Monday, November 17, 2014

Teacher's Racist Twitter Rant and the Law

Have you heard the one about the teacher who got fired over a racist Twitter rant about Ferguson? To recap, she posted some lovely gems, such as
Who the (expletive) made you dumb (expletive) crackers think I give a squat (expletive) about your opinions. #Ferguson Kill yourselves.
The teacher, an African-American woman, then clarified her views:
You exhibit nigga behavior, I'm a call you a nigga. You acting crackerish, I'm a call you a cracker."
And then the school board clarified its view, which I'll paraphrase as "you're fired!"

This story has generated a fair amount of media buzz, which means lots and lots of Internet comments. In this post, I clear up some recurring misconceptions about employment law in this area.

Error #1: At-will employment! She can get fired for anything!

Yes, most states are "at-will" and this generally means employers can terminate the employment relationship for any reason so long as it does not violate a specific statute (like an anti-discrimination statute for example). But there's another exception: contracts. And teachers are very often in unions. And those unions have a collective bargaining agreement (CBA). And those CBAs often require "just cause" for termination.

Would this Twitter rant constitute "just cause"? Maybe. The rant appears to be off-duty conduct, and not directly related to her employment, which could make establishing just cause difficult. That said, it's not hard to create a tie-in to her employment - if you were white, would you want a teacher who calls white people "crackers" teaching your son or daughter? Is "Kill yourselves" the type of civil discourse you want your child learning?

I'm going to lump the next two errors together because they are both First Amendment-related:

Error #2: First Amendment! She can't get fired for expressing her opinions!
Error #3: She didn't go to jail, the First Amendment only prevents criminal prosecution, it doesn't protect your employment. 

Errors 2 and 3 are both a little right and a little wrong. Generally, the First Amendment does not protect employees from getting fired. And generally, the First Amendment only applies to government action, such as criminal prosecution. But, the First Amendment protects public employees (like public school teachers) from getting fired in some circumstances.

The First Amendment protects public employees who speak as citizens on matters of public concern. Here, the teacher is discussing Ferguson in a public forum - so she probably gets some First Amendment protection, but how much?

Under the Pickering test, the Court’s role is to “balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Educ. of Township High Sch., 391 U.S. 563, 568 (1968).

Here, the school could argue that the comments interfere with its efficient operation for the same reasons I described under Error 1. Racist vitriol and telling people she disagrees with to kill themselves make it very difficult for white students and/or people who disagree with her to feel safe in her class. Her Twitter comments appear to affect her job as a teacher. That said, she could argue (assuming it's true) that she has treated everyone equally in her classes and that she fosters civil discussion in the classroom - her off-duty comments have no impact on that.

The point here is that the legal issues with teachers are complex. Both sides in this situation have arguments they could present to a court or jury. Ignoring the legal issues, the practical takeaway here is: don't call people racial slurs and advocate their suicide on social media.

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