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Sutton v. Bailey, 2012 WL 5990291 (8th Cir. Dec. 3, 2012), is the latest reminder that private Facebook postings can lead to professional consequences.   Sutton was hired as a Funeral Science Director at Arkansas State University–Mountain Home for the 2010-11 academic year.  His employment contract provided that he could be terminated at any time “for adequate cause.”  A month after Sutton got hired (but apparently before he began teaching), he posted on his Facebook page: “Toby Sutton hopes this teaching gig works out.  Guess I shouldn’t have cheated through mortuary school and faked people out.  Crap!”

University officials somehow learned about the post and asked to meet with Sutton about it.  At the meeting, the university’s vice-chancellor (Bailey) and director of instruction (Thomas) confronted Sutton with the post.  He admitted to making the post.  Bailey then told Sutton that he was fired.  Sutton asked if it mattered that the statement was a joke, and that he posted the statement before he began teaching.  Baily replied “no” to both questions.  Sutton then received an Employee Counseling Statement form stating that he was being dismissed for an incident of “Academic Fraud and unprofessional conduct.”  The “Supervisor Statement” portion of the form explained: “Mr. Sutton posted material on Facebook indicating he had ‘cheated’ his way through mortuary school.  There are multiple other class related issues.”  Bailey told Sutton he had an opportunity to make a statement before signing the form.  Sutton declined and signed the form without further comment.  Sutton later sued Bailey and Thomas in their individual capacities, alleging that he was deprived of procedural due process in connection with his firing.

The bulk of the Eighth Circuit Court of Appeals’ opinion addressed the defendants’ defense of qualified immunity, which the court found to have merit.

LegalTXT Lesson: This case has two important, if obvious, takeaways.  First, employees need to remember that whatever content they share on their private social media networks could come back to haunt them professionally.  Employees need to be reminded constantly that social media blurs the line between personal and public, private and professional.

Second, Sutton answers a question I often get asked by employers: Can employees be disciplined or even terminated for their private social media conduct?  The answer is yes.  (For another example, read my post on the Careflite case, which recently settled).  There are limits, of course (and the NLRB Acting General Counsel has waxed long about many of them), but there are circumstances in which it is proper to discipline or terminate an employee for his or her private social media activity.  Now, it would help greatly if an employer sets standards of employee conduct clearly identifying the kinds of social media conduct that could lead to adverse employment action.  We don’t know what was in the employee handbook of the university in this case, but a rule that could’ve come in handy is one instructing faculty members not to endorse or make light of academic dishonesty.

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Cyberbullying is a problem not just for students, but school workers as well (see my post on the R.S. v. Minnewaska Area School District No. 2149 case).  To address that problem, North Carolina recently passed a law banning students from bullying school workers online.  An expansion of North Carolina’s existing anti-bullying law, the 2012 School Violence Prevention Act is the first in the nation to make cyberbullying of school workers a crime.  The 2012 law criminally penalizes public school students who use a computer or computer network with “intent to intimidate or torment a school employee” by:

  • building a fake profile or web site
  • posting or encouraging others to post on the Internet private, personal, or sexual information about a school employee
  • posting a real or doctored image of a school employee on the Internet
  • tampering with a school employee’s online network, data, or accounts
  • using a computer system for repeated, continuing, or sustained electronic communications (including email) to a school employee

The new law also prohibits students from signing up school workers to pornographic websites or spam mailing lists, or making any statement, whether true or false, intending to provoke another person to stalk or harass a school worker.  The law went into effect on December 1.

The ACLU of North Carolina has criticized the law as overbroad, and announced plans to file a lawsuit challenging it.

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The legal boundaries for school discipline for cyberbullying continues to be unclear — R.S. v. Minnewaska Area School District No. 2149, 2012 WL 3870868 (D. Minn. Sept. 6, 2012); S.J.W. v. Lee’s Summit R-7 School District, 696 F.3d 771 (8th Cir. Oct. 17, 2012)

As much as cyberbullying is gaining media attention, clear guidance on what schools can do about it is still lacking.  In January, the U.S. Supreme Court declined to review three free speech challenges involving social media content posted by students.  As a result, courts continue to grapple with defining the boundaries of school discipline for student online conduct, particularly when it happens off-campus.  A pair of recent cases illustrates this trend.

R.S. v. Minnewaska Area School District No. 2149: A 12-year old sixth grader (R.S.) posted on her Facebook page that she “hated” her school’s adult hall monitor.  R.S. posted the comment from her home outside of school hours.  The comment somehow found its way to the principal, who considered the comment a form of bullying.  The principal gave R.S. detention and required her to apologize to the hall monitor.  In a second incident, R.S. posted a comment on her Facebook wall stating: “I want to know who the F%$# [sic] told on me.”  For this, R.S was suspended for a day and prohibited from going on a class ski trip.  On a third occasion, school officials learned that R.S. was communicating with a male student on the Internet about sexual topics (when confronted, the male student admitted that he initiated the conversation).  The school officials called R.S. out of class to meet with them and the deputy sheriff assigned to the school.  They demanded to know her email and Facebook usernames and passwords.  Feeling pressured, R.S. complied.  The school officials then logged into her Facebook account and viewed the public and private messages she had posted on the site.  The school did not formally discipline R.S. any further.

The punishment of R.S. violated her First Amendment right to free speech

Judge Davis of the federal district court of Minnesota looked to the Tinker line of cases for guidance and concluded that the First Amendment prohibits school authorities from punishing students for out-of-school statements the statements are true threats or reasonably calculated to reach the school environment and are so egregious as to pose a serious safety risk or other substantial disruption there.  R.S.’s Facebook posts were not threatening, the court found, and while the posts might have been reasonably calculated to reach a school audience, that possibility alone did not justify her punishment.  An out-of-court statement must be more than inappropriate.  It must potentially cause a substantial disruption in the school before it can be punished.

The school violated R.S.’s Fourth Amendment right to be free of unlawful searches and seizures

Students enjoy a Fourth Amendment right to be free from unreasonable searches and seizures by school officials.  But did R.S. have a reasonable expectation of privacy as to the information posted on her Facebook account that only her Facebook friends could see?  The court said yes.  There is no meaningful difference between a password-protected private Facebook message and other forms of private electronic correspondence.  The court also found that the school officials had no legitimate governmental interest for reviewing her private communications.  Notably, there was no threat that R.S.’s private posts would cause a disruption in the classroom.

R.S. had a viable claim against the school for invasion of privacy

Again, the court focused on R.S.’s expectation of privacy.  The court analogized private Facebook messages to email messages, to which there is a reasonable expectation of privacy.  The court summarily rejected the schools’ argument that R.S. used Facebook in violation of the site’s terms of use because she was a minor.  The court failed to see how a violation of a website’s terms of use could destroy an expectation of privacy.  Also unpersuasive was the school’s argument that R.S. compromised her privacy interest by allowing her mother and one other person view her Facebook account.  It would be unreasonable, the court explained, to conclude that a person gives up all expectation of privacy as to the contents of his or her password-protected email account just by showing an email to another individual.

S.J.W. v. Lee’s Summit R-7 School District: Twin brothers (the “Wilsons”) who were high school juniors created a website called NorthPress.  Part of NorthPress was a blog intended to discuss, satirize, and “vent” about events at the Wilsons’ school.  Because the site was hosted on a Dutch domain, the site would not show up in the results of a Google search by a user in the U.S., but anyone knowing the site’s URL could access it.  The Wilsons added posts to the NorthPress blog containing a variety of offensive and racist comments as well as sexually explicit and degrading comments about particular female classmates whom they identified by name.  The racist posts discussed fights at the school and mocked black students.  A third student added another racist post.

The Wilsons initially told only several of their friends about NorthPress and claimed they intended only their friends to know about it, but word about the site quickly spread to the study body at their school.  The school initially suspended the Wilsons for ten days, and after the matter went through further proceedings at the school district level, the Wilsons were suspended for 180 days but allowed to enroll in another school for the duration of their suspensions.  The Wilsons filed a lawsuit for a preliminary injunction to lift the suspensions.  The district court granted the preliminary injunction, but on appeal, the Eighth Circuit reversed.

Reviewing cases that analyze the applicability of Tinker to off-campus student speech, the Eighth Circuit ruled that the blog posts in question targeted the school, could reasonably be expected to reach the school or impact the environment, and caused considerable disturbance and disruption.  As a result, the Wilsons were unlikely to succeed on the merits, and so they were not entitled to an injunction.

LegalTXTS Lesson:  Cyberbullying is a serious issue, but schools should be careful not to overreact.  The reality is that much of the online material students post and share these days has a good chance of offending someone or being considered inappropriate by adults.  That doesn’t give schools the authority to police online content however they like.  Off-campus speech is punishable when it threatens to endanger danger to another student or cause substantial disruption in the school environment, but not merely because some would find it “inappropriate.”

How this rule is applied, however, depends on the sensitivity of the court.  The courts in R.S. and S.J.W. could have gone either way.  The court in R.S. could have concluded that the sexual conversations between two very young students presented a risk of substantial disruption in the classroom.  On the other hand, the court in S.J.W. could have held that the blog was never targeted at the school community, and therefore, its contents did not justify meting out school discipline.  Perhaps we’ll get more consistency in court rulings after Supreme Court decides to weigh in on the constitutional limits to combating cyberbullying.

 

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A university may discipline a student for social media posts that violate academic rules based on the ethical code of the profession the student is studying to become part of — Tatro v. University of Minnesota, 2012 WL 2328002 (Minn. June 20, 2012)

When a student sues under the First Amendment for being disciplined by the school for his or her expression, a court will likely apply the line of cases stemming from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), or Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).  Tinker ruled that a school district may limit or discipline student expression if school officials reasonably conclude that the expression will “materially and substantially disrupt the work and discipline of the school.”  Hazelwood said that a school may exercise editorial control over the style and content of student speech in school-sponsored activities if their actions are “reasonably related to legitimate pedagogical concerns.”  But what if the student expression isn’t disruptive per se, and isn’t sponsored by the school, but contrary to the professional code of ethics the students are being trained to follow?  It isn’t unconstitutional for the school to discipline the student for such expression, the Supreme Court of Minnesota recently said.

Amanda Tatro worked on human cadavers as part of the anatomy lab work for the University of Minnesota’s mortuary science program in which she was enrolled.  Tatro agreed to abide by various rules as a condition of being granted access to the cadavers, including the code of professional conduct governing mortuary science students and anatomy lab rules.  The lab rules prohibited “blogging” about the anatomy lab or cadaver dissection.  The lab students were told during orientation that blogging included Facebook and Twitter.

Tatro posted a series of comments on her Facebook page about the human cadaver she was assigned to.  As a result of the comments, the university imposed sanctions against Tatro, including a failing grade in the lab course and placement on probation for the remainder of her undergraduate career.  Tatro sued the school for violations of her constitutional right to free speech.

The court first considered the Tinker and Hazelwood lines of cases, but concluded that neither applied.  The university disciplined Tatro not because her Facebook posts created a substantial disruption on campus or within the mortuary science program, but because the posts violated established rules that require respect, discretion, and confidentiality in connection with work on human cadavers.  The Tinker analysis was therefore inapplicable.  Hazelwood did not apply either because no one would reasonably consider the Facebook posts as speech that the university sponsored or promote.

The discipline was constitutional for a different reason, the court said.  Dignity and respect for the human cadaver is an established part of the professional conduct standards for the mortuary science profession.  The academic rules that Tatro violated were narrowly tailored to the objective of promoting such professional standards.  The rules permitted “respectful and discreet” discussion of cadaver dissection outside the lab in a private setting, but prohibited blogging about cadaver dissection or the anatomy lab, which could reach a wide audience.  Tatro’s Facebook posts, for example, could be seen by the hundreds of people who were “friends” with Tatro on Facebook, as well as “friends of friends.”

LegalTXT Lesson:  Academic programs that prepare students to work in a particular profession may be able to limit off-campus student expression that violates the ethical standards of that profession.  The limits must still be “narrowly tailored” to the interest in training students to uphold professional standards, however, which means blanket bans on student expression often will not pass muster.

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School district not liable under Title IX for harassing Facebook comments posted by students off-campus — Doe v. Round Valley Unified School District, 2012 WL 2064382 (D. Ariz. June 7, 2012)

Is a school liable under Title IX for student-on-student sexual harassment in the form of Facebook posts?  Apparently not, if the posting occurred outside of the “context” of the school.

To bring a Title IX claim against a school for student-on-student sex harassment, one element the student-victim must prove is that the school exercised substantial control over both the harasser and the context in which the known harassment occurred.  In Doe v. Round Valley Unified School District, a female student (Jane Doe) alleged that a male classmate (Rance Allen) sexually assaulted her on three occasions and was abusive toward her in other ways, such as by making disparaging comments about her on Facebook.  After Doe and her parents reported Rance to the police, which led to his arrest and indictment for sexual misconduct, students at the school allegedly criticized Doe on Facebook, making Doe fearful of attending school.  For example, some female students said they wanted to “kick [Doe’s] ass” because they thought Rance’s arrest was unfair.

Doe brought a Title IX claim against the school district.  The Arizona federal district court found the claim faulty on several grounds, including that harassing Facebook postings did not necessarily occur in a “context” over which the school district had substantial control over the harasser.  In a footnote, the court noted that Facebook comments may not be within the school district’s control  if the students posted them off-campus or on their personal computers or phones.

LegalTXT Lesson:  A school district can only do so much to limit student activity off-campus, but it can, and should, take steps to deter abusive social media use occurring on campus, such as by setting rules on when students may use school equipment to access their social media accounts.