Legal Issues in IT | August 2013 Digital Edition

Your iPad Rollout Could Get You Sued

A thicket of legal issues has sprung up in response to modern 1-to-1 and BYOD programs. In every rollout, schools have some tough choices to make.

This article, with an exclusive video, originally appeared in T.H.E. Journal's August 2013 digital edition.

In the world of education technology, 1-to-1 computing is among the easier concepts to grasp and support: Every student, without exception, gets his or her own laptop, tablet, or mobile device. It's estimated that more than 3,000 schools nationally have already deployed 1-to-1 initiatives, with thousands more exploring their options.

Yet, as schools hurry their transitions to 1-to-1 or BYOD environments, the law has not kept pace. And, as usual when technology has far outstripped legal theory, the best defense at the local level is robust school policies that have been considered and passed by the school board, particularly in regard to thorny issues like ownership, student safety, and general usage in nonschool environments.

Fee vs. Free
Among the many challenges in deploying and sustaining a device program, the most initially obvious is funding. There are a few potential areas of legal concern in this area alone, and districts should take into consideration how their funding structure will affect their legal responsibility and create their policies accordingly. Of particular concern is the practice of charging parents yearly fees to cover device purchase and repair costs. This has become a common funding structure in many districts, but some states have seen recent litigation limiting the expansive use of school fees.

In California, for example, the issue of school fees in general is pending litigation, and a proposal that would have required some parents in the Fullerton School District to shell out $500 for each child for three years as part of a 1-to-1 laptop program was also debated. The Fullerton controversy--the subject of a lawsuit settled in 2006--implicated a state constitutional provision in California that requires school to be "free." Similar language about education at the public expense exists in all states, and state Supreme Courts have interpreted this language as a substantial barrier to new school fees in the past.

Who Owns It?
The starkest difference between BYOD and 1-to-1 initiatives, at least legally speaking, is the issue of ownership, which is very important in search-and-seizure law (and, really, the law in general). In this area, the constitutional protection offered by the Fourth Amendment serves to support schools with 1-to-1 programs, but leaves those who have gone BYOD open to more risk.

When schools own the devices being used in a 1-to-1 program, they have an increased ability to monitor the activities on those devices and search the digital contents to investigate individualized suspicion of a disciplinary incident. Searching an iPad that a student is borrowing is like searching a locker (both are owned by the school), while searching a student-owned iPad is more like searching a purse that is clearly a student's private property. Thus, districts that have BYOD policies permitting student- or parent-owned devices in school have a much harder time searching or seizing those devices after suspicious activities.

Furthermore, courts have been restrictive in how school officials may search such personally owned devices. For example, a recent 6th Circuit decision out of Kentucky prohibited searching cell phones for the general health and safety of the student without individualized suspicion of a discipline infraction. However, such a decision would likely go the other way if the case concerned a school-owned laptop or mobile device.

Again at issue is the concept of ownership (who actually purchased the device) rather than where the funds were obtained. Thus, even when parents pay usage fees for a device, if the school purchased it, the school retains a broader right to search the device unless specifically prohibited in the Acceptable Use Policy or other parental contract. (Think of the search restrictions in an apartment lease.) Therefore, the question of who owns the device must be made clear, and districts should avoid any contracts or purchases that seek to provide joint ownership of the device. All school boards currently investigating a 1-to-1 deployment in their schools must make a very clear decision between school-owned and parent-owned devices.

Risk and Responsibility
School ownership of devices, though, can also create additional concerns. Potentially, schools may be required to assume a greater role in regulating bullying or offensive language in students' speech when they are using school-owned devices at home or other off-campus places. Not only is the responsibility for filtering and monitoring increased on district-owned devices (even off school property), but schools may find themselves challenged on other legal grounds, such as failure to protect against civil wrongdoings committed by those with access to the devices.

As an example, a student who has been sexually bullied by another student on a school-owned iPad outside of school will have an easier time bringing a lawsuit against the school for being a party to harassment violations than if the bullying occurred solely on private devices outside of school. The school is naturally implicated because the school is the owner of the device on which the harassment occurred. This is true because for out-of-school speech, the court asks whether there was a nexus with the school environment before giving the school the ability to regulate. School-owned devices (or those mandated through a lease program) create that initial nexus, immediately putting a broader onus on a school to regulate all student speech occurring through its devices.

In short, there is simply more of a legal mandate to regulate school-owned devices than privately owned devices. Under Title IX, schools can be subject to private lawsuits for harassment initiated by students and families. A critical issue in these cases is whether the school had actual (not implied) knowledge of the harassment; school-owned devices might make the actual knowledge requirement easier to prove on the part of the victim.   

Taking It Home
Finally, the issue of publicly owned 1-to-1 devices in the homes of private citizens raises a variety of highly concerning issues. A high-profile case from Philadelphia where school officials used security software to activate a laptop webcam and take a still image of a student while the student was in the privacy of her own home illustrates the extent of the concerns. The FBI actually investigated the school's policy and records for major privacy violations of the citizens within the school district. The resulting litigation eventually led to a $610,000 settlement paid by the district to the impacted parties.

While the use of a webcam on a device is an extreme case involving obvious privacy violation, less clear cases remain undecided, and will likely be clarified by future litigation. Because school-owned devices must continue to meet legal requirements contained in the Children's Internet Protection Act, schools must filter internet usage, even at home. To meet the requirement, internet access must pass through school proxy servers that monitor usage and record the websites that users access. If users access certain websites, such as porn sites exploiting minors, they will be open to criminal prosecution--and the district in question will find itself in the middle of the litigation, providing evidence about its policies and actions. It is still too early to say how deep this legal rabbit hole goes, so the best upfront legal advice is to have deep, open policy discussions among school officials, teachers, students, and the community to predict and prevent controversies and lawsuits.

Editor's note: This article has been modified since its original publication to correct a factual error introduced during the editing process. The August 2013 Digital Edition version of this article referred to a lawsuit involving the Fullerton (CA) School District as still pending. A settlement in that case was reached in 2006. [Last updated August 22, 2013] --Stephen Noonoo