Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
I read with interest your answer to TikTok’ed Off a couple of weeks ago about the problems with teachers making TikTok videos in their classrooms. No disrespect intended, but I have heard that Legal Mailbag’s day job includes representing boards of education in negotiations with teacher unions. Given what I presume to be Legal Mailbag’s affection for management rights, can I really believe what Legal Mailbag says about teacher free speech rights?
Doubting Thomas
Dear Doubting:
Legal Mailbag takes no offense and appreciates your wanting to assure that Legal Mailbag has been fair and objective in reporting on such issues. What better way to be sure than to invite the CEA to weigh in on these issues? Legal Mailbag is grateful for the opportunity to share the following response from Attorney Adrienne DeLucca, General Counsel of the Connecticut Education Association:
Overall, we agree with Legal Mailbag’s response to your interesting question regarding teachers creating TikTok videos in their classrooms. The use of social media can, when used with proper and approved guardrails, be an effective educational tool. TikTok, in particular, a video-based platform, has become a cultural phenomenon. In fact, there are several high profile “Teacher Tokers” such as Gerry Brooks, Courtney Cook, and Jesus Nalgas to name a few.
A major issue of concern is the First Amendment analysis of the content of a TikTok video. Using the evolution of a line of cases we commonly refer to as “The Supreme’s Greatest Hits,” the balancing test currently used by the court has the following requirements. A teacher must be speaking as a private citizen about a matter of public concern that does not involve a personal grievance or their job duties. And even when a teacher meets this test, if their speech causes “a disruption to the efficient operation of the school,” it may not be protected. We agree with Legal Mailbag that even a case-by-case analysis may be wrought with legal challenges for both parties.
There are, as pointed out by Legal Mailbag, other valid concerns such as confusion over whether the message comes from the teacher or the school district, potential FERPA violations, and using district equipment for personal gain. Becoming a content creator has become a very lucrative business. Each platform has monetization schemes that allow these content creators to earn money depending on how many followers you have, and/or how many views you received. All of which can eventually lead to product sponsorships and paid subscription followers.
We appreciate Legal Mailbag recognizing the importance of the school district maintaining good relations by encouraging a thoughtful conversation with their union partners before issuing any prohibitions. While such a prohibition may very well be one of the narrowly tailored management prerogatives, it may also require negotiations depending on any long-standing past practice.
Teachers are indeed entitled to a duty-free 30-minute lunch period. However, they are probably better served using that time for other purposes. As entertaining and creative as the content of these videos may be, the potential risks may well outweigh the perceived benefits.
Adrienne DeLucca
General Counsel
Connecticut Education Association