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.
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. (more…)
One final issue that we delved into at TechCon 2012 last month was discipline of students for off-campus, online misconduct. Stories of schools wrangling with the issue of whether they can discipline students for such misconduct are common, such the recent issue in Granite City, Illinois, in which a school reportedly suspended 21 students, including honor roll students and the homecoming king, for Tweeting, re-Tweeting, or “favoriting” Tweets including one making sexual comments about a female teacher. At TechCon, we discussed a couple of other interesting examples: students taking unflattering photographs of teachers and posting them online and students doing the same with videos of off-campus fights between other students. I made a shameless self-promotion at the presentation and suggested that participants read my recent blog post, Eighth Circuit: School Discipline of Missouri Students For Inflammatory Website Constitutionally Sound, to get some background on the issue. And we discussed that these questions are very fact-specific and must be considered individually as they arise. But we also discussed that school leaders generally need to ask themselves the following three questions with respect to discipline of off-campus, online misconduct.
- Does school board policy allow for discipline of the type of speech in question?
In all cases where discipline is imposed, including for off-campus, online misconduct, it is essential that the district have a clear policy allowing for discipline of the type of activity in question. Even if a school district may discipline a student without infringing on his First Amendment rights, the district still may face challenges if its policy does not allow—or does not clearly allow—for that discipline.
- Is there a sufficient connection between the off-campus, online speech and the school environment?
A sufficient connection, or “nexus,” exists between the off-campus, online speech and the school where it is reasonably foreseeable that the speech would reach and impact the school community. This is a very fact-specific analysis, but here are a few examples of questions that can help you determine whether a sufficient connection exists:
- Were the materials made “public” so they could be viewed by anyone on the Internet?
- Even if the materials were “private,” was access allowed to other students?
- Even if the materials were “private,” were they specifically aimed at the school environment in a way that would lead someone to reasonably expect members of the school community to find out about them?
- Is the speech of the type that can be disciplined in the school context?
Once it is established that the speech can be disciplined under school board policy and that there is a sufficient nexus with the school, the question becomes: Can the speech be disciplined under the First Amendment?
If the speech is “unprotected” speech under the First Amendment it can be disciplined, period. But there are only a few categories of speech that are unprotected, and they are quite rare. One example is speech encouraging illegal drug use, which the Supreme Court in a 2007 case (Morse v. Frederick) held could be disciplined in the school context.
Even if the speech is protected by the First Amendment, it can also be disciplined in the school context if it causes a substantial disruption or invasion of the rights of others, or causes a reasonable risk of a substantial disruption or invasion of the rights of others.
What does that mean? Like the connection/nexus inquiry, the issue is very fact-specific and should be dealt with on a case-by-case basis. The list of questions to ask is long, and the best person to guide you through the process is your school attorney. But here are a few questions that could suggest a substantial disruption if the answer is “yes”:
- Are the materials misleading or false, in a manner that would create a need for the school district to actively correct the misinformation?
- Is there evidence of a past disruption in a similar circumstance?
- Have a number of staff members or students expressed anxiety about the online materials or their safety because of the online material, or missed significant amounts of class because of their concerns about the material?
After discussing these standards for discipline, we also discussed what can (and should) be done if students cannot be disciplined for off-campus, online misconduct. School districts may still be required to respond to the misconduct, particularly if it is pervasive or relates to a protected characteristic such as race, sex, or disability. I suggested that participants review a recent Franczek Radelet Alert (and an OCR letter cited therein) that talks about responses that school districts can (and in some cases must) take in response to bullying and harassment, including online bullying and harassment. Notably, OCR made clear that these responses are available, and may even be required, even if the students who are responsible for the bullying and harassment cannot be disciplined.
As Education Week recently reported, the Eighth Circuit Court of Appeals has held that two high school students from Missouri were unlikely to establish a First Amendment violation for discipline based on an inflammatory website they posted off-campus on their own time. In S.J.W. v. Lee’s Summit R-7 School District, the court approved of the school’s discipline even though the bulk of the disruption caused by the website was the result of a post by an unrelated third party. The Court also rejected yet another attempt by proponents of student speech such as the American Civil Liberties Union (ACLU), to argue that all off-campus student speech should be off limits for discipline by public schools. The case provides guidance to school leaders on the challenging question of when discipline is warranted for off-campus, online misconduct by students.
In December, 2011, two male high school honor students, who were twin brothers, posted racially and sexually charged slurs on a website. The website – northpress.tk – was reportedly created on a Dutch server that could not be found on a Google search. The boys took this step with the intent of limiting access to six or seven friends and preventing the website from reaching a broader school audience.
A third, unrelated student added a post titled with the N-word which was accessed by multiple students at school and led to a disruption in school that one teacher compared to the aftermath of the September 11 attacks. As the brothers alleged in their complaint, the twins were not aware of the post, which was only on the site for approximately 12 hours before being removed by the third student. The twin brothers were nonetheless suspended, first for 10 days and then for 180 days, when the school found out about the website and a disruption ensued. The boys’ school gave them the option to attend an alternative school, but their parents reportedly filed a lawsuit in March because they believed the academics and extracurricular activities at the alternative school were not up to their standards.
A federal District Court determined that, although the website created a substantial disruption, the students were likely to succeed on the merits of their First Amendment claim and were entitled to an injunction. This decision was important because, with the injunction and the long life-span of federal trials, the students were likely to graduate before the trial court weighed in with a more permanent decision. The Eight Circuit, however, disagreed and held that the students were not likely to succeed on the merits of their claim and, so, were not entitled to an injunction. (more…)