DRIVING THE INDUSTRY SINCE 1991
£ Does your district or company have a policy on employees' use of social networking sites, especially when they talk about on-the-job activities?
ty of the record to determine if it is the kind of issue a public citizen — rather than only an employee of the school district — might take up, and if the employee’s expression cannot be reasonably believed to cause harm to workplace harmony, discipline or operations. Certainly what the use of social networking adds to the dialogue is the size of the audience likely to be privy to the employee’s gripe. A recent New Jersey case concerned a tenured
teacher’s wailing on Facebook about her job. Te New Jersey Superior Court issued an unpublished opinion in January when the first grade teacher, in a school serving almost entirely minority students, complained on Facebook that: “I’m not a teacher — I’m a warden for future criminals.” She posted a sec- ond statement on the same day: “Tey had a scared straight program in school — why couldn’t [I] bring [first] graders?” When she was suspended without pay, she contended that the First Amendment protected her comments. Te acting commissioner of education for the state accepted an administrative law judge’s conclusions that the teacher’s remarks were “a personal expression” of dissatisfaction with her job, and, therefore, not protected speech, and that the teacher should be removed from her posi- tion for conduct “unbecoming a teacher.” Although the teacher claimed that her comments
on student behavior in the classroom were just the kind of remarks a public citizen would make, the court found that her posts were motivated by her own personal interest. Moreover, the court found sufficient evidence that, even if the teacher’s comments were on a matter of public concern, “her right to express those comments was outweighed by the district’s interest in the efficient operation of its schools.” Te administrative law judge had found,
and the court agreed, that the teacher’s relationship with the school, the district and its public had been irreparably damaged by her unrepentant insensitivi- ty to the “commotion she had created.” I have observed that when online or in-person
speech by an employee inspires a school district administrator to have significant angst over what has been said, courts seem to feel compelled to find sufficient disruption to educational operations to uphold the school district’s disciplinary decision. We sometimes don’t know the rest of the story. Although media reports may fully describe the
content of the employee posting and the district’s response, what may not be shared with reporters — often because of the confidentiality attached to personnel matters — is evidence that shows that the public employer would have arrived at the same employment decision even if the employ- ee had never spoken out. Tis may be because of the staff member’s performance problems or numerous policy violations or a preventable accident. Here’s a case in point.
On Aug. 7, three separate lawsuits were brought against the Cobb County (Ga.) School District by drivers who were fired after they spoke out at school board meetings about compensation issues and the human resources department’s treatment of personnel. Although each of the drivers complained of retaliation for their exercise of First Amendment Rights, the evidence demonstrat- ed that the school board would have approved their termination based on performance issues and policy
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