During the course of a school year, board members are at times confronted with the difficult decision to terminate an employee based on allegations of misconduct. Often the termination recommendation is based on the employee’s social media postings.

In the private sector, the laws pertaining to an employee’s use of social media are relatively lenient. However, in the public sector, boards of education have much more authority over such postings. The primary reason for expanded exercise of board authority over employee social media postings lies in the long established understanding that the public must trust in the decisions of board members, teachers, and administrators.

For example, in the 1972 matter of the Tenure Hearing of Sammons, the New Jersey Commissioner of Education stated, “[t]eachers are professional employees to whom the people have entrusted the care and custody of school children. This heavy duty requires a degree of self-restraint and controlled behavior rarely requisite to other types of employment.” This statement continues to withstand the test of time and remains as the foundation of many conduct-based tenure dismissal matters.

With the above standard in mind, at times, a board may be confronted with social media posts of employees that could potentially erode the public’s trust in the school district. Consequently, board members often feel compelled to protect students from questionable teacher conduct in order to protect the public trust. For example, In the Matter of the Suspension of the Certificates of Nichols, the commissioner upheld a one-year suspension of an elementary teacher’s certificates for posting inappropriate comments about a student to her personal Facebook page.

In the post, the teacher noted that the student’s name contained a curse word; the post stated, “I want to ask the parents if I can change it” and ‘I still can’t get over the student’s name!’” In responding to postings about the name, the teacher wrote, “[h]ow do you think I feel when I have to address him???? I literally can’t stop laughing! I have to go all year with this’—!!!” Nichols resigned rather than face tenure charges after being confronted with the comments — which then triggered the district’s obligation to notify the State Board of Examiners.

Before the examiners, in seeking to retain her teaching certificates, Nichols asserted that she did not engage in harassment, intimidation, or bullying of the child, the uniqueness of the name sparked the comment, she did not bear any ill will toward the child, and she was extremely remorseful.

The examiners considered Nichols’s comments, noted her unblemished career, the fact she took full responsibility for her comments, and that she had since entered counseling. Nevertheless, the examiners determined that regardless of whether she intended her comments to become public, those comments were immature, hurtful, and fell below the “role model” status expected of teachers. Accordingly, the examiners determined that the comments warranted discipline and therefore suspended her teaching certificates for one year.

The Nichols matter is instructive because one could argue that Nichols had a First Amendment right to post comments to her personal Facebook page. One could further argue the comments were not defamatory or discriminatory and did not rise to the level of bullying. However, the courts of this country are in agreement that in order to garner First Amendment protection, public speech must, among other interests, address a matter of public concern. Here, it was clear that the uniqueness of the student’s name was not a matter of public concern; therefore, Nichols’ speech was not protected under the First Amendment and the commissioner affirmed the one-year suspension.

Nichols serves to caution board employees when posting comments to social media. Similarly, board members should also exercise discretion when posting to social media. In C25-11, a board member whose public Facebook page included about 1,200 friends, posted the following statement shortly after the death of Osama bin Laden, “[n]ow if we could only do something about our local terrorists that destroy dreams and burn futures.” Next to the post was a photograph of the district’s superintendent. In the ensuing hearing before the School Ethics Commission, the board member testified that he did not regret the post and that he did not take down the picture of the superintendent because he was claiming there were people who are terrorists in the district and the superintendent was included in that group.

The School Ethics Commission determined the post comparing the superintendent to a terrorist on a social media platform with many followers “was an intentionally confrontational act.” The commission noted when a sitting board member makes such a statement, it is likely to be credited by those followers far more than a statement offered by a non-board member. Accordingly, the commission found the statement could reasonably be seen as “undermining, opposing, compromising or harming the superintendent in the proper performance of her duties” and therefore, in violation of the School Ethics Act. With respect to penalty, as this was a matter of first impression, the commission recommended a public censure. The commissioner however, reduced the public censure to a private reprimand due to the absence of any prior violations by the board member.

In conclusion, board members should be aware that teaching staff members are held to a high standard when it comes to their conduct, including social media posts, and should be further aware inappropriate social media statements can lead to discipline, even where the post is made on a private social media page, if that page is publicly available. Likewise, board members should use discretion when posting to their own social media pages. For more information on this topic, board members may speak to their board attorney or contact NJSBA’s Legal and Labor Relations Department at (609) 278-5254.

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