Remember those World War II posters that warned, “Loose Lips Sink Ships?” Well, that dire wisdom is just as urgent today. It is possible that a comment ingenuously made in the faculty room, in an email, during an IEP meeting or a phone call can cause a teacher embarrassment, at best, or a district to become embroiled in a lawsuit, at worst. Caution to be professional at all times as well as ever mindful of confidentiality laws has always been a top priority of school districts. However, in our digital age, this issue has taken on a new meaning and has escalated caution to another level.
In order to ferret out the most critical concerns facing schools today and some tips for how to deal with these concerns, I spoke with four lawyers who work with schools on a regular basis. Following are some of the insights gleaned from those conversations.
What is considered written documentation?
Anything and everything written about a student on school grounds can be subpoenaed for use in court. Attorney Dianna Halpenny of Sacramento, California, reinforces that anything in writing with a student’s name in it is part of the official student record. It is not necessarily true that if teachers keep it at home that it is not a student record.
When faced with the challenge of keeping email private on school servers, teachers used to be advised to use web mail versus a downloadable email client such as Microsoft Outlook, Eudora, or Thunderbird. The belief was that web mail such as Yahoo mail; Hotmail, Mail2Web, etc. were safe.
Attorney Pamela Parker of Austin, Texas, reveals another, less known, fact: even web-based email is forensically accessible. Web-based email history may still be on the school server. Parker acknowledges that schools are not necessarily monitoring emails; however, a forensic computer specialist can recreate the emails if necessary. The reality of today’s world is that everything that is digital lives forever. Parker employs a sound analogy, “Having a conversation by email or text message is no different than having a private conversation on stage at Carnegie hall in front of a full house. Most people won’t pay attention, but some will.”
Teachers may send an email to a parent, colleague, supervisor, etc. believing that the email will remain confidential between them. However, there is no guarantee that the recipient of an email will respect that confidentiality or realize the importance of keeping the interaction private. Sometimes, despite all good intentions, emails are forwarded accidentally. This easily happens when the writer uses “reply all” or continues to respond to an email that has the entire thread attached. I’ve been amazed at what I’ve had included in a message to me when I have been added as a recipient midstream in an email conversation. When I scroll down, I might read conversation to which I should not have been privy. Here’s a tip: Look at what’s attached to the bottom of your email before you hit “send!”
Another consideration is phone messages. Not only can they be overheard, they can be forwarded. Parker contends that even a teacher’s children might see and pass on text messages or phone emails. Parker advises educators to have critical conversations in person.
Attorney Brad King of Richmond, Virginia, goes on to explain that even messages on personal phones, especially those regarding relationships with students, can become public domain. He explains that teachers’ phone records can be involved in litigation. Again, the digital age brings a new level of accountability to the issue. Digital phone messages, as well as text messages, are easily forwarded and potentially retrieved.
Have you ever gotten a text or sent a text that was meant for someone else? Are you sure that deleted texts are not potentially accessible if a related case was brought to court? How much text messaging is available is dependent on your telecommunication carrier. There may be information out there that you do not know is there.
Diana D. Halpenny
Attorney at Law
Kronick, Moskovitz, Tiedemann & Girard, Inc.
Attorney at Law
Bradford A. King, Esq.
Thompson McMullan, P.C.
Mark Joel Goldstein