Published by MoASBO, February 2016
Personal blog posts by a public school employee may not be entitled to the protection of the First Amendment under some circumstances, even if the posts are about matters of public concern. The U.S. Court of Appeals for the Third Circuit recently revisited the nearly 50 year old test established by the Supreme Court in Pickering v. Board of Education of Township High Sch. Dist. 205, which allows public school districts to discipline an employee for commenting as a private citizen upon a matter of public concern when the employer’s interest in its efficient operation outweighs the interests of the individual employee in exercising his/her First Amendment rights.[1] Recently, the Court applied the Pickering test to the blog posts of a public high school teacher, Natalie Munroe, and found that her employer did not violate her First Amendment rights by terminating her.
Natalie Munroe, was a tenured English teacher in Central Bucks School District in Doylestown, PA. In 2009, Munroe began writing a personal blog. Central Bucks School District did not have a policy regulating employee blogs at the time. Generally, Munroe wrote about her personal interests and family but on occasion, Munroe chose to write about her co-workers, students and their parents, though she did not identify them by name or where she worked.
In some of her blog posts, Munroe expressed her hostility and disgust for her students, whom, among other characterizations, she referred to as “the devil’s spawn.” For example, in one post, Munroe described comments that she would like to see added to the list of “canned” observations teachers use to fill out report cards. Her list included:
- “A complete and utter jerk in all ways. Although academically ok, your child has no other redeeming qualities.”
- “Nowhere near as good as her sibling. Are you sure they’re related?”
- “Asked too many questions and took too long to ask them. The bell means it’s time to leave!”
- “Just as bad as his sibling. Don’t you know how to raise kids?”
- “Frightfully dim.”
- “Dresses like a street walker.”
- “One of the most annoying student I’ve had the displeasure of being locked in a room with for an extended time.”
- “Weirdest kid I’ve ever met.”
- “Am concerned that your kid is going to come in one day and open fire on the school. (Wish I was kidding.)”
- “Utterly loathsome in all imaginable ways.”
- “There’s no other way to say this: I hate your kid.”
Other posts about her students were more specific about particular incidents, such that Munroe’s students reading the post would be able to identify themselves or their classmates in the post.
Munroe’s blog came the attention of school district administration in 2011 after the administration was contacted by a local reporter concerning the blog that students were apparently circulating on Facebook and through other social media. The District placed Munroe on leave to investigate and Munroe chose to give numerous local and national media interviews defending her posts. Thereafter, the school district alleged that they received more than two hundred opt out requests from parents who did not want their children in Monroe’s class.
Prior to the District’s discovery of her blog, Munroe was considered a competent, effective teacher according to her performance evaluations and a recommendation letter by her supervisor. However after Munroe’s blog posts received media attention, Monroe was given her first negative evaluation for poor performance of her career. At the end of the following school year, the District terminated Munroe for poor performance.
Munroe sued the District, her principal, and superintendent, alleging that the school administration harassed and eventually terminated her in retaliation for her blog posts which were First Amendment protected speech.[2] The District Court ruled in favor of the administrators and the District and dismissed Munroe’s claims. Munroe appealed to the U.S. Court of Appeals for the Third Circuit.[3]
The Court of Appeals “reluctantly assume[d]” that Munroe’s posts were on matters of public concern. “After all humor, satire, and even personal invective could be used in order to make or embellish a point about a matter of political, social or other concern to the community, such as a school district’s grading policies and practices,” the majority of the Court found. “Monroe’s inclusion of her list of proposed report card comments in a post critiquing the school district’s grading process likewise indicated that this blog post ultimately involved more than a purely personal gripe against her students or the administration.”
However, under the Pickering test, an employee’s speech on a matter of public concern is only protected if the employee’s interest in the speech at issue outweighs the public employer’s interest in an efficient workplace and avoiding workplace disruption. Munroe attempted to minimize the school district’s disruption argument by claiming that, “[h]igh school students are not required to trust or respect their teachers.” The Court rejected this argument though and found that, “‘[t]he position of public school teacher requires a degree of public trust not found in many other positions of public employment’” and held that it was “generally appropriate to consider the reactions of students and parents to an educator’s speech under the Pickering balancing test.”
The Court concluded that,“[w]hen a teacher’s derogatory comments about his or her students causes numerous parent to tell the school district that they ‘don’t want her as my child’s teacher’ it is appropriate to conclude that his or her speech impedes the performance of the speaker’s duties as a teacher.” Thus, the Court found Munroe’s speech did not rise to the level of constitutionally protected expression and upheld the dismissal of Munroe’s case.
Though not every case will demand the amount of workplace disruption created by Munroe’s blog, it is clear that disciplining a public employee for speech arguably on matters of public concern will generally require at least some workplace disruption. School districts that want to try to avoid the potentially negative attention and various legal issues that employees’ blogs can present should review their employee social media policies to make sure that they are sufficiently encompassing and set clear expectations.
[1] Pickering v. Bd. of Ed. of Tp. High Sch. Dist. 205, 391 U.S. 563, 568, (1968).
[2] Munroe v. Central Bucks Sch. Dist., 34 F.Supp.3d 532 ( E.D. Penn. 2014)
[3] Munroe v. Central Bucks Sch. Dist., 805 F.3d 454 (3rd Cir. 2015)
