ ................................ ................................ ....... 23 Research Question ................................ ................................ ................................ ........... 24 Limitations ................................ ................................ ................................ ....................... 24 Importance of Research ................................ ................................ ................................ ... 25 2 LITERATURE REVIEW ................................ ................................ ................................ ....... 28 Overview ................................ ................................ ................................ ................................ . 28 First Amendment Cases in the United States Supreme Court ................................ ......... 30 First Amendment Ca ses in Lower Courts ................................ ................................ ....... 35 Florida Statutes ................................ ................................ ................................ ................ 42 Freedom of Speech in Schools: Articles and Media ................................ ....................... 45 ................................ .......... 51 Summary ................................ ................................ ................................ ................................ . 60 3 METHODOLOGY ................................ ................................ ................................ ................. 61 Legal Analysis and Current Actions ................................ ................................ ....................... 61 Data Collection and Analysis ................................ ................................ ................................ . 62 4 FINDINGS AND ANALYSIS ................................ ................................ ............................... 65 Introduction ................................ ................................ ................................ ............................. 65 Findings ................................ ................................ ................................ ................................ .. 66 Florida Districts ................................ ................................ ................................ ............... 66 Research Questio n ................................ ................................ ................................ ........... 89 PAGE 6 6 5 DISCUSSION, CONCLUSION, AND RECOMMENDATIONS ................................ ......... 94 Summary ................................ ................................ ................................ ................................ . 94 Discussion ................................ ................................ ................................ ............................... 94 Recommendations ................................ ................................ ................................ ......... 103 Limitations and Suggestions for Further Study ................................ ............................. 105 APPENDIX A CYBERBULLYING DATA ................................ ................................ ................................ 107 B FLORIDA DEPARTMENT OF EDUCATION MODEL POLICY AGAINST BULLYING ................................ ................................ ................................ .......................... 109 C BREVARD COUNTY SOCIAL MEDIA GUIDELINE ................................ ..................... 111 D CLAY COUNTY STUDENT SOCIAL MEDIA GUIDELINES ................................ ........ 113 E MIAMI DADE COUNTY TOP TEN TIPS FOR SOCIAL MEDIA ................................ ... 114 F VOLUSIA COUNTY SOCIAL MEDIA GUIDE ................................ ................................ 117 LIST OF REFERENCES ................................ ................................ ................................ ............. 122 BIOGRAPHICAL S KETCH ................................ ................................ ................................ ....... 127 PAGE 7 7 LIST OF TABLES Table page 4 1 Florida district policies ................................ ................................ ................................ ........... 66 PAGE 8 8 LIST OF FIGURES Figure page 2 1 Threat posted to Discord ................................ ................................ ................................ ......... 53 4 1 Manatee County on campus/off campus Internet usage ................................ ........................ 91 PAGE 9 9 Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Education AN ANALYSIS OF THE FIRST AMENDMENT IN PUBLIC SCHOOLS AND AN EXAMINATION OF HOW IT WILL BE APPLIED TO ELECTRONIC COMMUNICATION OFF SCHOOL HOURS FOR TEACHERS AND STUDENTS By Leanna C. Rodriguez December 2020 Chair: Linda B. E l dridge Major: Educational Leadership This study was an analysis of how Florida Public Schools have interpreted the First social media outside of school hours. The researcher examined the d istrict policies of Florida and compared those with state mandates. The study includes an overview of existing case law and current issues regarding social media , especially considering cyberbullying and school violence. The research question was applied to the a nalysis of the district policy , and I found that, though most of the districts included some type of language addressing electronic communication, they were lacking in language specifically addressing social media use and possible consequences. I provide p olicy recommendations regarding how to amend existing policy to sufficiently address the reality of social media and strike a fair balance between the responsibility of a school to educate students and keep them and faculty safe , ensuring their rights are protected. Freedom of Speech is one of the foundations of the United States , and it is critical that schools adapt to the emerging technology without infringing on the rights of teachers and PAGE 10 10 students to freely express themselves. This study identified cert ain weaknesses that existed in Florida Public Schools while including recommendations that would address those weaknesses. PAGE 11 11 CHAPTER 1 INTRODUCTION Area of Research 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 red ress of grievances . 1 Tinker v. Des Moines 2 was the benchmark United States Supreme Court case that addresse d freedom of speech in public schools. Three public school students in Des Moines, Iowa , were suspended from their school for wearing black armband s in protest of the Vietnam nor infringing upon the rights of other students and teachers. They were expressing their opinion by wearing the armbands in silent p rotest. The Supreme Court upheld the student right to wear the armbands, concluding that their rights did not stop when they stepped onto school grounds 3 and that the actions of the students did not cause a disruption to the education of other students. The school district, they concluded, acted on fear of possible disruption, not the peace ful actions of the students w earing the armbands. The issues brought up in Tinker began to shed light on whether students C onstitutional rights were protected in public schools . Supreme Court cases that followed Tinker have been inconsistent in deciding what rights students are entitled to in school and to what extent students and teachers can express themselves in schools. In Hazelwood v. Kuhlmeier , 4 the U.S. Supreme Court, under Chief Justice Rehnquist, decided the schools did not have to allow all forms of 1 U.S. Const., amend. I. 2 Tinker v. Des Moines Indep. Cnty Sch. Dist ., 393 U.S. 503 (1963). 3 Ibid. 4 Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988) . PAGE 12 12 officials in this case prohibited students from publish ing two stories in the student run newspaper, arguing that the topics were inappropriate teenage pregnancy and divorce for a newspaper that was part of a Journalism class and part of the curriculum . The Court upheld the control. 5 Freedom of s peech and the First Amendment are coming into question in the still emerging use of technology and electronic communication. Students and teachers use social media for personal and educational purposes. The limitations on students and teachers use of school property for this expression are clear: t where is the line drawn when a student or teacher is using social media at home on a privately owned computer or other device? This area of research and policy is not clearly defined , though there is a need for it. With the pervasive spread of technology use in schools, principals and district officials must develop policy that encompasses online privacy and to the consequences of issues s uch as cyberbullying and threats or disparaging comments concerning students and taken in their private lives? If a teacher uses social media to express his or her political opinions, can the school ask the teacher to cease and desist? If a group of students posts picture s on social media of a weekend party where alcohol is involved , what right does the sch ool have to intervene and discipline? In recent years , school shootings and cyberbullying are two important issues that have changed due to the prevalence of social media. Nikolas Cruz, who killed 17 students and faculty at Marjory Stoneman Douglas High School in Parkland, Florida in 2018, had posted disturbing 5 Hazelwood , 484 U.S. at 260 . PAGE 13 13 messages and i mages on social media prior to the shooting. Many cases of cyberbullying have ended in the suicide of the victim. Phoebe Prince hanged herself in Massachusetts in 2010 after relentless bullying from classmates , both on social media and in person. According to CNN, it 6 In addition to those locations, social media was also a forum for the name calling ; si tes such as Facebook and Twitter were used to spread insults memorial page. 7 Teachers and other school staff were aware of the tormenting and took no acti on. These are the issues that were examined in this study by reviewing the history of the First Amendment in schools via federal and state court cases and noting any patterns in the decisions or if the decisions had no pattern s and change as the makeup of the court changes. This study also analyzed district policies from all school districts in Florida to see if they address the use of social media and electronic expression and what trends can be extrapolated from a review of the data. The First Amendment in the Court s In the majorit y opinion in Tinker v. Des Moines , Justice Fortas wrote , the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was clos w hich, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. 8 The 6 CNN , April 9, 2010, https://www.cnn.com/2010/CRIME/04/09/massachusetts.bullying.suicide/index.html. 7 o suicide by teenage cyber Daily News , March 29, 2010, https://www.nydailynews.com. 8 Tinker, 393 U.S. at 503. PAGE 14 14 Court upheld that the students were exercising their First Amendment right and they were doing so peacefully without disrupting the student body or infringing upon the rights of others. First Amendment rights, applied in light of the special characteristi cs of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holdi ng of this Court for almost 50 years. 9 Hazelwood School District v. Kuhlmeier , meanwhile, concluded that a typical school newspaper is not a public forum. Justice White in his majority opinion explained , that educators do not offend the First Am endment by exercising editorial control over the style and content of student speech in school sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. 10 The Court held that the school newspaper was not a public forum , and the school had the right to approve or deny the content printed. By not allowing the story to be printed, they were within their rights and felt they were protecting the subjects of the article, who were not named in t he piece but could still have been identified by contextual clues. In the dissenting opinion, Justice Brennan assert ed that the Court is contradicting itself and applying a different standard to a case similar to Tinker and in Bethel School District v. Fr aser , 11 which was decided the previous term. If mere incompatibility with the school's pedagogical message were a constitutionally sufficient justification for the suppression of student speech, school officials could censor each of the students or student organizations in the foregoing hypotheticals, converting our public schools into "enclaves of totalitarianism," 12 9 Ibid. 10 Hazelwood, 484 U.S. at 260. 11 Bethel Sch. Dist. No. 403 v. Fraser , 178 U.S. 675 (1986) . 12 id., at 511, that "strangle the fre e mind at its source," West Virginia Board of Education v. Barnette 12 ,supra, at 637 . PAGE 15 15 Bethel School District v. Fraser , moreover, shares similarities with Tinker . In Bethel , a student gave a speech before the entire student body during which he used sexually explicit and lewd language. He had been advised by two teachers that the speech was inappropriate, but he delivered the speech anyway and was then disciplined. The student was suspended for three days and not allowed to speak at the graduation ceremony. Justice Burger wrote the majority opinion the students in Tinker wearing arm bands in political protest. Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint. The First Amendment does not prevent the school officials from determining th at to permit a vulgar and lewd speech such as respondents would undermine the school's basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage student s . 13 Doe v. Pulaski County , 14 on the other hand, was paramount in establishing that safety matters. A middle scho ol student wrote a letter to another middle school student whom he had been dating , and subsequently , the two had ended their relationship. In the letter, the student rape, sodomize, and murder 15 the other student. The letter was written at home and discovered by a mutual friend of the two students involved. The letter was brought to schoo l and given to the female subject . She reported it to the school resource officer , and it was brought to the attention of the principal, who then recommended that the student be expelled from the school. After an investigation and hearing by the school boa rd, they concurred with the principal and expelled the student. After being heard by lower courts, the Eighth Circuit Court of Appeals 13 Bethel, 178 U.S. at 675. 14 Doe v. Pulaski Cnty. Special Sch. Dist . 306 F .L. 3d 616, 622 (8 h Cir. 2002) . 15 Ibid. PAGE 16 16 heard the case en banc by the expulsion. The co urt quoted Watts v. United States 16 that determined the government has the duty of protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur. Using that sta ndard, the court determined that the subject of the letter was legitimately frightened and threatened by ; appropriately and within its rights to expel t he student. First Amendment Issues in the Media Leora Harpaz explore d the issue of student s F irst A mendment rights in an article written in the year 2000 regarding the Internet and public schools. She wrote about the case of Aaron Smith, a middle school student in Texas who, through a harmless adolescent series of events , 17 Due to the pervasiveness of th e Internet, the website spread , and when an animal rights group found it, they complained to the school. The principal disciplined Smith by remov ing him from the technology class and issu ing a one day suspension. The American Civil Liberties Union ( ACLU ) i ntervened , and he was placed back in the technology class and no record of the incident was placed on his record. Harpaz cites various examples of students who were disciplined, in some case s , criminally, for comments made on web sites th reatening teachers and classmates. The discussion in this article centers around the type of Internet speech and whether it occurs on school grounds or not. She conclude d that off campus Internet activities are still a grey area for discipline , and schools may jump to discipline a student for cyber communication that is 16 Watts v. United States , 394 U.S. 705 (1969) . 17 Brigham Young University Education and Law Journal 2000, no. 1 (2000): 150 . PAGE 17 17 insulting or derogatory ; however, Refusing to leave control of student behavior to parents when the student is not at school and instead extending the reach of the schools disciplinary arm may 18 A Missouri Law Review 19 article from 2017 questioned speech outside of their work hours and what rights they have. The author suggested that there are some guiding questions that can be used in order to make that determination. In analyzing whether private interest speech is spoken from the capacity of an employee, one must consider the content, form, and context to discover any nexus between the employee speech and the workplace. The following questions may be helpful: Did the speaker make attempts to present himself as a school/district employee or as a professional educator in general? Did the speaker take steps to make it more likely that members of the school community (students/ parents/colleagues/administrators) were exposed to his speech? Did the speaker gain (or seek to gain) greater authority/credibility for readers/listeners by virtue of his professional experience or employment? tion to which he would not otherwise have had access if not for his status as an employee? Did the speaker express himself on a matter that pertained directly to his work or employer? 20 These guiding questions proposed by the author, when answered affirmatively, can be viewed as a sign that the employee is speaking as an employee and not as a private citizen ; therefore, the employee may be faced with disciplinary consequences for that spe ech. If the 18 Ibid., p.163 . 19 Watt Lesley Black, Jr., When T eachers G o V iral: Balancing I nstitutional E fficacy A gainst the F irst A mendment R ights of P ublic E ducators in the A ge of F acebook Missouri Law Review 82 (1), 51 90. 20 Ibid., 83 4. PAGE 18 18 questions are not answered affirmatively, then the employee is most likely speaking only as a private citizen and is entitled to the full protections of the First Amendment. In recent events, teachers have found themselves asking the question of whether they are risking their job by speaking out when they feel that their safety is at risk. When schools switched to a distance learning platform in March 2020 due to the COVID 19 pandemic , 21 school districts were forced to scramble to make necessar y changes and provide the best possible education for their students while keeping everyone safe and trying to slow down the spread of the virus. Schools finished the school year virtually in June 2020 while remaining hopeful that they would safely be back in the classroom in the fall. When Florida Governor Ron DeSantis person classes in the fall of 2020, despite increasing numbers of positive COVID 19 cases in the state , 22 some teachers worried about the person al ramifications. One Osceola County teacher said, Are the teachers gonna be notified, are the parents gonna be notified when there is a positive case inside our classrooms? We are incurring costs. Are we supposed to use our time, our personal leave, and . 23 Another teacher in Florida wrote her own obituary and posted it to Facebook as a form of protest and, as she said, t o raise awareness and protest potentially unsafe conditions as schools reopen 21 of Education, August 1, 2019, http://www.fldoe.org/newsroom/latest news/department of education announces the florida schools safety portal.stml. 22 Tampa Bay Times, July 22, 2020, https://www.tampabay.com/news/education/2020/07/22/gov ron desantis announcement on education/ . 23 WKMG TV News 6, July 28, 2020, https://www.clic korlando.com/news/local/2020/07/28/osceola county teachers raise their voices in drive by protest/ . PAGE 19 19 24 These teachers , expressing themselves by protesting or by posting on social media, now have the pressure of whether they will face disciplinary actions for speak ing out. Eldridge reported that Miranda Wicker, a former high school English teacher from Cherokee County, Florida, said, teachers are in pretty serious fear of losing their jobs, losing their lives and/or losing their livelihoods and their ability to provide for their families. 25 In a 2009 article published in the Journal of Law and Education, Duffy Trager open ed with the shocking suicides of two young girls, apparently in response to targeted cyberbullying. 26 Trager assert ed that the Tinker standard could be applied to these cyberbullying cases because, 27 28 Frank LoMonte warn ed in his 2009 article that applying the same standard to off campus speech as on campus speech is a slippery slope, If that is the law, then there may be no constitutional impediment to a school policy declaring entire topics e.g., opinions (positive or negative) about teachers or administrators off limits for students to discuss, even when they are at home using e mail, sending text messages, or posting on social networkin g pages. 29 24 Inside, August 9, 2020, https: //www.insider.com/florida teacher wrote her own obituary to protest schools reopening 2020 8 . 25 NPR , July 16, 2020, https://www.gpb.org/news/2020/07/16 /hundreds of cherokee county teachers fear retaliation for speaking about reopening . 26 Duffy B. Trager, New Tricks for Old Dogs: The Tinker Standard Applied to Cyber Bullying Journal of Law & Education 38 no. 3 (2009) : 553, 562. 27 Ibid., 557. 28 Ibid., 559 . 29 Except When American University Law Review 58 no. 5, (2009): 1355. PAGE 20 20 He argue d that the mere fact the person is a student should not automatically subject them to a loss of their freedom of speech. The same actions undertaken by an adult would not be punishable. He implies that this sort of reach is a type of control, whereby a stude nt must abide by the school code and rules even when off school grounds for fear of retribution and punishment. He quote d Judge Ilana Rovner, Youth are often the vanguard of social change. Anyone who thinks otherwise has not been paying attention to the ci vil rights movement, the women's rights movement, the anti war protests for Vietnam and Iraq, and the recent presidential primaries where the youth voice and the youth vote are having a substantial impact.... To treat them as children in need of protection from controversy, to b lithely dismiss their views as less valuable than those of adults... is contrary to the values of the First Amendment. 30 In concluding, LoMonte believe d ; however, there is a middle of the road answer that is fair to students and protects their rights while also protecting the broader school community. Social Media in Schools Social media has become increasingly inescapable in society. The sheer numbers of users have increased exponenti ally from the early days of social media and continue to grow. Laws and rules governing social media use in the workplace and in schools are struggling to catch up to the ever ghts and protecting the rights of a group . In schools, the reality of social media can be even more daunting to tackle and regulate. Students use social media daily to communicate with each other as well as for social interaction with people they may never meet in person. The relative anonymity of the computer screen emboldens some to say things they would 30 Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. No. 204 , 523 F.3d 668, 677 78 (7 h Cir. 2008) . PAGE 21 21 numerous youngsters who were victims of online taunts and h arassment by their peers. One study indicated experienced bullying or cyberbullying are nearly 2 times more likely to attempt suicide . 31 In these cases, school administrators could have stepped in and stopped the harassment and discipli ned the offenders. Because current law is unclear on the subject, schools do not always know what to do or how to handle these situations. When the social media posts take place on home computers or personal cell phones or tablets and when it happens off s similarities to the mass shootings (Appendix A) . The majority of mass school shooters 87 percent showed signs of a crisis, as exhibited in their behavior, before the shooting. Seventy eight percent revealed 80 percent of mass school sho oters were suicidal, based on records we have gathered thus far. 32 In the years since the Gates study , 33 s chool shootings have sparked debate among those who wonder what responsibilities law enforcement and technology companies have for detecting threats a mong the billions of posts worldwide. Although school districts many of whom have that cho o se to scrutinize the social media of its students are raising questions about student privacy, there are many examples that show a disturbing pattern. Schools and districts use 31 Journal of School Violence 18, no. 3 (2018): pp. 333, https://doi.org/10.1080/15388220.2018.1492417. 32 Jilli The Conversation , October 26, 2019, https://theconversation.com/school shooters usually show these signs of distress long before they open fire our database shows 111242. 33 Jesse Gates, University of Florida, 2015. PAGE 22 22 issued laptops in search of keywords that could spell trouble 34 In F ebruary 2012, a student before going on a rampage at an Ohio high school posted . 35 Nikolas Cruz, the 2018 Parkland, Florida, shooter at Marjory Stoneman Douglas High School, exhibited several alarming warning signs through social media posts, including threats like I wanna shoot people with my AR I wanna die Fighting killing a sh it ton of people, and I am going to kill law enforcement one day they . 36 A school shooter from Galv e ston, Texas, a 17 year old who killed 17 people in May 2018, had an immensely disturbing social . 37 In January 2019 , a teen from West Broward High School was arrested after a post on his Snapchat account showed him with a semiautomatic weapon with th e caption, 38 A 2018 study conducted by the Pew Research center found that 95% of teens claimed to have access to a smartphone. Forty 34 Mark Keierleber, As Schools Comb Social Media for Potential Threats, Has Mass Shooting Anxiety Turned The 74 , February 28, 2019. https://www.the74million.org/article/as schools comb social media for potential threats has mass shooting anxiety turned administrators into t he internet police/. 35 AJ Agrawal, "What Role Is Social Media Playing in School Shootings?" The Huffington Post . January 20, 2017. Accessed February 27, 2019. https://www.huffingtonpost.com/aj agrawal/what role is social media_b_9033612.html. 36 Eliott C. M cLaughlin and Madison Park , "Social Media Paints Picture of Racist 'professional School Shooter' , " CNN , February 16, 2018 , https://www.cnn.com/2018/02/14/us/nikolas cruz florida shooting suspect/index.html. 37 WQAD Digital Team, " Texas School Shooting Suspect's Social Media Full of Violent and Neo Nazi Imagery , " WQAD8ABC , . May 18, 2018 , https://wqad.com/2018/05/18/texas school shooting suspects social media full of violent and nazi imagery/. 38 Tonya Alanez, "West Broward High Student Accused of Social Media Gun Threat , " Sun Sentinel , . January 15, 2019 , https://www.sun sentinel.com/local/broward/pembroke pines/fl ne west broward high student snapchat threat 20190114 story.html. PAGE 23 23 constantly , 39 Taken together, those figures are staggering , esteem negatively. In January 2018, 12 year old Gabriella Green committed suicide after she was a victim of cyberbu llying on social media by middle school classmates. 40 an organization that monitors school safety and threats, of the 3,380 threats made in the 2017 41 Organization of the Study This research shows t he changing landscape of U.S. Supreme Court decisions involving the First Amendment and schools. The research follows a chronological path from the early challenges through cur rent times , including federal and state court challenges. The research delves into the statutes and school district policies in Florida. News stories about threats to schools on social media, as well as Internet harassment and bullying, were included to hi ghlight the current challenges placed on schools and the importance of this issue. The research design for this paper was a legal analysis and interpretation as well as comparison of court decisions. The research consist ed of first gathering existing Supre me Court decisions that relate d to the First Amendment in schools and comparing them. The researcher next analyze d cases involving First Amendment challenges in schools surrounding off school hour s activity to attempt to find a pattern, if one exists, or explain the discrepancy in the decisions that appear to be in contrast with each other. 39 Monica Anderson & Jingjing Jiang, Teens, Social Media & Technology 2018 , Washington, DC: Pew Research Center , 2018 , http://www.pewinternet.org/2018/05/31/teens social media technology 2018/. 40 Jamiel Lynch, "Police Charge Two Students in Suicide of Classmate, 12 , " CNN , January 24, 2018 , https://www.cnn.com/2018/01/23/us/florida cyberstalking charges girl suicide/index.html. 41 Amy Klinger and Amanda Klinger , Violent Threats and Incidents in Schools : An Analysis of the 2018 2019 School Year , Adhland, OH: Educator's School Safety Network , 201 9, http://eschoolsafety.org/violence/. PAGE 24 24 T he researcher reviewed state statutes in Flo rida, as well as district policies to see what guidelines, if an y, they provided for electronic communication off school hours as well as actions by teachers and students. The hypothesis this paper posed is that policy is behind reality: School districts are scrambling to develop policies that fairly and legally addres s the ever growing pervasiveness of social media. The reality is that most students and teachers are active on some form of social media and schools need to determine where, and if, they can limit use or content during off school hours. The researcher syn thesize d data and cull ed the rel evant cases to find a link to current policy. By examining existing studies and literature on this topic, best practices can be identified in this area. The area of research is, admittedly, ongoing due to the nature of the t opic. First Amendment cases regarding school hour issues have been well established and settled ; however , social media is a new area that school administrators are forced to confront. When a teacher goes home and is using his or her personal computer or de vice to post something on social media, can the school limit the content of his or her speech ? If a student is involved in activities after school hours that are not allowed on school grounds, such as drinking, and there are pictures of this activity on so cial media, does the school have any right or responsibility to discipline the student in school for this activity ? Research Question How have Florida schools adapted to the changing climate of cyberbullying and social media ? Do Florida school districts adopt state guidelines about social media and electronic expression? Limitations The limitations of the research stem from the wide berth of information available and numerous court cases that have been heard and decided on the issue. The information is b road; much of it is outside the scope of this research design. The objective of this research was to PAGE 25 25 examine cases that were relevant to the research question and could help answer the question in a cohesive manner that elicits a clear conclusion. The case s vary, and some change with the changing sociological climate while others change with the political and ideological make up of the Court. The research was also limited by the relative infancy of social media applications in schools and the reactions of administrators and school districts to enact policies to handle problems that arise. Because school officials are acting in a reactive and not proactive manner to electronic communication, they are hurrying to write policy for problems after they happen. T eachers and students are entitled to have private lives outside of the purview of school hours; however, their private lives can now have an impact on their roles as teachers and students due to the pervasiveness of social media. The research was also limi ted by the belief in the United States that citizens have a right to free speech; however , they are also protected from not having their rights infringed upon by others. This apparent dichotomy is a central issue to the research as I attempted to answer th e question: W being ? This reflects the ideal of the good of the individual versus the good of the whole. School district policies, as written, may be in compliance with Florida Department of Education statutes ; however , practice may be different. The researcher did not evaluate whether the written policies were enforced within the districts and schools. Imp ortance of Research The First Amendment to the United States Constitution guarantees the citizens of the United States the right to speak freely, practice any or no religion, assemble and protest PAGE 26 26 peacefully, and have a free press. 42 It is one of the corner stones of the American political system and of a democratic republic. Do these rights have limitations or are they all encompassing ? Through a variety of court cases, the answer is still not clear. Court decisions have not been consistent around a central precedent , and there does appear to be some ambiguity among the decisions. For school administrators, this vagueness is difficult to cull through when it comes to policy. Students have participated in protests in school and express ed themselves in ways tha t may violate school dress code. Does a school have the right to discipline a student or is the student exercising his or her First Amendment rights? The cases outline d in this research show opinions on both sides of the matter. When it comes to off school hours, where does the reach of a school end? Is it at 3pm when school is dismissed , or does a school have the responsibility to its students to protect them being bullied and harassed outside of the boundaries of school? Teachers have lives outside of the ir profession as well. Can a teacher be fired for actions or behavior that occurred when he or she was not working? The research presented in this paper was important because it began to address the topic of electronic communication by teachers and studen ts during their own time, off school grounds, and whether a school has the right to enforce rules. If a teacher participates in an activity that is illegal or goes directly against the policies of the school and then posts pictures on social m edia for anyone to see, can the school step in and intervene? If a teacher publicly disparages a colleague, student, or administrator, the school needs to have clear guidelines about how to act in that situation and what steps can be taken. Furthermore, if the rules are put in place before anything were to occur, the teacher or student already knows that he or she is violating the student or teacher policies and knows the potential consequences that he or she may face. In light 42 U.S. Const., amend. I. PAGE 27 27 of the incidents of school vi olence that are posted on social media, the responsibility of a school freedom of speech . In the cases of cyberbullying, the rights of a student are being infringed upon. The right of a student to feel safe and free from persecution is clearly being violated when they are the victim of cyberbullying. The courts have heard First Amendment cases that deal with school issues , and there is legal precedent to act on these cases. In order fo r schools to prevent cases of cyberbullying and to make the expectations clear, it is important to have the laws spelled out. and actions. The reach of the school needs to be delineated and the expectations spelled out. The fear of legal repercussions may keep schools and districts from acting on electronic communication proactively ; however , the risk of having to play catch up and act reactively to tragedies is ver y real. The importance of this research is growing, much like the use of social media. PAGE 28 28 CHAPTER 2 LITERATURE REVIEW Overview Social media has become a pervasive entity in American culture. Its use among adolescents and teenagers is almost a social requirement; 92% of teens go online at least once a 1 Adults use social media extensively as well, and one study claim ed 70% of adults use at least one form of social media. 2 T he First Amendment to the United States Constitution guarantees the citizens of the United States the right to speak freely, practice any or no religion, assemble and protest peacefully, and have a free press. 3 It is one of the cornerstones of the America n system and of a democratic republic. Court decisions , however, have not been consistent around a central precedent to determine whether the rights are all encompassing or whether there are some exceptions, especially regarding social media. For school ad ministrators, this vagueness has been difficult to negotiate when it comes to policy. Historically, s tudents have participated in protests in school s and violate d the school dress code in order to express their opinions or beliefs publicly ; now they use so cial media to share the same beliefs and instantly have a wider audience. The consequences of being able to gain widespread notoriety by posting something online often mean s 4 1 2020. 2 Pew Research Center , September 28, 2018, https://www.pewresearch.org/fact tank/2018/09/28/internet social media use and device ownership in u s have plateaued after years of growt h/. 3 U.S. Const., a mend . I . 4 Cyberbullying is bullying that takes place over digital devices like cell phones, computers, and tablets. U.S. https://www.stopbullying. gov/cyberbullying/what is it . PAGE 29 29 Teens can use social media to taunt and torment their peers with serious consequences. The suicide of 15 year old Phoebe Prince in 2010 was the result of bullying by her peers , and much of the harassment and bullying took place online . Teachers and school staff knew about the bullying but took no action. 5 In a study published in the journal Preventing School Failure: Alternative Education for Children and Youth, the authors examine d the background of cyberbullying, its consequences, as well as the laws. Th ey acknowledge d that the lack of fearing civil litigation over regulating speech or behaviors that are protected by the First Amendment. Exacerbating this fear is the fact that there does not appear to b e a clear legal consensus as to when they have the authority to 6 School officials were unsure if they could take action and discipline students for comments made outside of school. They also worried that by disciplining students for comments or if school faculty had been given training or knew their responsib ility and purview, perhaps the outcome would have been less tragic. The court cases discussed in this study are not an exhaustive list of all cases that are relevant to the study research. I focused on the cases that set precedent and that continued to be used in future cases. The review of literature begins with Supreme Court cases that challenged the First Amendment in schools, encompassing topics that were on campus as well as off campus. The cases outlined in this study have proven, over time, to be be nchmarks and are in the conversations when discussing First Amendment challenges in schools. Following the Supreme 5 6 Preventing School Failure: Alternative Education for Children and Youth 55, no. 2 , ( 2011 ): 81 . PAGE 30 30 Court cases, lower court challenges were included that focused more on the issues of electronic communication, whether on campus or off campu s. Though the research question in the study is aimed more towards students than teachers, cases involving teachers rights and challenges were included as well to illustrate the greater issue that electronic communication, specifically s ocial m edia, have brought to schools and administrators when writing and amending policy. First Amendment Cases in the United States Supreme Court Students wanting to express themselves is not a new issue and neither is bullying. What has changed is the vehicle they use to express themselves and to bully others. What was an isolated incident, only known to the immediate participants involved, now has the potential to spread instantly. The U.S. courts have heard myriad cases regarding freedom of speec h in schools before social media, and the decisions of the courts have varied greatly. Tinker v. Des Moines 7 was the benchmark United States Supreme Court case to address freedom of speech in public schools. Three public school students in Des Moines, Io wa , were suspended from their were that of passive and peaceful protest. They were not disruptive nor infringing upon the rights of other students and teachers. T hey were expressing their opinion by wearing the armbands in silent protest. The Supreme Court upheld the student s that their rights did not stop when they stepped onto school grounds. The school district, they concl uded, acted on fear of possible disruption, not the peaceful actions engaged in by students who wore the armbands. 8 In the majority opinion, Justice Fortas wr ote , 7 Tinker, 393 U.S. at 503. 8 Ibid. PAGE 31 31 divorced from act ually or potentially disruptive conduct by those participating in which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. 9 The Court upheld that the students were exercis ing their First Amendment right and they were doing so peacefully without disrupting the student body or infringing upon the rights of others. First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. 10 In Hazelwood School District v. Kuhlmeier , 11 the U.S. Supreme Court under Chief Justice Rehnquist decided schools did not have to allow all forms of student speech and expression, thus s to freedom of speech. School officials in thi s case prohibited students from publishing two stories in the student run newspaper, arguing that the stories were his majority opinion , explain ed , d that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. 12 The Court h eld that the school newspaper is not a public forum , and the school ha d the right to approve or deny the content printed. By not allowing the story to be printed, t he school argued, they were within their rights and felt they were protecting the subjects of the article, who were not named in the piece but could still have bee n identified by contextual clues. 9 Ibid . 10 Ibid. 11 Hazelwood, 484 U.S. at 260. 12 Ibid. PAGE 32 32 In the dissenting opinion, Justice Brennan assert ed that the Court was contradicting itself and applying a different standard to a case similar to Tinker as well as the decision in Bethel School District v. Fraser , 13 whic h was decided the previous term. If mere incompatibility with the school's pedagogical message were a constitutionally sufficient justification for the suppression of student speech, school officials could censor each of the students or student organizatio ns in the foregoing hypotheticals, converting our public schools into "enclaves of totalitarianism . " 14 In the Bethel case, a student gave a speech before the entire student body during which he used sexually explicit and lewd language. He had been advised by two teachers that the speech was inappropriate, but he delivered the speech anyway and was then disciplined. The student was suspended for three days and not allowed to speak at the graduation ceremony. Tinker wear ing armbands in political protest . Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint. The First Amendment does not prevent the school officials from determi ning that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. 15 The 2007 ruling in Morse v. Frederick 16 once again affirmed that a school has the right to discipline a student for actions that violate school policy. The student in question, Joseph 13 Bethel, 178 U.S. at 675. 14 id., at 511, that "strangle the free mind at its source," West Virginia Board of Education v. Barnette 14 , supra, at 637 15 Bethel, 178 U.S. at 675. 16 Morse v. Frederick , 551 U.S. 393 (2007) . PAGE 33 33 Frederick, attended a school sponsored field trip off schoo l grounds in which they were invited to attend the Olympic Torch Relay. During the relay, Frederick held up a banner in front of television cameras . , Deborah Morse, confiscated the sign and suspended Frederick. Frederick sued the principal and claimed that his First Amendment right was violated. The Supreme Court ruled, 5 4, in favor of Morse because the drug policy. In the majority opinion, Chief Justice Roberts wrote, School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act or not act on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use in violation of established school policy and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was ab out the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers. 17 The New York Times Co. v. Sullivan 18 case set the malice standard in the U.S. Supreme C ourt . The case was a libel suit brought by an elected official in Montgomery, Alabama , and it alleged that the newspaper , in publishing an advertisement claiming that the official and several police officers had committed misconduct in arresting Martin Lut her King, Jr. , had committed libel against the official. The court found that because the advertisement had been published without intended malice , the official could not claim libel. This malice standard can be applied to current social media posts as wel l. In cases of cyberbullying , the malice can be proven ; however, in cases where a student or teacher is posting snippets of his or her life, malice may be more difficult to prove. 17 Ibid. 18 New York Times Co. V. Sullivan , 376 U.S. 254 (1964) . PAGE 34 34 In Pickering v. Board of Education , 19 the petitioner wrote a letter to the editor of the local newspaper that was critical of a recent school board action. The petitioner, Marvin Pickering, was dismissed from his job as a teacher as a result of his letter. He alleged that his dismissal was a violation of his F irst A mendment right to free speech. The Supreme Court agreed with him. Justice Marshall wrote, impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that t he threat of dismissal from public employment is nonetheless a potent means of inhibiting speech." 20 actions. As an employee at a public school, a teacher may be openly critical of the school board or school actions without fearing persecution or dismissal . Reno v. American Civil Liberties Union 21 was the first major Court case concerning material distributed on the Internet. The Communications Decency Act was passed with the intent of protecting minors from indecent or pornographic material on the Internet. The American Civil Liberties Union (ACLU ) argued that online communication could not be categorized in the same manner as television or radio, which did have restrictions and regulations placed on content. Because of the added steps necessary to access indecent material on the Internet, a minor could not overhear or stumble across indecent material as readily as with other forms of media. The ACLU claimed that in limiting content to minors , the Act was also limiting 22 The Court sided with the ACLU, stating that 19 Pickering v. Board of Education , 391 U.S. 563 (1968) . 20 Ibid . 21 Reno v. American Civil Liberties Union , 521 U.S. 844 (1997) . 22 http://www.firstamendmentschools.org/freedoms/case.aspx?id=336 . PAGE 35 35 the Act was too broad in scope. This was a landmark case because it created a distinction forms of media , making it clear that it was a separate ent ity governed by different rules. First Amendment Cases in Lower Courts In Doe v. Pulaski County , 23 a middle school student wrote a letter to another middle school student whom he had been dating but the two had ended their relationship. In the letter, 24 the other student. The letter was written at home, not at school , and not during school hours and was discovered by a mutual friend of the two st udents who brought it to school , and gave it to the female subject of the letter who then reported it to the school resource officer . The letter was brought to the attention of the principal, who recommended that the student be expelled from the school. After an investigation and hearing by the school board, they concurred with the principal and expelled the student. After being heard by lower courts, the Eighth Circuit Court of Appeals heard the case en banc ights had not been violated by the expulsion. The court quoted Watts v. United States 25 in that the government has the duty of "protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the thr eatened violence will occur." Using that standard, the court determined that the subject of the letter was legitimately frightened and threatened by the contents of the letter appropriately and within its rights to expel the student. 23 Doe, 306 F .L. 3d at 616, 622 . 24 Ibid. 25 Watts, 394 U.S. at 705. PAGE 36 36 The Pennsylvania Supreme Court ruled in 2002 in J.S. v. Bethlehem Area School District 26 that a 14 year old boy could be punished by his school for comments made about a teacher on a The federal constitution does not compel teachers, parents and elected school officials to surrender control of 27 The Court ruled that although the actions of the students took place outside of school, they still created a disturbance within the school and adversely affected the educational process ; therefore , the school board did not violate speech when it voted to expel him from the school. The 2004 Louisiana case of a student, Adam Porter, who drew a picture depicting his 28 upheld that a student could be disciplined at school for actions that occurred outside of school. , ger brother brought it to school two years after it was drawn. Porter was arrested and found to be carrying a box cutter; he was subsequently jailed but released to his mother. Porter was expelled rnative high school. The suit filed by his mother claims that his First Amendment right s were violated. The principal, Conrad Braud, as well as the superintendent, responded that in light of the incidences of school violence, including school shootings, th One of the keys to avoiding violence and disruption at schools is to be aware of acts which could 26 J.S. v. Bethlehem Area School District, 757 A2d 412 (PA 2002) . 27 Ibid . 28 Porter v. Ascension Parish School Board, Civil Action Number 02 274 B M2 at 2 (M.D. La. Jan. 28, 2004) . PAGE 37 37 cause such 29 Schools have the responsibility of keeping the students in their care s afe, and their right to take it as a serious threat and respond accordingly. heir high school in Miami Dade County. The pamphlet was printed anonymously and contained material that was violent and threatening toward school officials and students. The pamphlet's cover featured a graphic of Timothy Dawson, the school's principal, wit h a dart through his head. The pamphlet included several poems, students. The same essay made reference violent and sexual activity. 30 The school principal was able to determine the identities of the Killian Nine and called them to his offic e. The principal was bound by policy to report instances of violence to the police. The officer arrived at the school and , after being briefed on the facts, found a statute 31 that made the anonymous publication and distribution of material that can be seen as violent or threatening illegal . Furthermore, because of the racially divisive nature of the language used, the officers believed that the crime could be considered a hate crime, making it a felony. One of the off ice, and the decision was made to arrest the teens. Liliana Cuesta, one of the students, was taken to the adult prison where she was strip searched, per prison intake protocol. She later filed suit alleging that the arrest and subsequent strip search viola 29 Ibid. 30 Cuesta v. School Board of Miami Dade County, 285 F.3d 962 (1 1th Cir. 2002) . 31 Fla Stat. § 836.11. This statute was struck down as unconstitutional in Florida V. Shank (2001). PAGE 38 38 , and her rights had not been violated. A Texas sophomore wrote in a journal his pla ns to shoot his school and made claims about his membership in a Neo Nazi organization. The student showed a friend his notebook and the friend brought it to the attention of school administrators. School administrators believed the be authentic and of a terroristic nature and suspended the student. The student alleged that his notebook was a work of fiction and not meant to be taken seriously , and his parents sued the school district. Ponce v. Soccorro Independent School District 32 was heard by the 5th Circuit Court in Texas and examined the issues of student Free Speech, as protected by the First Amendment, as well as the Fourth 33 and Fourteenth 34 Amendments. The Court sided with the school district, claiming that the school acted in the best interest of the school schoolhouse gates . 35 The facts of this case warranted disciplinary action and likened the n a crowded theater. 36 The court, in siding with the school district, argued, School administrators must be permitted to react quickly and decisively to address a threat of physical violence against their students, without worrying that they will have to face years of litigation second guessing their judgment as to whether the threat posed a real risk of substantial disturbance. 37 32 Ponce v. Soccorro Independent School District, 508 F. 3d 765, 5th Cir. (2007) . 33 U.S. Const., Amend IV ; The plaintiff claimed that he was subject to an unl awful search and seizure without probable cause. 34 U.S. Const., Amend XIV ; The plaintiff claimed that he was being deprived of a protected property or liberty interest because he was being removed from his school and placed in an alternative school. 35 Tink er , 393 U.S. 503 (1963). 36 Ponce, 508 F. 3d at 765 . 37 Ibid. PAGE 39 39 The case of Kelly Tucker, a teacher in a Georgia middle school, was one of the first cases involving social media p ost leading to her suspension and resignation. 38 Tucker responded to a Black Lives Matter post on Facebook a few months after Michael Brown, a black teenager , was thugs . Further 39 Tucker posted this on her home computer on her own time. Tucker was suspended without pay and ordered to attend diversity training , l eading to her resignation. Tucker filed a lawsuit against the school district on the basis that her First Amendment rights were violated and suit was dism issed by both the Georgia Appeals Court as well as the Georgia Supreme Court 40 citing that the government officials were entitled to qualified immunity, shielding them from liability. The presi dent of the Georgia First Amendment Foundation expressed some concerns commenting on social media at the time she posted her remarks about Black Lives Matter, but later established standards. ely take action because the 41 38 Atwater v. Tucker, 343 Ga.App. 301, 807 S.E.2d 56 (2017). 39 Jill Clinton Herald, June 12, 2018 , https://www.clintonherald.com/news/georgia teachers right to free speech on social media headed for supreme court/article_ad63848f 91b 2 553b 9d8e 27db362a9017.html. 40 Ibid . 41 Ibid . PAGE 40 40 on s ocial m edia, he was concerned because the district had no policy in place at the time of so the expectations were not clearly delineated and the district, by retroactively disciplining Tucker, was stepping into a grey area. After the Georgia Supreme Court upheld the Appeals Court dismissal, Tucker decided to take her case to the United States Supreme Court. The U.S. Supreme Court denied the petitio n for certiorari. 42 A Texas teacher found herself without a job in 2019 after tweets directed to President her school district was loaded with undocumented students from Mexico, that her high school had been taken over by them and that drug dealers had not been punished. 43 The teacher, Georgia Clark, made comments in class that were before the student was allowed to us e the restroom. 44 Clark teaches in a district with a high Hispanic population ; 63% of students in the district identify as Hispanic, but only 22% of teachers identified as Hispanic. 45 Clark was fired by the school district because her actions caused a subs tantial disruption to the learning environment. favor. The report released by the agency stated matter of public conce rn protected by the United States Constitution and do not contravene or 42 Atwater , 343 Ga.App 301 at 56 . 43 New York Times, November 29, 2019, https://w ww.nytimes.com/2019/11/29/us/teacher trump tweets reinstated.html. 44 Ibid . 45 https://www.har.com/school_district/fort worth isd_220905. PAGE 41 41 . 46 The Fort Worth Independent School District is currently challenging the ruling by the Texas Education Agency , and the case is waiting to be heard by a district court. The question of what rights teachers have as private citizens was at the forefront for a middle school teacher on Long Island who was fired for taking a topless selfie and sharing it with a colleague wh om she was in a consensual relationship. Lauren Miranda did not post the photo on social media , she did not share the photo with anyone underage, and she took the photo on her own time, as a private citizen. A student at the school obtained the photo, though it is unclear how the student accessed it . Prior to her dismissal, Miranda had received ste llar superintendent, Joseph Giani. 47 Miranda sued the school district, claiming that her dismissal was unlawful. Her attorney, John Ray , This is a woman who just takes a photo then 48 This case brought up important privacy issues, as well as First Amendment concerns. As a teacher, Miranda was held to a different standard in her private life than someone in another profession. Her actions outside of school , that were meant to be kept private, were shared unknowingly with a student. Because the photo of her was obtained by a student and made it to her place of work, did the school then have the right to discipline her? Mr. Giani told Miranda 46 . 47 New York Times , April 3, 2019 . https://www.nytimes.com/2019/04/03/nyregion/teacher selfie.html?auth=login google. 48 Ibid . PAGE 42 42 49 Giani also claimed 50 to keep the photo private but does not elaborate on what she could have done other than not take the photo in the first place. Florida Statutes In the State of Florida, current legislature as all K 12 public school students are entitled to a uniform, safe, secure, efficient, and high quality system of education, one that allows students the opportunity to obtain a high quality education 51 In the pursuit of that education, school f aculty and administrators must act in the best interest of the students and make decisions in loco parentis [in the place of a parent]. Administrators must act in accordance with the law and current district policy, while trying to balance the rights of the individual student against the good of the school community. Within the Florida Statutes Education Code, a zero tolerance policy for crime and victimization demands that school administrators act when faced with a violent, or potentially violent, situation : 1006.13 Policy of zero tolerance for crime and victimization. (1) District school boards shall promote a safe and supportive learning environment in schools by protecting students and staff from conduct that poses a threat to school safety. A threat assessment team may use alternatives to expulsion or referral to law enforcement agencies to address disrupt ive behavior through restitution, civil citation, teen court, neighborhood restorative justice, or similar programs. Zero tolerance policies may not be rigorously applied to petty acts of misconduct. Zero tolerance policies must apply equally to all studen ts regardless of their economic status, race, or disability. (2) Each district school board shall adopt a policy of zero tolerance that: 49 Ibid . 50 Ibid . 51 Fla Stat § 1002.20 (1) (2019) . PAGE 43 43 (a) Defines criteria for reporting to a law enforcement agency any act that poses a threat to school safety that occurs whenever or wherever students are within the jurisdiction of the district school board. (b) Defines acts that pose a threat to school safety. (c) Defines petty acts of misconduct which are not a threat to school safety and do not require consultation with law enforcement. (d) Minimizes the victimization of students, staff, or volunteers, including taking all steps necessary to protect the victim of any violent crime from any further victimization. (e) Establishes a procedure that provides each student with the opportunity for a review of the disciplinary action imposed pursuant to s. 1006.07 . (f) Requires the threat assessment team to consult with law enforcement when a student exhibits a pattern of behavior, based upon previous acts or the severity of an a ct, that would pose a threat to school safety. (3) Zero tolerance policies must require students found to have committed one of the following offenses to be expelled, with or without continuing educational period of not less than 1 full year, and to be referred to the criminal justice or juvenile justice system. (a) Bringing a firearm or weapon, as defined in chapter 790, to school, to any school function, or onto any school sponsored transportation or possessing a firearm at school. (b) Making a threat or false report, as defined by ss. 790.162 and 790.163 , transportation, or a school sponsored activity. 52 Florida s tate statutes were amended in 2013 to include language about Internet, or online, bullying or harassing that occurs either on or off school grounds. 1006.147 Bullying and harassment prohibited. (1) Up for All Students (2) Bullying or harassment of any student or employee of a public K 12 educational institution is prohibited: 52 Fla Stat § 10 06.13 (2019) . PAGE 44 44 (a) During any education program or activity conducted by a public K 12 educational institution; (b) During any school related or school sponsored program or activity or on a school bus of a public K 12 educational institution; (c) Through the use of data or computer software that is accessed through a computer, computer system, or computer network within the scope of a pu blic K 12 educational institution; or (d) Through the use of data or computer software that is accessed at a nonschool related location, activity, function, or program or through the use of technology or an electronic device that is not owned, leased, or u sed by a school ability to participate in or benefit from the services, activities, or opportunities offered by a school or substantially disrupts the education proces s or orderly operation of a school. This paragraph does not require a school to staff or monitor any nonschool related activity, function, or program. (3) For purposes of this section: (a) nically inflicting physical hurt or psychological distress on one or more students and may involve: 1. Teasing 2. Social exclusion 3. Threat 4. Intimidation 5. Stalking 6. Physical violence 7. Theft 8. Sexual, religious, or racial harassment 9. Public or private humiliation , or 10. Destruction of property. (b) electronic communication, which includes, but is not limited to, any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic system, PAGE 45 45 photoelectronic system, or photooptical system, including, but not limited to, electronic mail, Internet communications, instant messages, or fac simile communications. Cyberbullying includes the creation of a webpage or weblog in which the creator assumes the identity of another person, or the knowing impersonation of another person as the author of posted content or messages, if the creation or im personation creates any of the conditions enumerated in the definition of bullying. Cyberbullying also includes the distribution by electronic means of a communication to more than one person or the posting of material on an electronic medium that may be a ccessed by one or more persons, if the distribution or posting creates any of the conditions enumerated in the definition of bullying. 53 The State mandated that all school districts in Florida adopt a policy that conforms to the odel policy. The required language , as directed by the state for school districts , falls short of including cyberbullying or Internet harassment, and does not mention off campus activity. The FLDOE Model Policy Against Bullying and Harassment does include cyberbullying but does not include off campus behavior. 54 (Appendix B ) Freedom of Speech in Schools: Articles and Media The ACLU of Washington State, in a publication titled The Free Speech Rights of Teachers, provides a list of examples of speech that would be protected and speech that would not be protected under the First Amendment, Example 1: You attend an anti war rally on the weekend. You cannot be disciplined for exercising your First Amendment right to free speech. Example 2: You post on your Facebook wall a local newspaper article favorable to a political candidate. The First Amendment will protect you from discipline. Example 3: You write a letter to a publication that is critical of the school board f or one of its actions or ideas. A court will likely consider that protected speech because you are expressing an opinion that is a matter of public concern, like any other private individual. 53 Fla Stat § 10 06.147 (2019) . 54 http://www.fldoe.org/safe schools/bully ing prevention.stml . PAGE 46 46 Example 4: You are instructed not to discuss with students your personal opinion on political matters. In a classroom discussion on racial issues in America, you let your students know that you have recently participated in a Black Lives Matter demonstration. t eachers can be disciplined for departing from the curriculum adopted by the school district, and inserting your personal experience as a protester could be considered such a departure. This is because school districts have the authority to control course c ontent and teaching methods. It is not as clear whether the First Amendment would protect you if you had not been specifically instructed not to share your political beliefs. Some courts have ruled that schools may not discipline teachers for sharing certa in controversial words or concepts in class that are relevant to the curriculum. Example 5: This type of speech is not protected even though you are making it in your private capacity (not part of your official duties). This speech might be considered as not addressing a matter of public concern, so the First Amendment may not protect you from being disciplined. Example 6: You publish an online book containing explicit sexual passages. Even thou gh this is speech in your private capacity (i.e., not part of your official duties) and may even be on a matter of public concern, a court might not consider free speech rig hts. It could determine that the explicit sexual content would prevent you from being an effective teacher and would have a substantial impact on school functioning. However, if you are facing discipline for expressing your views on non school matters outs ide of school, there is a potential free speech problem and you may want to let the ACLU know about it. 55 The examples shared in the publication generally fall into two categories, actions that directly actions that affect the school, even if taken on his or her p rivate time may not be protected by the First Amendment. For example, posting any information about a student on social media would not be protected. However, teachers expressing their opinion on matters not related to their school, and doing so on their o wn time, would be protected speech. An example of this type of speech would be a teacher who attends a protest in support of Black Lives Matter movement. 55 ACLU of Washington , January 17, 2018, https://www.aclu wa.org/docs/free speech rights public school teachers washington state. PAGE 47 47 A 2000 article about the Internet and public schools, written by Leora Harpaz , explore d the issue of F irst A mendment rights. Harpaz wr ote about the case of Aaron Smith, a middle school stud ent in Texas who, through a harmless adolescent series of events , 56 Due to the pervasiveness of the Internet, the website spread , and when an animal rights group found it, they complained to the school. The principal disciplined Smith and removed him from the technology class and issued a one day suspension. The ACLU intervened , and he was then placed back in the technology class and no mention of the incident was placed on his record. Harpaz cite d various examples of students who have been disciplined, in some cases, criminally, for comments made on web sites t hreatening teachers and classmates. The discussion in this article cente red around the type of Internet speech and whether it occur red on school grounds or not. She conclude d that off campus Internet activities are still a grey area for discipline , and sch ools may jump to discipline a student for cyber communication that is insulting or derogatory ; school and instead extending the reach of the school s disciplinary arm may create more 57 In a 2009 article published in the Journal of Law and Education, Duffy Trager opened with the shocking suicides of two young girls, apparently in response to targeted cyberbullying. 58 Trager asserted that t he Tinker standard can be applied to these cyberbullying cases because, 56 Harpaz, Internet Speech and t he First Amendment Rights 2000 . 57 Ibid., p.163 . 58 Trager, "New Tricks for Old Dogs (2009) : 553. PAGE 48 48 59 60 Frank LoMonte warns in his 2009 article, that applying the same standard to off campus speech as on camp us speech is a slippery slope, If that is the law, then there may be no constitutional impediment to a school policy declaring entire topics e.g., opinions (positive or negative) about teachers or administrators off limits for students to discuss, even whe n they are at home using e mail, sending text messages, or posting on social networking pages . 61 He argue d that the person being a student should not automatically subject them to a loss of their freedom of speech. The same actions undertaken by an adult would not be punishable. He implie d that this sort of reach is a type of control, whereby a student must abide by the school code and rules even when off school grounds for fear of retribution and punishment. He quote d Judge Ilana Rovner, Youth are often t he vanguard of social change. Anyone who thinks otherwise has not been paying attention to the civil rights movement, the women's rights movement, the anti war protests for Vietnam and Iraq, and the recent presidential primaries where the youth voice and t he youth vote are having a substantial impact.... To treat them as children in need of protection from controversy, to blithely dismiss their views as less valuable than those of adults... is contrary to the values of the First Amendment. 62 In concluding, LoMonte believe d is a middle of the road answer that is fair to students and protects their rights while also protecting the broader school community. 59 Ibid., 557. 60 Ibid., 559 . 61 62 Nuxoll, 523 F.3d at 668, 677 78. PAGE 49 49 In the American Bar Association Jour nal , David Hudson addressed the topic of public employees and their rights to speak on social media. He quotes two opposing viewpoints in his piece. Marquette University law profess or whose scholarship addresses the free speech inconsistent with the norms of a police officer can righ tfully lead to Missouri City, Texas based attorney Larry Watts represents should b e protected. It is called off 63 This obvious contradiction of opinions on whether public employees have the right to post whatever they choose on social media put pressure on school boards and school administrators to essional Conduct for the Education Profession in Florida ma d e no specific mention of social media or Internet. 64 In the University of Pennsylvania Law Review , one research article state d networking sites is threefold: (1) these functions are gathered together in one place; (2) the sites have massive user bases and daily traffic; and (3) your friends have quick and convenient access to everything you post. 65 That is the crux of the issue that school administrators are deali ng with today. The speed and almost universal presence of social media makes the distribution of information instantaneous and widespread. What may seem to be an innocent photo of a group of teachers out having drinks at happy hour could cause backlash; wh at a teacher does in his or her 63 David L. Public Employees, Private Speech: 1st Amendment D oesn't A lways P rotect G overnment W orkers , American Bar Association Journal , 2017. 64 Florida Department of Education , , Updated Mar ch 23, 2016, http://www.fldoe.org/teaching/professional practices/code of ethics principles of professio.stml. 65 Michael Univ ersity of Penn Journal of C onstitutional Law , 11 no. 2, (2009) : 478. PAGE 50 50 private life is now subject to scrutiny, and curious and savvy students may try to seek out a The dilemma that must be decided is drawn. The teacher has a professional responsibility to her students and to her employers to behave in a professional manner, but it is unclear how far that professional responsibility ext students if he or she divulged information or if a student happened to see the teacher in a public vate dealings can be known to students and administrators with the stroke of a keyboard. The National School Board Association advised attention, which will result in extraordinary p ressure for a board of education to act. However, before adverse employment action is taken, this First Amendment analysis must be made to 66 [Teachers] have a right to their political opinions, and they have a rig ht to engage in political speech, said David Hudson, Jr., a law professor at Belmont University in Nashville, Tenn., and a First Amendment Fellow for the nonpartisan Freedom Forum Institute. Political speech is the core expression that the First Amendmen t was designed to protect. 67 This message by David Hudson was part of an Education Week piece about teachers and social media from March 2020. However, just because teachers are afforded that right does not mean that they have free reign to post anything at all without consequence, nor should they. Teachers may choose not to post political opinions on social media for a variety of reasons, 66 Phillip L. Hartley, & Hieu M. Nguyen , Public School Employees , . 67 Education Week , March 23, 2020 , https://www.edw eek.org/ew/articles/2020/03/18/teachers politics social media a volatile mix.html?r=1215344069. PAGE 51 51 They want to preserve their objectivity in front of their students. They don't want to hurt their relationships with parents, students, or colleagues who might have different beliefs than they do. They worry about professional repercussions, especially when posting from an account that they use for work related reasons. 68 Teachers need to be unbiased politically in the c lassroom, teaching about politics and political issues without inherent bias. Teachers are given the responsibility of educating students so that they can then form their own opinions about politics armed with the knowledge and education necessary to becom e informed voters. One teacher quoted in the article who wished to remain anonymous said all you end up doing is upsetting people . 69 Nikolas Cruz, the mas s shooter who killed 17 students and staff members and injured 17 others in 2018 at Marjory Stoneman Douglas High School in Broward County, Florida , had posted disturbing messages on social media prior to the attack. [and] had ties to white supremacists. He said he would shoot people with his AR 15 and singled out police and anti fascist protesters as deserving of his vengeance. Just five months [before the shooting] , he stated hi s aspiration to become a "professional school shooter. 70 Cruz posted a photo of a shotgun and a BB gun on his Instagram page and created videos posted to YouTube where he made threatening statements about committing a mass shooting similar to the one he ev entually carried out at Marjory Stoneman Douglas. The FBI was aware of Cruz and his social media presence and was investigating him. There is limited research about whether there is a link between social media posts and violence. The August 2019 mass shoot ings in Gilroy, California, and El Paso, Texas, which claimed the lives of 26 people and injured 37 others , were the 68 Ibid . 69 Ibid . 70 McLaughlin, "Social Media Paints Picture of Racist 'professional School Shooter' , " 2018. PAGE 52 52 behavior could have been seen as warnings. Both of the attackers in those cases were involved in white supremacist activities and posted to social media prior to the attacks about hate, violence, and anti immigrant, pro white supremacy narratives. Sites that perpetuate these ideologies have been c ited in the media as possibly contributing to the violence by making these shooters famous for their actions, and they are seen as heroes among those who share their ideologies . 71 Two Miami private schools were the targets of a threat posted on the popula r social media application TikTok by students from a Miami area private school. The students appeared to be shooting at the target schools in the video while song lyrics about shooting played in the background. The video also included images of Marjory Sto neman Douglas High School. The threat led to the arrest of a 16 year old student. A student who was not involved in the incident said , It's kind of like a joke It shouldn't be because of the shootings that have happened in the past, but that trend right now is kind of just a joke." 72 In August 2019, a student at a Broward County High School was arrested in connection with threating to shoot a school. The student posted a threat to the social media messaging application, Discord (Figure 2 1). The threat included graphic language about shooting the school and students and the aftermath. The student he did not intend to follow through with what he wrote, but that he was expressing how he felt. He wanted people to feel t he pain he felt. 73 71 Cat Links between Social Media and Mass Shootings Is Lacking, Experts Say , The Washington Post , August 8, 2019. 72 Social Media Monitoring in K 12 Brennan Center for Justice , October 17, 2019 , https://www.brennancenter.org/ 73 Step on ... Their Bloodied Corpses': Florida Teen Threatens School Shooting, Cops Miami Herald , August 22, 2019 , https://www.miamiherald.com/news/local/community/broward/ article234278122.html . PAGE 53 53 Figure 2 1 . Threat p osted to Discord The Naval Postgraduate School has compiled a K documents each and every instance a gun is brandished, is fired, or a bullet hits school propert y for any reason, regardless of the number of victims, time, day of the week (e.g., planned attack, accidental, domestic violence, gang related). 74 The database includes data from 1970 to the present. The highest number of incidents , 112, occurred in 2019, and the second highest , 110 incidents, was recorded in 2018. As of August 2020, there were 34 incidents at schools ; however , the number for 2020 will be lower partly due to many schools movi ng to a distance learning format nationwide in the spring of 2020 as a response to the COVID 19 pandemic. The database included the shooter s affiliation with the school , which was overwhelmingly as a student (740) . The next recorded affiliation s were unkn own (320) and no relation (183). Currently, California leads the nation in number of incidents (173), Texas is next (146), and Florida ranks third in the nation (97). 75 74 12 School Shooting Database , Defense and Security, September 2018 , https://www.chds.us/ssdb/about/. 75 Ibid. PAGE 54 54 The State of Florida launched a school safety database in August 2019, prior to the start of the 2019 2020 school year. The database was intended to provide information about students in order to determine whether students pose d a threat to school safety a nd security. The database, called the Florida Schools Safety Portal , was initiative to improve school safety following the shooting in 2018 at Marjory Stoneman Douglas High School. According to the Florida Department of Educa tion (FLDOE) website, the portal will collect , School Environmental Safety Incident Reporting and discipline information; FortifyFL information, an application that shows suspicious activity that has been reported; Social media monitoring data, which sear ches publicly available social media posts on a variety of sites for posts containing certain critical threat indicators; Baker Act admissions and reportable center data; and Law enforcement information; law enforcement officers will have access to law enf orcement records through the Florida Criminal Justice Network. 76 The portal has come under fire from organizations such as the American Civil Liberties Union (ACLU) who claimed the far reaching aspects of the portal are a violation of student s Amendment rights. In a July 2019 letter addressed to Governor DeSantis, the ACLU wrote, The categories discussed included children who have been victims of bullying based on protected statuses such as race, religion, disability, and sexual orienta tion; children who have been treated for substance abuse or undergone involuntary psychiatric assessments; and children who have been in foster care, among others. We believe this database represents a significant safety risk because it collects highly sen sitive information without a clear, evidence based rationale for inclusion, could be used to stigmatize and blame children who have 76 FDOE Press Office , , of Education, August 1, 2019 , http://www.fldoe.org/newsroom/latest news/department of education announces the florida schools safety portal.stml. PAGE 55 55 create a de facto state repository design ed to track children based on federally protected characteristics. 77 The ACLU and other civil rights organizations were concerned that the portal was an inappropriate reaction to the Marjory Stoneman Douglas shooting and would collect sensitive information that allow ed schools to discriminate against students. Gov. DeSantis said in a press release, Access to timely, more accurate information will allow our law enforcement and threat assessment teams to respond and intercept possible threats, while also ens uring students in n eed 78 The Brennan Center for Justice reported that social media monitoring has not proven to be an effective way to prevent violence. there is little evidence that social media monitori ng software keeps students safer. And there are real risks that children, particularly those from communities of color, will be wrongly tagged as dangers and that the free learning environment we all want from schools will be compromised. 79 Despite the research, school district spending on social media monitoring software has increased: There is limited comprehensive data, but available figures, as well as statements from the companies themselves, suggest that spending by U.S. school distric ts on social media monitoring tools has risen substantially in recent years . 80 One available study by the Brennan Center indicated that the numbers have risen from six districts in 2013 to 63 in 2018. 81 77 ACLU of Florida, "Highlighting Risks Arising from Florida's Proposed School Safety Database , " ACLU Florida , July 17, 2019 ,July 9 , 2019 , https://www.aclufl.org/en/highlighting risks arising floridas proposed school safety database. 78 FDOE, "Department of Education Announces the Florida Schools Safety Portal , " 2019 . 79 Faiza Patel, Rachel Levinson Waldman, Jun Lei Lee, and Sophia DenUyl. Sch ool Surveillance Zone Washington, DC: Brennan Center for Justice , 2019 , https://www.brennancenter.org/analysis/school surveillance zone. 80 Social Media Monitoring in K 12 Schools 2019 . 81 Patel , "School Surveillance Z one 2019. PAGE 56 56 Cyberbullying has had serious consequences from suic ide to depression and self esteem problems in adolescents. Suicide is the third leading cause of death among adolescents and teenagers ages 10 21. 82 The Cyberbullying Research Center published statistics about cyberbullying, Approximately 37% of the students in our sample report experiencing cyberbullying in their lifetimes. M ean or hurtful comments (24.9%) and rumors spread online (22.2%) continue to be among the most commonly cited [forms of cyberbullying] Approximately 15% of the students in our sa mple admitted to cyberbullying others at some point in their lifetime. Posting mean comments online was the most commonly reported type of cyberbullying [by the offenders] Adolescent girls are more likely to have experienced cyberbullying in their lifetim es (38.7% vs. 34.5%) The type of cyberbullying tends to differ by gender; girls were more likely to say someone spread rumors about them online while boys were more likely to say that someone threatened to hurt them online. 83 In a study published in the journal Preventing School Failure: Alternative Education for Children and Youth, the authors examined the background of cyberbullying, its consequences, as well as the laws. Citing a number of court cases, the authors of this st udy concluded that the findings varied from case to case ; administrators to address the problematic online behaviors of students as well as offered a basis on which they can shield themse 84 The potential consequences of 82 Prevention. Updated February 20, 2020. https://webappa.cdc.gov/sasweb/ncipc/leadcause.html. 83 Patchin, "2019 Cyberbullying Data , " 2 019. 84 I bi d. , 82 . PAGE 57 57 cyberbullying must be taken seriously : cyberbullying, as either an offender or a victim, had more suicidal thoughts and were more likely to attempt s uicide than those who had not experienced such forms of peer aggression. Also, victimization was more strongly related to suicidal thoughts and behaviors than offending 85 Conrad Roy III took his own life at the age of 18 in 2014. His girlfriend, Michelle Carter, age 17, was found guilty of involuntary manslaughter in 2017 for her role in his suicide. Carter sent a barrage of text messages to Roy encouraging him to go throug h with suicide when he reached out to her for help. The transcripts of the text exchange are chilling and cold hearted. Carter: You can't think about it You just have to do it? You said you were gonna do it like I don't get why you it either. Idk confused like you were so ready and determined [repeated 18 times] Carter: No you'r e not Conrad. Last night was it. You keep pushing it off and you say you'll do it but u never do. Its always gonna be that way if u don't take action to do it Carter: No? Its probably the best time now because everyone's sleeping. Just go somewhere in your truck. And no one's really out right now because it's an awkward time Carter: You're ready and prepared. All you ha ve to do is turn the generator on and you bee free and happy. No more pushing it off, no more waiting 86 85 Hinduja, "Bullying, Cyberbullying, and Suicide" (2010): 206 . 86 Boston25News , , Boston25News , July 9, 2019 , https://www.boston25news.com/news/all the text messages between michelle carter and conrad roy they day he died/532942907/. PAGE 58 58 There are dozens of exchanges between Carter and Roy in which Carter encourages and pushes Roy to commit suicide. Carter was tried as a juvenile and her conviction read: This court has found that Carter's actions and failure to act where it was her self created duty to Roy since she put him in that toxic environment constituted reckless conduct . " 87 appealed the verdict to the U.S. Supreme Court , have been violated . The petition claims that Amendment shields her from criminal responsibil ity because her involvement was limited to 88 If the Supreme Court decides to hear the case , the decision will have great , open the door to future litigation in cyberbullying. The story of Carter and Roy was also the subject of a n HBO Mallory Grossman was 12 years old when she committed suicide. Mallory had been the target of cyberbullying at her New Jersey middle school. She received texts and social media messages that insulted her looks, weight, and even suggested she had no friends and should kill everal occasions and the school, according to the parents, did not do enough. No criminal charges were filed in the case ; however , the school failed to take their repeated complaints seriously and instead soug ht ineffectual solutions like asking the 12 year old to hug her 87 Commonwealth v. Michelle Cart er , No. 15YO0001NE (Mass. Juv. Ct. June 16, 2017) . 88 Isaac Stanley Speech , The Washington Post , July 9, 2019 , https://www.washingtonpost.com/nation/ 2019/07/09/she urged her boyfriend die now shes asking supreme court call it free speech/. PAGE 59 59 bullies. 89 A proposed bill passed the New Jersey Senate in June 2019. If made into a law, it make parents civilly 90 A study published in 2017 looked at the perception s of school administrators to cyberbullying and how to address it. School administrators acknowledged that cyberbullying was one of the biggest problems they faced and that the issue had been steadily increasing in recent years with the prevalence of smartphones and social media. The administrators had an easier time addressing or preventing cyberbullying at school by restricting a ccess to certain websites or not allowing students to have smartphone while at school. However, most cyberbullying occurs after school or on weekends. Young et al. said, The fact that cyberbullying occurred primarily outside school, yet happened between s tudents and affected school behavior, was described as the biggest challenge that we have 91 The researchers question ed whether more restrictive policies serve d to limit technology use, not curb cyberbullying , and had the unintended consequence of incre asing the prevalence of cyberbullying outside of schools. Further complicating the issue is the increase of technology in the classroom as an educational tool. School administrators also expressed a lack of clarity regarding when to respond to incidents th at occurred outside of school, 89 Mihir , New York Times , June 21, 2018 , http s://www.nytimes.com/2018/06/21/nyregion/student suicide new jersey.html. 90 CBS New York , Penalties , CBS New York , June 20, 2019 , https://newyork.cbslocal.com/2019/06/20/bullying mallorys law new jersey cyber bullying/. 91 Rachel Young, Melissa Tully, and Marizen Ramirez , Facilitators and Barriers to Preventive Action: A Qualitative Study , Health Education & Behavior 44, no. 3 (2016): 481, https://doi.org/10.1177/1090198116673814. PAGE 60 60 confusing to interpret how far school jurisdiction could or should extend. Lack of clarity about when to intervene led some to turn cyberbully ing cases over to law enforcement, though the effectiveness of criminalizing adolescent bullying is far from clear . 92 Summary seven counties were analyzed to determine which districts had policies in plac e for teachers and/or students regarding their social media use. The policies were compared with existing state mandates to compare the districts that used the model policy and those that went further in addressing social media. Based on the court cases and available research and literature, I make recommendations for school district s and 92 Ibid ., 482 . PAGE 61 61 CHAPTER 3 METHODOLOGY This study was a comprehensive policy analysis of the 67 Florida School Districts policies regarding social media and cyberbullying , especially during off school hours on personal networks. The purpose of this study was to analyze th e Florida statutes currently in place and to compare the district policies as to conformity with state recommendations and regulations . Florida state statutes and district policies were reviewed to see what guidelines, if any, they provided for electronic communication off school hours as well as actions by teachers and students. The researcher examined the district policies on four levels: no policy, meets state mandated cyberbullying policy, meets state mandated cyberbullying policy and includes social me dia policy, and exceeds state mandated cyberbullying and social media policy . Furthermore, an analysis was conducted of prevailing case law as it pertains to the First Amendment 1 regarding Freedom of Speech in schools, specifically cases involving action s that occurred outside of school. The research presented in this paper was intended to prove or disprove the hypothesis that district policy for teachers and students has not caught up to the reality of s ocial m edia use among teachers and students . Legal Analysis and Current Actions The first part of this study was a historic analysis of Supreme Court cases involving Freedom of Speech in schools. The benchmark case on the subject, Tinker v. Des Moines , 2 was used as the cornerstone in which all other cases have been decided. From Tinker , I read and analyzed the major Supreme Court cases that have challenged the First Amendment and how it would be interpreted in the context of a school setting. Following t he Supreme Court 1 U.S. Const., Amend I. 2 Tinker , 393 U.S. at 503. PAGE 62 62 cases, I read and compared cases at the United States District level and finally, state Supreme Court cases . Multiple experts who have studied this topic from differing perspective were included. News stories and current event topics were included in this section as well because this is a timely topic with ties to major events that have helped shape what school administrators must do to keep their students safe from school violence, bullying, and suicide that can result from cyberbullying. Additionally, cases in which teachers have faced disciplinary action as a consequence of postings that occurred on their own time were reviewed and added to further emphasize the reality of the dilemma faced by teachers in their professional and private li ves. The New York City school district was included as an example of how a large school district handled social media in schools , which is used as a template for best practices in large school districts. The experts included in the research process were g athered from various fields of study and were viewed as experts in the area they specialized in. Experts from education as well as experts from law and legal practice were included . Additionally, real examples of instances where s ocial m edia has been used to either bully students or to post warnings about school violence were mentioned to illustrate the dangers that s ocial m edia could pose. Data Collection and Analysis The last part of the study was a data analysis of the state statutes and district policies. Beginning on the state level in Florida, the relevant statutes that pertain to school mandates to keep children safe, as well as the cyberbullying policies that must be included in district policy , were read and summarized. Next, an examination was completed on all of the Florida school district s that were publicly available documents on the individual district websites. The policies were categorized into four distinct classifications: no policy, meets state mandated PAGE 63 63 cyberbullying polic y, meets state mandated cyberbullying policy and includes social media policy, and exceeds state mandated cyberbullying and social media policy . The data collected were then analyzed based on the research question posed in Chapter 1 of this study: How hav e Florida schools adapted to the changing climate of cyberbullying and social media ? Do Florida school districts adopt state guidelines about social media and electronic expression? The process used to answer the research question was to examine the findi ngs from the Florida school districts and determine which ones had guidelines in place and to include examples of the districts whose guidelines were extensive and could adequately address the realities faced by students and teachers on s ocial m edia today. The second part of this question was answered by districts followed the guidelines, which districts did not meet the guidelines, and which districts exceeded the stat e guidelines. P olicy recommendations were made based on the best practices identified by experts and an examination of the severe consequences that could result from behavior on social media . A proposed addendum to the current Florida Department of Educati on Model Policy Against Bullying and Harassment 3 (Appendix B ) was created to include and address social media use and the ways in which students can use social media effectively as well as ways in which social media postings could lead to disciplinary con sequences for students. The limitations for this study came from the relative infancy of s ocial m edia. Opinions are varied on what schools should do, with strong feelings on both sides. There was no clear and concrete guide to best practices ; however , there were best practices that had been used in schools regarding First 3 Florida Department of Education , , PAGE 64 64 Amendment issues. This study took the legal precedents into consideration along with the expert opinions , to formulate recommendations for future guidelines and best practice s. PAGE 65 65 CHAPTER 4 FINDINGS AND ANALYSIS Introduction This chapter outlines data from the districts and applies the findings to the research question posed in C hapter 1. The individual district data were included as well as an overview of 1 school districts are under state mandate to include language in their district policies regarding bullying, including cyberbullying. Florida statutes require that district 2 ( Appendix B ) . The district policies f were examined and cross referenced with the state mandated language to determine which of the districts included the mandated language only, which districts went above and beyond and included more extensive cyberbullying lang uage, including social media policies, and which districts, if any, did not include the state mandated cyberbullying language in their policy. Further examination of the policies included an analysis of the districts that explicitly include d social media guidelines as part of their policies. Findings were examined using the research question posed in Chapter 1 to address the topic of electronic communication used by teachers and students during their own time, off school grounds, and whether a school has t he right to enforce their rules . two of the sixty eight Florida public 3 The f indings from the Gates study were compared to the current findings to conclude whether Florida districts had made changes to their 1 For purposes of this study, the Lab Schools, Florida Virtual School, or the Florida School for the Deaf & Blind were not included. 2 Fla. Stat. § 1006.147 (4) (2019). 3 PAGE 66 66 policies , if the findings remained the same, or if more Florida districts adopted social media policies since 2015 . Findings An analysis of the 67 Florida district pol icies determined that 64 had the state mandated language as part of their policy, 28 included social media in their policies, nine exceeded the state mandated language and basic social media policy, and three did not include any cyberbullying or social med ia guidelines as part of their district policy. Table 4 1. Florida d istrict policies POLICY FINDINGS DISTRICTS No Cyberbullying Policy 3 Meets State Mandated Cyberbullying Policy 64 Meets State Mandated Cyberbullying Policy and includes Social Media Policy 27 Exceeds State Mandated Cyberbullying Policy and Social Media Policy 8 Florida Districts and social media. This information is based on the most recent school year in which the policies were posted on their website, which for most was the 2019 2020 school year. While references to the websites are provided in the footnotes, these policy documents are reviewed annually and often updated. We rec ognize that the documents found on the websites will change. Alachua County The student handbook for the Alachua County School District warned campus speech or other conduct which occurs outside of school time that violates the district Code of Student Conduct may also be the basis for discipline, up to expulsion, if it has the potential to disrupt the process of education; impact the safe and efficient operation of the school PAGE 67 67 or school sponsored activities; or interferes with the righ 4 By using language that makes it clear that off campus activities are subject to discipline, the school they are on or off campus. Alachua went further and added have the potential of causing a disruption to education. Baker County Baker County School District did not go beyond the stat e mandated language regarding cyberbullying. Baker County mainly referred to activity that occurs using school owned computers or networks ; they did not refer specifically to actions or speech that occurred off t is not connected to a school network. 5 Bay County Bay County School District had was Amendment rights, the district believes that employees should separate 6 Bay County also included the state mandated cyberbullying language. Bradford County s themselves freely as long as they do not disrupt / interfere with The Student Code of Conduct also said , 4 Alachua County Public Schools, Alachua County Student Code of Conduct , 2019 20, https://www.sbac.edu/Page/3665 . 5 Baker County Public Schools, Policy on Bullying and Harassment , https://www.bakerk12.org/site/Default.aspx?PageID=3197 . 6 Bay County Public Schools, Bay County Employee Code of Con duct for Social Media, (2020): 338. PAGE 68 68 any electronic device including cell phones, e mail, or any other device designed to transm it voice, pictures, or data may be treated the same as other forms of harassment, bullying, or hazing. Students who engage in this form of cyber bullying will be assigned consequences according to the severity of the event. 7 Bradford County used language that is similar to the State of Florida guidelines. They did not outline consequences for behavior or actions that occurred outside of school hours or off campus ; however , by including the language that anything that interferes with learning is subject to discipline they s tated that they could review anything that happened off campus or outside of school hours. Brevard County Brevard County had a Social Media Guideline that they require their employees to sign (Appendix C) . The guide does not restrict social media content and tell district employees what they can post on social media but gives clear guidelines for them to abide by. The guidelines warn , lish is widely accessible and will be around for a long time, so consider the content carefully. 8 The student handbook for Brevard County uses the language that the State of Florida recommends. Broward County Broward County, the home of Marjory Stonema n Douglas High School where one of the worst incidents of school violence occurred in 2018, had a section in the Student Code of Conduct for Social Media Use Guidelines. The First Amendment, in general, protects the rights of individuals to participate in social media. However, the laws and courts have ruled that schools can discipline students and staff if their speech, including online postings, disrupts 7 Bradford County Public Schools, Bradford County Student Code of Conduct, (2020): 41. 8 Brevard County Public Schools, Brevard County Social Media Guidelines, 2020, https://www.brevardfl.gov/HumanResources/PoliciesProce dures . PAGE 69 69 school operations or constitutes a violation of federal or state laws or School Board policie s. 9 Mu ch like Brevard County, Broward County did not restrict content, though they were careful to remind students that they will still be held accountable for what they post online. Calhoun County Calhoun County included the state minimum language requirement about cyberbullying, though nothing about social media . 10 Charlotte County Charlotte County referred to social media in its Code of Student Conduct. The district warns students that, of the time of day, may face disciplinary consequences related to cyberbullying, threatening behaviors, or false reporting when the communication disrupts the educational environment of 11 Citrus County When students use social media to threa ten other students or school employees which has a direct effect on a school function, Law Enforcement may be requested to conduct a home visit and/or become involved, which could result in criminal prosecution, suspension, and/or expulsion. 12 Citrus Coun ty included social media violations as having the potential to affect athletic eligibility. There was a section about cyberbullying as a form of bullying that was subject to the district bullying policies and discipline. 9 Broward County Public Schools, Broward County Student Code of Conduct, (2020); 22, https://www.browardschools.com/cms/lib/FL01803656/Centricity/Domain/12430/BCPS_SocialMediaUseGuideline s_Final.pdf . 10 Calhoun County Public Schools, Bullying Policy, http://calhounflschools .org/bullying policy . 11 Charlotte County Public Schools, Charlotte County Student Code of Conduct, (2020): 10. 12 Citrus County Public Schools, Citrus County Student Code of Conduct, (2020): 28. PAGE 70 70 Clay County T he Clay County Code of Conduct included social media in its bullying policy by emphasizing that students must , including social media had . Sometimes, personal social media use, including off hours use, may result in disruption at school and the school may need to get involved. This could include disciplinary action such as a parent conference, suspension and/or expu lsion. It is important to remember that infractions outlined in the SDCC Student Code of Conduct prohibiting certain types of communication also apply to electronic communication. 13 Their approach made it clear that Clay County School District was ready to act when needed and social media use may be monitored, and mistreatment would result in the same kind of disciplinary action as violations that occur during school hours. Collier County Collier County had clearly delineated guideli nes for both teachers and students : (on campus or off campus) shall not use any method of communication, including electronic communication that is obscene or profane, that causes personal humiliation and/or is likely to disrupt the school educa 14 The guidelines include d bullying and cyberbullying language to ensure that students knew that any type of bullying would not be tolerated. Collier County also published a social media guide for employee s. The employee guidelines were social media during work time. Overall, Collier County used language that is stronger than what the State of Florida mandated . 13 Clay County Public Schools, Student & Family Handbook and Code of Student Conduct, (2020 ): 65, https://www.oneclay.net/studentandfamilyhandbook 14 Collier County Public Schools, Collier County Student Code of Conduct, (2020): 23. PAGE 71 71 Columbia County The Code of Conduct of Columbia County explicitly stated social media use shall be subject to scrutiny and they may be disciplined for any actions that disrupt learning. The language is the same as that of Collier County, us or off campus) shall not use any method of communication, including electronic communication that is obscene or profane, that causes personal humiliation and/or is likely to disrupt the school educational, extracurricular or administrative process. 15 DeSoto County The Student Handbook of DeSoto County included stipulations that if bullying impaired bullying happened during school hours or not , it is bullying guidelines. The employee handbook did not expressly refer to social media . 16 Dixie County The student handbook of Dixie County included the boilerplate language recommended by the state of Florida. The employee ha ndbook had no mention of social media. 17 Duval County was used in the Duval County Code of Conduct ; however , it specified inappropriate social media a ctivity. There was nothing included in the personnel policies. 18 15 Columbia County Public Schools, Columbia County Student Code of Conduct, (2020): 5. 16 DeSoto County Public Schools, DeSoto Code of Student Conduct, https://4.files.edl.io/23bb/07/29/20/184730 c2368746 8028 4858 b78f 82d76532b13e.pdf 17 Dixie County Public Schools, Dixie District Schools Student Code of Conduct, http://www.dixie.k12.fl.us/Student%20Code%20of%20Conduct.htm 18 Duval County Public Schools, Code of Conduct , https://dcps.duvalschools.org/Page/9868 PAGE 72 72 Escambia County Escambia County did district policies, but it is vague. decision as to the legal and ethical participation in the use of social media networks for personal use on 19 The Student Code of Conduct similarly included non specific la nguage that warned students that out of school conduct (to include social media ) could result in discipline. Flagler County social media posts and alert administration of possible threats of violence, suicide, self harm, bullying or criminal activity 20 The company used an algorithm that flagged certain words, phrases, or word combinations and share d those posts with the district. Flagler County emphasized that the company did not store or save any information and that it did not make any recommendations about how the district should proceed . After one year, the software was dropped by the district . The Student Code of Conduct was vague and mentioned cious warned that athletic 21 19 Escambia County Public Schools, Escambia County District Policies, http://www.escambiak12.net/ . 20 Palm Coast Observer, April 5, 2019, https://www.palmcoastobserver.com/article/teen arrested after posting threats of school shooting on social medi a. 21 Flagler County Public Schools, Student Code of Conduct, https://flaglerschools.com/family/student_resources/student_discipline . PAGE 73 73 Franklin County The Student Code of Conduct used the State of Florida guidelines for includi ng digital methods in the bullying section. The Employee Handbook did not mention social media in any way. 22 Gadsden County Gadsden County District included the State of Florida language in its policies about bullying but did not include social media . 23 G ilchrist County Gilchrist Student Handbook informed students that posts on social media were regulated by d that policy were subject to disciplinary action. Further, the district stated , t ransmitting material that is threatening, obscene, disruptive, or sexually explicit or that harasses or disparages others based upon race, national origin, sex, sexual orientation, age, disability, religion, or political beliefs is strictly prohibited and can involve consequences from both school and local law enforcement. 24 The Employee Handbook of Gilchrist County include d general recommendations for employees to use when they were posting on social media sites. Glades County The State of Florida standar d language was used in the Glades County Student Code of Conduct. The Employee Handbook stated , An employee's personal or private use of social media, such as Facebook, Twitter, MySpace, blogs, etc., may have unintended consequences. While the Board respe cts its employees' First Amendment rights, those rights do not include permission to engage in conduct that violates Board policies, the Code 22 F ranklin County Public Schools, Student Code of Conduct, https://www.franklincountyschools.org/domain/88 . 23 Gadsden County Public Schools, Student Code of Conduct , https://online.flippingbook.com/view/860842/ . 24 Gilchrist County Public Schools, Gilchrist Co unty Student Handbook, (2020): 16. PAGE 74 74 of Ethics of the Education Profession in Florida, the Principles of Professional Conduct for the Education Profess ion in Florida, or any other state of Federal laws, and may result in disciplinary action. This warning includes staff members' online conduct that occurs off school property including from the employee's private computer . 25 The warning for employees was clear and reminded employees that they were responsible for their actions both online and offline , and they may face disciplinary action for behavior that violated the policies of the district, even if the behavior occurred ou tside school hours. Gulf County Both the student and teacher handbooks only mention ed network acceptable use . There was no mention of social media or actions that occur red outside of school . The Student Code of Conduct did include the state mandated cyberb ullying section. 26 Hamilton County The School Board Policy Manual outlined the expectations for district employees when using personal social media accounts and advise d them that they may be subject to disciplinary action if their posts violate d School Boa rd policies, including possible dismissal. 27 The state mandated language was included in the Bullying and Harassment section of the School Board Policy Manual. 28 Hardee County Hardee County had the state cyberbullying language as part of their a nti b ullyin g policy. 29 25 Glades County Public Schools, Glades County Employee Handbook Po7540.04. 26 Golf County Public Schools, Student Code of Conduct , https://gulfcoschools.com/students/documents/ . 27 Hamilton County Public Schools, Hamilton C ounty School Board Policy Manual 8.342. 28 Ibid., 5.102. 29 Hardee County Public Schools, District Anti Bullying Policy, http://www.hardee.k12.fl.us/?DivisionID=20889 . PAGE 75 75 Hendry County Student Code of County for Hendry County stated that inciting urging someone to behave inappropriately. This can include, but is not limited to, the use of electronic devices or social media to provoke inappr 30 This would be a violation of the district was included as a form of bullying, as defined by the State of Florida statutes. Hernando County The Hernando County Student Code of Conduct specifie d behavior or activities that students may be disciplined for including through social media or texts, etc., to the possession of, use of, or making a proclamation regarding weapons or other i nstruments that may cause harm. 31 The Employee Handbook did not address off campus activity. The Hernando County language was unique in that it specifically addressed actions that may be considered threatening, including acts of violence. Threats would be taken seriously by the district and would not be tolerated. Highlands County The Highlands County Student Code of Conduct made no reference to social media and did not include cyberbullying in the bullying section of the Student Code of Conduct. The School Board Policy regarding employees stated , The District recognizes that employees may use social media for personal, as well as professional reasons. The District neit her encourages nor discourages 30 Hendry County Public Schools, Hendry County District Schools Student Handbook, (2020): 1 00. 31 Hernando County Public Schools, Hernando County Student Code of Conduct, (2020): 17. PAGE 76 76 the same extent as it regulates any other form of employee commu nication in that regard . 32 Hillsborough County The Hillsborough County Employee Handbook took a neutral position regarding district employees using social media for personal use. The Student Code of Conduct only addressed student use of social media using school equipment and school networks. The Bullying and Harassment section of the District Policies included cyberbullying as a form of bullying. 33 Holmes County The Board Policies of Holmes County only mention ed social media for classroom usage and outline d that only district approved social media should be used in the classroom ; s exting was prohibited. Holmes District Student Code of Conduct included the state mandated inclusion of cyberbullying as a form of bullying that violates district policies. 34 Indian River The language of Indian River County was similar to that of other districts and reminded This warning includes staff members' online conduct that occurs off school property including from the employee's pri vate computer. Postings to social media should be done 35 Indian River made it clear that employees may face disciplinary action if their social media posts violate d district policy , even if the employee posted from his or her personal computer and not during school hours . 32 Highlands County Public Schools, Highlands County School Board Policy po7544, https://www2.highlands.k12.fl.us/school board/board policy . 33 Hillsborough County Pub lic Schools, Student Code of Conduct, https://www.sdhc.k12.fl.us/conduct . 34 Holmes County Public Schools, Student Code of Conduct, http://holmesdistrict.sites.thedigitalbell.com/parents . 35 Indian River Public Schools, Indian River School District Policy po 7540.04, https://www.indianriverschools.org/district/policies___publications . PAGE 77 77 The Student Code of Conduct of Indian River County had a section about cyberbullying, including the creation of an anti bullying task force to help educate studen ts and staff about what bullying looks like. 36 Jackson County Jackson County did not have a social media policy ; however , they include d cyberbullying as a form of bullying in the Student Code of Conduct. 37 Jefferson County On the Jefferson County District website, in the parent tab, there was a section that provided tips and guidelines for helping to keep kids safe while online. The Code of Conduct included very limited language about cyberbullying but did not address social media use. 38 Lafayette County Lafayette County did not address social media use nor was there an anti bullying or cyberbullying policy available on their website . 39 Lake County Lake County initiated a two fold approach to social media use in its Student Code of Conduct. First, the district informed students that their use of social media, including off school hours or on personal computers or networks, was subject to discipline. The School also reserve d the right to ask a student to remove a certain post if it i nclude d any school information. Second, Lake County advise d students that threats made on social media would be taken seriously. 36 Indian River Public Schools, Indian River County Student Code of Conduct, (2020): 19. 37 Jackson County Public Schools, Jackson County School Board Code of Student Conduct & Discipline, https://www.jcsb.org/apps/pages/index.jsp?uREC_ID=1179488&type=d&pREC_ID=1426835 . 38 Jefferson County Public Schools, JEFFCO Public Schools Code of Conduct/Dis cipline, https://www.jeffcopublicschools.org/schools/code_of_conduct . 39 Lafayette County Public Schools, Student Handbook, https://lhs.lafayette.k12.fl.us/ . PAGE 78 78 When students use social media to threaten other students or school employees which has a direct effect on school property, la w enforcement may be requested to result in criminal prosecution. 40 Lee County Lee County include d the state language regarding cyberbullying but did not go any further than that. 41 Leon County Leon County had a social media guide for students and parents with general tips for I nternet safety. The district did not have any guidelines for discipline or consequences for any kind of internet activity. 42 Levy County The Levy County School District website had a section dedicated to cybersecurity and cyber safety with fact sheets created by the Readiness and Emergency Management for Schools (REMS) Technical Assistance (TA) Center. The d istrict did include the state man dated language about cyberbullying in the Student Code of Conduct. 43 Liberty County Similar to other districts, Liberty School District inform ed employees that they did not intend to limit their First Amendment rights but remind ed them that they may be sub ject to disciplinary action if their social media posts violate d Board policies, including conduct that was 40 Lake County Public Schools, Lake County Student Code of Conduct, (2020): 48. 41 Lee County Public Schools, Code of Conduct for Students, https://www.leeschools.net/our_schools/code_of_conduct . 42 Leon County Public Schools, Student Code of Conduct, https://www.leonschools.net/ . 43 Levy County Public Schools, Student Code of Conduct, http://www.levyk12.or g/ . PAGE 79 79 off school hours. The Student Code of Conduct of Liberty County include d the state mandated language about cyberbullying. 44 Madison County The Scho ol District of Madison County inform ed conduct pertaining to students or school related issues, including such unprofessional conduct on personal social media profiles, may subject the employee to disciplinary actions consist ent with 45 The Student Code of Conduct include d social media in all behavior and discipline procedures. Manatee County Manatee County had separate Social Media Guidelines for both students and employees. The Student Social Media Guidelines acknowledge d that Although off campus Internet use is generally unrelated to school, in some circumstances courts have held that the off campus electronic communications may be connected enough to school or D istrict interests to result in either student or staff member discipline. The Student Social Media Guidelines of Manatee County were very specific and address ed a multitude of possible improper uses of technology and warn ed students that they were subject to disciplinary action as a consequence of misuse of technology. The Manatee County Staff Social Media Guidelines included an Acceptable Use Policy for district devices or district owned networks. The guidelines advise d staff that their Freedom of Speech was protected by the First Amendment to the U.S. Constitution ; however , there were certain limitations that they need ed to follow . The district advise d staff to be careful when using social media for personal use and not communicate with students or have a ny interaction with 44 Liberty County Public Schools, Student Code of Conduct, http://www.lcsbonline.org/ . 45 Madison County Public Schools, Madison County Employee Handbook, (2020): 18. PAGE 80 80 students on social media . The guidelines simplified 46 They encourage d personal responsibility and self monitoring. The district inform ed staff that the y were subject to disciplinary action if the district found would 47 Marion County The Marion County School District did not have any language about social media ; the state mandated cyberbullying section was included in the Student Code of Conduct. 48 Martin County The Student Code of Conduct for Martin County does not go beyond the stock cyberbullying section. The Staff policies were similar to other districts and were aligned with the State recommendations While the School Board respects its employees' First Amendment rights, those rights do not include permission to engage in conduct that violates School Board policies, the Code of Ethics of the Education Profession in Florida, the Principles of Professional Conduct for the Education Profession in Florida, or any other State or Federal laws, and may result in disciplinary action. This warning includes staff members' online conduct that occurs off school property including from the employee's private computer. 49 Miami Dade County Miami Dade County Public Schools (MDCPS) was the largest school dist rict in the state of Florida and the fourth largest in the United States, with 345,000 students and over 40,000 46 Manatee County Public Schools, Manatee County Staff Social Media Guidelines, https://www.manateeschools.net/domain/3699 . 47 Ibid 48 Marion County Public Schools, Student Code of Conduct, https://www.marionschools.net/codeofconduct . 49 Martin County Public Sc hools, Martin County District Policy, https://www.martinschools.org/Page/7661 . PAGE 81 81 employees in the 2019 2020 school year . 50 MDCPS provide d a multitude of resources for students, parents, and staff meant to teach responsible di gital citizenship. They had a Top Ten Tips for Social Media ( A ppendix E ) flyer that was translated to Spanish and Creole that use d positive language intended to teach students and parents appropriate behavior online as well as outline some of the benefits of social media . The Student Code of Conduct addresse d threats of violence specifically. When students use social media to threate n other students or school employees which has a direct effect on school property, law enforcement may be requested to result in criminal prosecution. 51 The MDCPS Board Policies s ections po7540.03 and po7540.04 address ed Student and Staff Responsible Use of Technology, Social Media, and District Network Systems. 52 Board policies made it clear that students and staff must use technology responsibly and not violate rules set forth in the Acceptable Use Policy. Students and staff could face disciplinary action for any activity that violate d those policies, whether on or off campus. Monroe County Monroe County Student Code of Conduct only addresse d district owned devices and networks. The staff handbook similarly only addresse d the use of district related devices and networks as being regulated. Monroe County state d 53 50 Miami Dade County Public Schools, DadeSchools.net, http://www.dadeschools.net/. 51 Miami Dade County Public Schools, MDCPS Student COC, http://ehandbooks.dadeschools.net/polici es/90/ . 52 Miami Dade County Public Schools, MDCPS School Board Policies, http://www.dadeschools.net/ schoolboard/rules/ . 53 Monroe County Public Schools, Monroe County po7544 . PAGE 82 82 Nassau County Nassau County mention ed ; however , the county does not give more information regarding what issues would violate the school policies. 54 Okaloosa County Okaloosa County did not address social media concerns in the Student Code of Conduct. They include d the state mandate d cyberbullying language but did not specifically include off campus activity or social media. The Employee Policies of Okaloosa discourage d employees from being friends with st udents on their personal social media. 55 Okeechobee County The Okeechobee Public School Student Code of Conduct include d the state mandated cyberbullying language but did not go beyond that stock statement. 56 Orange County The Orange County School Distric t provide d parents with a Social Media Awareness Program. We will use any means that are legal and appropriate to keep our children safe in a society that has many dangers. Because social media can be the source of bullying, school threats or masked cries for help, we believe it is appropriate to monitor public sites, sites that anyone can view. For security purposes, we will not disclose all of the details related to monitoring social media 57 54 Nassau County Public Schools, Student Code of Conduct, https://www.nassau.k12.fl.us/Page/2066 . 55 Okaloosa County Public Schools, Student Code of Conduct, https://www.okaloosaschools.com/district/student codes . 56 Okeechobee County Public Schools, Student C ode of Conduct, http://www.okee.k12.fl.us/policies and manuals . 57 Orange County Public Schools, Orange County Social Media Awareness, https://www.orangecountyfl.net/Home/SocialMedia.aspx#.X2DN6GhKguV . PAGE 83 83 Orange County was transparent in its monitoring of students off campus social media activity. The Student Code of Conduct pointedly include d social media in all of its infraction warnings 58 This proactive approa ch should be the goal of other school districts in order to prevent future incidents of school violence ; however , Orange County may overreach in its monitoring of student social media . Osceola County Osceola County School District advise d employees that t hey should not engage in communication with a student through personal social media . Employees could face disciplinary action for activity on personal social media that violate d the Code of Ethics. Osceola County Student Code of Conduct advise d students th at harmful or malicious use of cellular telephone, electronic communication devices (ECDs), and 59 The Code of Conduct did not address off campus activity. Palm Beach County Palm Beach County School District had a comprehensive Social Media Guide in their Student Code of Conduct. The district inform ed students that social media can be a positive educational tool , but it can have negative consequence s if misused. They acknowledge d that the First Amendment protects the rights of students to participate in social media ; however , there were limitations to protection, and if online activity became disruptive of the school environment 58 Ibid. 59 Osceola County Public Schools, Osceola Studen t COC, https://www.osceolaschools.net/Page/2230 . PAGE 84 84 or violate d board pol icies or federal or state laws, the student could be held responsible and face disciplinary actions. If the use or posting to a social media site creates a substantial and material disruption on a school campus, regardless of time or location while postin g to a social media site, students will be subject to the behavioral standards set forth in the Student Code of Conduct. 60 Pasco County The District School Board of Pasco County published Guidelines for social media for employees that prohibit ed employees from being friends or engaging with students on personal social media . The Student Code of Conduct include d a message from the Superintendent about school violence : seriously and th 61 Pasco County also had an anti bullying page on its website. The state mandated language about bullying and cyberbullying was included , but county guidelines went beyond that and provide d resources and links including a direct link to report bullying. Pinellas County Pinellas County School District use d the state language regarding cyberbullying in their Student Code of Conduct. Employees had a Communication Guide that only addresse d appropriate conduct on district or school social media accounts, not personal social media . 62 Polk County Students in Polk County were asked to sign a Social Media Contract that include d : I will NOT set up any private or secret social media accounts 60 Palm Beach County Public Schools, Palm Beach County Student COC, (2020): 17. 61 Pasco County Public Schools, Pasco County Student COC, (2020): 2. 62 Pinellas County Public Schools, Student Code of Conduct, h ttps://www.pcsb.org/code . PAGE 85 85 I will NOT engage in online bullying including leaving unkind comments on I understand that the posting of certain types of photos and information on social media sites in punishable by law. 63 There was a section of the website dedicated to bullying that include d resources to help parents and students identify bullying and how to stop it. There was also a link to report bullying , and links were provided with resources for those seeking more information. The Student Co de of Conduct include d social media issues in the topics that may be considered in athletic eligibility . Putnam County The employee guide in Putnam County advise d employees that their off campus social media activity may be subject to disciplinary action if it violate d the Florida Code of Ethics or state or federal law. 64 The only mention of social media in the Student Code of Conduct was , Intentionally instigate or promote conflict between their peers, including but not limited to soci al media. 65 The Code of Conduct section about bullying did not include the state mandated language and did not mention cyberbullying. Santa Rosa County The Santa Rosa District Student Code of Conduct include d social media in its 66 63 Polk County Public Schools, Polk County Social Media Contract, https://polkschoolsfl.com/policiesandforms/ . 64 Putnam County Public Schools, Putnam County Employee handbook, (2020): 29. 65 Putnam County Public Schools, Putnam Stud ent COC, (2020): 10. 66 Santa Rosa County Public Schools, Student Code of Conduct, https://sites.santarosa.k12.fl.us/srhs/codeofconduct.html . PAGE 86 86 Sarasota County Sarasota County only refer red to social media when discussing district networks and include d cyberbullying as a form of bullying that was not tolerated and would be dis ciplined according to the bullying policies of the district . 67 Seminole County The School District of Seminole County use d the language found in the state statutes in its Employee Handbook but made no mention of social media for students. The state mandate d language was included in the District Policy Manual. 68 d multiple resources for parents about the dangers of social media for students and how to recognize inappropriate or risky behavior s . The district also include d School District were warned that if their personal social media postings were on private websites and could not be accessed by students , then the employee 69 St. Lucie County The Employee Handbook inform ed employees that they did not have a formal social media policy ; however , they discourage d social media platforms. The Student Code of Conduct in St. Lucie County is clear : A student may be disciplined under the Code for expressive off campus conduct (such as e mails or postings on social media like Facebook, YouTube, Twitter, 67 Sarasota County Public Schools, Code of Student Conduct, https://www.sarasotacountyschools.net/Page/2566 . 68 Semin ole County Public Schools, Seminole County School District Policy po5517.01, https://www.scps.k12.fl.us/district/school board/policies procedures/ . 69 https://www.stjohns.k1 2.fl.us/board/rules/ . PAGE 87 87 b logs, etc.) where: (1) such conduct would foreseeably create a risk of material and substantial disruptions within the school environment; (2) it was reasonably foreseeable that the off campus expression might reach campus; and (3) the conduct did create a material and substantial disruption within the school environment. Disciplinary action shall be proportional to the offense. The School District will cooperate with law enforcement officers in investigations related to illegal activities conducted through its network. Some violations may constitute criminal offenses and may result in criminal prosecution . 70 Sumter County The only mention of social media in Sumter County was in relation to district networks and devices. 71 Sumter County include d the state mandated language about cyberbullying in its district policies. Suwanee County ethical participation in the use of social media networks for personal use on pers onal time, employees should be mindful of District and State Code of Ethics while online. 72 Suwanee County School District did not take an official position on social media for its employees ; however , they did encourage employees to be aware of their prese nce and activity on social media . The Student Code of Conduct of Suwanee County include d social media in its section on bullying : aggressively toward another student, or attempt ing to fight, which could include the following: instigating, inciting/enticing fights verbally or through social media 73 70 St. Lucie County Public Schools, St. Lucie Student Code of Conduct, (2020): 29. 71 Sumter County Public Schools, Code of Student Conduct, https://www.sumter.k12.fl.us/Page/4480 . 72 Suwanee County Public Schools, Suwanee County School Board Policy Manual 6.731. 73 Suwanee County Public Schools, Suwanee Student Code of Conduct, (2020): 22. PAGE 88 88 Taylor County Taylor County School District include d the state mandated language regarding cyberbullying and cyberstalking in its St udent Code of Conduct. 74 Union County The Union County School District had a link to cyberbullying resources, including a description of what cyberbullying is and how it differs from other forms of bullying. The official language of the Board Policy on Bullying was the same as the state mandated language , which include d cyberbull ying in the bullying policy. 75 Volusia County The Volusia County School District Employee Handbook include d a separate Social Media Guide ; , however , that guide only refer red to official business and school sponsored accounts, not personal social media use. Volusia offer ed a flyer for students titled, Top Ten Tips: How to Protect Your Online Reputation on social media , which provides students with helpful suggestions for maintaining a positive social media presence ( A ppendix F ) . The School Board adopte d the state mandated language in their official Policy Against Bullying and Harassment. 76 Wakulla County The Wakulla County School District Student Code of Conduct advise d , Use of cell phones or computers for inappropriate photographs, inappropriate inter net use, or threats may result in disciplinary consequences including but not limited to suspension, expulsion, referral to the long term disciplinary program, 74 Taylor County Public Schools, Student Code of Conduct, https://www.taylor.k12.fl.us/documentsa ndforms . 75 Union County Public Schools, Union County Bullying Policy, (2020): 2. 76 Volusia County Public Schools, Volusia School Board Policy Against Bullying and Harassment #525, https://www.vcsedu.org/school social services/bullying what parents can do . PAGE 89 89 and possible criminal penalties. This includes inappropriate or disruptive use of any social med ia . 77 Walton County There was no mention of social media in the Walton School District Student Code of Conduct ; however , cyberbullying is included as a form of bullying. The Code of Conduct advise d students about appropriate online behavior when using d ist rict n etworks or d istrict approved devices. 78 Washington County The School District of Washington County met the minimum state requirements for cyberbullying language but did not have a policy about social media . 79 Research Question How have Florida schoo ls adapted to the changing climate of Cyberbullying and social media ? Do Florida school districts adopt state guidelines about social media and electronic expression? The 2018 school shooting at Marjory Stoneman Douglas High School in Parkland, Florida, resulted in the deaths of 17 students and staff from the school. The shooter, Nikolas Cruz, had posted on social media prior to the shooting. Schools have needed to adapt to the burgeoning world of social media and their options to address activity by stud ents that occurs outside of school hours and off district networks. Findings from this study do not show that school districts in Florida have acted quickly to adopt policies that would allow them to monitor and take action if a student post ed a threat to social media ; 28 of the 67 Florida districts include language that is specific enough to address a 77 Wakulla County Public Schools, Wakulla Student Code of Conduct, https://www.wakullaschooldistrict.org/HandbookReports . 78 Walton County Public Schools, Walton Student Code of Conduct, https://www.walton.k12.fl.us/code of conduct . 79 Washington County Public Schools, Student Code of Conduct, https://www.wcsdschools.com/parent resources . PAGE 90 90 serious threat and act immediately . Flagler County has one of the more advanced systems in place in Florida with the hiring of an outside contractor to moni tor potential threats to Flagler County schools. The School Board approved the software for a three year term, with the option to cancel after one year. After the first year, the school board decided to drop the system, claiming that they were not getting the results that they had hoped from the system. 80 Hernando County specifically addresse d threats to a school in its policy : M aking references to, whether verbal, written, drawn, through social media or texts, etc., to the possession of, use of, or maki ng a proclamation regarding weapons or other instruments that may cause harm. 81 Lake County similarly took a stance on threats made on social media . When students use social media to threaten other students or school employees which has a direct effect on school property, law enforcement may be requested to result in criminal prosecution . 82 Manatee County illustrate d the findings in Tinker v. Des Moines 83 that a student may be disciplined for his or her actions that disrupt the school environment. The Venn Diagram in Figure 4 1 shows the two types of Internet usage , on campus and off campus , and how they are separate as well as where there can be possible overlap. The off campus usage could result in 84 80 Alert System , Flagler Live , August 22, 2019 , https://flaglerlive.com/140977/flagler schools sentinel crisis go/ . 81 Hernando County Student Code of Conduct, (2020): 17. 82 Lake County Student Code of Conduct, (2020): 48. 83 Tinker, 393 U.S. at 503. 84 Manatee County, Manatee County Student Social Media Guidelines. PAGE 91 91 Figure 4 1 . Manatee County on campus/off campus Internet usage 85 As the largest district in the state, Miami Dade County Public Schools (MDCPS) had emerged as a leader in the area of social media policy, having one of the most comprehensive policies in the state and one that can be used a model for other districts. The Student Code of Conduct specifically state d 86 They went a step furthe r and cite d Florida Statutes regarding mass shootings Any person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent, o r any person who makes, posts, or transmits a threat in a writing or other record, including an electronic record, to conduct a mass shooting or an act of terrorism, in any manner that would allow another person to view the threat, commits a felony of the second degree pursuant to F.S. 836.10. 87 85 Manatee County Student Social Media Guidelines. https://www.manateeschools.net/domain/3699 . 86 MDCPS Student Code of Conduct, (2020): 39. 87 Ibid. PAGE 92 92 MDCPS was controversy. The First Amendment guarantees the right to Free Speech ; 88 however, that right is not without checks and balance s. Speech that is threatening or inciting violence is not protected and can be prosecuted. 89 Orange County also adopted a social media policy in order to protect its students from Because social media can be the source of bullying, school threats or masked cries for help, we believe it is appropriate to monitor public sites, sites that anyone can view. 90 Orange County made it clear that they will monitor social media sites and take action if necessary. Their goal was to ha ve a system in place that is proactive and prevents incidents of school violence rather than reactive and having to address a tragedy after it has taken place. Palm Beach County include d a statement in their Student Code of Conduct that a student could fa ce disciplinary consequences if something they post on social media causes a disruption. They clarified that the time or location of the posting does not matter, making it clear that a student can be disciplined even if they post something while they are o ff campus and not during school hours. 91 Pasco County also advise d students that they will take threats of school violence seriously and violators could be charged with a felony or expelled from school. 92 St. Lucie County include d in its Student Code of C onduct a statement that students can be disciplined for social media would foreseeably create a risk of material and substantial disruptions 88 U.S. Const. Amend. I. 89 See: Virginia v. Black (20 03) and Planned Parenthood of Columbia / Willamette, Inc. v. American Coalition of Life Activists (2002) . 90 Orange County Social Media Awareness, https://www.orangecountyfl.net/Home/SocialMedia.aspx#.X2DN6GhKguV . 91 Palm Beach County Student COC, (2020): 17 . 92 Pasco county Student COC, (2020): 2. PAGE 93 93 within the school environment 93 Wakulla County also include d threats made on social media as within t he purview of the disciplinary consequences. 94 Florida Statute 1006.147 requires that school districts in the state have a policy that prohibits bullying, including cyberbullying. 95 Of the 67 Florida districts, 64 currently have a policy that me ets the state mandated guidelines about cyberbullying. Of those 64 districts, 28 also explicitly include social media. 93 St. Lucie Student Code of Conduct, (2020): 29. 94 Wakulla Student Code of Conduct, https://www.wakullaschooldistrict.org/HandbookReports . 95 Fla Stat § 10 06.147 (2019) , Also known as The Jeffrey Johnson Stand Up for All Students Act. PAGE 94 94 CHAPTER 5 DISCUSSION, CONCLUSION, AND RECOMMENDATIONS Summary The purpose of this study was to examine the case law driving current school decisions about students and teachers use of social media outside of school and to review existing Florida school district policies within the framework of identifying trends and best practices in guiding future policies to ensure that schools are not violating student and teacher First Amendment rights but are maintaining a safe learning environment. relevant Florida Statutes. Also included is a conclusion of the findings related to the prevailing literature associated with the study. The chapter concludes with a discussion of the limitations of the study and recommendations for future study, as well as an example of what should be included in a district policy that could be adopted by school districts to meet the growi ng need for guidance from schools about expectations for students when using social media . Discussion S ocial media has become a source of both positive and negative content in society. In an educational context, social media has many benefits and can be u sed successfully by educators and students to enhance learning. S ocial media has helped improve communication, allowing students to connect with students in other parts of the world or experts in a field of study. Using social media can aid students in con ducting research and having access to a wide variety of primary source information, faraway museums or historic sites, and a vast online library of resources. S ocial media has made it easier for parents to keep in touch with what is happening at their chil opportunities, view photos of campus activities, and communicate directly with teachers and PAGE 95 95 administrators. Another benefit of social media is the ever growing option o f distance learning opportunities. Students and teachers can interact and connect via a multitude of distance learning platforms , giving them new ways to be present, even when they cannot physically be there. There are a multitude of disadvantages to soci al media in education, the effects ranging from minor to extreme consequences. Students can become distracted by social media , focusing receive on a particular post. S tudents can develop an over reliance on immediate answers to everything and not learn to discern what is fact versus opinion. S ocial media has also led to a rise in cyberbullying. According to the U.S. Department of Health and Human Services , cyberbullying 1 The effects of cyberbullying can cause anxiety, depression, and in some cases has led to suicide. 2 The relative anonymity of posting hateful comments via a keyboard as opposed to saying it directly to someone can lead to a person typing negative comments, insults, or threats that they would not say in person. S ocial media can also be used to make threats against a school, teacher, or another student. Th reats made may not all be credible or followed up by action, or intended action, but school administrators have a responsibility to the school community to investigate and determine the credibility of threats made on social media . The First Amendment to t he United States Constitution guarantees the right to Freedom of Speech. 3 This right has come under scrutiny many times , and the Courts have applied it differently depending on the circumstances. The benchmark case on the subject of the First 1 U.S. Department of Health and Human Services , , 2020. 2 See: Kennedy, H., 2010 . 3 U.S. Const., Amend I . PAGE 96 96 Amendment in schools, Tinker v. Des Moines , 4 5 The case centered around students being suspended from school for wearing black armbands in protest of Amendment right to Freedom of Speech because the actions did not cause a substantial disruption to the school day. That standard has been applied to subsequent cases, though disagreement has arisen over what constitutes a disruption in the school and what happens when the disputed actions happen outside of school. A careful review of the literature provides the following information. The marked increase in the use of social media by society indicates the need for regulations; however, those regulations in schools need to strike a balance between the overall safety and education of the school community as a whole and the individual freedoms and rights outlined in the Constitution. Tinker 6 set the standard for student speech in that as long as student speech does not cause a disruption in the school environment, it s hould be allowed, and this is still the prevailing benchmark governing all forms of student speech. In Bethel School District v. Fraser , 7 the Court ruled that the school had the right to discipline a student for a speech given in school that was lewd and sexually explicit and caused a disruption in the school. Both cases involved issues of student speech on school grounds, where there is a clear determination of school jurisdiction. In 2002, the 8th Circuit Court decided that a school was not violating a s 4 Tinker, 393 U.S. at 503 . 5 Ibid . 6 Ibid . 7 Bethel, 178 U.S. at 675 . PAGE 97 97 Freedom of Speech by expelling that student for a threatening letter written to another student, even though the letter was written outside of school. 8 Because the Court has determined that the government is tasked with "protecting individuals f rom the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur , " 9 schools must be clear about their expectations and what consequences a student may face if they violate school policy re garding social media. all K 12 public school students are entitled to a uniform, safe, secure, efficient, and high quality system of education, one that allows students the opportunity to obtain a high quality educati on 10 Florida school districts are tasked with upholding that mandate to provide students with the opportunity to receive a high quality education, while at the same time maintaining a safe environment for students. The current climate of social media pr oliferation and threats of violence and bullying spread on social media do require that school administrators determine what disruption to the school environment is and when it is prudent to intervene in order to preserve a safe learning environment. The t rend in Florida has seen more cyberbullying and social media policies emerge. The State Legislature mandated that districts have cyberbullying policies in place , 11 and most 12 of the Florida school districts have complied with that mandate, up from 32 of the 67 districts in 2015 13 . The trend in Florida is clearly towards more regulation of social media for students. By having policies in 8 Doe , 306 F.L. 3d at 616, 622. 9 Watts , 394 U.S. at 705 . 10 Fla Stat § 1002.20 (1) (2019) . 11 Fla Stat § 10 06.147 (2019) , Also known as The Jeffrey Johnson Stand Up for All Students Act. 12 As noted, 64 of the 67 Florida school districts have at least the cyberbullying languag e as part of their policies. 13 PAGE 98 98 place, school districts are setting expe ctations for students and advising them of what can happen if they violate school policies. Case law involving off campus Freedom of Speech is still evolving, with conflicting results about whether schools can discipline students for social media postings that occur on their own time. 14 There is sufficient precedent to indicate that the school can and should intervene when a credible threat to a student, member of the faculty or staff, or to the school is discovered. s The courts have been divided on their rulings in part because the guidelines are not in place at schools, so they do not have the clearly defined rules to go by. Because much of the precedents are rooted in subjectivity, such as what constitutes a disruption in school 15 , courts have handed down rulings that may appear contradictory. Schools have a responsibility to create an environment in which students, parents, and faculty feel that their safety and that of the students is consistently monitored and enforced. In the next chapter, t he evidence needed to show that a threat is credible and what protocols schools and districts should enact to be prepared for threats of violence is outlined and discussed. Kowalski v. Berkeley County School District 16 affirmed that a disruption to school can happen even when the actions occur outside of school. The student, Ms. Kowalski, created a 17 and the purpose of the page was to insult a nd disrespect a fellow 14 See: Latour v. Riverside Beaver School District , Civil Action No. 05 1076 (W.D. Pa. Aug. 24, 2005), Killion v. Franklin Regional School Dist., 136 F. Supp. 2d 446 (W.D. Pa. 2001) , Layshock ex Rel. Layshock v. Hermitage School , 496 F. Supp. 2d 587 (W.D. Pa. 2007), Ponce v. Socorro Ind. School District No. 06 50709 (5th Cir. Nov. 20, 2007), Wisniewski v. Board of Education of Weedsport Central School District , 494 F.3d 34 (2 nd Cir. 2007). 15 Tinker , 393 U.S. 503 (1963) 16 Kowalski v. Berkeley County School District, 652 F.3d 565 (4th Cir. 2011) . 17 Ibid. PAGE 99 99 student. Ms. Kowalski invited about 100 people to join the page , and the members of the page proceeded to ridicule and, according to the victim, bully her. The victim left the school and the school administrators suspended Ms. Kowlas ki claiming that she violated school policy against her First Amendment right was violated because the activity occurred on her own time at her home. The case ev entually landed before the 4th Circuit Court of Appeals who ruled in favor of the speech was materially and li[ded] with the rights of other students to be secure and to be let alone. 18 Judge Niemeyer, in his opinion, argued that the speech could be considered hate speech and had caused a disruption in the school even though it had happened outside of school. H that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment 19 The threshold for disciplining a student or tea cher for off campus speech needs to be or teacher for speech that the school does not like or agree with is not reasonable. As more and more students live their lives on social media ; however , learning environment where dissent is disallowed. Threatening a student, teach er, or school building, or participating in behavior that is bullying, harassment, or intimidation whether in person, print, or electronically is punishable. 18 Ibid . 19 Ibid . PAGE 100 100 As Frank LoMonte stated , If First Amendment standards are not rigorously honored and enforced bec ause of our collective societal phobia about the perceived dangerousness of social media, authority figures will be in a position to silence their critics on the very medium that most equalizes the power disparity between the governors and the governed. 20 S ocial media should not be held to a different standard than other forms of speech. It is an emerging form of communication but should not be treated differently than handing out flyers or holding up signs. The Tinker standard, when applied to social media , accounts for disruptions that carry over to school, and when district policies are in place that address threats, violence, and bullying , school administrators have the guidance they need to be able to make decisions regarding discipline. Teachers face a similar dilemma when determining where the line is between their profession and their private lives. Social m edia makes it possible for students to be privy need to think twice about sharing on social media photos that may include alcohol, dressing in ways that may be seen as inappropriate by some parents, or participating in political discourse online for fear of offending families at the school where they w ork. Even if a teacher does not share a photo on social media , the permanence of digital technology means that it is possible for a student to have access to private information. The case of Lauren Miranda 21 , the Long Island teacher who was fired after a topless selfie somehow got in the hands of a student at her school and was subsequently shared with her administrators, illustrates the dilemma that a teacher faces 20 , (2019) : 390. 21 New York Times , April 3, 2019, https://www.nytimes.com/2019/04/03/nyregion/teacher selfie.html?auth=login google. PAGE 101 101 in her private life what is private? Is anything a teacher does, whether posted on social media or not, subject to scrutiny or is there a clear distinction between professional life and private life? Collier County may go too far in their restrictions of student speech : campus or off campus) shall not use any method of communica tion, including electronic communication that is obscene or profane, that causes personal humiliation and/or is likely to 22 By telling students that they may not use language that Freedom of Speech. When a student is off campus and chooses to use language that is obscene or profane, that is outside of the purview of the school unless that language is threatening or directed a t another student in a bullying manner. Texas v. Johnson determined that bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offe 23 Nassau County only refer red 24 in its Student Code of Conduct, without going into further detail. This vague reference is not specific enough to be a reasonable guideline for student behavior or for adminis trators to discipline. Hernando County makes specific reference to school violence by telling students that making references to, whether verbal, written, drawn, through social media or texts, etc., to the possession of, use of, or making a proclamation regarding weapons or other instruments that may cause harm 25 The threat of violence to a school, student, 22 Collier County Student Code of Conduct, (202 0): 23. 23 Texas v. Johnson , 491 U.S. 397, 414 (1989). 24 Nassau County Public Schools, Nassau County Student Code of Conduct, https://www.nassau.k12.fl.us/cms/lib/FL02213748/Centricity/Domain/785/APPROVED_11 10 16_Student_Code_of_Conduct_2016 17.pdf . 25 Hern ando County Student Code of Conduct, (2020): 17. PAGE 102 102 or faculty member can cause a substantial disruption to learning and needs to be handled seriously. As written in Flori da Statutes, supportive learning environment in schools by protecting students and staff from conduct that poses a threat to school safety . 26 Manatee County acknowledges that while social media use off campu s is generally not a campus electronic communications may be connected enough to school or district interests to result in either student or staff member discipline 27 Orange County, while appearing be 28 published a guide to Social Media Awareness that informs parents and students that they will monitor students social media harm, violence, bullying 29 The danger of using software to monitor social media is that a wide net is cast and many posts are flagged unnecessarily. If a . words may not be tied to intent to do harm but would be brought to the attention of school administrators. Acting under the guide that off c ampus speech is protected under the First Amendment and not punishable by school authorities unless they are true threats or are reasonably calculated to reach 26 Fla Stat § 10 06.13 (1) (2019) . 27 Manatee County Student Social Media Guidelines, https://www.manateeschools.net/domain/3699 . 28 Orange County Social Media Awareness, https://www.orangecountyfl.net/Home/Soci alMedia.aspx#.X2DN6GhKguV . 29 Ibid . PAGE 103 103 the school environment and are so egregious as to pose a serious safety risk or other substantial disruption in that environment , 30 s of the school. Recommendations The Florida Statutes mandating that districts include a section about cyberbullying in their policies are a good start ; however , there needs to be clarity and detail added about social media and what is acceptable off campus. Transparency in district policies is important so that all parties involved know the b oundaries and consequences. The goal of a good social media policy should be to balance the rights of the students with the safety and well being of the school and students. The two main principles to use in designing social media policy would be the Tink er standard , which established that if speech causes a substantial disruption to the learning environment, then it may not be protected speech , 31 and Florida statutes that determined all uniform, safe, secure, efficient, and hig h quality system of education, one that allows students the opportunity to obtain a high quality education 32 When taken in concert, these two standards can guide decisions in creating social media policy. Part one of the social media policy is to clearl y state that the goal of the policy is not to School administrators are creating this policy to help students, faculty, and administrators understand what is permissible and what may be perceived as crossing the line. They are also 30 R.S. ex rel. S.S. v. Minnewaska Area Sch. Dist., 894 F. Supp. 2d 1128, 1140 (D. Minn. 2012) . 31 Tinker, 393 U.S. at 503. 32 Fla Stat § 1002.20 (1) (2019) . PAGE 104 104 attempting to keep students and the school safe, and in fulfilling the role of acting in loco parentis, 33 there are certain things that students may not post on social media without repercussions, even if those posts happen outside of school hours. It is important that any policy written for students is written in language that is easy for students to understand. The official policy that may be written in the district documents shou ld be accompanied by a student friendly version that is distributed to students. The New York City Department of Education Social Media Guidelines are a good example to use for other districts on how to speak to students about the social media guidelines. The guidelines are written for a target audience that is of middle school and high school age , and it links directly to the district official policies. There are real examples of situations that students may find themselves in and suggestions of what to do and how to handle them. Take time to think about whether a post will be hurtful or embarrassing or mean or nasty comment online because you were mad, this may end up making you a bad choice in the mind of a future employer or school. Online posts can never be completely delete d. This means it is important to make sure that each Most of the time it is easy to tell whether a social media use is school related or cial media use, even afterschool, may result in trouble at school. When this happens, the school may need to get involved. This could include disciplinary action such as a parent conference or suspension. It is important to remember that hurtful actions ou tlined in the Discipline Code also apply to online communication. To be safe, be in control of what you do online, even if it is during personal time. For example, if your classmate is tagging you in rude Tweets, do not answer in the 33 Latin: in place of parents. PAGE 105 105 same way. Instead, sta y positive, do what you know is right. Consider blocking or reporting this person to an adult. 34 New York City Schools address the need for students to use social media in the classroom for learning, while also making good choices and staying safe. They follow the basic rule of thumb : if you would not make fun of a classmate in English class, do not do it online either. 35 District Administration cautions against overre actions because they risk punishing a student for minor incidents and getting into trouble themselves campus 36 The Florida Department of Education Model Policy Against Bullying and Har assment (Appendix B ) is a good template that addresses cyberbullying. Florida should adopt a similar template for social media use that encompasses cyberbullying. What follows this chapter is a potential suggested Social Media Guidelines template for use by Florida school districts that would precede the already in use Policy Against Bullying and Harassmen t . Limitations and Suggestions for Further Study This study, though comprehensive, foc used on the policies in place at the district level in Florida public schools. More research is needed in Florida as well as comparison studies of other states. In Florida, further research needed includes studying individual schools within district s and s eparating them by school level: elementary, middle, and high school. Another area of further research would be conducting a comparison study that analyzes school violence, bullying, and suicide within schools and school districts compared to the social med ia policies to 34 New York City Department of Education, Social Media Guidelines: 13 and Older, 2020 2021, https://www.schools.nyc.gov/school life/school environment/digital citizenship/social media guidelines for students over 13. 35 Ibid. 36 ct Administration, February 11, 2019, https://districtadministration.com/how to create k12 social media policy/ . PAGE 106 106 determine whether there is a statistical correlation. This study is limited to Florida schools ; however , an analysis of all state recommendations and policies would be beneficial for modifying and recommending a national social media policy that is evidence based and would analyzing the policies of parochial and independent schools in Florida to compare the policies they have in place. S ocial m edia and the Internet are evolving and changing daily; keeping up with the changes and evolution of this medium is a daunting task for school administrators. S ocial media ation skills. Painting all social media as evil and harmful does not benefit students and distances administrators and educators from students who are not going to cease and desist from using social media . Learning to live with this evolving form of communication and socialization and knowing how to use it to help students and teachers should be the goal of educators and administrators. School districts need to learn to balance the safety of schools and ed ucational process with the First Amendment rights of teacher and students. Social m edia is not going away, in fact its use is increasing, and learning to adapt and grow with this reality for teachers and students is the future for school districts. PAGE 107 107 APPENDIX A CYBERBULLYING DATA PAGE 108 108 PAGE 109 109 APPENDIX B FLORIDA DEPARTMENT OF EDUCATION MODEL POLICY AGAINST BULLYING RECOMMENDED Florida Department of Education Model Policy Against Bullying and Harassment And Social Media Guidelines 1 whether or not specifically stated. With great power comes great responsibility. The world of Social Media gives you great power and now it is up to you to have great responsibility in using it appropriately! Being a good digital citizen, someone who uses the Internet for good, means unders tanding what you can and should post online and how to treat people in the online world respectfully. Always remember that just because you CAN do something, does not mean that you SHOULD. In the same way that you have fingerprints on your fingers that ar e unique to you and identify you, your actions online leave a footprint, and that digital footprint We want you to be free to be yourself and express yourself online, but we also want to teach you to be responsible. This guide is a general resource that you should be familiar with that will help you understand what your rights are and what you should feel free to post online, what you should not post, including potential consequen ces of certain posts, and where there is some overlap. Social Media can be your ally and can benefit you in many ways. Whatever you post becomes part of your fingerprint and it can be used to help or hurt you as you try to get into college or get a job, or to stop and think before you post; if you d officer or possible boss to see it, do not post it. also the job of the school to keep you, and all the other students, safe. As a matter of fact, in Florida, there is a rule that says exactly that. Schools in Florida need to quality system of education, 1 Portions of Model Policy adapted from existing Florida DOE Model Policy against Bullying and Harassment and NYC DOE Social Media Guidelines. PAGE 110 110 one that allows students the opportunity to obtain a high 2 If a student posts something that can be seen as possibly threatening to the school, a teacher, or another student, we must take action. What action we take will depend on the individual circumstance. Posting a threatening statement and then saying you said and there will still be consequences for that. Sometimes being behind a computer makes it easier to say mean and hurtful have the personal connection with a person, but typing something mean or hurtful remember is not to type anything to, or about, someone else if you would not, or should not, say it to them in person. personal cell phone outside of school hours and that creates a disruption in school, the school has the right to get involved and you could face disciplinary actions for that. need to stand up for what is right. If you see something that is wrong report it. Topics that you should report could i nclude, but not limited to: bullying or another person, threats made to another student or teacher, threats of violence against a school, threats of self harm, like suicide. Use the great responsibility that you have been given for positive things. 2 Fla Stat § 1002.20 (1) (2019). PAGE 111 111 APPENDIX C BREVARD COUNTY SOCIAL MEDIA GUIDELINE PAGE 112 112 PAGE 113 113 APPENDIX D CLAY COUNTY STUDENT SOCIAL MEDIA GUIDELINES PAGE 114 114 APPENDIX E MIAMI DADE COUNTY TOP TEN TIPS FOR SOCIAL MEDIA PAGE 115 115 PAGE 116 116 PAGE 117 117 APPENDIX F VOLUSIA COUNTY SOCIAL MEDIA GUIDE PAGE 118 118 PAGE 119 119 PAGE 120 120 PAGE 121 121 PAGE 122 122 LIST OF REFERENCES ACLU Washington, January 17, 2018. https://www.aclu wa.org/docs/free speech rights public school teachers washington state ACLU Florida , July 9, 2019. https://www.aclufl.org/en/highlighting risks arising floridas proposed school safety database The Huffington Post, January 20, 2017. https://www.huffingtonpost.com/aj agrawal/what role is social media_b_9033612.html . Sun Sentinal, January 15, 2019. https://www.sun sentinel.com/local/broward/pembroke pines/fl ne west broward high student snapchat threat 20190114 story.html . Anderson, Monica, and Jingjing Jiang. Teens, Social Media & Tech nology 2018 . Washington, DC: Pew Research Center, 2018. http://www.pewinternet.org/2018/05/31/teens social media technology 2018/ . DA District Administration. https://districtadministration.com/how to create k12 social media policy/ Black, Jr., Watt Lesley. When Teachers Go Viral: Balancing Institutional Efficacy Against the Miss ouri Law Review 82 , no. 1 , (2017): 51 90. Boston25News, July 9, 2019. https://www.boston25news.com/news/all the text messages between michelle carter and conrad roy they day he died/53 2942907/ . WKMG TV News 6 , Orlando , July 28, 2020. https://www.clickorlando.com/news/local/2020/07/28/osceola county teachers raise their voice s in drive by protest/ . CBS New York , June 20, 2019. https://newyork.cbslocal.com/2019/06/20/bullying mallorys law new jersey cyber bullying/ . Monitoring in K Brennan Center for Justice , October 17, 2019. https://www.brennancenter.org/our work/research reports/social media monitoring k 12 schools civil and human rights concerns PAGE 123 123 Miami Heral d, August 22, 2019. https://www.miamiherald.com/news/local/community/broward/article234278122.html NPR , July 16, 2020. https://www.gpb.org/news/2020/07/16/hundreds of cherokee county teachers fear retaliation for speaking about reopening . Florida Department of Education, August 1, 2019. http://www.fldoe.org/newsroom/latest news/department of education annou nces the florida schools safety portal.stml . Flagler Live , August 22, 2019. https://flaglerlive.com/140977/flagl er schools sentinel crisis go/ Florida Department of Education , (n.d.). http://www.fldoe.org/safe schools/bullying prevention.stml ples of Professional Conduct for the Education http://www.fldoe.org/teaching/professional practices/code of ethics principles of professio.stml . Dissertation, University of Florida, 2015. The New York Times, April 3, 2019. https://www.nytimes.com/2019/04/03/nyregion/teacher selfie.html Brigham Young University Education and Law Journal 2000, no. 1 (2000): 123 64. Hartley, Phillip L., Association, March 23, 2015. Archives of Suicide Research 14, no. 3 (2010): 206 21. doi:10.1080/13811118.2010.494133 Journal of School Violence 18, no. 3 (2018): 333 46. https://doi.org/10.1080/15388220.2018.1492417 PAGE 124 124 Pew Research Center, September 28, 2018. https://www.pewresearch.org/fact tank/2018/09/28/internet social media use and device ownership in u s have plateaued after years of growth/ G American Bar Association Journal , May 1, 2017. https://www.chds.us/ssdb/about/ . ial Media for Potential Threats, Has Mass Shooting The 74, February 28, 2019. https://www.the74million.org/article/as schools comb social media for potential threats has mass shooting anxiety turned administrators into the internet police/ . Daily News , March 29, 2010. https://www .nydailynews.com . Klinger, Amy, and Amanda Klinger. Violent Threats and Incidcents in Schools: An Analysis of the 2018 2019 School Year http://eschoolsafety.org/violence/ . Inside, August 9, 2020. https://www.insider.com/florida teacher wrote her own obituary to protest schools reopening 2020 8 . s ocial m edia d f irst a mendment e University of Memphis Law Review 50, no. 2 (2020): 388 440 . __________ ymposium: Shrinking Tinker: Students are Persons under Our Constitution American University Law Review 58 no. 5, (2009): 1322 59. CNN, January 24, 2018. https://www.cnn.com/2018/01/23/us/florida cyberstalking charges girl suicide/index.html . CNN, February 16, 2018. https://www.cnn.com/2018/02/14/us/nikolas cruz florida shooting suspect/index.html . Clinton Herald, June 12, 2018. https://www.clintonherald.com/news/georgia teachers right to free speech on social media headed for supreme court/article_ad63848f 91b2 553b 9d8e 27db362a9017.html PAGE 125 125 Palm Coast Observer, April 5, 2019. https://www.palmcoastobserver.com/article/teen arrested after posting threats of school shooting on so cial media August 15, 2019. http://www.fldoe.org/safe schools/bullying prevention.stml . e: Do Students Shed Their Rights When University of Pennsylvania Journal of Constitutional Law 11, no. 2 (2009): 459 85. CNN , April 9, 2010. https://www.cnn.com/2010/CRIME/04/09/massachusetts.bullying.suicide/index.html . Cyberbullying Research Center. Last modified July 9, 2019. https://cyberbullying.org/2019 cyberbullying data . Patel, Faiza, Rachel Levinson Waldman, Jun Lei Lee, and Sophia DenUyl. School Surveillance Zone . Washington, DC: Brennan Center for Justice, 2019. https://www.brennancenter.org/our work/research reports/schoo l surveillance zone . The Conversation. October 26, 2019. https://theconversation.com/sc hool shooters usually show these signs of distress long before they open fire our database shows 111242 NYC Department of Education . https://www.schools.nyc.gov/school life/school enviro nment/digital citizenship/social media guidelines for students over 13 Monitoring in K Brennan Center for Justice , October 17, 2019. https://www.brennancenter.org/our work/research reports/social media monitoring k 12 schools civil and human rights concerns . Tamp a Bay Times, July 22, 2020. https://www.tampabay.com/news/education/2020/07/22/gov ron desantis announcement on education/ . Stanley to Call it F Washington Post, July 9, 2019. https://www.washingtonpost.com/nation/2019/07/09/she urged her boyfriend die now shes asking supreme court call it free speech/ . aw Enforcement Efforts to Combat Preventing School Failure: Alternative Education for Children and Youth 55, no. 2 (2011): 79 87. PAGE 126 126 Journal of Law & Ed ucation 38, no. 3 (2009): 553 63. 2020. https://www.stopbullying.gov/cyberbullying/what is it . Education Week, March 23, 2020. https://www.edweek.org/ew/articles/2020/03/18/teachers politics social media a volatile mix.html?r=1215344069 1 Centers for Disease Control and Prevention . Last modified February 20, 2020. https://webappa.cdc.gov/sasweb/ncipc/leadcause.html . WQAD8ABC , May 18, 2018. https://www.wqad.com/article/news/crime/texas school shooting suspects social media full of violent and nazi imagery/ . Cyberbullying Facilitators and Barriers to Preve Health Education & Behavior 44, no. 3 (2016): 476 84. https://doi.org/10.1177/1090198116673814 . Shootin The Washington Post (Washington, DC) , August 8, 2019. New York Times , June 21, 2018. https://www.nytimes.com/2 018/06/21/nyregion/student suicide new jersey.html _______ __ Teacher Fired After Asking Trump to Remove Immigrants Wins Her Appeal . The New York Times, November 29, 2019. https://www.nytimes.com/2019/11/29/us/teacher trump t weets reinstated.html PAGE 127 127 BIOGRAPHICAL SKETCH Dr. Leanna C. Rodriguez completed her at Barry University in l iberal s tudies with a concentration in p olitical s cience. She completed her in e ducation at Nova SouthEastern University. Dr. Rodriguez completed her Doctor of Education in e ducational l eadership at the University of Florida.