Teachers' use of social media continues to make
reported on a recent incident in New Jersey, involving Union High School
teacher, Viki Knox. Knox was suspended in response to outrage surrounding
comments she'd posted on her Facebook page.
It started with her post that the school's gay-history
exhibit should be removed. She later urged her friends to pray and called
homosexuality a "perverted sin," according to NPR. After parents
complained about the comments, the school district began an investigation.
Later, Knox's supporters and those demanding her resignation faced off in a
protest at a school-board meeting.
As I've previously explained, a three-step test is used
to determine whether a public employer, including school districts, may
discipline an employee due to the employee's speech. First, the court will ask
whether the employee was speaking as a citizen or as an employee. Here, that
question could be answered either way. Assuming the exhibit was not related to
Knox's job duties, it is reasonable to conclude that her Facebook comment was
made in her capacity as a citizen, in which case the speech would be protected
in the first stage of the analysis.
In the second stage, the court asks whether the speech
was on a matter of public concern. Let's again assume that Knox's comment meets
the test. If that's the case, the court turns to the final stage of its
analysis and asks whether the employer's interest in maintaing an efficient and
effective workplace outweighs the employee's interest in free speech.
Here's where Knox's claim would likely fail. The school
district would be able to show both actual disruption and the potential for
disruption. The protests and complaints received by parents shows that the
employee's speech was disruptive to the district's operations.
The school district also would be able to show that there
was a potential disruption in the form of loss of trust and respect by parents
and students. To the extent that Knox's comments about the "sinful"
nature of homosexuality contradicts the district's stated values of tolerance
and diversity and that contradiction potentially could result in the inability
of Knox to effectively connect with students and parents, the district would be
able to discipline her for her speech without violating the free speech
protections of the First Amendment.
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog. Ms. DiBianca is an attorney with
Young, Conaway, Stargatt & Taylor, LLP.
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