Thursday, October 23, 2008

Not Cybercrime But . . .

Someone was kind enough to send me a link to a news story about a recent decision from a federal district court in Connecticut.

It is not a cybercrime case, as such, but it does touch on issues I’ve written about before, so I’d like to review it here.

The case is Spanierman v. Hughes, 2008 WL 4224483 (D. Conn. 2008). Here, according to the court, are the facts that resulted in this litigation:
On January 2, 2003, the State of Connecticut, Department of Education (“DOE”) hired the Plaintiff to be an English teacher at Emmett O'Brien High School. . . . (1) Hughes was . . . the Superintendent of the Connecticut Technical High School system, of which Emmett O'Brien is a part; (2) Druzolowski was . . . the Assistant Superintendent of the Connecticut Technical High School system; and (3) Hylwa was . . . the principal of Emmett O'Brien. . . .

The Plaintiff originally began to use MySpace because students asked him to look at their MySpace pages. [He] subsequently opened his own MySpace account, creating several different profiles. One. . . was called `Mr. Spiderman,’ which he maintained . . . from the summer of 2005 to the fall of 2005. [He] . . . used his MySpace account to communicate with students about homework, to learn more about the students so he could relate to them better, and conduct casual, non-school related discussions.

Elizabeth Michaud was a guidance counselor at Emmett O'Brien. In the fall of 2005, Michaud spoke with. . . a teacher . . . who informed Michaud that the Plaintiff had a profile on MySpace. Michaud alleges that she also received student complaints about the Plaintiff's profile page. After her conversation with Ford, Michaud viewed the . . . `Mr. Spiderman’ profile page. . . . Michaud . . . was disturbed by what she saw. . . . According to Michaud, the Plaintiff's profile page included a picture of the Plaintiff when he was ten years younger, under which were pictures of Emmett O'Brien students. In addition, Michaud stated that, near the pictures of the students were pictures of naked men with what she considered `inappropriate comments’ underneath them. Michaud . . . was disturbed by the conversations the Plaintiff was conducting on his profile page. Michaud stated [his] conversations with . . . students were `very peer-to-peer like,’ with students talking to him about what they did over the weekend at a party, or about their personal problems. Michaud felt that the Plaintiff's profile page would be disruptive to students. . . .

Michaud spoke with the Plaintiff about his email communications with students about things . . . not related to school, and suggested he use the school email system for the purpose of educational topics and homework. Michaud also told the Plaintiff that some of the pictures on his profile page were inappropriate. After Michaud spoke with the Plaintiff, he deactivated the `Mr. Spiderman’ profile page. The Plaintiff then created a new MySpace profile on October 14, 2005 called `Apollo68.’

[A teacher] . . . discovered the Plaintiff's new profile page and informed Michaud of it. The Defendants also allege that . . . students complained . . . about the Apollo68 profile. Michaud . . .separately viewed the . . . profile and came to the conclusion that it was nearly identical to the `Mr. Spiderman’ profile. The Plaintiff admits that the “Mr. Spiderman” profile and the “Apollo68” profile had the same people as friends and included the same types of communications.

Michaud reported . . . the “Apollo68” profile page to her supervisor. . . . [and] was told to report the situation to Hylwa. . . . In November 2005, Hylwa met with the Plaintiff, explained there would be an investigation, and placed the Plaintiff on administrative leave with pay. The Plaintiff deactivated the “Apollo68” profile when he was placed on administrative leave.
Spanierman v. Hughes, supra.

To summarize what followed, the school conducted an investigation and then told Spanierman “he had exercised poor judgment as a teacher” and “the DOE would not renew his contract”. Spanierman v. Hughes, supra. He brought a civil rights suit, claiming the school and its officials had violated his Fourteenth Amendment rights to due process and equal protection of the laws and his First Amendment rights to freedom of speech and association. Spanierman v. Hughes, supra. He lost.

The district court held, essentially, that he (i) had not shown he had an interest protected by the due process clause (his interest in having his contract renewed was not enough, according to the court); (ii) had not shown he was selectively prosecuted for what he did (that is, had not shown he was singled out for conduct others engaged in without having their employment terminated)l and (iii) had not shown that what the DOE did violated his rights under the First Amendment. Spanierman v. Hughes, supra. It can be difficult to prevail on these kinds of claims.

I thought this case was interesting, given some of the things I’ve posted about, because here we have postings on MySpace (or Facebook) coming back to haunt a teacher, not a student. I don’t know anything about education law, but sites like MySpace and Facebook obviously open up a whole new dimension in student-teacher interaction, which I’m sure schools will want to control. Seems to me –as a lawyer who knows nothing about the legal issues or practicalities involved here – that it would be a really good idea for schools to adopt policies specifying what are, and are not, appropriate uses of MySpace and Facebook by teachers in their professional capacity.

In law schools we have access to services offered by Westlaw and Lexis, both of which let us create websites and email groups and communicate with out students online and outside of class; I don’t know of any law schools that have adopted policies defining the appropriate uses of these sites, presumably because they don’t offer the opportunities for creative expression one finds on MySpace and Facebook. I don’t know what was going on with Mr. Spanierman, but he could have been a very well-meaning, enthusiastic teacher who was trying to interact with his students in new ways but ran afoul of formal or informal norms governing student-teacher interactions at the high school level.

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