Anyone who has ever held a job appreciates the importance of venting frustrations, and discussing such issues with friends and colleagues in private is healthy and natural.
However, the increasing prevalence of social media is making what once would have been momentary statements a permanent part of the ethos. At least, that’s what New Jersey first grade teacher Jennifer O’Brien recently learned when she posted some comments to her Facebook page.
O’Brien’s comments about being a warden and wondering why she couldn’t bring her first grade students to a school’s scared straight program ignited a firestorm of controversy in the school district where she had been employed for more than a decade. Initially, O’Brien was suspended without pay, but eventual findings by an Administrative Law Judge, the commissioner and an appeals court had O’Brien removed from her tenured position.
O’Brien’s arguments that her posts were protected under the First Amendment fell on deaf ears. The decision to remove O’Brien from her job was supported by citations from the Pickering v. Board of Education case. The court weighed the question of O’Brien’s right to express her viewpoint in social media against the public school district’s interest in providing efficient services. O’Brien’s comments were deemed to not be a matter of “public concern.” As a result, the disruption caused to the school district’s ability to teach was determined to outweigh O’Brien’s First Amendment rights.
Ultimate questions of whether or not a public employee’s private posts on social media websites are protected by the First Amendment will not be answered soon. In the interim, it seems wise for public employees to be judicious, remaining aware at all times that in an increasingly interconnected society, few things said in social media remain private for long. Although O’Brien’s punishment seems unnecessarily harsh, her experience serves as a reminder that a communication from a public employee may not be considered protected speech if it interferes with the operation of the agency that employs them.
If you are a California school administrator with a question about school district related employment law, student/teacher safety, special education, accommodations, student rights, free speech or discipline, feel free to call attorney Richard Oppenheim at 818-461-8500. There is never a charge for an initial consultation and we can help you choose the best direction to resolve any school district employment law issue.