It is important to know when private employee conduct may be subject to school disciplinary action. The case of Richerson
v. Beckon from the state of Washington, recently decided by a federal appellate court, is instructive.
Tara Richerson was promoted from teacher to curriculum specialist and
instructional coach. She posted a personal blog site open to the public. On it she made disparaging statements about her colleagues. Regarding an interview for her teaching replacement she posted the following:
"Save us White Boy!
I met with the new me today: the person who will take my
summer work and make it a full-time year-round position. I was on the interview
committee for this job and this guy was my third choice, and a reluctant one
at that. I truly hope that I have to eat my words about this guy. . . . But
after spending time with this guy today, I think Boss Lady 2.0 made the wrong
call in hiring him . . . He comes across as a smug know-it-all creep. And
that's probably the nicest way I can describe him. ... He has a reputation of
crapping on secretaries and not being able to finish tasks on his own. ... And
he's white. And male. I know he can't help that, but I think the District would
have done well to recruit someone who has other connections to the community.
... Mighty White Boy looks like he's going to crash and burn.
The human resource director, when she learned of the post, verbally reprimanded Richerson for breach of confidentiality and professional standards, but did not order Richersen to stop blogging. Subsequently, Richersen blogged about a colleague who was the local teacher union's lead negotiator,
"What I wouldn't give to draw a little Hitler
mustache on the chief negotiator."
When teachers being coached by Richersen learned of these comments,
several refused to work with her. Consequently, Richersen's supervisory duties were stripped and she was transferred back to a regular teaching position.
Richersen sued the human resource director in her personal and official
capacity, claiming the transfer violated her free speech rights. The trial court granted summary
judgment for the director.
Richerson appealed to the Ninth Circuit. Procedurally, that Court was required to assume the facts
were as alleged by Richerson. Nevertheless, the court upheld the decision. Assuming that
Richerson's speech was a "matter of public concern" and that the transfer was
an "adverse action", the court
ruled that in balancing the
interests of the parties, the district was justified in making the transfer due
to the disruptive effect of the negative web postings.
The case is Richerson
v. Beckon, 2009 U.S. App. LEXIS 12870 (9th Cir. June 4, 2009; unpublished; petition for rehearing en banc pending as of this date).
Practice Points
- Employee free speech "boundaries," as indicated by this case, essentially involve two key questions: (1) Is the speech a matter of "public concern"? (2) In the balance of interests, does the public's and employee's interests outweigh the employer's interest in effective operations? The court must answer "Yes" to both questions to uphold the employee's claim.
- The nature and degree of discipline may be relevant in the court's "balancing of interests"; if discipline is appropriate, it should be proportional.
- Generally a significant disruption to school operations may be (but is not always) sufficient in the "balancing" test.
- Engage legal counsel in deliberations about how to handle such matters and address their unique circumstances and nuances.
- School policies should include a provision for students and employees notifying them of the possibility and standards for discipline for off-campus and personal conduct.
This and other cases and strategies will be addressed at each of the upcoming Lex-IS Updates; see adjacent panel of program links.
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