Court Upholds Nonrenewal of Teacher Contract Over MySpace Activity

Background

I have frequently written and spoken on legal issues relating to the use in employment decisions of applicant and employee Internet activity such as blogging and using social network sites. However, this is a novel legal issue, and as is usually the case with such issues, legal “experts” like myself have been forced to make educated guesses as to how these issues might be decided by the courts.

This situation is now changing, as courts are beginning to rule on these issues. A prime example is a recent federal court decision involving a high school teacher who was terminated because of his MySpace Activity.

For this blog’s coverage of the issue, see:

• Firing Bloggers Part IV — More Bad Examples and parts I-III, linked in that post.
• Employers Using Facebook for Background Checking, Part III and parts I and II, linked there.

The case is Spanierman v. Hughes, 3:06CV01196 (D. Conn. Sept. 16, 2008). In it, the federal court granted summary judgment to the employer, striking down the teacher’s claims that he was denied due process,equal protection under the law, and his rights of freedom of speech and association by being terminated for having a decidedly unprofessional online relationship with his students. Read on for more details:

The MySpace Activity

Jeffrey Spanierman was an English teacher at a public high school. He began using MySpace because students asked him to look at their MySpace pages.

Subsequently, he opened his own MySpace accounts, creating several different profiles under various pseudonyms.

He said he “used his MySpace accounts to communicate with students about homework, to learn more about the students so he could relate to them better, and to conduct casual, non-school related discussions.”

A guidance counselor at the school became aware of Spanierman’s MySpace activities because she was told about them by another teacher and also received some student complaints. She reviewed Spanierman’s MySpace profile and “was disturbed by what she saw,” which included:

• A picture of Spanierman when he was 10 years younger, under which were pictures of some students at the school.
• Pictures of naked men with what she considered “inappropriate comments” underneath them.
• Conversations with students that were “very peer-to-peer like,” with students talking to him about what they did over the weekend at a party, or about their personal problems.

School Administration’s Actions

Initially, the guidance counselor simply spoke to Spanierman, suggesting he use the school e-mail system, rather than MySpace, for communications with students on educational topics and homework, and telling him some of the pictures on the profile page were inappropriate.

In response, Spanierman deactivated the profile in question. However, he simply created a new one under a different pseudonym, with essentially the same content.

When this was discovered, he was placed on administrative leave pending investigation. During the investigation, it was confirmed that a number of the “friends” on his account were in fact students at the high school.

At a meeting with the school principal and a union representative, Spanierman was given the opportunity to explain his MySpace activities.

His efforts were apparently unconvincing. Several weeks later, the principal sent Spanierman a letter stating he had “exercised poor judgment as a teacher.” The same day, the assistant superintendent sent him a letter stating his contract would not be renewed for the following academic year.

Legal Theories Asserted

Spanierman sued the superintendent, assistant superintendent, and principal, in their individual and official capacities, under 42 U.S.C § 1983, alleging they violated his:

• 14th Amendment right to procedural due process;
• 14th Amendment right to substantive due process;
• 14th Amendment right to equal protection;
• First Amendment right to freedom of speech; and
• First Amendment right to freedom of association

The Court’s Ruling

The federal district court granted summary judgment against Spanierman on all counts, entering judgment against him and closing the case.

Procedural Due Process

This claim was that Spanierman was denied the right to a hearing prior to termination.

The court ruled against him on this claim for three reasons:

1. He did not have a sufficient property interest in his employment because he did not have tenure.
2. He did not have a sufficient property interest in his employment because he did not have a contract; the decision at issue was essentially the decision not to enter a new contract, not the decision to prematurely terminate an existing contract.
3. He had no “legitimate claim of entitlement” to renewal of the contract.

Substantive Due Process

This claim required that Spanierman establish both a federally protectable property right and deprivation of that right through government action “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”

The court ruled against him because, as with the procedural due process claim, he lacked a federally protectable property right, and because he failed to demonstrate the type of extreme government action required.

Equal Protection

Spanierman based this claim on his contention that “[n]o other teacher in the … School System has suffered adverse employment action … because of his or her choice of a particular website for lawful electronic communications.”

The court ruled against him because:

1. He did not base his claim on traditional, classification-based equal protection analysis, as he did not claim he was “discriminated against because he [was] a member of one of the classifications traditionally protected by strict or intermediate scrutiny under the Equal Protection Clause.”
2. He appeared to be asserting a “class-of-one” equal protection claim, requiring him to show he had been “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” However, the Supreme Court had very recently explicitly held that “the class-of-one theory of equal protection does not apply in the public employment context.” Engquist v. Oregon Dept. of Agr., 128 S.Ct. 2146, 2151 (2008).
3. To the extent he could be viewed as having asserted a “selective prosecution” claim, even if such claims are not barred in the public employment context by Engquist, he “failed to compare himself to a similarly situated employee,” as he produced no evidence that the two teachers he identified as also having MySpace accounts were similarly situated to him in terms of having used such accounts to interact with students.

Freedom of Speech

Elements of Claim

To prevail on this claim, Spanierman had to prove that:

1. His speech was constitutionally protected;
2. he suffered an adverse employment decision; and
3. there was a causal connection between his speech and the adverse employment decision.

Protected Speech

On the first of these elements, the Court initially addressed the preliminary question of “whether [Spanierman] expressed his views as a citizen, or as a public employee pursuant to his official duties.” Under the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

The Court found it obvious that Spanierman’s MySpace activities were not pursuant to his official duties, so it went on to consider whether his online speech was constitutionally protected “as constituting speech on a matter of public concern.”

It concluded that “almost none of the contents of [Spanierman's] Profile page touched matters of public concern [as] [t]he majority… consisted of personal conversations between [him] and other MySpace users or creative writing.”

The court did find one item that could constitute a political statement and therefore protected speech — a poem about the war in Iraq.

There was no question about the second element of the free-speech claim. Spanierman suffered an adverse employment action when his contract was not renewed. So the only issue was whether he could show a causal connection between this adverse action and the poem (not all his MySpace activity).

Causal Connection

The court ruled against him because he had no evidence of an intent to retaliate against him because of the political views expressed in the poem, and because too much time had passed between his publication of the poem on the Internet and the decision not to renew his contract to allow an inference of causation from proximity in time.

Finally, the court stated that even if he had been able to establish causation, the school administrators would have been able to prevail by establishing that they would have taken the same adverse action in the absence of the protected speech, or that the speech was likely to disrupt school activities and such disruption was sufficient to outweigh its First Amendment value.

It cited evidence that the action was based not on the poem, but on the (constitutionally unprotected) online interactions with the students. It also cited specific exchanges with students showing “a potentially unprofessional rapport with students” that could be viewed as disruptive to school activities, including a discussion with a student about sex and a facetious threat of detention made to a student. Additionally, it cited evidence of student complaints that some of the MySpace conduct made them “uncomfortable.”

Freedom of Association

On this claim, the court applied the principle that “[I]n order to prevail on a First Amendment freedom-of-expressive-association claim, a government employee must show … that his expressive association involved a matter of public concern — just as would a government employee complaining of a violation of his right to freedom of speech.” The elements of adverse employment action, and causal connection between expressive association and adverse action are also required.

The court assumed the association upon which Spanierman based this claim was his association with MySpace in general. The court questioned whether MySpace could be considered an “organization” for purposes of First Amendment analysis, as “it does not constitute a specific group that people join, [but] is a means through which one can create an online community… .”

The court did recognize that “presumably one could form an online organization that expresses itself on matters of public concern and interacts with organization members via MySpace,” but said such an organization “would not be MySpace itself.”

Even assuming that MySpace is otherwise the type of organization that could give rise to an association claim, the court found no evidence it purported to speak out on matters of public concern.

Lastly, the court addressed the causation issue, finding the analysis “essentially the same as the causal connection analysis for the freedom of speech analysis,” which, as discussed above, was decided against Spanierman.

A few observations:

First Amendment freedom of speech is frequently raised by nonlawyers concerned about adverse employer decisions based on online expression by applicants and employees. But it is typically irrelevant because the employers are in the private sector, where they generally have the freedom to make employment decisions based on speech. This case was able to get as far as it did because the employer was in the public sector — a school district.

The court missed an obvious point in the freedom-of-association analysis — Spanierman’s right to association with the students. However, such an argument would not have been any more successful, as such association could not be reasonably said to involve matters of public concern.

It might have been a different story if it had been clear that the communications with students had concerned mutual criticisms of the administration of the school district or the high school, and that those communications, and not the nude pictures, etc., had been the reason for the decision not to renew Spanierman’s agreement.

All told, a very interesting case; and I expect it is scarcely the last we will hear of litigation arising out of such circumstances.

Read the Court Opinion Right Here