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SEE YOU IN COURT! - July/August 2010

July 31, 2010

Bob Bombast, veteran member of the Nutmeg Board of Education, was watching Eyewitness News, and he realized that he was behind the times. Hallie Jackson is now on Facebook, he mused, so why not me? Soon, Bob was spending up to an hour a day, cruising Facebook, making friends and looking around. Bob was a little put off when his teenage daughter refused his friend request, but by and large Bob found that he could “friend” almost anyone. Indeed, several teachers working in Nutmeg promptly accepted his friend requests.

One night, Bob was nosing around reading Facebook updates, and he found the page of Ms. Chlorophyll, a teacher at Nutmeg Memorial High School. He was surprised to see a posting on her Wall about a wild time she had in Las Vegas over the summer. He explored further, and he was shocked to see that Ms. Chlorophyll had “friended” any number of students and parents. Bob promptly posted a nastygram on her Wall, chiding her for her unprofessional conduct.

Bob was surprised at her response. Ms. Chlorophyll sent him a message, telling him to mind his own business, and she promptly “unfriended” him. But he had stirred up a hornet’s nest, and many of Ms. Chlorophyll’s Facebook friends left scathing posts on his Wall, scolding him for his Luddite reactions to this new social medium.

Bob called Ms. Superintendent to tell her about his Facebook misadventures, and Bob demanded to know how Ms. Superintendent would handle the impertinent Ms. Chlorophyll. With the assistance of the local police, Ms. Superintendent promptly reviewed Ms. Chlorophyll’s Facebook page, and she searched Ms. Chlorophyll’s school email account for good measure. While Ms. Superintendent came up empty with the email search, she was quite disturbed at what she found on Facebook. Ms. Chlorophyll’s message about Vegas was still posted on her wall, and a number of students whom she had “friended” posted messages encouraging her to let her wild side out more often. To make matters worse, Mrs. Superintendent found older postings with critical remarks about her colleagues and one particularly unflattering posting about Mrs. Superintendent’s “stupid” new learning initiatives.

Mrs. Superintendent drove right over to the High School and told Ms. Chlorophyll to take down her Facebook page immediately. However, Ms. Chlorophyll was unrepentant. “Look, I have a First Amendment right to free speech and free association. Why don’t you just get your own Facebook page and leave me alone.”

“That’s enough from you,” Mrs. Superintendent barked back. “Pack up your stuff. You are suspended until I can figure out what to do with you.”

Was Mrs. Superintendent within her rights?

*        *        *

The main concern here is whether and to what extent social networking implicates the First Amendment rights of teachers and others. Mrs. Superintendent has extensive rights to regulate how Ms. Chlorophyll communicates with students and parents. However, there are limits, as discussed below. In addition, Mrs. Superintendent may well have violated Ms. Chlorophyll’s Fourth Amendment rights when she searched her email account, any acceptable use policy notwithstanding.

The United States Supreme Court first held that public school teachers have free speech rights in 1968, a year before the Court announced that students have such rights. The general rule is that teachers have protection under the First Amendment when they speak out on a matter of public concern. Conversely, their speech on matters of personal concerns is not protected. Thus, as a general matter, teachers’ statements on social networking pages are often not protected speech. Of course, the employer must still show a connection between the speech and legitimate employer concerns. However, if such concerns exist, the speech can be regulated. For example, school officials need not tolerate Facebook or other postings of hostile comments about a colleague or a supervisor that are unrelated to public concerns.

If a teacher’s speech relates to a matter of public concern, First Amendment rules apply. However, the speech is not automatically protected. Rather, the courts will balance the importance of the speech with the disruption, if any, caused by the speech. The courts will look at the impact on school operation, including public confidence in the school district, as well as other potential disruption, such as damage to close working relationships. Unless such considerations outweigh the importance of the speech, however, the speech is protected. Significantly, the content of the speech controls, not where it is expressed. Thus, teachers’ statements on matters of public concern can be protected, even on Facebook.

That said, school officials have the right to regulate communications between teachers and their students and parents. The United States Supreme Court ruled in 2006 that public employees do not have First Amendment protection when their speech is part of their job. Thus, teachers do not have free speech rights when they deliver classroom instruction or when they otherwise communicate with students or parents in the scope of their employment. Regulation of such speech is considered a matter of supervision, not an issue of constitutional law.

Second, it is generally inappropriate for a teacher to “friend” some of his or her own students. Designation of some students as “friends” creates a preferred group, a problem because all students are entitled to equal treatment from the teacher. The appropriateness of “friending” parents is less clear, but there are similar, legitimate concerns if the connection is based on the teacher/parent relationship. Boards of education may wish to consider and regulate such matters through policy.

Finally, we note that Mrs. Superintendent searched Ms. Chlorophyll’s school email account for good measure. Here, care is advised. To be sure, any acceptable use policy likely reserves the right to review all emails. However, when an employee has an expectation of privacy (as when his/her account is protected by an individual password), employers must act reasonably when they decide to search such accounts, and they must assure that the scope of their search is reasonable and not excessively intrusive. If Ms. Superintendent had information that Ms. Chlorophyll violated school rules through email communication, the search would likely have been permissible. Here, however, Mrs. Superintendent had no basis for her search, and her search was thus unreasonable, in violation of the Fourth Amendment.

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