Inappropriate use of computers and the Internet is a growing problem in the workplace and schools are no exception. Most of you will never have problems with the way you use computers at work and will reap only the benefits of technology in the classroom. However, it is important that you know what the potential consequences are if you inappropriately use a computer while at school. It is no exaggeration to say that the risks include dismissal from your job, loss of your teaching credential, and even conviction of a criminal offense and a prison sentence.
There are no hard and fast rules as to what constitutes inappropriate use of the computer in a school setting, but it is clear that e-mail, chat room communications, and visits to Internet sites with content of a sexual nature or related to weapons or violent behavior are taboo subjects.
Actually, there is nothing new here other than the medium - teachers have always been prohibited from possessing and viewing inappropriate written materials at work. A teacher who sat in a classroom reading Hustler magazine would be asking for trouble, too.
The bottom line is that employees do not have a constitutional right to privacy, a First Amendment right to free speech, or any other protections when it comes to inappropriate use of a computer during work time. The district owns its computers, and administrators have the right to regulate whether and when school employees may put district computers to personal use.
CTA has taken the position that such policies are subject to bargaining, but districts will usually authorize administrators to inspect the contents of your school computer without first obtaining your permission. The district may not even inform you that it has retrieved data. It is imperative that you review your district's administrative regulations or procedures, as well as directives issued by site administrators, for the rules that apply at your school. If there are none, your chapter should consider making a demand to bargain some.
Many district policies prohibit personal use of computers during work time, including during prep periods and before and after school when you have work-related duties. It is probably permissible for you to use your district computer for personal purposes during lunch or other off-duty time. However, your district may restrict you from using school computers at any time for your activities unrelated to teaching, e.g., playing video games, shopping, or the like. Some districts also prohibit employees from using school computers as a "public forum," so that if you send a message that includes a personal opinion, you must include a disclaimer at the end of the e-mail indicating the opinion is that of the sender, not the district. Messages containing information about union activity are protected speech, but you still may not use e-mail to discuss union business during work time.
You may wonder how it is possible for a school district to discover that a teacher has made inappropriate use of a school computer. Most districts reserve the right to search any information accessed, sent, received, or stored on a computer. As such, discovery of inappropriate use may occur through a random check, or even by accident. However, in most cases, a district is prompted to investigate a teacher's computer use by some event unforeseen by the teacher.
A few examples are useful to illustrate how computer misuse can be uncovered. In one case, a teacher forgot to shut down his computer. When the school secretary went to his classroom after school to turn it off, she first attempted to close items on the bottom bar, only to have them open up on the screen and reveal pornographic images. The secretary was shocked and felt compelled to report her findings to the principal. In another instance, students told a principal that they had seen inappropriate sexual photographs and messages on a teacher's computer. In yet another case, a principal retrieved objectionable data from a teacher's computer after hearing students' rumors that he had been searching sex sites during class time. Many computer users are under the impression that all they need to do is delete information and shut down a computer to get rid of text and images.
This could not be farther from the truth. A CTA attorney recently attended a sheriffs' conference on cyber crime where he learned that the only foolproof way to prevent detection of the content stored on your computer hard drive is to remove the hard drive and physically destroy it.
In reality, "hits" are saved in the computer's cache and in the user's history file, where a list of visits is maintained dating back two or more days. In addition, there are programs that allow data to be retrieved from a computer's hard drive from the distant past, including deleted entries. Computer logs can be created that show the date and time a site was visited. In this way, a district is able to trace your use of a computer and establish whether you accessed inappropriate text and images during class time or at other times when students could have been present to view the screen. Moreover, even when sites have been blocked by a district's filtering system, unsuccessful attempts to visit those sites are indelibly recorded in the computer's memory and can be retrieved. To make matters worse for the unwary user, pornography sites have been programmed to make them easy to open and extremely difficult to close.
While not every incident involving the improper use of computers will result in criminal charges, dismissal or credential revocation, these consequences are more likely to result if the material accessed on a computer is child pornography, e-mail of a sexual nature to or from minors, or solicitation of sexual activity. In some districts, administrators may react more strongly to gay than to heterosexual pornography.
The severity of the punishment will depend on such factors as whether the teacher improperly used the computer during class time or the workday, whether students actually viewed the objectionable material, and the frequency of inappropriate computer use. Progressive discipline should be followed, but if the conduct is severe, a district is likely to suspend the teacher and commence dismissal proceedings for immoral behavior or evident unfitness to teach under Education Code sections 44932(a)(1) and (a)(5). The district then must report the matter to the California Commission on Teacher Credentialing, which will undoubtedly jump into the fray.
In addition, teachers who use school computers for unauthorized purposes may be subject to criminal prosecution under Penal Code section 502. Penal Code section 288.2(b) also makes it a crime to send e-mail or use the Internet to distribute information to a minor for sexual purposes.
CTA strongly advises members to err on the side of caution: While on school premises, do not open your e-mail inbox or messages, enter chat rooms, or open Internet sites unless you have absolutely no qualms about your principal seeing anything that has ever been accessed. It simply cannot be emphasized enough that all information is stored in the computer's hard drive. That data is easily available to school administrators and law enforcement, regardless of when you entered it or whether you think you deleted it.
Finally, if you believe that district administrators are monitoring the contents of your computer or that you are otherwise under surveillance for making inappropriate use of a computer, you should immediately contact your CTA staff representative for a referral to a CTA lawyer. If an administrator asks you to discuss your computer activities or to turn over the contents of your computer, CTA recommends that you do not do so until you have spoken with your site representative, who will make the necessary referrals. You may risk disciplinary action for insubordination, which may or may not be the subject of a grievance, depending on your collective bargaining agreement. But most important, it is vital that you be informed of your legal rights so that you do not inadvertently lose them.
Beverly Tucker Tucker is CTA's Chief Counsel and Associate Executive Director, Legal.
