Christine Rubino had been
a teacher in Brooklyn for 15 years without any disciplinary history when she
was terminated in response to comments she posted about students on her
Facebook page. Specifically, Rubino posted that her 5th-grade students
"deserved to drown." And, when asked whether she would "let
little Kwame float away," Rubino responded with: "Yes. I would not
throw a life jacket in for a million," reports the Huffington
Even more shockingly,
the comments came just one day after a 12-year-old girl drowned during a class
trip to Long Island beach.
A disciplinary hearing
officer found the teacher guilty of "misconduct, neglect of duty, and
conduct unbecoming her profession" and, as a result, Rubino was
terminated. She subsequently appealed to the N.Y. Supreme Court, which
overturned the decision.
Writing for the court,
Justice Barbara Jaffee described Rubino's posts as "repulsive." Yet,
she went on to conclude that, under the circumstances, the termination was too
disproportionate to the offense, thereby requiring that the termination decision
The district does not
have a social-media policy but, according to the N.Y.
Post, fired three teachers last year for inappropriate online posts.
This decision is a
difficult one to reconcile with some of the recent cases in which similar
comments were held to warrant the termination of a teacher. But Evan Brown
writes on his Internet
Cases blog about an even more perplexing part of the court's decision. He
describes the court's take on the issue of proportionality between the nature
of the wrong and the consequences imposed as "contextual integrity."
Here's the language from the court's decision that Evan cites to:
[E]ven though petitioner
should have known that her postings could become public more easily than if she
had uttered them during a telephone call or over dinner, given the illusion
that Facebook postings reach only Facebook friends and the fleeting nature of
social media, her expectation that only her friends, all of whom are adults,
would see the postings is not only apparent, but reasonable.
Note the potential impact of the last part of this sentence. The potential
impact is enormous. Essentially, the court says that ignorance of consequences
for Facebook posts is legally sufficient to establish a reasonable expectation
of privacy. This single sentence effectively recognizes the right to publish to
a limited audience; a concept that has been consistently rejected by courts. At
least until now.
v. City of N.Y., 2012 NY Slip Op 30246(U) (N.Y. Sup. Feb. 1, 2012)
Read more Labor and Employment Law insights
from Margaret (Molly) DiBianca in the Delaware
Employment Law Blog.
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