Legal Matters: March 2022
Can school officials regulate an educator’s Facebook posts? A school district in California seemed to think so, and a state appellate court agreed. This article examines this court’s decision and offers recommendations about educators’ use of social media.
A high school counselor and other faculty members were placed on paid administrative leave after complaints about their posts on a school-sponsored, public Facebook page. The posts were related to several students who participated in the nationwide “A Day Without Immigration” boycott, which called for students and employees who are immigrants or who support immigrants’ rights to stay home from school or work to demonstrate the impact of their absence. At this school, the student population was approximately 90% Latinx. A few faculty members, including the counselor, took part in a discussion through email and then on the public high school’s Facebook page. On the morning of the protest, a teacher emailed the staff about the high rate of absenteeism in her classes. The counselor responded, “The PROFESSIONAL staff members and SERIOUS students are here today, boycott be darned.” Later that day, a social studies teacher posted on the school’s Facebook page, starting a discussion. A shortened version of the postings included:
SOCIAL STUDIES TEACHER: Well. A day without immigrants. … As for the public school system having my class size reduced by 50% all day long only served to SUPPORT Trump’s initiatives and prove how much better things are without all this overcrowding. That’s what you get when you jump on some sort of bandwagon cause as an excuse to be lazy and/or get drunk. Best school day ever.
COUNSELOR: Cafeteria was much cleaner after lunch, lunch itself went quicker, less traffic on the roads, and no discipline issues today. More please.
OTHER TEACHERS: [S]maller classes, fewer ‘troublemakers,’ increasing a class’s ‘cumulative GPA,’ and making instruction easier.
STUDENTS: [Y]ou guys are public figures and many students are taking these comments in a negative way. Let’s not focus on the teachers here, a counselor, who I looked up to made [a] remark. Very, very disappointing.
COUNSELOR: Disappointing is to think that some of my students still don’t get it about education. Staff members who are sympathetic to the cause were at school today. The kids who care were there. The professional staff members were there. What I saw today was more proof, just like last year, that boycotts especially of education, aren’t the answer. It just keeps the ones who need it the most as useful fools.
FORMER STUDENT: [Y]ou don’t understand what it feels like to have counselors that belittle what you want to be. That when you’re trying to aim high, they tell you that you can’t.
COUNSELOR: [A]ny counselor who chops you off at the knees like that shouldn’t be a counselor. That’s why today upset me so much.
COUNSELOR: Final comment. And I’m the great-granddaughter of immigrants. I care. But this isn’t the way to go about effecting change. My post was meant to be snarky. Get over yourselves.
The posts went viral. The administrative leave went into effect that day. Shortly thereafter, the school district received over 250 email complaints about the posts, with over 50 referencing the counselor’s comments.
The following day, the teachers’ classrooms were vandalized with profanity, and 350 students staged a walkout in response to the educators’ posts. Later, during the monthly school board meeting, 11 people specifically referenced concerns about the counselor.
The school board informed the counselor that she would be dismissed for her posts because the content was related to immoral conduct and demonstrated that she was unfit to be a counselor. She appealed the school district’s decision, but the Commission on Professional Competence (CPC) found that her dismissal for the charge of immorality rendered her unfit to serve and justified her dismissal. The trial court also denied the counselor’s petition, finding that she had engaged in “immoral conduct and was evidently unfit to serve.” Finally, a California Court of Appeals affirmed the trial court’s ruling.
The issue before the appellate court was whether there was substantial evidence to support the trial court’s conclusion that the weight of evidence supported the CPC’s findings. According to the state appellate court, the comments were more than just controversial:
The District dismissed the counselor because of the adverse effect her comments had on her professional reputation, her ability to counsel students effectively, and her relationship with RHS generally. As the CPC found, the counselor’s comments ‘negatively impacted students, the school, the district, and the community.’
The school district prevailed.
In the past, schools had significant control over teachers’ private lives because they were considered “exemplars” of the school and role models to their students and community. While teachers are held to a higher standard of conduct than the general population, they are still afforded some protections with regard to their out-of-school conduct. As such, courts often need to balance educators’ interest in exercising their First Amendment rights with the school’s interest in promoting efficiency in the workplace.
For example, in a 2013 case, an Illinois school board fired a school counselor who self-published a book titled It’s Her Fault that contained sexually explicit language and arguably disrespectful representations of women and girls. The Seventh Circuit Court of Appeals upheld the firing, explaining that the counselor’s constitutionally protected interest in publishing his book must be weighed against his employer’s interest “in promoting efficient and effective public service.” In the Seventh Circuit’s view, the school board reasonably anticipated that the counselor’s book would create a disruption in the school environment, which justified the board’s termination.
The decision on Crawford v. Commission on Professional Competence of Jurupa Unified School District in 2020 explains how one court attempted to strike this balance. The court looked to see if there was a nexus between the counselor’s conduct and whether it impaired her ability to perform her job. The nexus seeks to balance competing legitimate interests—protecting the private life of an educator and the school district’s interest in protecting the school community and the education of its students. Even though the school district prevailed, this case and earlier decisions suggest that school officials need to tread carefully when disciplining teachers for their out-of-school conduct. Some key takeaways for school leaders are:
- Many courts require that educators’ out-of-school conduct be shown to impair their classroom effectiveness before they can be disciplined. School leaders should check whether the nexus theory has been adopted by courts in their jurisdiction.
- Adverse notoriety arising within the community regarding an educator’s behavior may be used to help establish proof of an adverse effect of the behavior.
- When an educator’s misconduct involves students, the educator can much more easily be disciplined because the showing of adverse effects is more likely to be inferred and not required.
- Principals should work with their school district’s legal counsel to address the topic of social media at a districtwide professional development session.
Suzanne E. Eckes is a professor at the University of Wisconsin-Madison. She is a co-author of Principals Avoiding Lawsuits and a past president of the Education Law Association. Todd A. DeMitchell is a professor emeritus of education law and labor in the Department of Education and the Justice Studies Program at the University of New Hampshire. Richard Fossey is a professor emeritus and former Paul Burdin Endowed Professor of Education at the University of Louisiana at Lafayette.
Craig v. Rich Twp. High Sch. Dist. 227, 736 F.3d 1110 (7th Cir. 2013).
Crawford v. Commission on Professional Competence of Jurupa Unified School District, 53 Cal. App. 5th 327 (2020).
DeMitchell, T., Eckes, S. & Fossey, R. (2009). Sexual orientation and the public school teacher. Boston University Public Interest Law Journal. 19, 65, 68-79.