Email in Schools: The Legal Issues

Communicator
February 2018, Volume 41, Issue 6

We all recognize that technology is ubiquitous, changing, and forever part of our professional lives as educators. In your schools you likely have computers or tablets at your disposal. Quite apart from the instructional benefits of technology, these changes have had a lot of positive impact in improving our ability to communicate with parents, colleagues, and community members. Email, in particular, is an important means of communication for educators in this regard.

The ease of communication that comes with email has its potential traps, too. I think we all have constructed emails that, after they have been sent, we wish we could have them back because they were not clear or sent without some deliberation. Moreover, for school officials—principals and teachers—there are some legal issues of which you should be aware. At the outset, it is important to remember this overarching principle: school leaders and teachers are public employees and, because of this, have a decreased expectation of privacy.

Open Records or “Right-to-Know” Laws

All states have so-called “right to know” laws. While the exact name may vary by state (and each state has a different variation), the general idea is to provide the public with a means to oversee their government’s actions, including those of public school officials and employees. Toward this end, the public has access to certain government records, including some emails from teachers, and school administrators. The theory behind such laws is that a public has the right to review the actions taken by their government so they can be better informed citizens.

For our purposes, it is important to understand that emails (and other electronically generated or stored documents) are generally included in the definition of “government records.” This means that email messages that you generate are subject to public inspection, as a general rule. You may ask: is this limited to work email accounts, or work computers? While there is some debate on this, it is important to note that at least one Court (the California Supreme Court) has ruled that emails from private accounts but related to official business, may still be subject to disclosure. While this may be alarming, the safest course of action, then, is to assume that if the email relates to work or official business, it may be subject to disclosure, regardless of which account is used to send the email. (There are some exceptions, discussed below, so not every email is a government record subject to inspection).

For example, if you write an email (let’s assume on your school email account, as most official business would naturally occur on this) about your thoughts on a particular curriculum to a colleague or a friend, that email could be made available for inspection to the public. A citizen may submit a request to review “all the principal’s emails concerning the school district’s math curriculum” and, unless some exception applies, the school district must produce those emails. That example might seem innocuous, at first. But sometimes emails can be more “casual” in tone and this may not reflect the degree of professionalism we would expect from our educators (if it was read by a member of the public).

Another question arises when an email is strictly personal in nature. So, for example, let’s say a teacher sends an email (this time using your school related account) to his or her spouse or friend about an upcoming ski trip in February. The email is seemingly harmless and maybe it contains information about when they plan to leave or things of that nature. Depending on the state, that email might be subject to release if someone made a request for “all Teacher Jones’s email from November 2017 through February 2018.” But, if this particular email (which is not related to official business and did not contain references to “official business”) was sent on your personal account (e.g., gmail) but on the school computer, it would likely fall outside a state’s open records law.

One can easily see an irate taxpayer demanding to know why a teacher is planning a ski trip using government emails and during the course of school day. While most recognize that teachers have prep times and opportunities to take care of social issues during the workday, this example could escalate out of proportion in some communities. Thus, a simple, seemingly harmless email becomes a focal point about what are teachers actually do during the day. Yes, it may seem hyperbolic, but it is quite possible.

Practical Tips

So what does this all mean for you and your teachers? Open records law seems like a pretty obscure topic and one can imagine some eye rolls you might get from staff in talking about being careful using technology … again. Yet this is important—a mistake could be quite embarrassing to the school and the employee.

So here are some pointers worth reiterating:

  1. Always use email with a high degree of professionalism. While it can be very easy to write quick emails, take that extra moment to review and revise.
  2. Resist the urge to use school emails for personal business. The safest approach is simply to use our own email accounts to conduct personal business.
  3. Review your district’s acceptable use policy. Many may address the use of school email, including as it relates to personal use.
  4. Find some examples to demonstrate the gravity of the situation. Show these to staff and have them “see” the implications, as opposed to you just reminding them.
  5. Apply the “newspaper test.” When you finish composing an email, ask yourself this: “If this were to appear on the front page of my local paper, how would I feel?” So, for instance, if you want to express an opinion (e.g., on your school district’s approach to discipline), make sure that it is in a thoughtful and professional manner.

We live in an exciting time and technology has allowed us plenty of opportunity to improve our work as educators. It is important to take some simple steps around our use of technology as we leverage it as a resource.

Mark Paige is an associate professor of public policy at the University of Massachusetts-Dartmouth.

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