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#ThingsILearnedinLitigation

Things I Learned in Litigation

Its 2019 and your goals as a Board of Education remain virtually unchanged for the last 50 years or so: To best educate your students in a fair, least restrictive, and best way possible. We all know it's not that easy anymore. In this multi-part series, I will share some insights and speed bumps I have encountered Litigating in the 21st Century. To date, the most imperative thing I have learned is that the obvious, isn't so obvious.

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Technology

No discussion can commence until we address Technology: Students, Parents, Administrators, personal and professional communications are all hinged on Technology. It has vastly changed the way we communicate, letting people "do" before they think.

In this data driven age, how do we maintain student confidentiality? In order to keep student and employee confidentiality, there are a few precautions that should be taken:

  • Automatic Passwords and Sign-in information should not be stored in your computer
  • Never Share Passwords or Log-On Information
  • Unless your computer has a locked home screen, don't stay "Logged-On"
  • Limit "who" has access to "what" via password protection and permission levels
  • And lastly, make sure you can monitor access and see who has been in what file.

Beware of working on public Wi-Fi settings as well. Your laptop at Starbucks seems like a harmless way of getting some work done, but in reality, your private information and by implication student records are now very public. Make sure your connections are all secure and your screen is not visible to anyone who does not have permission to view it.

Cell phones

Our cell phones have become a way of life in the 21st century. We can order dinner, a cab or a birthday cake at the touch of a button. Where does your professional life end and your personal life begin? It is very easy to send a text to a teacher/ administrator/ parent/ coach or even a student to get a quick answer to a question. Here are a few obstacles that can and will come up in litigation:

  • Texting and Sharing Personal Cell Phone Numbers of students and teachers alike
  • Retention of Text Messages and Student Record Issues
  • Who has access to my cell phone??? Does a family member share my iTunes account? Who can see my screen?
  • Inappropriate familiarity with parents/ guardians, being too informal

Email

Remember when you needed a question answered and you would call a person, leave a detailed message and hopefully have them get back to you at a time that was mutually convenient? Email has eliminated the need for "phone tag" and has given us the ability to get almost immediate answers to pertinent questions. Unlike phone calls, once something is in writing... Email communications between colleagues may be discoverable in litigation!!! Here are some guidelines for email communications:

  • Be careful about being too "colloquial". A lot can be misconstrued in writing.
  • Make sure you know who the "all" in "reply all" is, and if there is a BCC that will be getting all communication as well
  • Would I want someone else to see this? Do not put ANYTHING you would not want a judge to see in writing.
  • What are you doing with your emails after they are sent or received? Stored, deleted?
  • Are they student records? If so, have they been removed from the sent items as well? Have they been properly maintained/stored as a student record?
  • Are they records subject to OPRA?
  • Does your District have an acceptable use policy in place or otherwise regulate the manner in which email may be used?
  • Is there a Board Policy regarding sending electronic notices?

Maggie Miller small.jpg

About the Author: Maggie concentrates her practice in the areas of education and labor and employment law, including representing boards of education in all special education and tenure and employment matters.

Maggie will advise the board in all phases of Special Education Litigation. From an initial IEP meeting to mediation, due process, and federal appeal, Maggie keeps the Board's goals and vision at the forefront while understanding budgetary and district confines. Whatever the Board's goal, Maggie will fight to attain it.

She also represents public entities in all labor-related matters, including arbitrations, unfair practice proceedings and disciplinary and termination appeals before the Civil Service Commission and other state agencies, including the Department of Education, Public Employment Relations Commission, and Division on Civil Rights.

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