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Your employee posts something unprofessional on social media…what can you do?

July 07, 2020

Social-Media

Spoiler: you cannot fire them on the spot.

Across the country, school leaders often come to grips with a disturbing trend of teachers using social media in professionally unseemly ways. While inappropriate teacher- to-student social networking is a major concern for school leaders and policy makers, teachers have also been disciplined for controversial social media content even when students or other members of the school community are not the intended audience.

The trending issue of teachers’ inappropriate or controversial use of social media amplifies the need for school leaders to be cognizant of teachers’ First Amendment free speech rights and the circumstances permitting school control. In addition, school leaders must balance the competing goals of appropriate restriction with sufficient freedom so the educational benefits of social media are not unduly limited.

Teacher Free Speech Rights

Three seminal U. S. Supreme Court decisions, decided long before the advent of social media networks, form a solid foundation for understanding the parameters of First Amendment free speech protection for public employees and the legal responsibilities of their employers.

In Pickering v. Board of Education (1968), the Supreme Court held that absent proof of false statements knowingly or recklessly made, a teacher’s exercise of his or her right to speak on issues of public importance may not furnish the basis for dismissal from public employment. The court established the following balance test

“In matters of public employee free speech, courts must balance “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The court later refined this public concern and balancing inquiry in Connick v. Myers (1983), a case involving renowned New Orleans district attorney Harry Connick Sr. (father of the famous musician), who fired an assistant district attorney for distributing a questionnaire at work that criticized office policies. The court sided 5-4 with Connick, the majority characterizing the assistant DA’s questionnaire as mainly “an employee grievance about internal office policy.”

For years, courts first asked whether a public employee spoke on a matter of public concern or importance. If the speech is merely a private grievance, a First Amendment claim fails, because the speech doesn’t carry much importance for the public at large. If the speech touches on matters of public concern, then the court balances the employee’s right to free speech against the employer’s interests in an efficient, disruption-free workplace.

Then the other shoe dropped. In Garcetti v. Ceballos (2006), the court declared that when public employees make statements pursuant to their official job duties, they have no free speech protection at all—even if the speech blows the whistle on alarming governmental corruption. The Garcetti decision left many public employees without a constitutional remedy, forcing them to rely on whistleblower statutes, which vary from state to state and may not protect their speech.

This trio of cases cements the concept that action on the part of a public employer that “chills or curbs” an employee’s freedom of speech may be found unconstitutional as violating an employee’s First Amendment right to free speech. One of the most “chilling” things that an employer can do to an employee is to retaliate against him or her for personal expression.

Social Media and Free Speech

There is no doctrine governing acceptable online behavior for teachers. Courts are left to decide on a case-by-case basis what is or is not legal grounds for termination.

Experts acknowledge that when a public worker’s speech creates actual disruptions on the job, bosses should have the ability to mete out discipline. A public employer should be able to discipline a public employee for online speech when the speech is made on work time, on the employer’s electronic hardware, and is actually disruptive of ongoing processes or a threat to public safety.

Conclusion

Effective school leaders must be proactive in dealing with potential problems, including teachers’ inappropriate or controversial use of personal social media accounts. As preventive measures, school leaders should ensure that policies are in place that clearly define the limits of acceptable use of social media by teachers while off-duty and when using personal internet sites and devices.

School leaders need to acknowledge and respect teachers’ First Amendment free speech rights. They also must recognize the pedagogical potential of social media and not unduly limit its use inside or outside of the classroom. However, school leaders do have a responsibility, and arguably a moral obligation, to protect students and the learning environment from the inappropriate uses of social media.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily 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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