SEE YOU IN COURT - January 2021

Bob Bombast, a veteran member of the Nutmeg Board of Education, has an active presence on social media, and he is not reluctant to tell people what he thinks.  But his willingness to share his own views is not matched by a reciprocal interest in hearing what others think, especially criticisms about his work and that of his fellow Board members on the Nutmeg Board of Education.

Bob has been particularly vexed by posts of Tom Teacher, a veteran teacher and faithful member of the Nutmeg Union of Teachers.  Ever since Ms. Superintendent decided last fall to open the elementary schools in Nutmeg fully for in-person learning at the elementary level, Tom has been posting information about COVID fatalities, and he even suggested that Nutmeg teachers prepare their wills “just in case.”  Bob was particularly offended by Tom’s recurrent claim that the Nutmeg Board of Education has abdicated its responsibilities by deferring to Ms. Superintendent’s “reckless” decision to reopen the schools.

Bob raised his concerns in executive session at the last meeting of the Nutmeg Board of Education.  “What are we going to do about Tom Teacher?” Bob asked Ms. Superintendent.  “Employees have some sort of duty of loyalty, don’t they?  I know that I would be fired if I were on social media criticizing my boss like that.  Just tell him to put a sock in it!”

Ms. Superintendent conceded that Tom Teacher’s posts were hard to take.  But she expressed concern that Tom may have a First Amendment right to speak his mind.  Board member Mal Content agreed with Ms. Superintendent and suggested that the best approach is to counter Tom’s claims with more information.  Bob was unmoved, but the other Board members got on board with Ms. Superintendent’s proposal to add a “COVID Clearinghouse” to the district website to provide the public with information about district measures to continue in-person learning with appropriate risk mitigation measures.

Bob decided to take a more direct approach, and he responded to Tom Teacher right on his Facebook page, perhaps too directly.  “Tom, you are an ignorant coward,” Bob began in his response.  “We have no use for teachers who put their selfish interests above those of the students we are all supposed to serve.  Why don’t you just resign?!”

Tom Teacher was delighted that he had gotten Bob’s goat.  In the next post on his Facebook page, Tom baited Bob with the observation that he and the other Board members were the “cowards” for not taking action in overruling Ms. Superintendent’s “ridiculous” decision to insist on in-person learning during such a dangerous time.

Stung by that direct affront, the other Board members got into the act.  Board members Penny Pincher, Red Cent and even Mr. Chairman all posted replies to Tom’s post, and Mal Content even warned Tom that he was treading on “thin ice” because his negative posts were undermining effective instruction by encouraging parents to elect the remote learning option.

Ms. Superintendent observed this back-and-forth with concern, and she decided that she needed to act.  She called Tom in, and she directed him not to make any further critical remarks about the Nutmeg Board of Education, and she followed up to that effect in writing.

The next day, Ms. Superintendent received an email from Attorney Bill Alot, informing her on behalf of his new client Tom Teacher that he was demanding that she rescind the directive, pay Tom’s attorney’s fees, and apologize for her mistake.

Does Tom have a claim that his First Amendment rights were violated?

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Sorting out the free speech rights of public employees can be a challenge, and we would need more facts to know for sure whether Ms. Superintendent was within her rights to issue the directive.  However, Bob and the other Board members got way too involved here.

Public employees did not always have First Amendment protections.  In 1892, Oliver Wendell Holmes, then sitting on the Massachusetts Supreme Judicial Court, famously observed, “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”  However, in 1968 the United States Supreme Court announced a new rule – public employees have the right to speak out on matters of public concern.  Pickering v. Board of Education (U.S. 1968).  Then, in Connick v. Myers (U.S. 1983), the Court elaborated on this rule, announcing a two-part test to determine whether speech by public employees is protected by the First Amendment:

• First, the employee must be speaking on a matter of public concern. If so, the First Amendment applies.  Speech about matters of personal grievance is not protected.
• Second, the importance of the speech must outweigh the disruptive impact, if any, of the speech. Employee speech that significantly disrupts operations is not protected.

Finally, the Court ruled in 2006 that public employee speech “pursuant to duty” (i.e., required as part of one’s job) is not protected.  Garcetti v. Ceballos (U.S. 2006).

Here, we need more information about whether and how Tom’s posts were disruptive of district operation in order to apply these principles to Tom’s social media posts.  Certainly, it can be disruptive if employee speech causes apprehension and changed parent behavior. 

Another common measure of disruption is whether close working relationships are affected.  However, Tom does not work directly with Ms. Superintendent, and he certainly doesn’t work with the Board.  Also, in considering whether to prohibit employee speech, it is good to keep in mind the presumption in favor of free speech, underscored by Justice Louis Brandeis almost one hundred years ago: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”  Whitney v. California (U.S. 1927).

In any event, Bob and his fellow Board members made a number of mistakes here.  First, Board members should not get into it with individual teachers.  Under the Teacher Tenure Act, these Board members could be called upon to act as an impartial judge if Tom’s actions ever resulted in Ms. Superintendent’s recommending his termination.  Bob’s suggestion that Tom resign could lead to Tom’s claiming a violation of his due process rights if Bob were called upon later to decide whether Tom’s contract should be terminated.

Second, there was no indication that Bob’s comments in executive session about Tom Teacher’s social media posts were on the agenda or that Tom has been notified so that he could require the discussion as to him be held in open session.  If not, the discussion was improper.

Third, one may ask whether the Board members’ all joining in the discussion on Tom’s Facebook page was an illegal meeting of the Board of Education.  Since its inception in 1975, the Freedom of Information Act has defined a “meeting” of a public agency as including “any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.”  Conn. Gen. Stat. 1-200(2) (emphasis added).  Did comments by a quorum of the Nutmeg Board of Education on Tom’s Facebook page constitute an illegal, unposted Board meeting?  Let’s hope not to find out.