Earlier this month, a New Jersey appellate court affirmed the dismissal of a tenured teacher for comments she made about her students on Facebook. Good summaries of the case, In re O’Brien, can be found through the National School Boards Association and Education Week (subscriber access only). But the case warrants a closer look for school leaders and employees who wish to better understand First Amendment protections of school-employee speech on the internet. Although the school district was allowed to dismiss the teacher in this situation, where she criticized her young students in an inflammatory way, there is a blurry line between protected and unprotected employee online speech that administrators must be careful to understand. Below are a summary of the facts in the case, the relevant legal standard and its application to O’Brien’s situation, and some lessons that school administrators and employees can learn from the ruling.

The Facts

In 2010-2011, Jennifer O’Brien was a veteran teacher with over a decade of experience in the Paterson, New Jersey public schools. At the start of the 2010-2011 school year, Paterson unexpectedly was assigned to teach first grade at a new school that was predominately comprised of minority students, including African-Americans and Latinos. All of the students in her class, in fact, were either Latino or African-American.

O’Brien began to believe that six or seven of the students in her class had behavioral problems, which were having an adverse impact on her classroom environment. One student struck her, another stole money from her and other students, and some students hit each other.

O’Brien responded to these issues by sending disciplinary referrals to the school administrators on several occasions, but she thought the referrals had not been addressed adequately. O’Brien then posted two posts on her Facebook page relating to the issues:

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

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

O’Brien said she posted the statement that her students were “future criminals” because of the behavior of some – but not all – of the students, not because of their race or ethnicity. News of her posts spread quickly throughout the school district, however. Two angry parents went to her principal’s office to express their outrage, and one parent threatened to remove her child from school. The school also received at least a dozen irate phone calls. Twenty to 25 people gathered outside the school to protest because of the statements, and news reporters and camera crews from major news organizations descended upon the school. At the next Home-School Council meeting, the majority of the meeting was devoted to O’Brien’s posts and parents expressed their outrage over the posts. When O’Brien was made aware of the outrage against her posts, she was surprised that her posts had led to such a reaction.

First Amendment Standards

Public school employees do not shed their rights to free speech as private citizens at the schoolhouse door, especially when that speech is made on the employee’s own time. When considering whether a public school employee can be disciplined for speech, including online speech made on the employee’s own time, courts ask the following questions:

1. Was the employee speaking in his or her official role? If yes, the teacher probably does not have First Amendment protections and may be disciplined for his or her speech. If no, ask Question 2.
2. Was the employee speaking on a matter of public concern? If no, and the teacher was speaking on a purely private concern, the teacher probably does not have First Amendment protections and may be disciplined for his or her speech. If yes, ask Question 3.
3. Is the teacher’s right to express his or her views outweighed by the school district’s need to operate its schools efficiently? If yes, discipline does not violate the First Amendment. If no, then the teacher cannot be disciplined for his or her speech.

Application of Standards in O’Brien

Question 1: In O’Brien, the teacher was speaking on her personal Facebook page outside of school hours, and so there was no question that she was speaking as a private citizen rather than in her official role.

Question 2: O’Brien argued that she was speaking about student behavior in the classroom, which she said was clearly a matter of public concern. The Administrative Law Judge (ALJ) at her tenured teacher dismissal hearing did not agree, however, finding that her posts were “a personal expression” of dissatisfaction with her job – a purely personal concern. This conclusion was upheld by the appellate court.

Question 3: The ALJ further found that even if O’Brien was speaking on a matter of public concern, the school district’s need to operate its schools efficiently outweighed her interest in expressing her views because her relationship with the Paterson school community had been “irreparably damaged” (Question 3). This is where the “heckler’s veto” idea comes in. Specifically, the ALJ found:

[A] description of first-grade children as criminals with their teacher as their warden is intemperate and vituperative. It becomes impossible for parents to cooperate with or have faith in a teacher who insults their children and trivializes legitimate educational concerns on the internet.

The ALJ noted that generally public reactions to an individual’s statement cannot limit their rights to free speech, but that “in a public school setting thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools.” The appellate court agreed with the ALJ’s findings.

Lessons Learned From O’Brien

The following are some lessons that can be learned from the O’Brien case:

• In some circumstances, a teacher may be disciplined and even dismissed for his or her online speech because of the strong responses others have to that speech.
• Such discipline is not warranted simply because a teacher speaks out on a controversial subject online, however. Rather, such discipline was warranted in O’Brien because the teacher was critical of her students. Had she expressed her concerns in a way that was not a criticism against her students as individuals, she may have been protected by the First Amendment.
• School officials have significant leeway in disciplining teachers for what reasonably can be described as gripes about the workplace. But the line between a personal gripe and a matter of public concern can be difficult to identify at times, however, and can often depend on how the employee expresses the concern. “I can’t believe how poorly behaved my first graders are” might be a personal gripe, whereas “I can’t believe how little my school does to help manage my classroom behavior” might be a public concern.
• Because of the often blurry lines in this area of law, school officials should take care to consider the nuances of an employee’s speech before imposing discipline so as to not violate the employee’s First Amendment rights.