Q: One of our campus principals recently made a post on his private Facebook account regarding the migrant group traveling from Central America to the United States that has been interpreted by some to be derogatory. The post received several comments from parents, mostly negative, and was eventually taken down. Before the post was removed, however, a screenshot was circled among members of the community and ultimately sent to the superintendent’s office. Is the principal’s social media post protected as free speech under the First Amendment?
A: Likely, no. The comment will probably not be considered protected speech given its context and the fact that it was published by the highest ranking campus official—the school principal—and was received negatively by the community, thereby impacting his effectiveness.
Whether an employee may be disciplined for a social media post or comment depends on the context of the publication, the role of the employee within the school district and the impact the speech has on the employee’s ability to be effective in his or her position. In the current example, the speech would generally be considered speech by a private citizen (personal FB account, off duty post) on a matter of public concern (immigration). However, because in this instance the private citizen is also a government employee, the school district, as employer, may intervene to the extent the district’s interests outweigh the interests of the employee. In short, this requires application of the balancing text articulated by the U.S. Supreme Court in Pickering v. Bd. of Ed., to determine whether the speech is protected. 391 U.S. 563, 568 (1968). The district must strike a balance between the interests of the principal, as a citizen, in commenting upon matter of public concern and the interests of the school district, as an employer, in promoting the efficiency of the public services it performs through its employees (i.e., maintaining order and respect among staff, parents and students). The position the employee holds for the district, the amount of publicity the post received and the depth of negative feedback all play a critical role in the analysis. In the present hypothetical, a court would likely consider the balance to weigh in favor of the school district since the post was disruptive to the school environment as gleaned from the negative reaction of the community, as well as the fact that it was published by the leader of a school campus, as opposed to, for instance, a school janitor.
For more information on your district’s ability to discipline employees for off campus speech, look to policy DH (LOCAL) and your Employee Handbook. Both should contain language pertaining to an employee’s personal use of technology and the potential for discipline. See also policy DFBB (LOCAL) for reasons supporting the nonrenewal of a term contract pertaining to off-campus conduct and loss of effectiveness. Employees should be reminded of these provisions on a frequent basis.