New Jersey District Dismisses Teacher Who Called Students “Future Criminals” On Facebook

by Franczek Radelet P.C.
Contact

https://jdsupra-html-images.s3-us-west-1.amazonaws.com/a9cf707e-e6a9-4005-a841-ca4d76ba5a3b-typing17333799-300x200.jpgEarlier 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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.