What You Tweet Could be Held Against You

Teacher use of social networking websites, like Facebook and Twitter, can be a minefield for teachers and other district employees.  When a disgruntled school district employee takes to Twitter to air work grievances, should the employee be subject to discipline for their “tweets”?  What about a teacher who posts a photo of himself on Facebook doing a “keg stand,” or another comments in jest on a student’s Facebook “wall” that “she needs to stop partying and do her homework?”

Clearly, school districts have an important interest in regulating their employees’ conduct that potentially interferes with their mission to maintain a healthy environment conducive to student learning.  However, under the law, this interest must be balanced with the rights of teachers, as private citizens protected by the First Amendment, to express themselves regardless of whether it is through a newspaper column or through a “tweet.”  Thus, school districts must be aware of the potential free speech implications for taking action against what their employees say online.

The United States Supreme Court and Pennsylvania courts afford the speech of public school teachers First Amendment protection if their speech relates to matters of public concern.  So long as teachers are speaking as citizens about matters of public concern, their speech is only restricted if it is “necessary for their employers to operate efficiently and effectively.”  Stated differently by the Pennsylvania State Education Association (PSEA), even though the First Amendment protects a teacher’s speech as a private citizen on matters of public concern, that speech may fall outside of First Amendment protection if it “impedes [his or her] employer’s effectiveness or efficiency, or otherwise disrupts the workplace.”

A Pennsylvania federal court case of recent vintage, Snyder v. Millersville University (also known as the “drunken pirate” photo case) makes clear the interplay between public concern and private concern.  In that case, twenty-five-year-old Stacy Snyder, a senior at Millersville University in Millersville, Pennsylvania, was dropped from the student-teaching portion of her course work after the staff at the high school where she was student-teaching viewed postings on her MySpace page.  Already frustrated by her overly informal attitude toward her students, the high school staff decided, after viewing Stacy’s postings, that she was not an acceptable candidate for a teaching degree. When Stacy could not complete her required hours of student teaching because she was not permitted on the high school grounds, the university decided to award her a degree in English rather than the anticipated degree and certificate in teaching.  It should be noted that the court treated Ms. Snyder as a teacher, rather than a student.

The postings that the high school staff found inappropriate included a photo of Stacy taken at a costume party. In the photo, Stacy is seen wearing a pirate hat, drinking from a plastic cup; the photo caption reads: “A Drunken Pirate.” Her MySpace page also included a posting that could be interpreted as a negative comment about her supervising teacher at the high school. Millersville University had warned the student-teachers earlier that they should not post any comments about the high school staff on their web pages, nor should they direct their students to personal web pages.

Ms. Snyder filed a lawsuit in a Pennsylvania federal court against the university, claiming violation of her First Amendment rights.  The federal judge ruled against Ms. Snyder, stating that a teacher’s First Amendment rights pertain to public matters only, not personal, and that the photos were clearly personal.

A recent New   Jersey appellate court affirmed the dismissal of a tenured first grade teacher for comments she made about her students on Facebook. In that case, the schoolteacher posted the following:

 “I’m not a teacher – I’m a warden for future criminals!”

The teacher argued that her dismissal constituted a violation of her First Amendment rights of free speech because (1) her comments addressed a matter of legitimate public concern, i.e., school discipline, and (2) because her comments were made on her private Facebook page. In upholding her termination, the court stated, “the posting of such derogatory and demeaning comments about first-grade students showed a lack of self-control, insensitivity and a lack of professionalism.” Pointing out the young age of first-grade students, the fact that the students were all minorities, and the nature of social media, the court concluded that the teacher’s right to express herself on Facebook “was outweighed by the district’s interest in the efficient operation of its schools.”

The PSEA advises teachers to “Avoid posting anything on your profile page about your colleagues, administrators, or students, as well as using inappropriate or profane messages or graphics, or anything that would reflect negatively on your workplace,” and warns against posting anything a teacher would not feel comfortable sharing with his or her  “mother, students or superintendent.”

School districts and teachers seeking additional guidance on emerging social media issues as they relate to the online conduct of teachers should contact any of our attorneys in MBM’s School Law Team.

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