Personal Social Media Use by Staff: Is It Your Business?

Legal Brief

A superintendent receives an anonymous tip from someone claiming to be the parent of a student, that a teacher in the school district posted photos on her personal Facebook page in which she was holding a glass of wine in one hand and a glass of beer in the other.

Upon investigation, the superintendent determines that the photos were taken during the teacher’s European summer vacation with other teachers and that her privacy settings on Facebook didn’t allow students to see the photos. The superintendent also notices the page contains profanity.

Given that teachers in the district had been warned regularly about “inappropriate social media use,” does the superintendent discipline — or even terminate — the teacher for unprofessional behavior and for promoting alcohol abuse? Or does the superintendent simply say, “It’s none of my business”?

Free Speech Analysis

Social media postings, like most other forms of expression, qualify as speech and thus are presumed to be constitutionally protected at the outset. They can lose that protection if they do not meet certain criteria.
As I have written previously (Legal Brief, March 2012), the initial assessment of public employee free speech issues requires analysis of the nature of the subject matter (public vs. private); the status of the speaker (speaking as an employee or as a citizen); and the impact of the speech (does it interfere with the public employer’s work?). The more speech relates to personal matters, the more it is connected with one’s status as an employee and the more it interferes with the employer’s work, the less constitutional protection it enjoys.

But this analysis was fashioned by courts before the advent and availability of personal technology and the proliferation of social media. Instantaneous transmission of a message to numerous (and perhaps unintended) recipients adds a layer of complexity to the process. Determining the appropriate response by a public employer to social media postings by employees requires a deeper and more specific inquiry. State law, board policy and even contract language may be implicated.

Context and Content

It can be argued that teachers and administrators, in particular, may be subject to significant restrictions on their free speech. In Kentucky, a consistent line of court decisions spanning more than 80 years declares a teacher to be a “role model” for students and that being a licensed educator “is accompanied by an expectation that [the educator] will set a good example.”

In addition, we have in state law a code of ethics for educators that mandates “behaviors which maintain the dignity and integrity of the profession.” The legal argument on behalf of the employer is that educators have voluntarily submitted to these restrictions and thus have waived some of their constitutional objections.

Even specific words may enter into the decision. If the teacher in the photo had written a caption, “Interesting visit to an old Irish brewery,” the posting may be harmless and permissible. But if she had said “Here’s what my horrible little students have driven me to!” the school district may have a legitimate basis for intervention.

Postings by nonteaching staff can be even more difficult to address. These employees may not carry the “role model” designation, and their interaction with students is generally less direct and less significant than that of teachers.

Avoiding Overreaction

Evidence of illegal or unethical behavior by an employee is almost always subject to sanction by the employer, regardless of where it is displayed or how it is discovered. Simply put, Internet postings enjoy very little, if any, privacy protection. But everyone is entitled to a personal life, free from overreach by their employer.

Superintendents should be reluctant to react too swiftly or harshly to personal social media postings by employees without further investigation. An indignant citizen is far less problematic than an employee whose legal rights have been abridged.

Wayne Young is executive director and general counsel for the Kentucky Association of School Administrators in Frankfort, Ky.
E-mail: wayne@kasa.org
Twitter: @KASAEdLeader