Don’t overlook child find responsibility when district monitors social media

A student posts online that he hates his teacher and wants to bring a bat to school to hurt him. Another student updates her profile status to, “I want to kill myself.”

Neither student may be planning to follow through on these threats, but knowing about these posts may help administrators investigate, and if necessary, intervene to prevent tragedies, sources say.

“It’s all about getting the information and in a timely manner,” said Robert Hagan, director of learning, technology, and instruction at East Hampton (N.Y) Union Free School District.

Hagan’s district uses Digital Fly, a social media monitoring technology that flags and alerts administrators of potentially threatening posts that could include violence, self-harm, or cyberbullying.

Other districts including Orange County (Fla.) School District, Jackson County (N.C.) Schools, and Glendale (Calif.) Unified School District have used similar technology to monitor social media, according to news reports.

In using this type of technology, districts need to think carefully about how they’ll respond to information that could implicate their child find duties under the IDEA and Section 504, said Leah Plunkett, director of academic success and associate professor of legal skills at the University of New Hampshire School of Law.

“Schools that are engaging in this type of monitoring should think ahead of time comprehensively and responsibly about how they will respond — especially when they detect students who may be exhibiting symptoms of what could be an emotional disability,” Plunkett said.

Consider the following tips for using social media monitoring:

1. Consult with attorney about federal, local privacy laws. Social media monitoring companies use specific key terms or acronyms to flag potentially threatening public posts within a geographical area, said Michel Richez, vice president of OSC World, the company that created Digital Fly. “It’s only public information. We aren’t viewing private or peer-to-peer communication,” Richez said.

As state privacy laws may vary, consult with a school attorney to make sure your district comports with local and federal laws, Plunkett said.

2. Keep point person abreast of child find obligation. The district employee receiving alerts needs to be aware of how this information may impact other district programs, Plunkett said. “When I think about the way this could interact with special education, one of the things I think about are a district’s child find obligations,” she said. Pertinent information needs to be shared with special education or Section 504 staff, she said. If special education staff members aren’t included in the implementation, information that could point to an emotional [disturbance] could get “warehoused” or it could be directed inappropriately to law enforcement, she said. “A student’s post may reflect mental health needs, which could mean reaching out to school staff to say, ‘Does this student need to be referred?'” Plunkett said.

Although situations may require a law enforcement response, make sure your district doesn’t ignore its duty to provide an educational response, too, she added. “I think police and school resource officers have a crucial role in using this technology, but we need to make sure that the response isn’t just by the law enforcement or justice system. We also need to respond to child find concerns or consider convening a student’s team if this student already has an IEP,” she said.

3. Inform IEP, 504 team when there are concerns about cyberbullying. Districts can also use social media monitoring to spot cyberbullying among students, Richez said. “There may be indications of bullying at school, but certainly when it’s reinforced in social media, it behooves districts to act,” he said.

Under the IDEA and Section 504, a student’s team is required to consider whether bullying is interfering with a student’s receipt of FAPE. If it is, the student’s team needs to consider changes to the student’s IEP or 504 plan so the student continues to receive FAPE. See Dear Colleague Letter, 61 IDELR 263 (OSERS/OSEP 2013); and Dear Colleague Letter: Responding to Bullying of Students with Disabilities, 64 IDELR 115 (OCR 2014).

4. Let parents, students know about monitoring. “Even though it’s public information, it’s always a good idea to have a policy that indicates to the community what the district is doing,” Richez said. For instance, let your parents and students know how the district will use the information. Some districts choose to have a company monitor the data 24/7, while other districts only use the information forensically to investigate online content after an incident, he said.

5. Teach students to make better choices about what they post online. Each time a post gets flagged, the district and law enforcement must determine if there’s a legitimate threat or if the post is from someone who’s making a statement just to make the statement, Richez said. To reduce the latter, teach students to make wise choices about what they post online, Plunkett said. Consider digital citizenship lessons from Common Sense Media or iKeepSafe she said. Students should know that if they post something threatening online, there could be a response, she said. “They may still not be able to make a wise choice, but at least some of that education can help them think before they post, so they don’t wind up in a lot of trouble, and the school system and law enforcement doesn’t wind up having to spend resources on something that was just a stray comment.”

Jennifer Herseim covers Section 504, education technology, and Common Core issues related to special education for LRP Publications.

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