PITFALLS OF SOCIAL MEDIA &

ELECTRONIC
COMMUNICATION

BY: LLOYD BERKO, LRS

KEVIN POLLITT, LRS
Februar y 3, 2017 – Early Career Members’ Workshop
QUICK SURVEY
Use Social Media
• Facebook, Instagram, Twitter, Snap Chat, Craig’s List, Tinder, Ebay
• Frequency – Daily, Weekly, Monthly
• Do you use in school? As part of instruction?
# of Probationary Teachers
YOUR DIGITAL TRAIL:
YOU CAN RUN …BUT YOU CAN’T
HIDE!
SCENARIOS – IN OUR OWN BACKYARD, WITHIN
THE PAST YEAR
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 WHAT ARE MY RIGHTS IF I AM DISCIPLINED
FOR USING SOCIAL MEDIA/ELECTRONIC
COMMUNICATIONS?

• First Amendment
• Education Law Due Process Rights
• Taylor Law – Rights as Union Member
• Begging for Mercy
FIRST AMENDMENT RIGHTS OF PUBLIC
EMPLOYEES ARE NOT ABSOLUTE
Pickering v. Board of Education (1968).
Teacher terminated for commenting on school
expenditures in local paper.
Court: Termination improper. Speech was about
an issue of “public concern” and made while
employee acting as a “private citizen.”
Balancing Test : interest as a private citizen v.
employer’s interest in promoting efficiency in
the workplace.
PUBLIC EMPLOYEE 1ST AMENDMENT RIGHTS FURTHER LIMITED
“Private Citizen”

Garcetti v. Caballos (2006).

• Caballos, an assistant district attorney, issued a
memo to his supervisors recommending that a
case not proceed to trial because of police
misconduct.
• The memo was used against the prosecution at
trial. The employee was transferred and denied
promotion, he alleged, in retaliation for addressing
corruption, a “matter of public concern.”
 Speaking Pursuant Official Duties
Not Protected
Supreme Court:
• The memo, although touching on a “matter of
public concern,” was drafted by Caballos pursuant
to his “official duties.” His job required him to
make recommendations to prosecute.
• Caballos, therefore, does not get First Amendment
protection because he was not acting as a “private
citizen” when he brought the corruption to his
supervisor's attention.
 RULE OF THUMB
• If speech is made pursuant to official duties,
no matter where it occurs, -- on or off-duty, in
person, on paper, social media, text, email,
internet, etc. -- the speech is not protected by
the First Amendment and teachers can be
disciplined or terminated for that speech.
• A teacher speaking in the classroom is
always unprotected speech.
 RULE OF THUMB

If the speech is considered “Non-Official

Duties Speech,” the First Amendment will
protect the speech as long as the speech
is a “matter of public concern” and won’t
disrupt the provision of services.
DETERMINING WHETHER A MATTER IS ONE
OF “PUBLIC CONCERN”
• Where did the speech occur? – Was it in public?
Was it between two friends in a restaurant?
• What did the speech address – politics, public
officials, social issues, public health issues, etc?
Speech about an employee’s dissatisfaction with the
conditions of employment does not pertain to a
matter of public concern!
 EMPLOYEE PROTECTIONS
• Matters of public concern in education:
• Speech by a public school employee about a policy
or practice which can substantially and detrimentally
affect the welfare of the children attending the
school;
• Speaking about the use of corporal punishment
during a public debate;
• A letter to the newspaper about sexual
discrimination, Opposition to war, etc.
• Health and safety issues?
 EMPLOYEE PROTECTIONS
Examples of speech that have NOT been protected by First
Amendment in an education setting:
• Speech concerning large class sizes

• Criticisms of supervisors (But see … Taylor Law)

• Teacher admitting he “honked for peace” during a political

science discussion about the Iraq War during class

• Teacher hanging a picture of one political candidate in the

classroom but not the other during a mock school election

• Teacher distributing a book list during class not approved

 EMPLOYER CONCERNS ABOUT SOCIAL
MEDIA, INCLUDING OFF-DUTY/OFF-SITE USE
OF SOCIAL MEDIA

• Offending parents and students

• Negative publicity and damaging the reputation of the

District

• Disclosure of private / confidential information

• Threats
 WHAT HAPPENS IF I AM DISCIPLINED AND I
HAVE NO FIRST AMENDMENT PROTECTIONS?

• Tenured employees : Right to a hearing (3020-a).

• Probationary Employees : Beg For Forgiveness!

 TROUBLED COMMUNICATIONS

• Intentionally inappropriate.
• Unintentionally inappropriate.
• Innocent communications can still
subject you to discipline and licensure
proceedings.
ACTUAL SOCIAL
MEDIA POSTS
 NOT A
SCENARIOS

FIRST
”Drunken Pirate” – Student Teacher

MATTER OF
• She posted the photo herself
• Lost her position

AMENDMENT
Texas Art Teacher

PUBLIC
• Posted topless photos of herself on a photo
sharing site – claimed they were art
• Terminated

PROTECTION?
Charlotte, NC

CONCERN
• A probationary teachers posts “I’m feeling
pissed bc I hate my students and teach in the
most ghetto school in Charlotte.”
• Pending
SCENARIOS
• DC Teacher
• Posts “Lesson #1: don’t smoke crack when pregnant”
• Painting with Butt
• Steve Murmur suspended for video he posted on YouTube with his butt and
genitals
• Teacher kidding with students
• 2 direct conversations via social media making fun of student and girlfriend
• LOST JOB
• NYC teacher
• Vented frustrations of unruly 5th grade students by referring to the
death of a student the day before who drowned on a class trip… ”After
today I’m thinking the beach is a good trip for my class. I HATE
THEIR GUTS. They are all the devil’s spawn!”
• Fired by Arbitrator
SCENARIOS – IN OUR OWN BACKYARD, WITHIN
THE PAST YEAR
RULES TO LIVE BY
TODAY’S MATERIALS

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