On the other hand, the misuse of technology, the focus of this column, can lead to controversy and litigation that might have been avoided if employees had been aware of and had complied with sound board policies.
As reflected by the cases reviewed in this column, litigation continues over the employment status of teachers and other public school employees who misuse social media and technology.
Public School Educators and Social Media
A growing body of litigation reflects the range of ways in which educators have misused social media and the internet.
Posting Inappropriate Photographs
In a pair of relatively early cases from Florida, an appellate court affirmed the revocation of a teacher’s certificate for, among other infractions, inappropriately accessing pornographic internet sites on a school computer (Stueber v. Gallagher 2002). The court held that the Education Practices Commission (EPC) had the authority to revoke the teacher’s certificate on the basis of uncontroverted evidence of his misbehavior.
A year later, another appellate court in Florida agreed that a teacher’s sending “sexually suggestive jokes, profanity and sexual material not suitable for students” over the internet to 16 seventh graders warranted the permanent revocation of her certification (Wax v. Horne 2003, 798). The court added that the revocation of the teacher’s certification was appropriate because it was consistent with the past practice of the state’s EPC.
In Pennsylvania, a federal trial court ruled in favor of university officials who, in conjunction with local board administrators, dismissed a student teacher from her placement in a high school because, most notably, she violated university policies by posting an inappropriate picture of herself online. The court found that the photograph—captioned “Drunken Pirate” and depicting the student teacher on her public Myspace page wearing a pirate hat and drinking from a plastic cup—justified her dismissal because she engaged in private speech not entitled to First Amendment protection (Snyder v. Millersville University 2008).
Posting Online Comments about Students
In a dispute from Pennsylvania, the Third Circuit ruled in favor of a board in response to a tenured high school teacher’s claim that officials violated her First Amendment rights to free speech for firing her over postings she made on her blog that were viewed by others. The court agreed that because the teacher’s having posted derogatory statements about her students, referring to them with such epithets as “rat-like,” “rude, belligerent, [and] argumentative,” and “utterly loathsome in all imaginable ways” were not matters of public concern, they lacked First Amendment protection justifying her dismissal (Munroe v. Central Bucks School District 2015, 476).
Conversely, two years earlier, an appellate court in New York affirmed that because a teacher’s dismissal for posting disparaging remarks about her students on Facebook was shocking to one’s sense of fairness, she was entitled to be reinstated to her job (Rubino v. City of New York 2013). Accepting the teacher’s claim that she made the postings, which were not accessed by students or their parents, as venting after a difficult day in class, the court agreed that a lesser penalty was appropriate because she expressed her remorse, promised not to repeat her behavior, and had not been disciplined previously in her 15-year career.
Posting Inappropriate Sexual Images
In Texas, an appellate court upheld the dismissal of a middle school principal after an unknown person accessed a nude photo, or “selfie,” she took of herself and stored on her personal phone, posting it on an unnamed social media website without her knowledge or consent (Edinburg Consolidated Independent School District v. Esparza 2020). The court ruled that substantial evidence supported the board’s termination of the principal’s contract because the dissemination of the photo and accompanying publicity impaired her effectiveness. The court also acknowledged that the board’s cancellation of her term contract was not arbitrary, capricious, or unlawful because her dismissal was consistent with its social media policy.
More recently, the Wyoming Supreme Court reached a different outcome. The court ordered the reinstatement of a teacher who was fired after officials discovered sexually explicit personal images that inadvertently synced from his personal cell phone to his board-issued tablet not on his school’s network that he kept at home as a backup during the academic year (Board of Trustees of Lincoln County School District Number Two v. Earling 2022).
The court affirmed that the board’s technology policies and procedures failed to provide the teacher with a clear standard of conduct and that its assertion that the events had a reasonable relationship to his fitness or capacity to continue working was contrary to the overwhelming weight of the evidence.
Viewing Inappropriate Materials
In the first of two cases from Ohio, an appellate court affirmed the one-year suspension of a teacher’s license—all but 60 days of which were waived—for conduct unbecoming an educator after he accessed and viewed email images of a woman who exposed her breasts and pubic area while students were present (Robinson v. Ohio Department of Education 2012a, 2012b). Agreeing that the teacher’s actions violated the state code of professional conduct, the court upheld the penalty as appropriate.
A year later, the second appellate court in Ohio affirmed that a board lacked good cause to dismiss a teacher who viewed sexually explicit materials on a school-issued laptop (Winland v. Strasburg-Franklin Local School District Board of Education 2013, 2014). The court agreed that because the board acted improperly in dismissing the teacher insofar as his private, away-from-work action was not a crime and did not affect his professional duties, he was entitled to reinstatement and back pay.
Recommendations
Of course, board policies cannot, and should not, completely ban educators from using social media because it can be a useful tool. Still, because education leaders can set standards for teachers and other personnel who use social media, they may wish to consider the following suggestions in devising and revising their social media policies for teachers and other employees.
First, boards should assemble broad-based teams to devise and revise their social media policies. At a minimum, teams should include (a) the SBO; (b) a board member; (c) another central-office official; (d) a building-level administrator; (e) a teacher; (f) a union representative in states where bargaining is permitted; (g) a member of the professional staff, such as a guidance counselor or psychologist; and (h) the board’s technology coordinator and its attorney.
Second, policies should require teachers and other employees to sign forms at the start of school years indicating that they have read and agree to abide by policies involving the use of social media. Forms should specify that those refusing to sign or who fail to comply with the policies may be denied access to district-owned technology. By clarifying ownership issues, policies afford SBOs, their boards, and other education leaders greater latitude in regulating access to and use of technology systems.
Third, policies should establish guidelines for the use of social media before, during, and after school hours; teachers, in particular, are warned against “friending” students or parents, because of possible conflicts of interest or the appearance of impropriety. Further, policies should remind teachers not to post photographs or videos of themselves or students on social media because doing so risks infringing on students’ privacy insofar as these items can be manipulated, altered, misinterpreted, and misused in the public domain.
Fourth, recognizing the ever-evolving nature of social media and the internet, and that no policy can cover every issue involving teachers’ online expression, policies should include such language as “this includes, but is not limited to, . . . .” Courts tend to defer to boards when dealing with otherwise well-crafted up-to-date policies, including such expansive language because they realize that the fact-specific nature of disputes, coupled with how rapidly change occurs in technology, makes it almost impossible to set precise limits.
Fifth, policies should identify available due process protections, such as how accusations of misuse of social media are handled, time lines for investigations, evidentiary hearings, potential punitive actions, and appeals. Policies should include a range of progressive sanctions—consistent with disciplinary procedures in employee handbooks and contracts—for first, second, and repeat offenders; these may range from verbal and written warnings to loss of computer privileges to suspensions or dismissal for more serious offenses.
Sixth, policies should make it clear that officials may report inappropriate incidents to law enforcement authorities if there is evidence that misuse of social media involved criminal violations, such as child pornography.
Seventh, social media policies should be included in employee contracts and handbooks.
Eighth, although not directly reviewed in the litigation, policies should address personal handheld devices, such as iPads, tablets, and smartphones, especially if teachers rely on board- owned computer networks to access their personal or work accounts.
Ninth, policies should provide regular professional development for teachers and other school employees both to inform them about best practices when online and to keep them up-to-date on developments in technology and the law.
Conclusion
Because social media has become an integral part of school life, education leaders would be wise to keep their social media and other technology policies up-to-date. Sound policies alone cannot ensure against all controversy; however, they can make employees aware of the need to be careful about what they post while preserving their professionalism and jobs.
References
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986).
Board of Education of City of Los Angeles v. Wilkinson, 270 P.2d 82, 85 (Cal. Ct. App. 1954).
Board of Trustees of Lincoln County School District Number Two v. Earling, 503 P.3d 629 (Wyo. 2022).
Edinburg Consolidated Independent School District v. Esparza, 603 S.W.3d 468 (Tex. App. 2020).
Munroe v. Central Bucks School District, 805 F.3d 454 (3d Cir. 2015).
Robinson v. Ohio Department of Education, 971 N.E.2d 977 (Ohio Ct. App. 2012a), appeal not allowed, 974 N.E.2d 1210 (Ohio 2012b).
Rubino v. City of New York, 965 N.Y.S.2d 47 (N.Y. App. Div. 2013).
Snyder v. Millersville University, 2008 WL 5093140 (E.D. Pa. 2008).
Stueber v. Gallagher, 812 So. 2d 454 (Fla. Dist. Ct. App. 2002).
Wax v. Horne, 844 So. 2d 797 (Fla. Dist. Ct. App. 2003).
Winland v. Strasburg-Franklin Local School District Board of Education, 999 N.E.2d
1190 (Ohio Ct. App. 2013), appeal not allowed, 3 N.E.3d 1217 (Ohio 2014).