DISCIPLINE FOR IMPROPER E-MAIL USE – CAN YOU SURVIVE A FREE SPEECH CHALLENGE?

The vast majority of routine written communication occurring in public schools today happens by e-mail.  This is a reflection of the modern workplace.  What was once done by way of a phone call, a personal visit, a letter or a memo is now often done through sending and receiving e-mail.  School districts have been forced to incur significant ongoing expense to provide an e-mail network and to archive e-mail for use by building-level employees, central administrators and board members in conducting school business.  As if school districts are not burdened with many concerns, there are challenges implicit in providing district-wide e-mail which are unique to governmental entities.  Foremost among these challenges is the fact that unlike private businesses, governmental entities are capable of violating the First Amendment’s free speech protections, and thus school districts must take special care.  While school district e-mail networks have not been found by courts to constitute an “open public forum” which must be accessible to some degree by the public, there is still the prospect that a district could violate the free speech rights of employees or engage in unlawful “viewpoint discrimination” if it does not properly manage its employee e-mail usage.

By way of illustration, consider the following situation:  a school principal sends an e-mail from his district account to a group of district employees, including subordinates, endorsing or denouncing a particular candidate for political office or ballot initiative.  He is not disciplined or otherwise directed not to send similar e-mails in the future.  At the same time, a school employee uses the building e-mail distribution list to disseminate information and solicit customers for his side business, and is then issued a reprimand to refrain from sending personal e-mails in the future.

In the preceding example, the disciplined employee could argue that he has been subjected to unlawful viewpoint discrimination by the school district after his particular non-district related e-mail is the target of censure, while the principal’s politically-motivated e-mail is left unaddressed.  Similarly, if the principal who sent the politically-based e-mail was disciplined while the school employee attempting to generate business for his second job was left alone, a claim for viewpoint discrimination might be made by the principal.  In either circumstance, the focus is on whether the school district has targeted one type of non-school-related employee speech for discipline while ignoring other types.  The key is to approach these matters consistently and deliberately.

First, review your district’s e-mail/acceptable use policy to make sure it is clearly spelled out that employees at all levels are expected to utilize the district’s e-mail resources only to transact school business, and not for outside activities, regardless of the type of activity.  Second, the policy should be reviewed with the employees on some recurring basis, and employees should be required to execute a sign-off sheet indicating that they have received and understood the limitations placed on district e-mail usage.  Third, to the extent the district becomes aware of employee use of the district’s e-mail system that is not related to school business, the district should take consistent action to discourage or discipline such action.  By approaching and addressing non-school-related uses in a consistent manner, the district can both encourage employee productivity and avoid, to the extent possible, claims of viewpoint discrimination.

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