Educators’ Rights on Social Media

Political Posts on Social Media

The good news is that most political posts on social media deserve First Amendment protection. The posts are not a part of your job. You are not speaking for the school. And political speech is generally on a matter of public concern.

All of these factors support your right to free speech. Even so, school districts may attempt to justify discipline on the ground that your social media post has materially disrupted the school environment.

As a matter of First Amendment law, courts have to balance the school district’s interest against your and the public’s interest. 1 Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563, 568 (1968) (“The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”). Go to reference

The stronger the public interest in the speech, the more disruption the school must show.

You will have more protection when your speech is public, focuses on larger issues rather than personal gripes, and is respectful. 2 Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 467 (3d Cir. 2015) (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)) (noting that the “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern,” but holding that courts may consider the form and circumstance of the employee’s speech). Go to reference

• 1 Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563, 568 (1968) (“The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”).
• 2 Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 467 (3d Cir. 2015) (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)) (noting that the “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern,” but holding that courts may consider the form and circumstance of the employee’s speech).

Social Media Posts about Your School, Coworkers, and Students

As public school employees, posting about public schools can be tricky. On the one hand, the public cares a great deal about public schools. As educators, you are experts on public schools, so the public has a strong interest in hearing from you. On the other hand, schools are your employers. The public does not have a strong interest in hearing you complain about your coworkers, bosses, or students. 3 Id. at 469 (determining that a teacher’s blog, which referenced important public issues, was not speech on a matter of public concern because it was intended to be shared only with friends and was predominantly personal in nature); see In re O’Brien, No. A-2452-11T4, 2013 WL 132508, at *4 (N.J. Super. Ct. App. Div. Jan. 11, 2013) (“O’Brien was not endeavoring to comment on a matter of public interest, that is, the behavior of students in school but was making a personal statement . . . .”). Go to reference

Compare the following actions. First, a high school teacher emails other teachers and staff at her school to say that she is tired of students falling asleep in her first period class. She complains that she is tired in the morning too, but she drinks her coffee and forces herself to come to school. She suggests that the students are lazy and probably stay up too late playing on their phones. She ends by asking her coworkers for ideas about dealing with sleepy students.

Second, a high school teacher sees that the school board is considering delaying the high school start time by several hours. She tweets a link to a newspaper story about the proposal, adding a brief message in support of the change. She notes that her students seem to struggle in the morning, often falling asleep in her first class, but do much better later in the day.

The second teacher’s social media post will receive much more protection than the first teacher’s email. The first teacher’s email was internal. The second teacher posted her message publicly. The first teacher wrote about her own problems with classroom management. The second teacher focused on a district-wide change that would affect the whole community.  The first teacher insulted her students. The second teacher noted a problem her students were having but did not call them names.

A court would likely find that there was no or very limited public interest in the first teacher’s email. Moreover, the school district would likely be able to show that the email might disrupt the school community if made public. Therefore, the school would likely be able to discipline the first teacher but not the second.

While it may be appropriate to post your critique or disagreement with a new school policy, do not make public posts that insult your coworkers or, even worse, your students.

Schools cannot operate unless students and families trust educators. An educator destroys that trust by showing disgust or disrespect for their students.

For example, one teacher insulted her students in a blog post, suggesting that some dressed like “streetwalkers” and were “the devil’s spawn.” When students discovered the blog, they and their families complained to the school. Several families requested that their students have a different teacher. Eventually the school fired the teacher. A court determined that the school had the right to fire the teacher because her posts disrupted the school and made it difficult for the teacher to do her job 4 Munroe, 805 F.3d at 472. Go to reference Another teacher was dismissed after she referred to her first grade students as “future criminals” and complained that she could not bring them to a “scared straight” event at the school. 5 In re O’Brien, 2013 WL 132508, at *1. Go to reference

Negative posts about coworkers may raise the same concerns. Many school districts have policies about social media that prohibit educators from insulting their students, coworkers, school, and school district. 6 Id. Go to reference

• 3 Id. at 469 (determining that a teacher’s blog, which referenced important public issues, was not speech on a matter of public concern because it was intended to be shared only with friends and was predominantly personal in nature); see In re O’Brien, No. A-2452-11T4, 2013 WL 132508, at *4 (N.J. Super. Ct. App. Div. Jan. 11, 2013) (“O’Brien was not endeavoring to comment on a matter of public interest, that is, the behavior of students in school but was making a personal statement . . . .”).
• 4 Munroe, 805 F.3d at 472.
• 5 In re O’Brien, 2013 WL 132508, at *1.
• 6 Id.

Avoid Offensive Posts

The tone of an educator’s speech plays a role in determining whether it disrupts school life. 7 Munroe, 805 F.3d at 474. Go to reference You should be careful to avoid using offensive language or stereotypes.

For example, a school placed a teacher on leave after he tweeted that it was “awesome” that Rush Limbaugh was dying and that Limbaugh, who for years has been infamous for making racist, sexist, and otherwise offensive comments, “absolutely should have to suffer from cancer.” 8 Rhea Mahbubani, ‘It’s awesome that he’s dying’: A Milwaukee teacher was suspended following his tweets about Rush Limbaugh’s cancer, Business Insider (Feb. 6, 2020), https://www.businessinsider.com/milwaukee-teacher-suspended-travis-sarandos-tweet-rush-limbaugh-cancer-2020-2. Go to reference

By engaging in personal and vicious commentary, the teacher became an easy target for local outrage. The school district received numerous tweets asking the district to fire the teacher and asking whether the school found that kind of language acceptable or appropriate from someone teaching impressionable children. The district issued a statement clarifying that the teacher spoke only in his personal capacity and that he was on leave pending further investigation.

If the teacher had objected to specific offensive statements made by Limbaugh, he probably would have been fine. It is clear, however, that the manner in which the teacher criticized Limbaugh mattered.

You should also monitor the social media groups you belong to. There are good reasons to form a group, especially for activists. For example, educators may want to plan events with other local educators or coordinate a nationwide day of action. Unfortunately, social media groups can turn rotten.

Over 60 federal border agents were members of a private Facebook group in which some members posted sexist and racist images and made sexist and racist comments. One of the Customs and Border Patrol officials told reporters that merely belonging to the group would not automatically trigger discipline, but suggested that employees who were active in the group or knew about the offensive comments and did not report the misconduct might face discipline. 9 Zolan Kanno-Youngs, 62 Border Agents Belonged to Offensive Facebook Group, Investigation Finds, N.Y. Times (July 15, 2019), https://www.nytimes.com/2019/07/15/us/politics/border-patrol-facebook-group.html. Go to reference

• 7 Munroe, 805 F.3d at 474.
• 8 Rhea Mahbubani, ‘It’s awesome that he’s dying’: A Milwaukee teacher was suspended following his tweets about Rush Limbaugh’s cancer, Business Insider (Feb. 6, 2020), https://www.businessinsider.com/milwaukee-teacher-suspended-travis-sarandos-tweet-rush-limbaugh-cancer-2020-2.
• 9 Zolan Kanno-Youngs, 62 Border Agents Belonged to Offensive Facebook Group, Investigation Finds, N.Y. Times (July 15, 2019), https://www.nytimes.com/2019/07/15/us/politics/border-patrol-facebook-group.html.

Navigating School-Sponsored Social Media

Schools or school districts may have their own social media accounts or even their own social media platforms. They may encourage educators to create pages for their classes. Any posting you do on school-sponsored accounts is unlikely to receive First Amendment protection.

First, you are more likely acting as an employee because the platform is school-sponsored. Second, the audience for these is the school community, rather than the public. Third, the content will likely be specific to the school, rather than generally applicable. Finally, controversial posts on these platforms are more likely to disrupt the school environment, since the point of the platform is to reach members of that community.

Accordingly, you should be very careful about what you post on these sites.

Connecting with Students

You should be very cautious about interacting with students on social media. Your district may have a policy that prohibits or discourages educators from connecting with their students on social media. 10 See, e.g., Seattle Public Schools, Maintaining Professional Staff / Student Boundaries, Policy No. 5253 (Sept. 9, 2020), https://www.seattleschools.org/wp-content/uploads/2021/07/5253.pdf. Go to reference

Interacting with students on social media raises concerns about student privacy and maintaining appropriate boundaries. You should also be careful about posting information about your students on social media, regardless of whether you tag them. The Family Educational Right and Privacy Act (“FERPA”) prohibits schools from sharing some types of information about their students without written consent. 11 Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; 34 C.F.R. Part 99. Go to reference In some cases, posting photos or videos of students could be considered a violation of FERPA.

The best practice is not to publicly share any information about your students, including video, photos and names, without written permission from their parents.

Maintaining boundaries between educators and students is also important. Connecting with students may let students access your personal information, or vice versa. Parents or school administrators may also be uncomfortable with educators having unsupervised, private contact with students.

For example, a school in Connecticut decided to non-renew a non-tenured teacher’s contract, in part based on his inappropriate contacts with students through social media, including informal messages to students. 12 Spanierman v. Hughes, 576 F. Supp. 2d 292, 312-13 (D. Conn. 2008). Go to reference The educator likely meant to be funny and friendly, but his school found that his conduct could disrupt the school’s learning atmosphere.

To avoid such situations, some educators choose to use an alternate name on social media sites to make their profiles more difficult for students to find.

• 10 See, e.g., Seattle Public Schools, Maintaining Professional Staff / Student Boundaries, Policy No. 5253 (Sept. 9, 2020), https://www.seattleschools.org/wp-content/uploads/2021/07/5253.pdf.
• 11 Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; 34 C.F.R. Part 99.
• 12 Spanierman v. Hughes, 576 F. Supp. 2d 292, 312-13 (D. Conn. 2008).