New technologies bring new concerns for teachers and school administrators. Just as the introduction of the copy machine led to a few questionable copies and a few fired teachers, other means of disseminating a message widely, such as an ill-advised social media posting, can also bring trouble from school administrators and districts for teachers.
Many teachers have been fired for Facebook and Instagram posts, tweets, and other social media posts. What are their rights? What are the legal guidelines here? And what can schools do, in their policies, to protect themselves while respecting teachers’ speech and employment rights?
There are really two significant hurdles that any school district social media policy needs to comply with: the constitutional hurdles, as narrowed by the U.S. Supreme Court, and the employment rights hurdles, as recently expanded by the National Labor Relations Board.
General Constitutional Protections: Minimized by the Supreme Court
The first consideration that must be weighed by teachers who feel that their speech rights are being unfairly restricted on social media, and by school districts that wish to clamp down on teachers’ speech, is the constitutional test. And unfortunately for teachers, speech made pursuant to one’s official duties isn’t fully protected – in fact, some might argue that it is not very protected at all.
The Supreme Court, in Garcetti v. Ceballos, a case where a prosecutor was transferred and denied a promotion after questioning the credibility of a deputy sheriff, greatly restricted the freedom of speech of public employees by holding that speech pursuant to one’s official duties that harms one’s employer can lead to discipline. In other words, a tweet from an account identifying the speaker as a teacher at a particular school criticizing the school or the district (or perhaps a student or student’s parent) may lead to discipline or termination if it could potentially damage the employer.
In a second case, again involving an angry prosecutor, a lawyer was terminated after circulating a questionnaire about the alleged mismanagement of the district attorney’s office. This is also where the court highlighted the line between private work matters (not protected), and "matters of public concern" (protected): the office’s internal management was of no concern to the public, but a tweet about, say, a political election might be protected.
What’s the best practice for teachers? If you must use social media, include disclaimers that note that your speech is your personal opinion and not related to your employment. Also, avoid speaking about work-related matters unless, as we’ll discuss below, the speech is protected as discussion related to working conditions and collective bargaining.
Collective Bargaining and Workers’ Rights
While the Supreme Court has been hesitant to widely protect public employees’ speech, the National Labor Relations Board has moved the opposite direction for workers in general, striking down employers’ social media policies as overly restrictive.
The trend began in 2012, when the NLRB ruled against Costco’s overly broad policy. It has continued with a number of other rulings. The general thrust of the rulings is that policies cannot restrict so-called "Section 7" speech, either explicitly or implicitly. Under Section 7 of the National Labor Relations Act, "employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
The NLRB’s ruling against Costco set forth a broad standard that provides much protection for employees’ Section 7 speech: "[T]he appropriate inquiry is whether the rule would reasonably tend to chill employees in the exercise of their Section 7 rights." If the rule explicitly restricts Section 7 speech, it is invalid. Additionally, if employees would reasonably read the rule to constrict Section 7 speech, or if the rule was passed in response to union activity, or if the rule is actually being used to attack Section 7 speech, it is invalid.
To sum it up: teachers’ tweets about working conditions, union activity, and things of that nature are typically protected by Section 7. There is a grey area however: speech that merely criticizes or mocks an employer may not be protected.
Have Your Rights Been Violated?
For school districts, creating a policy that protects them from wayward social media posts while at the same time protecting teachers’ speech and employment rights, is a very difficult task. For teachers, because the NLRB is still fleshing out the fine contours of what speech is protected and what is not under the National Labor Relations Act, and because districts and unions may not be up to date in this rapidly developing field of law, it would be advisable to consult with an employment attorney or education attorney if you feel that your rights have been violated or that a district policy is forcing you to unfairly restrict your online speech.