Union County board policy used to silence educators could be unconstitutional

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A Union County Public Schools policy used to restrict district employees’ personal use of social media may be violating First Amendment rights, according to the director of the North Carolina Open Government Coalition.

At issue is policy 5-22, which lays out the Union County School Board’s expectations for how employees will conduct themselves when using social media:

The Board understands that employees may engage in the use of social media during their personal time. School employees who use social media for personal purposes must be mindful that they are responsible for their public conduct even when not acting in their capacities as school system employees. All school employees, including student teachers and independent contractors, shall comply with the requirements of this policy when using electronic social media for personal purposes. 

The policy states

Any postings, on professional or personal social media sites, of the following nature are prohibited: 

● Creates a harassing, demeaning, or hostile working environment for any employee.

● Disrupts the smooth and orderly flow of work, or the delivery of services to the staff or students.

● Harms the goodwill and reputation of staff, students or the community at large.

● Erodes the public’s confidence in the district.

● Involves any kind of criminal activity or harms the rights of others, may result in criminal prosecution or civil liability to those harmed, or both.

Over the past few years there have been numerous instances where Union County employees have been reprimanded by their principals or summoned to the district office and dealt with over supposed violations of this social media policy.

I talked with several Union County employees who have experienced such treatment, all of whom requested anonymity out of fear of retribution from the school district.  

Some of the employees have gotten in hot water for publicly questioning specific district policies around issues like having to pay for a sub who doesn’t show up, or for blowing the whistle on COVID-related matters.

One of them said, “UCPS effectively silenced me a couple of years ago when I was officially written up in my permanent employee file, sent downtown to meet with the Assistant Superintendent of Human Resources and his staff, and forced to sign a statement that I would not ever post anything on social media again that ‘erodes the public’s confidence in the district.’ The post in question was a three-word noninflammatory comment on a coworker’s post, agreeing that there was a lack of effective leadership.”

Another Union County employee spoke of being admonished for criticizing President Trump in a post that had no connection to Union County schools or education and informed that it was forbidden to criticize any elected official.

It’s unclear if the Sun Valley High School principal has faced any discipline for publicly criticizing Governor Cooper’s COVID decisions, or whether policy in the highly conservative county is applied differently depending on the employee’s political point of view.

All of the Union County employees I spoke with had been reprimanded for comments they made outside school hours on personal social media platforms.  In making those comments, none of them had been speaking in their official capacity as school employees or on behalf of the school district.

According to North Carolina Open Government Coalition Director Brooks Fuller, that’s a crucial distinction.

Dr. Fuller notes a 2006 Supreme Court decision on Garcetti v. Ceballos determined that public employees have limited rights when they’re speaking on behalf of their employer.  But when they’re speaking in their private capacity, they are protected by the First Amendment.
Fuller believes that prohibiting employee speech that “harms the goodwill and reputation of staff, students or the community at large” or “erodes the public’s confidence in the district” could potentially violate constitutional rights:

“The problems with these third and fourth bullet points is that, theoretically, if you take them to their logical conclusion, they would capture even truthful speech about matters of public concern that cause reputational harm or undermine people’s confidence in the school district.

“Let’s say, for instance, the leaders of the school district knew about risks revolving around COVID that they didn’t share or didn’t adequately protect their employees, and someone blew the whistle.  There is nothing more publicly important than that speech, and this policy could potentially be used to punish that speech because it’s so broad and because it’s so vague.  So it has two serious constitutional problems there.

“For instance, one piece of that says you can’t speak in a way that undermines somebody’s reputation.  But if you speak truthfully, and they’ve earned a bad reputation because of dangerous policies, that’s publicly important speech and it’s protected by the First Amendment.”

The United States Constitution is one important reason the rights of employees to express their views must be respected, but it’s also worth mentioning that using fear to control the conversations of people who work for you is just poor leadership.  

The ability of a school district to effectively serve its students depends in part on whether it is willing to hear legitimate criticism, consider those perspectives, and course correct if change is needed.  When a school board actively discourages feedback from front line workers who have the clearest view of how policy actually plays out, it deprives the district of opportunities to improve.

In addition, having Big Brother constantly monitoring off-the-clock discussions and punishing employees for simply speaking their minds is harmful to morale, and positive morale has never been more important in the education profession than it is right now.  Union County is located right next to a district–Charlotte-Mecklenburg–whose school board has stated publicly that it will “act to ensure that employees feel free to express their views without fear of retribution,” and where the local salary supplement is roughly double what it is in Union County.  

Rather than driving good educators away, Union County needs to be intentional about cultivating positive relationships between leadership and rank and file employees and creating working conditions that will allow it to attract and retain the engaged, solutions-oriented educators our schools need.

Union County Association of Educators members who believe their First Amendment rights may have been violated under the UCPS social media policy are highly encouraged to contact the NCAE Advocacy Center for legal assistance. 

If you are not currently a member of NCAE, there has never been a better time to join.

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