How free are teachers to speak their mind on their personal social media accounts?
With the rise of social media, teachers are in the public eye more than ever before. As students’ First Amendment rights have been put under a microscope due to the Mahanoy case, we should also consider a teacher’s right to free speech.
The First Amendment rights of teachers were first considered in the case Pickering v. Board of Education. Here, a teacher wrote a letter to the Editor of a local paper complaining about a tax increase put forth by the school board. In response, the school board fired the teacher. The teacher sued the school district asserting that the letter was protected under the First Amendment right to free speech. In their decision, the Supreme Court laid out a balancing test to determine whether this would be protected under the First Amendment. The test weighs the interests of the teacher as a citizen and their responsibility to comment on matters of public concern versus the interests of the state, as an employer, in promoting an efficient learning environment. Here, the test tipped in favor of the teacher, and the speech was protected.
Recently, we have seen an uptick of teachers striving to be “influencers” on social media platforms such as TikTok, Instagram, and Youtube. Teachers are role models for students, and have a unique role as they act in loco parentis, which refers to the fact that when students are at school, the teachers are acting “in place of a parent.” Not only is this a special responsibility granted to teachers, but their position is elevated even further because teachers are typically employees of the state.
On a personal level, social media can be a valuable tool for teachers to share the classroom, promote learning and to work through issues being faced by teachers and students around the world. However, teachers’ social media accounts have the potential to be seen by their students. While a complete ban on social media for teachers would be quite unreasonable, the First Amendment protects a public employee’s speech only when their words address matters of “public concern.” There are four main types of speech that could potentially put a teacher’s relationship at risk with their school district, including:
- Befriending students on social media sites and communicating with them
- Criticizing the school, or the school community online
- Posting inappropriate photos/comments
- Commenting on political or social issues.
Photo by Kai Pilger on Unsplash.
Inappropriate Communications
In Spanierman v. Hughes, the District Court of Connecticut allowed a teacher to be fired based on his personal Myspace page. The teacher claimed he joined the site because he wanted to communicate with students to talk about homework and learn more about them so he could better relate to their lives. However, when the administration investigated the teacher’s profile, they uncovered that he was messaging students about their personal lives, weekend plans, and relationships. The court found that the teacher’s communications were inappropriate and were not protected speech because the messages had nothing to do with school or matters of “public concern.”
Criticizing Students
It should be noted that a teacher’s presence on social media will likely not be considered protected speech when they engage in behavior that criticizes their students – especially when the statements cause a significant disruption. In Munroe v. Central Buck School Dist., the Pennsylvania district court grappled with a situation where a teacher kept a blog mostly about her daily life, except on a few occasions where she discussed her job as a teacher.
In this case, the teacher kept a blog with only nine subscribers (two of which were her and her husband!). Most of her blog posts were about personal matters. However, occasionally she wrote about her students, co-workers, and complained about the school administration. In one post, that was the focus of the law suit she called her students a slew of names like, “Dunderhead”, “Complainer”, “Drama Queen”. This post ultimately blew up when it was picked up by national news and circulated amongst the students.
The teacher tried to argue that since she had so few subscribers her speech should be protected under the First Amendment because it was unlikely that her students or coworkers would see the blog. However, because she published her views on the internet and a journalist was able to find her posts the court found that it was foreseeable that students would find them as well.
This court asserted that schools have the right to regulate disruptive and unprofessional conduct noting that to be an effective teacher there needs to be a certain degree of trust between the teacher and the students. Here, the teacher’s tone and description of her students eroded the necessary trust and respect required for an effective learning environment. The court ruled that the language used was so demeaning it did not warrant protection under the Pickering test because “the speech was so disruptive so as to diminish any legitimate interest in its expression.”
Political or Social Issues
In today’s polarizing political climate, one last issue that has the potential to get teachers in trouble is if they make a comment on a political or social issue. However, this speech is typically protected under the Pickering standard. If a teacher were to make a post regarding a political decision, an election, a war, or another social issue- this would be the most obvious example of the citizen/public concern test that is required under Pickering, meaning that the speech is likely to be protected. However, as we saw in the Munroe case, if the language used is too inflammatory, or if the statements are so egregious that they cause a disruption at school- the social value of the speech may be overshadowed, forfeiting First Amendment protection.
Now what?
Teachers maintain the right to use social media as they see fit, however because of their unique position as role models and pseudo-parents to students, they should act responsibly online. In recent years, there has been an increase in legislative response to govern the way that teachers use social media. For example in Missouri, the government made teacher-student interaction on Facebook illegal and in Utah the board of education mandated that every school district needs to develop a policy on teacher’s social network use. All teachers should be aware of their own district’s social media policy but regardless of whether one is in place, teachers should instill boundaries between their students and their personal lives and should keep their online content appropriate.
Before posting on social media, I would encourage all teachers to consider whether they would be comfortable with their students, principals, and students’ parents seeing their posts- regardless of how many followers they have. Teachers should remember that their students are potentially on social media and should refrain from mentioning them in a negative light or doing anything that would affect the trust and respect they have built in the classroom. While, in general teachers are welcome to comment on the political climate and other issues as any informed citizen would, this protection can be waived if teachers use too inflammatory of language or if their words cause a disruption at school. Overall, it all boils down to one piece of advice: think before you post.
Rachel Nordhoff is a law student at Loyola University of Chicago Law School and wrote this blog post as part of the Education Law Practicum.
