Dear Legal Mailbag:

One of the teachers in my school has a blog, and almost every day she posts her account from the trenches as a classroom teacher. Last week, she referred in her blog to one of her students who has an anxiety disorder as a “snowflake” who would benefit from joining the Army. There are no secrets in cyberspace, and the parent found out about the blog. Now she is demanding that we fire this teacher. Conversely, the teacher and her union are claiming that her comments are protected by the First Amendment. Can teachers really make comments like this on social media with impunity?

Concerned for Civility

Dear Concerned:

It is doubtful that the teacher has a First Amendment right to make such comments on her blog. Teacher complaints about students, colleagues or supervisors are as old as schools themselves. However, when teachers post complaints online (e.g., on social media or a blog), such comments may not be protected speech, either because the comments do not relate to matters of public concern or because they are disruptive, which includes speech that harms the necessary trust between teachers and the students and families they serve.

In Munroe v. Central Bucks School District, 805 F.3d 454 (3d Cir. 2015), a teacher was fired after it was revealed that she had made offensive and demeaning comments on her blog about children with disabilities and her students in general. She brought an action in federal court, alleging retaliation for exercising protected rights under the First Amendment. However, the Third Circuit affirmed a lower court decision, which found her offensive statements unprotected and dismissed her claim.

In another case of foolish blogging, a first-grade teacher, teaching in a district where the student body was largely made up of minority students, referred to herself on social media as “…a warden for future criminals!” In re O’Brien, No. A-2452-11T4, 2013 WL 132508, at *4 (N.J. Super. Ct. App. Div. Jan. 11, 2013). In that case, the Superior Court of New Jersey, Appellate Division, considered whether O’Brien was appropriately dismissed from her teaching position for posting such racially-charged statements about her students on Facebook. Unpersuaded by her claim under the First Amendment that student behavior was a genuine matter of public concern, the court affirmed the decision of the Acting Commissioner of Education and concluded that the “seriousness of O’Brien’s conduct warranted her removal from her tenured position in the district.” Id. At 5.

Similarly, a California Court of Appeals found a teacher unfit to teach earlier this year when she posted racist and critical comments on Facebook about students who were children of immigrant parents and who participated in a nationwide protest in support of “A Day Without Immigrants.” Crawford v. Comm’n on Prof’l Competence of Jurupa Unified Sch. Dist., 53 Cal. App. 5th 327, 332, 267 Cal. Rptr. 3d 520, 524 (2020), review denied (Nov. 24, 2020).

These limitations apply to speech on social media about coworkers as well. In Richerson v. Beckon, 337 Fed. Appx. 637 (9th Cir. 2009), the Ninth Circuit explained at length why complaints about co-workers on social media may not be protected speech:

“Richerson’s publicly-available blog included several highly personal and vituperative comments about her employers, union representatives, and fellow teachers. Although Richerson did not refer to these individuals by name, many were easily identifiable by the description of their positions or their personal attributes. When this blog came to light, Beckon received several complaints from teachers and other employees of the District, including at least one person to whom Richerson was assigned as an ‘instructional coach’ who thereafter refused to work with her. Beckon then transferred Richerson on the ground that her blog had fatally undermined her ability to enter into trusting relationships as an instructional coach.

“That a public employee’s speech touches on matters of public concern is a…necessary, but not a sufficient condition of constitutional protection…. Richerson’s speech and Beckon’s response are subject to the Pickering balancing test, which includes at least five factors…. Particularly relevant to Richerson’s case are the considerations of whether her speech…disrupt[ed] co-worker relations…erode[d] a close working relationship premised on personal loyalty and confidentiality… or … interfere[d] with the speaker’s performance of her or his duties…. Id. It is abundantly clear from undisputed evidence in the record that Richerson’s speech had a significantly deleterious effect in each of these ways. Beckon provided testimony, not controverted by Richerson, indicating that several individuals refused to work with Richerson in the future. Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog. Beckon need only make a ‘reasonable prediction’ that such disruption would occur; she need not demonstrate that it has occurred or will occur to a certainty…. This standard was clearly met. See Connick v. Myers, 461 U.S. 138, 151-52 (1983) (“When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.”). Accordingly, the district court did not err in concluding that the legitimate administrative interests of the School District outweighed Richerson’s First Amendment interests in not being transferred because of her speech.” (Internal quotation marks omitted).

Teachers must understand that there are limits to what they may say on social media. It may be too late for this teacher. But a heartful apology to the parent might help restore trust and save the teacher’s job.

Originally appeared in the CAS Weekly Newsletter.