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A New York court overturns the termination of a public school teacher for posting offensive comments on social media – Rubino v. City of New York, 106 A.D.3d 439 (May 7, 2013)

The New York Supreme Court, Appellate Division recently ruled that the firing of a fifth-grade public school teacher for making inappropriate comments on social media was too harsh of a penalty.  After a difficult day at class, the teacher posted comments alluding to a tragedy involving an unknown student at a different school.  The court’s opinion is sparse on details, but according to a Huffington Post article, the teacher wrote: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders!  I HATE THEIR GUTS!”  The beach reference alluded to the drowning of a 12-year old girl on a school trip to Long Island beach the day before.  The comments were only visible to the teacher’s private network of friends, who did not include any of her students or their parents.  The teacher deleted the comments three days after posting them.  She denied making the comments when she was initially confronted about them, but later confessed at her disciplinary hearing.

The court agreed that the comments were “clearly inappropriate” but it noted that the purpose of the comments was just to vent.  The teacher did not intend the public to see her comments, and she expressed remorse over making them.  She had no prior disciplinary history in her 15-year career.  Given the record, the appellate court found the termination to be “shocking to one’s sense of fairness.”  The appellate court upheld a lower court order setting aside the termination and sending the case back down for imposition of a lesser penalty.

LegalTXTS Lesson: Not all courts have been as kind toward teachers who vent on social media as the New York Appellate Division.  In fact, in In re O’Brien, a court in neighboring New Jersey upheld the firing of a first-grade teacher under similar circumstances earlier this year.  One difference might be that the teacher in Rubino expressed remorse for making the comments whereas the teacher in O’Brien did not.  Whether that factor alone accounts for the different outcomes is questionable.  One thing the cases do share in common is that the teachers in both thought that no one outside of their network of “friends” would see their comments.  With apologies to Las Vegas, Rubino and O’Brien teach that what happens in an employee’s social network doesn’t always stay in his or her social network.

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Federal court dismisses claims against charter school for expelling student due to cyberbullying — Lindsey v. Matayoshi, 2013 WL 3092450 (D. Haw. June 19, 2013)

The federal district court of Hawaii recently dismissed a lawsuit against a charter school that expelled a student for cyberbullying.  The student and her parents claimed that the school denied them a property interest in a free public education in violation of their constitutional right to due process.  The court ruled that the damage claims against the school were barred by Eleventh Amendment immunity and that injunctive relief was unavailable because the school did not violate the constitutional rights of the student and her parents.

RFL was a student at Kanu, a charter school in the state of Hawaii.  On several occasions, RFL threatened, bullied, and teased other students through Facebook posts and text messages.  RFL also got involved in a fight with a classmate.  Kanu initially suspended RFL and reminded her of Kanu’s “no tolerance” policy toward bullying, but when RFL persisted in taunting and threatening classmates through social media, Kanu expelled her.

Kanu discussed several options with RFL’s parents for continuing her education, including nearby public high schools and home schooling, and offered to assist in transitioning RFL to the school of her parents’ choice.  RFL’s parents declined to enroll RFL in any of the public high schools offered to them as alternatives.  Instead, RFL and her parents sued Kanu, the superintendent of the state department of education, and various school officials.  The plaintiffs sought damages and injunctive relief for the deprivation of their due process rights, emotional distress, and a violation of state administrative laws.

The court ruled that the Eleventh Amendment barred the plaintiffs from seeking monetary damages claims from Kanu, a state entity, and the other defendants, who were state officials sued in their official capacity.  As for injunctive relief claim for an order requiring Kanu to re-enroll RFL, the court found that the defendants had not deprived the plaintiffs of a constitutionally-protected property interest in public education.  Kanu offered alternative schooling options to the plaintiffs, but they rejected them all because they did not like the schools that were available to them.  The court held that an entitlement to public education did not include the right to attend a particular school or to a particular kind of education or curriculum.

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Now that the 2013 legislative session in Hawai‘i is in full swing, let’s take a look at what new measures are in the pipeline to regulate Internet activity.  A chart of relevant information about each bill is available here.  Here’s a summary of the Internet-related proposals working their way through the legislature.

Social Media and Internet Account Passwords

A set of bills (SB207 and HB713) proposes to join other states in banning employers from asking employees or job applicants to disclose the passwords to their personal social media accounts.  Another set of proposals (HB1104 and HB1023) would extend the ban to educational institutions and their students or prospective students.

Privacy Policies

Two bills (HB39 and SB729) would make it a legal requirement for operators of a commercial website or online service to post a privacy policy on their website.

Cyberbullying

Three bills (HB1226, SB525, and HB397) would require the board of education to adopt various policies and programs to combat cyberbullying in public and charter schools.

Teacher/Student Interactions

Apparently responding to incidents in which teachers and students conducted inappropriate relationships online, HB678 would allow a teacher in a public or charter school to engage in electronic communication with a student (including cell phone calls) only on Department of Education networks and systems.

Identity Theft

SB325 would require businesses to implement a comprehensive, written policy and procedure to prevent identity theft and train all employees in implementation of the same.

Cybersecurity

HB462 would establish a statewide cybersecurity council to identify and assess critical computer infrastructure, identify cybersecurity “best practices,” recommend incentives for voluntary adoption of such best practices, evaluate the efficacy of such practices, and report annually to the legislature.

We’ll be tracking these bills, reporting on their status periodically, and posting revisions to the chart.  Stay tuned!

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No First Amendment Protection for public school teacher’s comments on Facebook — In re O’Brien, 2013 WL 132508 (N.J. Super. App. Div. Jan 11, 2013)

We’ve seen a number of cases in which employees are fired for making comments on Facebook that they never thought would get around. (For a sampling, see my posts on Sutton v. Bailey, the BMW dealership decision, and Sumien v. Careflite.)  Put In re O’Brien in this category of cases, except add a twist: Here, the employer is a public school district.  Does the First Amendment (which applies only to government action) add a layer of protection to comments posted by a public employee on social media?  Not in this case.

Jennifer O’Brien was a first-grade schoolteacher.  O’Brien posted two statements on Facebook:

I’m not a teacher—I’m a warden for future criminals!

And the second:

They had a scared straight program in school—why couldn’t [I] bring [first] graders?

The Facebook comments were brought to the attention of the principal at O’Brien’s school (Ortiz).  Ortiz was “appalled” by the statements.  O’Brien’s Facebook comments also spread quickly throughout the school district, causing a well-publicized uproar.

The school district charged O’Brien with conduct unbecoming of a teacher.  An administrative law judge (ALJ) found support for the charge and recommended O’Brien’s removal from her tenured position, and the acting commissioner of the school district agreed.  The ALJ was particularly bothered by O’Brien’s lack of remorse in posting the comments.  A New Jersey court adopted with the reasoning of the ALJ on appeal.

Both at the administrative level and on appeal, O’Brien argued that the First Amendment protected her Facebook statements.  The court disagreed, applying the test stated in the Supreme Court’s decision in Pickering v. Board of Education that analyzes whether a public employee’s statements are protected by the First Amendment by balancing the employee’s interest, “as a citizen, in commenting on matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The court accepted the findings of the ALJ and Commissioner that O’Brien’s real motivation for making the statements was her dissatisfaction with her job and the conduct of some of her students, not a desire to comment on “matters of public concern.”  Even if the comments regarded a matter of public concern, O’Brien’s right to express those comments was outweighed by the school district’s interest in the efficient operation of its schools.  The court also rejected O’Brien’s arguments that there was insufficient evidence to support the charge against her, and that removal was an inappropriate penalty.

LegalTXTS Lesson: Public employers need to exercise more caution when disciplining employees for their activity on social media networks.  Unlike the private sector, public agencies are limited by the First Amendment when regulating expression of their employees.  But even public employees don’t have absolute freedom to say whatever they want.  As O’Brien reminds us, when public employees make comments of a personal nature, or their comments interfere with the delivery of government services, such expression is not protected by the First Amendment.

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Sutton v. Bailey, 2012 WL 5990291 (8th Cir. Dec. 3, 2012), is the latest reminder that private Facebook postings can lead to professional consequences.   Sutton was hired as a Funeral Science Director at Arkansas State University–Mountain Home for the 2010-11 academic year.  His employment contract provided that he could be terminated at any time “for adequate cause.”  A month after Sutton got hired (but apparently before he began teaching), he posted on his Facebook page: “Toby Sutton hopes this teaching gig works out.  Guess I shouldn’t have cheated through mortuary school and faked people out.  Crap!”

University officials somehow learned about the post and asked to meet with Sutton about it.  At the meeting, the university’s vice-chancellor (Bailey) and director of instruction (Thomas) confronted Sutton with the post.  He admitted to making the post.  Bailey then told Sutton that he was fired.  Sutton asked if it mattered that the statement was a joke, and that he posted the statement before he began teaching.  Baily replied “no” to both questions.  Sutton then received an Employee Counseling Statement form stating that he was being dismissed for an incident of “Academic Fraud and unprofessional conduct.”  The “Supervisor Statement” portion of the form explained: “Mr. Sutton posted material on Facebook indicating he had ‘cheated’ his way through mortuary school.  There are multiple other class related issues.”  Bailey told Sutton he had an opportunity to make a statement before signing the form.  Sutton declined and signed the form without further comment.  Sutton later sued Bailey and Thomas in their individual capacities, alleging that he was deprived of procedural due process in connection with his firing.

The bulk of the Eighth Circuit Court of Appeals’ opinion addressed the defendants’ defense of qualified immunity, which the court found to have merit.

LegalTXT Lesson: This case has two important, if obvious, takeaways.  First, employees need to remember that whatever content they share on their private social media networks could come back to haunt them professionally.  Employees need to be reminded constantly that social media blurs the line between personal and public, private and professional.

Second, Sutton answers a question I often get asked by employers: Can employees be disciplined or even terminated for their private social media conduct?  The answer is yes.  (For another example, read my post on the Careflite case, which recently settled).  There are limits, of course (and the NLRB Acting General Counsel has waxed long about many of them), but there are circumstances in which it is proper to discipline or terminate an employee for his or her private social media activity.  Now, it would help greatly if an employer sets standards of employee conduct clearly identifying the kinds of social media conduct that could lead to adverse employment action.  We don’t know what was in the employee handbook of the university in this case, but a rule that could’ve come in handy is one instructing faculty members not to endorse or make light of academic dishonesty.