EdLawConnect Blog

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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The Fourth Amendment to the United States Constitution protects the rights of the people against unreasonable searches and seizures of their person, property, and home.  A recently-decided federal court case has explored the application of this important constitutional right to an emerging technological tool employed by schools and institutions of higher education: at-home examination proctoring.  The holding in the case (Aaron M. Ogletree v. Cleveland State University) could provide insight into how similar cases may be decided across the United States.

Education institutions face a number of challenges as they gear up for and start the 2022-2023 school year including, but not limited to, lack of adequate staffing in a number of departments.  These staffing shortages are common in technology departments, where staff and resources have been spread thin trying to meet the increased technology demands of remote workforces, virtual learning by students, and ever changing instructional technology.  To this landscape, the threat of cyberattacks is added.

While employers can realize significant time savings or improvement in the hiring process by implementing technology, employers must ensure that the selected technology is designed and implemented in a way that prevents discrimination based on protected classes such as disability, race, sex, national origin, color, or religion.  Employers may be responsible for violations of the Americans with Disabilities Act (ADA) and/or the Fair Employment and Housing Act (FEHA) even if the discrimination is not intentional or the technology was developed by an outside vendor.

Students arrive to school with different resources and levels of preparedness, thus, the systems put in place to ensure each student succeeds must be different and take into account this underlying inequity. To put effective systems in place requires understanding of the unique challenges and barriers faced by students in the school community, and providing additional supports to assist students in overcoming barriers.  While educational equity does not ensure equal outcomes, educational equity is designed to ensure each student has an equal opportunity to be successful in school through the provision of appropriate and necessary support.

Flying somewhat under the radar (bad pun not intended), the Federal Aviation Administration (“FAA”) approved new rules that went into effect at the end of December 2020 allowing drone operators to fly a broader range of missions without the need to obtain a certificate of authorization (“COA”).  These new regulations will have the force and effect of allowing school and community college districts to expand their existing drone operations.

Within the past month, California courts have issued rulings expanding the types of lawsuits that may be filed against website operators for failing to maintain certain accessibility standards.  Given these rulings and the U.S. Department of Education, Office for Civil Rights’ recent trend towards focusing on website accessibility for local educational agencies (LEA), it is more important than ever to assess whether your websites meet industry standards for accessibility.

School districts are no longer authorized to grant permission to persons to carry firearms in school zones and on school campuses, closing a longstanding loophole under the California Gun-Free School Zone Act of 1995 (Penal Code § 626.9). Now, with certain limited exceptions, no one is permitted to possess a firearm in a school zone or on a school campus

While some predicted agency fees would be invalidated through this highly publicized lawsuit, the Supreme Court’s 4-4 split decision today in Friedrichs v. California Teachers Association means California’s mandatory agency fees laws withstand the most recent challenge.

As we commented last October, the Supreme Court agreed to hear a challenge from 10 California teachers alleging the mandatory ...