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School Liability


Best Practices for Canadian Schools To Mitigate a Civil Action For Negligence, when It Comes To Digital Peer Aggression (cyberbullying), Peer Aggression (bullying) and Intimate Image (sexting) Challenges In Our Schools


CAVEAT:

I’m not a lawyer and don’t pretend to be one in real life, on tv, or in the digital world. As always, when it comes to anything to deal with criminal or civil liability, I always recommend that you consult with a lawyer first. This posting is meant to be for “informational” purposes only, and should not be considered legal advice.

Very recently I attended a school-based technology education conference in Tennessee, and at this conference there were several presentations for school district managers and principals, specific to the topic of civil liability associated with schools, and their failure to either implement or follow, district and school policy specific to cyberbullying and sexting challenges at their schools. Although these presentations were U.S. based, I do believe they had some important legal principles that would be of some value to Canadian school districts as well. Often, I have seen that what happens in the U.S. often makes it way up here into Canadian jurisprudence as well. It is not uncommon that those in the Canadian judiciary will look to other countries, especially the U.S., for guidance on issues that they are faced with when there is no clear case law here in Canada. I also believe that Canadian educators can learn from the mistakes of US school administrators, principals and teachers, where civil litigation on these legal challenges are at an all-time high. Like it or not, out of legal necessity, many US school districts have created a best practices framework that I believe Canadian educators, principals, and their administrators can turn to for some guidance.

I was fortunate enough to meet a presenter, and a lawyer, by the name of Dr. Paula S deWitte (Texas A&M Cybersecurity Center) at the conference, who also attended my presentation and loved what I had to say specifically to moving to a hybrid harm reduction model, rather than a criminalization model, when it came to consensual distribution of intimate images.

There is no policy that can be implemented that will shield a school or districts from the risk of civil liability 100% of the time, but there are strategies that districts and schools can take to help mitigate this risk. With Dr deWitte’s permission, I now share her top 10 recommendations, but I have taken some liberty, with her consent, to change some of the content to reflect Canadian standards.

#1: Be knowledgeable of Canadian law specific to bullying/cyberbullying and sexting. Schedule a periodic review with your districts lawyer to ensure that your district or school policy is in compliance with these laws.

#2: Ensure that you have a written policy for all school employees, and a second one for students and parents, specific to these two online legal challenges. Also, ensure that these policies are reviewed annually to ensure compliance with any current case law.

#3: Provide copies of this policy to all parties mentioned in #2, and have all parties sign it acknowledging the fact that they have both read and understood the policy.

#4: The policy should clearly cover conduct that occurs on school property, at a school-sponsored event or school-related activity or in a vehicle (like a school bus or even a parent’s vehicle) operated or being used by the school district to transport students. The policy should also mention that it also includes any behaviour that takes place outside of school hours, or off of school property, where there is a nexus that connects back to the school, that results in a substantial disruption to the safety/security of the school or student.

#5: Provide periodic training separately for both administrators/teachers, teaching assistants, staff, and students on the implemented policy. Provide exercises that demonstrate bullying, cyberbullying and sexting behaviour. Document this training and who attended both a master training file and their personnel file. Maintain a cybersecurity, bullying, cyberbullying, sexting awareness program with hallway posters as constant reminders. Document where and how many of these posters were used such as in change-rooms, bathrooms, classrooms, lunchrooms, hallways, and staff-rooms.

#6: Clearly explain consequences and be clear to staff, students (and their parents) who may violate an implemented policy, what the full spectrum of consequences could be, including internal discipline, criminal consequences, civil consequences and professional reputational consequences.

#7: Institute a specific response process when a teacher, staff member, student, or parent reports an issue that falls within policy. Assume they are telling the truth until evidence proves overwhelmingly otherwise, and maintain documentation of the breach and actions taken including any and all disciplinary outcomes.

#8: If necessary and reasonable to do so, especially in incidents where a criminal law has potentially been violated, notify the police as soon as possible, and document that you have done so and any actions, including no action, the police took. Ensure that you include the officer's name and police case number in your documentation.

#9: If the person who breaches a policy is a principal, staff member, or teacher, ensure you do not take on the “defend at all costs” attitude. Ensure that there is transparency in the investigation of the complaint, and if there is a perceived or real “conflict of interest”, consider having a neutral third party from the district take over investigating the breach of policy.

#10: Be mindful of your province’s privacy law specific to those who you will be investigating. There should be a strict “need to know” policy with absolutely no discussions or gossiping about any incident, where a staff member or student is involved.

Again, before implementing the above-noted protocol, I would strongly suggest that you run it by your school district’s lawyer first. I am confident that they will agree with most of the above-noted steps, but they may want to change some, or even implement a few more, to protect all involved.

I want to thank Dr. deWitte for allowing me to share this information with our readers. Knowledge and the understanding and application of that knowledge is power. It is somewhat sad that educators have to think about this stuff, but in today’s digital world educators need to do the best they can to protect themselves from criminal, civil and internal liability, especially when it comes to the hot-button challenges of cyberbullying, bullying, and sexting.

There are those who would charge school districts and schools a consultation fee for this type of information, but we believe that information to be useful must be shared, thus why we have posted this information for free. In fact, if you search through our blog, you will find a lot more information, specific to digital in the classroom, that will often cost schools money to obtain, but we provide for free. If you are a school district manager, school administrator, teacher or parent and wish to copy, paste and forward this article you must do so IN FULL; with this understanding, please feel free to do so with my permission but remember to give credit where credit is due.

For schools that are interested in educating their staff on current case law specific to the above noted challenges, what their students are doing online, and academically peer-reviewed research on cyberbullying and sexting, we offer a unique Pro-D presentation that will inform administrators, teachers and other school staff on how to help mitigate many of the above-noted training concerns. For more information on this Pro-D workshop, or to book the workshop, please connect with us via email at personalprotection@shaw.ca, or call us at 1-250-478-9119.

Digital Food For Thought

Darren Laur

The White Hatter


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