Employees Social Media Employees Social Media A 26

Employees Social Media

Employees Social Media • A 26 year old teacher in Broward, Florida was fired when the principal learned that she, using an alter ego, was posing for bikiniphotos for XXXTransvision Radio Magazine and Miami parties. com. The unapologetic teacher posted: “I’m too sexy for my job … lol …” She also was quoted in the press as saying, “Lots of teachers get fired or asked to resign for the same things I did. ” (Footnote: The Inquistr / Inquistr. ltd, May 10, 2013) 2

Employees Social Media • A Chesterfield County School’s (VA) art teacher was fired after a You. Tube video surfaced. The “You. Tube video show[ed] [the teacher] with a fake nose and glasses, a towel on his head and black thong. …[p]racticing his private abstract artwork, much of which is produced when he smears his posterior and genitals with paint and presses them against a canvas. The video was widely dispersed among students. ” (http: //malottblogsspot. com) The pictures sold for $400 to $900 per picture. The School Board voted unanimously to dismiss him, whereupon he filed suit claiming violations of his First Amendment rights. The Board agreed to a $65, 000 settlement. (The Tuscaloosa News, May 8, 2008) 3

Employees Social Media • The Attorney General of Tennessee reports that there has been an increase in the number of teachers who have lost their teaching licenses because of inappropriate relationships with students. The AG states, “Technology is making it easier to engage in inappropriate communications with students … it’s easier to say something in a text message than in person. ” In 2010, 27 teachers lost their licenses because of inappropriate actions such as sexting. This compares to 11 in 2009 (http: //www. tennessean. com 4

Teachers Free Speech • Teachers like students claim free speech when they are being dismissed or disciplined for Social Media postings • The U. S. Supreme Court has decided four cases involving public employees where the primary legal issue was free speech these were: Pickering v. Board of Education of Township High School District( 1968) , Mt. Healthy City School District Board of Education v. Doyle, (1977), Connick v. Myers, (1983), Garcetti v. Ceballos, (2006). Only Pickering and Mt. Healthy were teacher cases, but all dealt with public employees and are therefore relevant. 5

Teacher Free Speech 1) 2) 3) 4) 5) Pickering v Board of Education (may speak out on matter of public concern, must be speaking as a citizen). Mt. Healthy v. Doyle, mixed motive test, constitutional right and non-constitutional right Connick v Myers applied mixed motive test Garcetti v Cebollas – statements made by public employee pursuant to their official duties, not protected by First Amendment It is the educational institution that has a right to academic freedom, not the individual teacher. Evans-Marshal v Board of Education, Urofsky v Gilmore ( Virginia Case) 6

Land v. L’Anse Creuse Public School Board of Education Teacher not Dismissed • A school board terminated a tenured middle school teacher after students gained access to photographs of the teacher at a summer party. The photos showed the teacher engaged in a simulated act of fellafio with a male mannequin at a bachelor / bachelorette party. The photos were taken approximately 2 years before they surfaced, and were taken without the teacher’s knowledge and posted without her consent. The photos were subsequently removed. • • The court found for the teacher and ruled the event had happened two years prior at a public event, was not an illegal act, did not involve students or any school personnel, 7

Rubino v. City of New York Teacher not dismissed • A New York City student drowned on a school sponsored field trip. A tenured teacher at another New York City school posted on Facebook, “After today, I am thinking the beach sounds like a wonderful idea for my 5 th graders! I HATE THEIR GUTS! They are devils [sic] spawn. ” A friend replied, “oh you would let little Kwame float away. ” The teacher responded, “Yes, I wld [sic] not throw a life jacket in for a million!!” • The teacher was recommended for termination. • “[The] Facebook postings do not constitute protected speech insofar as [it]…. was decided that [the teacher] posted the comments as a teacher and that the comments did not pertain to a matter of public concern. ” • • Even though no First Amendment right was involved the court ruled that the teacher’s dismissal was “shocking to one’s fairness. ” 8

Rubino v. City of New York , con’t • “[The] Facebook postings do not constitute protected speech insofar as [it]…. was decided that [the teacher] posted the comments as a teacher and that the comments did not pertain to a matter of public concern. ” • • Even though no First Amendment right was involved the court ruled that the teacher’s dismissal was “shocking to one’s fairness. ” 9

In re O’Brien, Teacher dismissed • A teacher, posted two statements on Facebook. The first “I’m not a teacher – I’m a warden for the future criminals”, and “They had a scared straight program in school – why couldn’t [I] bring [first] graders. ” A “Scared Straight” for sixth graders and older students was conducted at the school; O’Brien had briefly attended the program. • After the Facebook posting the principal received parental complaints about the postings; then major news organizations descended upon the school. At a Home-School Council meeting that evening, the majority of the agenda was devoted to the Facebook postings. 10

In re O’Brien con’t Teacher dismissed • O’Brien was recommended for dismissal based on “conduct unbecoming a teacher”. O’Brien posted on Facebook out of frustration, because she had recently been hit by a student, had students hitting each other, and items stolen in her classroom. She also apologized for the postings. • • O’Brien filed suit claiming her Facebook postings were protected by the First Amendment. The court ruled that O’Brien was not speaking as a citizen on a matter of public concern, which is constitutionally protected, but, even if her speech were a matter of public concern and therefore protected , she still would have been dismissed because of the disruption caused by the postings. 11

San Diego Unified School District v. Commission of Professional Competence, Teacher dismissed • San Diego Unified School District v. Comm. on Prof. Competence – Teacher dismissed for posting on Craigslist graphic photos of his genetalia and anus, while soliciting sex. 12

Teacher or Student Teacher dismissed 1) 2) Snyder v. Millersville University – student teacher dismissed from student teaching, for posting criticism of cooperating teacher, and pictures of her as “drunken pirate”. Had been told not to post improper material. Spanierman v. Hughes – told to use only school e-mail with students. Had my space account that student had access, also inappropriate exchange with students. Had been warned. 13