Education Policy Project

Social media use has exploded in recent years. In fact, nearly three quarters of Americans have social media profiles, and many of those belong to teachers. As a result of the rapid growth in social media use in recent years, there has been rising concern for teachers and school administrators. The ability of teachers and public employees to disperse messages to large numbers of people has brought about trouble for school administrators, districts and teachers. In fact, many teachers have been fired for Facebook and Instagram posts, tweets and other social media posts. Being a teacher who uses social media both for personal and school use, I have decided to examine my districts school policy on employee electronic communications and use.

As a result of this growing debate and the increase in social media use among employees, state lawmakers began introducing legislation in 2012 that would prevent employers from requesting passwords to personal Internet accounts as well as providing regulations for the use of social media and electronic mail by public employees.

When creating a school district policy, such as the one I reviewed for my paper, the school district, and in the case of my policy, the school board members along with the superintendent must tread carefully. In developing an employee electronic communications policy, the policy makers must be sure to comply with constitutional guidelines as set forth by the U.S. Supreme Court. In addition to constitutional guidelines, policy developers must also consider employee rights which as a result of actions taken by the National Labor Relations board has expanded. In reviewing and analyzing my district’s policy on employee electronic communications, I plan to address the legality of the policy both at state and federal levels as well as as well as make any recommendations to make the policy more effective based on court rulings and other findings.

The Governor Wentworth Regional School District first proposed and adopted a policy on employee electronic communications in November of 2002. As social media and new technologies expanded and became more accessible to both students and teachers, the School Board decided the policy needed revision in March of 2009. The continued popularity of such social media sites as Facebook, Instagram, Twitter, YouTube and blogs, the district once again saw a need for review and change in their current policy. In November of 2017, the Governor Wentworth School District made it’s latest revisions to the employee electronic communications policy for staff and students.

In brief the policy states that the School Board supports the use of technology to communicate with staff, students and parents for legitimate education purposes. With that being said, School District employees are responsible for conducting themselves professionally, exercising appropriate judgement, and refraining from any communication that would undermine their effectiveness as an employee. As it states, School District employees may face discipline and/or dismissal if they were to violate this policy, and collective bargaining agreements, and/or state and federal laws. To highlight a few of the Districts regulations in regards to staff use of social networking websites, chat rooms, blogs, emails, instant message, text message or other electronic means they prohibit:

Posting, using or sharing and school district data, documents, photographs, student information, or ther district owned or created material on any website or in any electronic document for non-educational purposes.

Engaging in sexually explicit or suggestive messages, sexual banter, jokes or innuendos with students.

Using the internet, email, instant message, text message, or other electronic means to disparage or ridicule students, staff, parents, community members, or the School District in a manner that is disruptive to the operation of the school or is defamatory.

In addition to the above mentioned regulations in the school district’s policy, the School District also reserves the right to review social media used by staff for District or school-related purposes of communication and to remove, disable, revise and provide feedback regarding social media sites that do not adhere to the law or District regulations.

Despite there being other regulations in the School District policy, the ones I have chosen to highlight have had prior court rulings that have set precedent as to why these would be needed in a school district electronic communications policy. Also noteworthy in the Districts policy is the final statement which states,

“Nothing in this policy should be construed to (1) limit and employee’s right to speak as a citizen about matters of public concern, (2) prohibit and employee from communicating with students about non-school organizations or activities for which the employee is a coach or supervisor, (3) regulate any communication that is unrelated to the employee’s position of employment with the school district and otherwise protected by the United States Constitution and the New Hampshire Constitution. (Governor Wentworth Regional School District: Employee Electronic Communications[PDF], 2017).”

The policy is certainly one that is needed with the increase use of social media by staff, students and parents. The Governor Wentworth School Districts mission is to assure that each student acquires knowledge and develops skills and work habits to enable them to become contributing members of society.

According the School District, the mission is best achieved when each member of the Governor Wentworth Regional School District recognizes and addresses the individual abilities and needs of each student, maintains challenging expectations for each student, creates a positive school climate, ensures a safe and orderly school environment, monitors each student’s progress on a frequent basis, and promotes effective school-community involvement and collaboration.

The policy certainly fits with our District’s mission, especially in regards to creating a positive school climate and ensuring a safe and orderly school environment. As public school educators we are role models for the students in our care. One way in which we are role models, is how we present ourselves, both in person as well as through online communications. A teacher who uses social media to write derogatory, hateful or inappropriate comments about students, co-workers, parents, or the district itself does not present themselves as a positive role model for students. In addition, the policy also prohibits staff from inviting students to be friends on social media sites. This also is in line with the District’s mission of ensuring a safe environment for our students.

As the policy is currently written, I feel the School Board has been effective in outlining some key regulations for appropriate use of electronic communication. The first line under what is prohibited by staff through this policy is a bit broad and rather vague. In order to ensure that there are no questions, I would suggest that in another revision, the School Board would define what is meant when they speak about prohibiting staff from engaging in any electronic communication that violates that law, collective bargaining agreements, school board policies or other standards of professional conduct. I feel that in this section, the School Board should attach the state laws that exist in regards to electronic communication being that the state legislation highlights some regulations that are not part of the District’s policy. In addition, it may be useful to provide teachers with an updated copy of the collective bargaining agreement as that too has stipulations not mentioned. In order for there to be a thorough understanding of a policy that is necessary, the District must provide all the components to ensure that teachers can not come back and say they were unaware.

The current employee electronic communications policy is attempting to create a balance between teachers and staffs private lives and First Amendment right while also attempting to protect the privacy and integrity of the educational institution. School Districts don’t want anything on their teacher’s social media profiles that would affect their reputation. Teachers on the other hand want the opportunity to exercise their First Amendment rights. Unfortunately, what we are finding as teachers is that our speech is not protected as much as we once thought or hoped.

Unfortunately for teachers, speech made in relation to their duties as a public school teacher isn’t fully protected. In fact, many have even argued that it is not protected at all. An influential Supreme Court case that led to further developments on teachers First Amendment rights was Pickering v. Board of Education. The case of Pickering v. Board of Education dealt with a high school teacher who had written a letter to the editor of the community newspaper criticizing the allocation of funds between academics and athletics. As a result, the school board dismissed the teacher, saying that the letter contained false statements that were harmful to the reputation of the school system in which he was a part of.

Marvin L. Pickering, the teacher involved sued, claiming that the school board violated his First Amendment rights by terminating him for exercising his First Amendment rights. In an 8-1 vote, the Court held that school officials do violate the First Amendment when they terminate a public school teacher for speaking out as a citizen on matters of public concern. The court determined that public school teachers, as public employees, are entitled to some First Amendment protections. The problem in any case such as Pickering is to find a balance between teachers commenting as citizens on matters of public concern and the interests of the State, as an employer, promoting the effectiveness of their service through its employees. In this case, the teacher was speaking more as a citizen than as an employee when he wrote the letter to the editor. The statements in the letter did not target any school official that the teacher dealt with on a daily basis.

The Supreme Court, in Garcetti v. Ceballos, a case that followed Pickering was used to decide the holding or legal reasoning of Pickering. This was a case in which the freedom of speech of public employees was greatly restricted. In this particular case it was determined that First Amendment protections apply only to a public employee’s speech in a private context rather than while in their position performing their duties. In other words, a post that comes from an account of a teacher from a particular school criticizing the school, district, colleagues or perhaps even a student or parent, may lead to discipline or termination if it is potentially damaging to the employer.

In a third case, this time involving an angry prosecutor, a lawyer was terminated after circulating a questionnaire about the alleged mismanagement of the district attorney’s office in regards to her transfer. This case is also where the court defined the line between private work matters which are not protected, and matters of public concern which are protected. In this case, the termination of the employee was upheld by the United State Supreme Court even though one question on her survey touched upon public concern.

Through all these cases, it is evident that the Court’s have agreed that when an employee’s speech whether written or spoken cannot be considered as matters relating to public concern, employers should have the right decide upon disciplinary action without worrying about First Amendment rights. In addition the above mentioned cases have also shown nt that when a public employee, such as a teacher speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest that cause harm to the institution, there is no need for a federal court to review the decision made by the employer.

Although it appears as though the Supreme Court wasn’t very interested in protecting public employees’ speech rights, the National Labor Relations Board has worked on supporting employees rights to speech demeaning social media policies too restrictive. In summary, the National Labor Relations Board states that “employees have the right to unionize, join together to advance their interests as employees, and to refrain from such activity.” They go on to state that, “It is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights. (Interfering with employee rights (Section 7 & 8(a)(1)). (n.d.). from https://www.nlrb.gov/rights-we-protect/whats-law/employers/interfering-employee-rights-section-7-8a1)” To put it simply, teachers posts or speech about working conditions or union activity is generally protected by Section 7 of the National Labor Relations Board Act. However, this does not give employees the right to criticize or ridicule their employer.

Beyond federal laws, as I stated previously, several states have made it their duty to introduce legislation that sets forth regulations for use of social media and electronic mail by public employees. The state of New Hampshire is one of those states. Under Title XXIII Labor, Chapter 275, the state has issued it’s regulations for use of social media and electronic mail. There are currently eight regulations, some which are further broken down provided by the state. These include, but are not limited to, allowing employers to adopt and enforce lawful workplace policies governing the use of employer’s electronic equipment, including policies regarding Internet use, social networking site use, and electronic mail use. Also stated, is that no employer shall take or threaten to take disciplinary action against any employee for such employee’s refusal to comply with a request or demand by the employer that violates this subdivision. There are more regulations listed, however, I feel the two highlighted above pertain to the policy I have analyzed and also coincide with federal state laws in regards to social media use by public employees, more specifically public school staff.

Our school district’s current policy is certainly a step in the right direction. As a result of the challenges of free speech and failure of various state legislatures to limit social media communications of teachers, many states and school districts have steered clear of developing policies and state statutes dealing with social media communication and school staff. New Hampshire on the other hand, along with the Governor Wentworth School District have worked diligently in the past five years to adopt policies that outline what is acceptable and legal in regards to social media use. Our policy is legally sound in that it protects students from inappropriate communications with teaching staff as well as monitoring posts made by teachers that could potentially harm the integrity of the school district.

Despite our current state law being still rather vague, it certainly highlights regulations that are aligned with the Governor Wentworth School District’s policy on employee electronic communication. As our policy is written, I do believe it is legally sound and would stand up in a court if needed. It aligns with the State of New Hampshire’s current statute as well as many of the rulings in Supreme Court Cases. The current employee electronic communication policy protects students from inappropriate communications with teaching staff as well as monitoring posts made by teachers that could potentially harm the integrity of the school district in addition to various other regulations and guidelines.

I feel that our district takes this issue very seriously, hence why they saw the need to revise the policy. When the new policy was adopted in November, each school within our district held staff meetings in which the policy was discussed in length and teacher’s questions were answered as best as they could be. The policy is certainly one that is followed strictly by our district.

Although the policy, perhaps still a work in progress which may need further revision, appears to be legally sound, there are a few recommendations I would make to ensure there are no blurred lines for staff interpreting the policy. In developing a policy that will set limits on teaching staff’s freedom to expression there are a couple of components that are necessary to take into consideration. In the policy, the district needs to be sure that they have outlined their authority of regulating social media use by teachers. In doing so, they should mention that they have the right to inspect materials upon suspicion of inappropriate teacher conduct through electronic communication. The policy should also state that the district assumes the right to review communications if deemed necessary, and may retain control over electronic communication in regard to any school business.

Furthermore, guidelines for acceptable use would also be included as part of the district policy. This may include such regulations as maintaining a professional online profile and protect confidential information as well as not become “friends” with current students or parents. The most crucial part of the policy should be an outline of potential disciplinary actions that can be taken as a result of not following through with the district policy. For instance, such actions may include suspension of technology privileges, reassignment, oral/written reprimand which is placed on permanent file, suspension without pay, or dismissal. As a teacher, it is important to know what the potential ramifications are for conduct that is not conducive with school policy and the duties of a public school teacher.