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An employee denies authorship of a racist comment on social media…what is your next step?

September 28, 2020

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By: Lily Crespo Esq.

What happened? In a strongly dissented decision, a court in Mississippi found a school district failed to prove by substantial evidence a teacher authored a racist Facebook post.

Background: Cammie Rone, second-grade teacher in Mississippi, lost her position because a Facebook post suggesting black people “move back to Africa” appeared on her Facebook page. She claimed she had been hacked.

  • Rone worked at the  school district’s Batesville Intermediate School for approximately twenty-three years.
  • During her tenure, Rone never received any disciplinary action.
  • At her termination hearing, she merely denied having authored the Facebook post. The Board determined there was substantial evidence presented at the hearing decided Rone made and posted an inappropriate comment on social media and did not exercise caution to protect her social media and/or online accounts. They also found Rone failed to produce evidence to show her social media accounts had been tampered with or altered.

Then the court of appeal dealt a hard blow to the school district: In essence, the court found district the lacked substantial evidence on this issue to justify Rone’s termination. “[In] this day and age where the ability to assume someone’s identity online is incredibly easy this Court is hesitant to consider this evidence as “substantial” with no further corroboration or investigation into IP addresses being used.” The court ultimately ordered Rone’s return to her position and awarded all lost pay Rone would have earned in the period since her termination.

Does this mean employees would be able to avoid any consequences just by saying “I didn’t do it” even though the social media account belongs to them? Not at all. Schools facing a situation where an employee fervently denies having posted something unprofessional on a social media platform, need to conduct a thorough and fair investigation into the circumstances of the post.

More often than not, individuals making comments like this are already on the ragged edge of professional conduct. There would likely be clear signs one way or the other an individual posted something racist on Facebook or some other platform. These actions do not commonly come out of a vacuum. Here, Rone had been a good employee for more than 20 years. Historically, Rone’s posts centered on sharing recipes and her personal interest in cow and bull shows. She did not fit the profile of someone who posts rabidly racist posts for her family, friends and colleagues to see.

Added to all these considerations, the court rendering this decision had 3 judges join in a strong dissent which backed decision of the school district:

“There was zero evidence presented at the hearing, by Rone or through her attorney, that the subject posts were not posted by Rone onto Facebook—except Rone’s denial. The Board’s decision to terminate Rone for making the racist Facebook posts was supported by substantial evidence.”

What this means for school administrators: First of all, this type of case would probably be handled differently in the ninth circuit. However, the case history provides some useful pointers and best practices for school districts facing a situation where an employee denies having posted something unprofessional on social media of any platform.

  1. Obtain proper technical verification a post was actually authored by your employee. Especially when they are saying they were hacked! As the appeal court stated “the ease at which a [F]acebook account can be cloned (for which no steps can be taken to prohibit this action) and the frequency in which that occurs, makes it extremely important to have proper verification that the alleged post was created and posted by Cammie Rone before terminating her or any other person in her situation.”
  2. Keep clear records about when and where school officials viewed the social media content in question. In this case, different administrators were viewing screen shots of the post on other people’s phones. They also did not keep records as to exactly when/and at what location in Facebook they viewed these posts.
  3. Take a look at previous posts of the employee and see if any of them show a pattern of unprofessional/racist conduct. The record in this case lent strength to a finding against substantial evidence because Rone’s typical Facebook posts related to sharing cattle and cattle shows.
  4. Make sure you can meet the burden of proving there are adequate grounds for dismissal.

Read more here: South Panola Sch Dist v. Rone (Mississippi Ct App 09/15/2020)
http://case.lawmemo.com/ms/panola.pdf

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.

 

Kaleva Law

At Kaleva Law Office you receive the experienced, practical advice of a large firm with the responsive, efficient, top-notch support of a small firm. We take care of the legal questions so you can focus on education.

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