ALERT: Social Media Policies for Employees in the Educational Setting

News

August 13, 2015

Social media can be used for many different purposes: to communicate, to inform, to engage. Its universal appeal stems from the many things that one can do with the increasing number of social media forums available. In the educational environment, many schools have adopted the use of the Internet, generally, for administrative tasks, such as registering for classes, assigning and completing homework assignments, and for various communications between teachers and students. Many school districts have adopted social media policies relating to the regulation of its students’ actions; however, many schools have not implemented similar policies with respect to its employees, including teachers and other staff. Some recent case law regarding the termination of school employees involving their use of social media are instructive for school administrators and districts regarding the importance of implementing clearly defined policies for this issue. Indeed, the policies should apply to the administration, faculty and staff of the school districts, and strict policies should be developed for the students.

Generally, school district employees are considered public employees and cite to the First Amendment to protect their right to join in and post to social media websites. In this regard, in a case in the U.S. District Court for the Eastern District of Pennsylvania styled Munroe v. Central Bucks School District, Civil Action No. 12-03546 (E.D.Pa 2014), U.S. District Judge Cynthia M. Rufe noted that "a public employee’s speech is protected when he or she (1) speaks as a private citizen upon (2) a matter of public concern and (3) the employee’s interest in exercising his or her First Amendment rights are greater than the employer’s interest in the efficient operation of the public agency." Rufe explained that a school employee’s interest in exercising his or her First Amendment rights must outweigh the school district’s interest in effectively operating within the community. The courts are tasked with examining the content, form and context of the social media statement by the employee that leads to a fact-sensitive inquiry that requires careful consideration of the entire record, including both the issue of public concern and the employer’s interest.

The plaintiff in Munroe was a high-school teacher who alleged infringement on her First Amendment rights when she was terminated after authoring a blog that contained complaints regarding her own students and criticisms regarding the parenting of those students. Although Natalie Munroe’s blog contained personal matters unconnected to her teaching duties and she never specifically identified the students that she referred to as "ratlike," "whiny, simpering grade-grubber" and "frightfully dim," the court held that the context within which these "descriptions" were made easily allowed the reader to identify to whom Munroe was referring. Rufe stated, "Far from implicating larger discussions of educational reform, pedagogical methods, or specific school policies, plaintiff mostly complained about the failure of her students to live up to her expectations, and focused on negative interactions between herself and her students." Consequently, Rufe found that Munroe could not shield her blog entries behind First Amendment protections and, after balancing the interests of the parties, she concluded that the defendants did not violate Munroe’s constitutional right to freedom of speech when she was terminated.

In a recent U.S. District Court for the District of New Jersey case styled Czaplinski v. Board of Education of the City of Vineland, No. 15-2045 (D. N.J. Mar. 26, 2015), a security guard employed by the Board of Education of the city of Vineland, New Jersey, was terminated after posting a comment on her private Facebook page. This comment, along with two subsequent comments, related to news regarding black assailants that had shot and killed a black Philadelphia police officer, calling the killers "black thugs" and noting "all white people should start riots and protests and scare the hell out of them," the opinion said. After having learned of the comments via an anonymous email sent to the district’s superintendent and executive director, the plaintiff, Mary Czaplinski, was placed on administrative leave and her employment was terminated shortly thereafter. The Czaplinski court acknowledged that Czaplinski’s Facebook post was made outside of her job duties, on her own time and not as a public employee, and was a post regarding a matter of public concern. The court reasoned, however, that "plaintiff’s job as a security guard is to resolve disputes and maintain peace. As evidenced by the anonymous email, at least one person found plaintiff’s comments racist and troubling, and to the extent the comments contributed to a perceived racial bias, they arguably undermined both plaintiff’s individual authority in the eyes of the students and staff, as well as the authority of security guards more generally, impairing defendants’ ability to operate efficiently and effectively." Consequently, the court held that Czaplinski’s Facebook posts were not protected by the First Amendment.

In Rubino v. City of New York, 2013 NY Slip Op 03272, the New York Supreme Court, Appellate Division, considered a case where an employee-teacher posted comments on a social media website regarding an unidentified student at a different school. The court described the comment as "inappropriate" with an apparent purpose to "vent her frustration only to her online friends after a difficult day with her own students." Because the employee-teacher was generally respected, acknowledged the comment as hers (after initially denying same) and showed remorse, the court believed the punishment of termination was improper. In affirming the lower court’s decision to set aside the penalty of termination of her employment and using a totality of the circumstances review of the facts, the court stated that "under the circumstances, which includes the lack of a prior disciplinary history during petitioner’s 15-year career, and the expression that she would never do something like this again, Appellate Division properly found the penalty of termination to be shocking to one’s sense of fairness."

In light of the recently adjudicated cases noted herein, it is clear that a court’s analysis of social media posts by school employees includes a consideration of the context and the totality of the circumstances. While courts have generally attached great weight to the value of statements that provide meaningful insight into the operation of a public agency, such as a school district, even if those statements cause some public controversy, the burden often falls upon the employer to show how the disruption affected its operations. While some posts by employees may be considered as private, if the social media post can be perceived in a way that negatively affects that school employee’s job duties, termination as a result may be considered a fair outcome by the courts and the employee may not be afforded the protections of the First Amendment. While individuals can continue to participate in social media, when that individual is a public employee, such as a teacher or other school employee, it is important to exercise restraint in the personal opinions shared in social media websites and to keep those opinions solely within the purview of public matters. Moreover, it is important for school districts, which will bear the burden to show how the posts of its employees have disrupted operations, to implement clearly defined policies and procedures for the use of social media.

Reprinted with permission from the August 13, 2015 edition of the Legal Intelligencer© 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com - 877-257-3382 - reprints@alm.com.