The Whole World (Wide Web) is Watching
Cautionary tales from the 'what-were-you-thinking' department.
By Michael D. Simpson, NEA Office of General Counsel
Way back in 1974, California teacher and aspiring actor Lou Zivkovich famously was fired for posing nude in Playgirl magazine. His response, as reported by Newsweek, "I didn't murder anyone."
Nowadays, thanks to advances in technology, you don't even need a major publisher to get fired; just post your racy photos, sexually graphic writings, or wild party stories on a personal Web blog. You'll be amazed by how quickly tech-savvy students can disseminate your postings to their friends and your employer.
Here's a roundup of some of the recent horror stories:
In Virginia, high school art teacher Stephen Murmer was fired after posting photos of his "butt art" on the Web, which were viewed by scores of students. The budding artist applied paint to his posterior and genitalia, which he then pressed onto canvases. With the help of the ACLU, he sued the school district last fall claiming a violation of his First Amendment rights.
Band director Scott Davis from Broward County, Florida, was dismissed after school officials viewed his MySpace profile that included his musings about sex, drugs, and depression.
A Colorado English teacher lost her job after composing and posting sexually explicit poetry on her MySpace site. Police were even called in to investigate.
Nashville teacher Margaret Thompson was removed from teaching after posting "racy pictures" of herself, along with candid photos of her students, on her MySpace profile.
Florida middle school teacher John Bush was terminated because of "offensive" and "unacceptable " photos and information on his MySpace page.
Massachusetts teaching assistant and Massachusetts Teachers Association member Keath Driscoll was first suspended and then fired for his MySpace postings including "sexually suggestive" photographs, videos of drinking alcohol, and references to women as "whores." MTA took his case to arbitration and won almost a complete victory. In a decision dated March 24, 2008, the arbitrator ruled that Driscoll should not have been fired and ordered him reinstated with back pay, seniority, and benefits. The arbitrator did conclude, however, that Driscoll had engaged in misconduct that warranted some form of discipline, which he determined to be a three-day suspension.]
But the clueless award goes to Atlanta-area high school football coach Donald Shockley, who was forced to resign in early 2008 for storing on his school computer photos of his assistant principal dressed in lingerie and posing in sexually suggestive ways. The photos were discovered by a student whom Shockley had asked to work on his computer and who then posted the photos on the Internet and sent them to other students at the school.
In October 2007, reporters for The Columbus Dispatch conducted an investigation of MySpace profiles posted by Ohio teachers. The newspaper quoted one 25-year-old teacher bragging that she's "an aggressive freak in bed," "sexy," and "an outstanding kisser." Another teacher wrote on her page that she had recently "gotten drunk," "taken drugs," and "gone skinny-dipping."
In the wake of these reports, the Ohio Education Association urged all OEA members to remove any personal profiles they may have posted on MySpace or Facebook. The Association also warned members that such profiles "can be used as evidence in disciplinary proceedings," which could "affect not only a teacher's current job but his/her teaching license" as well.
But what about free speech? Don't school employees have the right, on their own time, to blog about their private lives without fear of losing their jobs? Probably not.
It's the general rule that school employees can be disciplined for off-duty conduct if the school district can show that the conduct had an adverse impact on the school or the teacher's ability to teach. And it wouldn't be too difficult to make that showing if the teacher's blog includes sexually explicit or other inappropriate content and is widely viewed by students.
As to a possible free speech claim, the U.S. Supreme Court ruled in 2004 that it was not a violation of the First Amendment for the City of San Diego to fire a police officer for posting a sexually explicit video of himself on the Internet. The unanimous Court said that such speech was "detrimental to the mission and functions of the employer."
And last year, a U.S. District Court ruled that a Connecticut school district’s decision to fire a probationary teacher because of his postings to his MySpace page did not violate the teacher’s First Amendments rights. The court called the online exchanges between the teacher and his students "inappropriate" and added that "such conduct could very well disrupt the learning atmosphere of the school."
There's an old lawyer's saw that goes something like this: Never put in writing anything that you wouldn't want read in open court or by your mother.
Maybe it's time for an updated adage: Never put in electronic form anything that you wouldn't want viewed by a million people, including your colleagues, students, and supervisors—and your mother.