ACLU warns Connecticut district that proposed employee social media policy is unconstitutional

The Hartford Courant reports that the American Civil Liberties Union of Connecticut (ACLU-CT) has urged the Manchester school board to reject a proposed policy that would regulate professional and personal use of social media sites. ACLU-CT maintains the policy would restrict speech that is clearly protected by the First Amendment, “imposing a set of regulations that are overly broad and impermissibly vague.” In a letter to School Board Chairman Chris Pattacini, the ACLU-CT charges that the proposed policy violates the U.S. Constitution.

“Free speech protections apply to social media as much as to any other form of communication,” said ACLU-CT staff attorney David McGuire. “Teachers and other staff don’t lose their constitutional rights at the schoolhouse gate, and they don’t lose them when they sign into Facebook.” “The policy as written would not be likely to withstand a legal challenge,” McGuire said. “If the board adopts it, the ACLU of Connecticut will monitor its application and encourage employees to contact us if they feel their rights have been violated.”

The policy would require teachers and other workers “to use appropriately respectful speech” in their personal and professional posts. “The board of education recognizes the importance of social media for its employees, and acknowledges that its employees have the right under the First Amendment, in certain circumstances, to speak out on matters of public concern,” the proposed policy says.

The policy also states: “However, the board will regulate the use of social media by employees, including employees’ personal use of social media, when such use substantially and materially interferes with the employee’s bonafide job performance or the working relationship between the employee and the employer….”

Prohibited posts would be those that interfere with or disrupt the work of the school district; harass coworkers or other members of the school community; create a hostile work environment; breach confidentiality obligations; harm the good will and reputation of the school district in the community; and violate the law, board policies and/or other school rules and regulations.

Social media under the policy would include sites such as Twitter, Facebook, LinkedIn, YouTube, and MySpace. Violation of the proposed policy could lead to discipline, up to and including termination.

Asked how the school board would regulate employees’ personal postings, Pattacini said it would be done on a case-by-case basis, and both he and Interim Superintendent Richard Kisiel said any enforcement would be sparked by a complaint from a parent, student, fellow employee, or other member of the school community.

Asked how school officials will decide what is “appropriately respectful speech,” Kisiel said that when postings cause harm or disruption or create hostility within a school, “I think I have the right to step in.”

Source:  The Hartford Courant, 5/25/12, By Jesse Leavenworth

[Editor’s Note: In the ACLU-CT letter, McGuire pointed out several sections of the policy that run afoul of constitutional protections of free speech. These include limitations on speech that harms “the goodwill and reputation of the school district in the community” and speech that is not “appropriately respectful.”

In May 2012, Legal Clips summarized an article in The New York Times, which reported that according to guidelines released by the New York City Department of Education governing employees’ use of social media, teachers may not contact students through personal pages on websites like Facebook and Twitter, but can communicate via pages set up for classroom use. The guidelines do not ban teachers from using social media, and recognize that it can offer tremendous educational benefits, but they do not address cellphones and text messaging between teachers and students.

On the other hand, in October 2011, Legal Clips summarized an Associated Press article in Education Week, which reported that Missouri Governor Jay Nixon had signed legislation repealing a contentious law that had limited online communication between teachers and students, and caused a judge to warn that it infringed on free-speech rights. The new measure repealed a portion of an earlier law enacted in 2011, that barred teachers from using websites that allow “exclusive access” with students or former pupils age 18 or younger.]

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