EdLawConnect Blog

In an era where generative artificial intelligence (“AI”) is rapidly transforming every aspect of our lives, the education sector stands at a critical juncture.  The integration of AI into our educational institutions is not a future prospect—it is happening right now, as we have previously examined in this space. From adaptive tutoring to chatbots and everything in between, AI technology is already making its way into our classrooms.  The emergence and widespread availability of generative AI tools presents novel opportunities and challenges for our schools.  We at AALRR are leading the charge in helping educational agencies navigate this complex landscape by proposing the adoption and implementation of comprehensive board policies specifically relating to AI.

A battle is playing out in college classrooms and courts across our country.  On one side are parties with bullhorns cloaked in the protections of the First Amendment testing the limits of one of our nation’s most treasured rights.  On the other side are parties that have constructed shields made from elements of the Fourteenth Amendment’s Equal Protection Clause and a plethora of other laws designed to advance a no less important right—equality of treatment without regard to one of the many characteristics determined to be worthy of legal protection.

AALRR is offering its comprehensive Title IX Virtual Academy to address all your questions and responsibilities regarding the recent changes to the Federal Title IX Regulations, effective August 1, 2024. The Academy consists of interactive trainings, consistent with the recommendations of the Office for Civil Rights, to explain the Title IX Regulations and the procedures for processing a Title IX complaint from the intake stage through a discipline recommendation, if any.

Several school districts across the country have recently been forced to confront negative uses of “deepfakes,”[1] a new and concerning type of generative AI technology.  Deepfakes are hyper-realistic video or audio clips of individuals that can depict individuals as saying or doing things that they never actually said or did.  Although the process is complex, the online interface and software is quite accessible to anyone who wishes to create a deepfake. https://www.reuters.com/legal/legalindustry/manipulating-reality-intersection-deepfakes-law-2024-02-01.  Someone who wants to create a deepfake only needs to input video or audio clips of an individual and direct an AI program to synthesize artificial video or audio of that individual that by all measures appears real, even if the individual never actually engaged in the depicted activity.  These manipulations have the ability to spread misinformation, undermine individuals’ credibility, and sow distrust on a very large scale.

Social media has increasingly permeated the daily lives of Americans and the workplace is no exception. As social media usage increases and new social media platforms continue to develop, public employers are left wondering what actions they may take in response to employees’ use of social media when it involves the workplace.

Content, comments, and other uses of social media are considered speech and therefore, any action taken by a school district in response to an employee’s social media use raises First Amendment concerns. Generally, school districts—as government entities subject to Constitutional constraints—have limited authority to regulate speech protected by the First Amendment and are similarly limited in the ability to discipline an employee for engaging in protected speech. However, this limitation is not absolute, and when an employee is speaking in their professional capacity, or when private speech significantly impedes the efficient operation of the school site, a school district may have the authority to regulate the speech. (Pickering v. Board of Education (1968) 391 U.S. 563; Johnson v. Poway Unified Sch. Dist. (9th Cir. 2011) 658 F.3d 954.)

When faced with a question or complaint regarding employee use of social media, the first issue to consider is whether an employee is speaking in their capacity as a school district employee or as a private citizen. To obtain First Amendment protection for their speech, the employee must be speaking as a private citizen. If the employee is speaking in the capacity of their public employment, a school district has greater ability to regulate speech.

Next, a school district must consider whether the employee is speaking on a “matter of public concern.” Generally, a matter of public concern relates to any matter of political, social, or other concern to the community. Social media posts are generally classified as matters of public concern, as they suggest an intention to advance a political or social point of view. If a post is made during an employee’s “own time, outside the workforce, using [their] personal [social media] account,” and is viewable by the public, such factors weigh in favor of finding the speech was on a matter of public concern. (Hernandez v. City of Phoenix (9th Cir. 2022) 43 F.4th 966, 977, 978.) If a matter is not of public concern, a school district has greater ability to regulate speech.

Additionally, when speech negatively impacts a school district’s ability to manage the workplace, this provides a stronger rationale for the district to regulate employee speech. This includes speech that clearly affects co-worker relations or results in a loss of confidence in the ability of the employee to satisfactorily perform their duties. The role of a public school teacher may be considered in this analysis, as the Hernandez court and other courts recognize that teachers hold positions of trust and authority in the classrooms and interact with “impressionable young minds.” For example, in Munroe v. Central Bucks Sch. Dist. (3d Cir. 2015) 805 F.3d 454, an employee wrote a blog that was rude, derogatory, and demeaning about students, parents, and administrators. The Court held that the speech “in both effect and tone, was sufficiently disruptive so as to diminish any legitimate interest in expression” and was not protected.

Further, employees may be disciplined for conduct on social media if the post results in the disruption of school operations or prevents schools from operating efficiently and effectively. A “reasonable prediction of disruption” includes local media coverage, public identification of the employee, public outrage, and public complaints. (Moser v. Las Vegas Metropolitan Police Department (9th Cir. 2021) 984 F.3d 900, 909-910.) Courts are more likely to accept an employer’s prediction of future disruption if some disruption has already occurred. This conduct provides “adequate justification” for a school district to regulate employee speech, even if the employee spoke in a private capacity on a matter of public concern.

Aside from First Amendment considerations, Education Code section 51512 restricts the ability of students and teachers to use a recording device in the classroom, absent prior consent from both the teacher and the school site principal. This provision may be used to address student and teacher use of cellphones or other devices in the classroom to create content for social media. Additionally, with the 2024 election season on the horizon, be aware that Education Code section 7054 prohibits the use of school district equipment and supplies to support or oppose a ballot measure or candidate for office. This provision may be used to address students and teachers who use school district property or equipment to create a social media post advocating a stance on a candidate or ballot measure.

The prevalence of social media in the educational environment is on the rise and will likely continue to be an issue for public school districts. While school districts generally do not have legal authority to regulate off-campus speech of its employees, there are certain circumstances when such regulation is permissible.

Should you have any questions concerning the topic of this Alert, please do not hesitate to contact the authors or your usual counsel at AALRR for guidance.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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