Facebook, teacher ethics, and history

This weekend's Tampa area news story about the Plant City High School teacher who gave a student a contraceptive is at one level a story about a (former!) teacher who had no boundaries and no common sense. She had a student on her Facebook list, gave him a morning-after contraceptive package after he was worried he had gotten his girlfriend pregnant, and … well, you can read the rest, but while she won't be charged with a crime, this veteran teacher was monumentally foolish. 

When these stories pop up in the news, school systems are tempted to create strict rules about using social networking sites such as Facebook, and not just to prohibit fraternizing with students. Right now, the Manatee school system and teachers union are in a fight over whether the county school system can prohibit school-system employees from posting in certain ways about the school system on Facebook and other social networking sites. (It's unclear to me whether this is a prohibition on posting any information without supervisory authority or posting what the school system would view as derogatory.) 

There is a long history of holding teachers to different standards from a regular business employee, most prominently the moral double standard whereby teachers were expected to be role models for students and could be fired for perfectly legal behavior that school officials thought was inappropriate. But this may be different, a type of loyalty standard: according to a few sources of information about the Manatee policy, you couldn't say anything bad about the school district without permission. What constitutes negative messages would be the discretion of a supervisor, I'm supposing. And this is also consistent with the history of expectations for teachers: "Loyalty to the School" was an explicit category in the teacher evaluation in Hillsborough County, Florida, in the early 1940s (see Hilda Turner's, and a brief discussion tied to my colleague Barbara Shircliffe's research). 

Plenty of private businesses have a similar expectation: you don't squawk publicly about the problems you see in the workplace, and you can be fired if you do so. The difference? Public agencies have a clear responsibility to the public, and often public employees such as teachers are the key people who are going to be aware early of problems. Obviously, the Supreme Court has ruled in Garcetti that there is no generalized First Amendment whistleblower protection for public employees, and I suspect that K-12 teachers should have no expectation that a potential exception for higher-ed faculty would apply to them. I suspect teachers would have some protection where they are talking generally about school issues but not situations to which they have knowledge of specific situations because of their jobs (e.g., involving individual schools)–thus, the irony of Garcetti that the Supreme Court is wililng to protect public employees' free-speech rights except where they have specific expertise. There are some statutory protections in cases when teachers are blowing the whistle on discriminatory conduct such as gender or racial discrimination. But that would probably only apply where a teacher is using an official pathway for such complaints, not writing about issues on Facebook. (For this reason, the Manatee local's best argument is probably based in state constitutional protections and state statute, not federal rights; I am not surprised that the district has argued in court that the proper venue is federal court, where state issues would be irrelevant.) 

For the record, I will not add my current students to my Facebook list, nor students over whom I have any direct or joint supervisory authority. I have enough people on my Facebook list, and I like boundaries. 

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One response to “Facebook, teacher ethics, and history”

  1. Scott Bauries

    I have the same Facebook rule that you have, and I, like you, am very concerned about the ever-broadening scope of exemptions from First Amendment protections for public employees, particularly teachers. However, it is an incorrect reading of the Garcetti decision to say that it exempts from protection teacher speech merely because it reflects “knowledge of specific situations because of their jobs.” Mr. Pickering had such knowledge, as did Ms. Givhan, and the Garcetti Court was careful to reaffirm both of these decisions.

    The common, but mistaken, characterization is understandable because most lower courts have expanded the Garcetti rule in this or other related ways, but the Garcetti rule is simply this: that when public employees speak pursuant to the requirements of their employment, their speech is unprotected. Mr. Ceballos, the plaintiff in Garcetti, “spoke” by drafting a legal memorandum, which he was required to draft as an assistant district attorney. The Court held that Mr. Ceballos could not claim that this speech was his own speech for First Amendment purposes because he was compelled by his job to make it. The relevant analogue here for teachers is their classroom speech, which courts have pretty consistently held to be unprotected both before and after Garcetti.

    The problem is that lower courts across the country have read the Garcetti rule much too broadly, holding that it exempts speech merely “related to” or “made in the course of performing” job duties. I have work in progress critiquing this improper expansion of Garcetti’s scope that should be forthcoming in the next few months or so.