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Ratwik, Roszak & Maloney, P.A.

300 U.S. Trust Building

730 Second Avenue South

Minneapolis, Minnesota 55402

_________________________

(612) 339-0060

Fax (612) 339-0038



IPAD/MOBILE DEVICES –

LEGAL POLICIES, RESTRICTIONS

Eric J. Quiring

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MASBO SPRING CONFERENCE

May 1, 2013

I. Introduction

School districts are purchasing personal computer technology, such as iPADs, and distributing them to students at an increasing rate. As this trend is clearly growing, it is increasingly likely that legal issues will arise. This presentation focuses on three major areas of concern and the legal ramifications presented by each of these three areas:

1) Funding an iPad program;

2) Protecting the iPads through the procurement of insurance or other arrangements; and

3) Regulating the use of the iPads by students and staff.

II. FUNDING AN iPAD PROGRAM

As with any school program, the first major concern with implementing an iPad program involves funding. Given the public nature of school districts, particularly the fact that all monies held by a school district constitute public funds, there are important legal issues to bear in mind when planning such a program. The primary concern is often not where the money will come from, but rather, whether it constitutes a legal expenditure of public funds.

A. Is an iPad Program a Legal Expenditure?

As a general rule, for a school district’s expenditure of funds to be legal, it must be (1) for a public purpose; and (2) expressly or impliedly authorized by statute. See R.E. Short Co. v. City of Minneapolis, 269 N.W.2d 331, 336-37 (Minn. 1978). See also Visna v. Freeman, 89 N.W.2d 635 (Minn. 1958) and Perry v. Ind. Sch. Dist. No. 696, 210 N.W.2d 283, 286 (Minn. 1973). Both prongs of this test must be met in order for the expenditure to be valid.

1) A public expenditure must be for a “public purpose.”

The first prong requires that the expenditure be for a public purpose. The concept of a “public purpose” is both expanding and dynamic. While there is no bright-line rule, Minnesota courts have held that a municipality’s expenditure will serve a public purpose if it: (1) benefits the community as a whole; (2) is directly related to the functions of the municipality; and (3) does not have as its primary objective the benefit of a private interest. See Visina, 89 N.W.2d 635 (Minn. 1958).

2) A public expenditure must be expressly or impliedly authorized by statute.

The second prong requires express or implied statutory authority for the expenditure. Like all municipalities, school districts possess no inherent powers. Rather, school districts possess only those powers that are expressly conferred by statute or implied as necessary in aid of those expressly conferred powers. See Mangold Midwest Co. v. Village of Richfield, 143 N.W.2d 813, 820 (Minn. 1966). This means that in order for an expenditure to be valid, it must be either expressly or impliedly authorized by statute.

B. Can a School District Require Students to Pay an Annual Fee?—The Minnesota Public School Fee Law.

One question that is commonly raised is whether districts can require students to pay for their own iPad or other device. This would be accomplished either by imposing an annual “rental fee,” “technology fee,” or some other type of fee. This issue implicates the Minnesota Public School Fee Law, Minn. Stat. §§ 123B.34--123B.39, which governs what fees a school district can legally charge, as well as the procedures that must be followed to impose such fees.

The legislatively declared policy of his state is that public education “shall be free and no pupil shall be denied an education because of economic ability to furnish educational books and supplies necessary to complete education requirements necessary for graduation.” Minn. Stat. § 123B.35. In order to enforce this policy, the legislature has carved out specific areas in which school districts may, and may not, impose a fee on students.

1. Prohibited Fees.

Minn. Stat. § 123B.37 states that school districts may not charge a fee for the following:

• Textbooks, workbooks, art materials, laboratory supplies, towels;

• supplies necessary for participation in an instructional course except as authorized in sections 123B.36 and 123B.38;

• field trips that are required as part of a basic education program or course;

• diplomas, graduation caps, gowns, and any specific form of dress necessary for any educational program;

• instructional costs for necessary school personnel employed in any course or educational program required for graduation;

• library books required to be utilized for any educational course or program;

• admission fees, dues, or fees for any activity the pupil is required to attend;

• any admission or examination cost for any required educational course or program;

• locker rentals; and

• transportation to and from school for pupils living two miles or more from school.

It is worth noting that school districts are prohibited from charging fees for “supplies necessary for participation in an instructional course.” Minn. Stat. § 123B.37(a)(2). This is relevant if iPad use is required for participation, particularly if it is required for after school use.

2. Authorized Fees.

Under Minn. Stat. § 123B.36, school districts are specifically authorized to charge students fees for the following:

• a product created in a school program, if the product is in excess of the minimum requirements of the program and, at the student’s option, becomes the personal property of the student;

• admission to or participation in extracurricular activities, if attendance is optional and the fee is the same for all students;

• a security deposit for the return of materials, supplies, or equipment;

• personal physical education and athletic equipment and apparel (but students may personally provide such equipment and apparel);

• items of personal use or products that a student has an option to purchase such as student publications, class rings, annuals, and graduation announcements.

• fees specifically authorized by another statute, including driver education fees (not exceeding the actual cost to the district);

• field trips considered supplementary to a district educational program;

• any authorized voluntary student health and accident benefit plan;

• use of musical instruments owned or rented by the district;

• transportation of students to and from optional extracurricular activities conducted at locations other than school;

• transportation to and from school of pupils living within two miles from school and all transportation services not required by law;

• motorcycle classroom education courses conducted outside regular school hours;

• transportation to and from post-secondary institutions for pupils enrolled under the PSEO program; and

• transportation to and from instructional community-based employment stations that are part of an approved occupational experience through a secondary vocational program.

3. Other fees—those that are neither authorized nor prohibited.

If a particular type of fee is neither explicitly authorized nor prohibited by statute, the school board may impose the fee, but only after holding a public hearing on the matter. Minn. Stat. § 123B.38. The statute sets forth notice requirements that must be followed before holding such a hearing. Id. Specifically, the school board must provide three weeks published notice in the district’s official newspaper, or such notice as is otherwise required for a regular board meeting given three weeks before the hearing on the proposed adoption of the student fee. Id.

How Much of a Fee can be Charged?

The Minnesota Public School Fee Law provides some indirect guidance as to how much a school district can charge for equipment rental fees. The statute permits districts to charge a “reasonable” rental fee for the use of musical instruments owned or rented by the district. See Minn. Stat. § 123B.36, subd. 1(b)(9). What is a “reasonable” fee?” The law specifically states that a “reasonable” rental fee cannot exceed the rental cost for the district or the annual depreciation plus the actual annual maintenance cost for each instrument. Id.

C. Are Student Vouchers an Option?

Another option that school districts may seek to implement is a program where students are required to provide their own personal technology device, such as an iPad. Such school districts then offer student vouchers towards the purchase of such devices, often providing students with greater financial needs a larger voucher.

Applying the Minnesota Public School Fee Law, such a scenario would be problematic if the technology is required for participation on an instructional course, as it would be requiring the students to pay a fee for equipment necessary for graduation. On the other hand, if the technology is either provided at school free of charge or is not required for graduation, a voucher program encouraging ownership and use of iPads or other devices would not violate the Minnesota Public School Fee Law.

III. PROTECTING THE TECHNOLOGY

Electronic devices, such as iPads, are not only expensive, but also tend to be fragile. In reality any number of unfortunate things can happen to these technologies, particularly when placed in the hands of students. What can school districts do to protect the technology? Who must pay to repair or replace a broken or stolen iPad?

A. Insurance.

1. School insurance. If a school district purchases iPads or other devices for use by their student body, one of the first and foremost concerns should be how to protect these devices.

a. Insurance supplied by vendor. Insurance plans may be offered by the vendor who supplied the technology. Make sure to carefully review these policies to ensure that they provide the protection the district needs, at a cost that is reasonable for the coverage provided.

b. Existing insurance policies. Check existing insurance policies covering other school buildings and equipment to see if the new technology will be covered, or if it must be expressly added to the policy.

2. Student insurance. Another option is to offer insurance or participation in a “cooperative loss pool” to students and their parents to either cover or reduce the cost of repair or replacement.

a. Public School Fee Law concerns. Depending upon how such a program is structured, it may implicate the Fee Law. As long as participation in the insurance program is not required for graduation, the fee would not be prohibited. This means it is acceptable so long as the procedures set forth in Minn. Stat. § 123B.38 are met.

b. This option may be attractive to parents given the fact that school districts are authorized to charge fees for lost or damaged school equipment, as discussed below.

c. The unique needs of such a program will determine how it is structured and what costs and benefits are provided. One example may be limiting the number of claims in a given time period or excluding intentional or complete loss from coverage, or limiting the coverage for such incidents.

B. Damage/Replacement Fees.

While many of the unfortunate things that can happen to an iPad are accidental, unfortunately, some are not. Theft, vandalism, and avoidable damage are the reality. While these may cause issues when a school district attempts to make a claim under an insurance policy, school districts can charge fees for iPads or devices that are lost or destroyed by students directly to the student or their parent, under certain circumstances.

1. The Minnesota Public School Fee Law provides that a school board “may charge fees for textbooks, workbooks, and library books, lost or destroyed by students.” Minn. Stat. § 123B.37, subd. 2. This statute requires school boards to notify parents/guardians and students of the policy to charge such a fee annually. Such a fee is not an authorized fee, but rather is an exception to the prohibited fees.

2. While this statute does not expressly include computers or iPads, it is consistent to include such district-owned technologies. This is particularly true given the fact that the phrase “textbooks, workbooks, and library books” is non-exclusive, as demonstrated by the fact that the statute expressly references an earlier subdivision which also includes art materials, laboratory supplies, and towels. See Minn. Stat. § 123B.37, subd. 1(a)(1).

3. Because this type of fee is an exception to the prohibited fees, rather than an expressly authorized fee, a school district should follow the procedures set forth in Minn. Stat. § 123B.38.

IV. REGULATING THE USE OF THE TECHNOLOGY

It is likely that every school district already has a comprehensive electronic communications policy or some other form of acceptable use policy in place. These policies are aimed to regulate and control the use of district-owned technologies and networks. It is important to ensure that these policies are reviewed and revised as necessary to meet the unique challenges presented by wireless computer technology such as iPads.

A. Ensure that the District’s Comprehensive Internet Policy Expressly Applies to the Use of iPads.

1. Every school district should have an internet use policy in place that clearly defines for students, parents, and school personnel the confines of acceptable use of the internet. Given the fact that iPads connect to the school network, it is very important that this policy is amended to expressly reflect that it applies to all use of district-owned iPads, regardless of whether the use is on-campus or off-campus.

2. Such policies should include a disclaimer that there is no expectation of privacy for data contained on district-owned devices or for any data transmitted on the school network.

3. Such policies should include a disclaimer that district-owned devices are subject to search and consequences for a violation of district policy or the law.

B. Forbid the Use of District-Owned iPads for Anything Not School-Related.

1. While school districts may exercise very limited control over what students do on their home computer technology, they may exercise greater control over the use of school-owned technology. Restricting school devices to school purposes limits some of the potential for student misuse or abuse of the internet.

2. Expressly prohibit certain uses on district-owned iPads and other devices. Such uses may include, but are not limited to, social networking sites, commercial transactions such as eBay or Amazon, illegally downloading movies or music, etc. If possible, block unauthorized applications from being installed on the device.

RRM: 174330

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