The proposed policy, entitled "Employee Use of Social Media," is scheduled to be voted on when the School Board meets at 5 p.m. Thursday. With little discussion, the board gave unanimous preliminary approval to the new policy on May 5, but some parents have raised questions about the proposed policy in the days since.
Harmony Hobbs, a parent of public schoolchildren, sees the new policy as a clear effort to muzzle employees tempted to share their concerns about their school or the school district.
"Basically, our leadership wants to be able to fire any employee who has the audacity to speak out against them on social media," Hobbs wrote Monday in a public Facebook post. "SILENCING WILL NOT WORK."
Benjamin Owens, another parent and a practicing attorney, said it took him just a few minutes to conclude that the proposed policy is unconstitutional and "has no prospect for surviving a legal challenge."
"In particular, it is unconstitutionally vague and overbroad, implicates due process, and would chill speech that is protected under the First Amendment," Owens said.
Despite such concerns, several school districts in Louisiana have similar policies for employees using social media. One of the first was the Orleans Parish School Board back in June 2016, which is almost identical to the one East Baton Rouge Parish is considering now.
Locally, Livingston Parish schools adopted a similar policy in July 2020. Lafayette Parish schools considered a version of this policy in November 2018, but quietly dropped the idea.
Currently, the East Baton Rouge Parish school system has an array of rules about what school employees can do on school grounds and with school computers. But it does not have specific rules dealing with what employees can do on the Internet outside of school.
The school district does have a policy setting out general "standards of conduct" for employees that can be invoked if they do something questionable outside of school.
The new policy includes several new, specific employee restrictions that, if violated, could lead to discipline, up to being fired:
- No posting of confidential information about students, employees or school district business.
- No posts that "libel or defame" the School Board, School Board members, school employees or students.
- Any posts "related to or referencing the school district, students and other employees" must be "professional."
- No posting of "profane, pornographic, obscene, indecent, lewd, vulgar or sexually offensive language, pictures or graphics or other communication that could reasonably be anticipated to cause a substantial disruption to the school environment."
- No posts with "inappropriate content that negatively impacts their ability to perform their jobs."
- No posting of "identifiable images of a student or student's family without permission from the student and the student's parent or legal guardian."
- Never accept current students as "friends" or "followers" or otherwise connect with students on social media sites unless there's a "a family relationship or other type of appropriate relationship which originated outside of the school setting."
The policy defines social media to include personal websites, blogs, wikis, social network sites, online forums, virtual worlds and video-sharing websites. It also has a catch-all that covers "any other social media generally available to the public or consumers that does not fall within the School Board's technologies network (e.g., Web 2.0 tools, Facebook, Twitter, Linkedln, Flickr, YouTube)."
Gwynn Shamlin, the board's general counsel, told the School Board on May 5 that he helped develop the new policy after getting a request from Nichola Hall, chief officer for human resources.
"This looks at our employee's use of social media, which can happen outside our system, including the Internet and use of email," Shamlin said. "So this is the use of platforms like Facebook and Twitter and Instagram.
Shamlin said the policy was developed in order not to violate employee rights.
"We had to walk a bit of a tight rope developing this because there are free speech issues you have to be careful with," Shamlin said.
In his letter, Owens notes that a judge on May 10 struck down an employee policy used by Jackson Public Schools in Jackson, Mississippi that has similarities to the one East Baton Rouge is considering. In that case, the judge ruled that the rules that the policy there violated the Mississippi state constitution, "but also that they gravely threaten the public interest in public education."
"By silencing its teachers, staff, employees, and their organizational advocate, JPS deprives its students, their parents, and other interested parties such as legislators and taxpayers, of important information necessary to fully understand and take part in their public education system, and meaningfully call for its improvement where and when needed," special Circuit Judge Jess Dickinson wrote in the ruling.
In Louisiana, the City of New Orleans recently settled litigation over an employee social media policy in a case brought in 2020 by two public library workers who said the policy violated their First Amendment rights. As part of the settlement, the city government removed the most controversial aspects of the previous policy, including a provision that said city employees are not allowed to "engage or respond to negative or disparaging posts" about city government.
Katie Schwartzmann, director of the Tulane University Law School First Amendment Clinic, helped represent those two city employees. She said the City of New Orleans policy was different in key ways, but she said the proposed policy in East Baton Rouge raises several potential First Amendment concerns for her. For instance, the policy does not define "professional" when it comes to what employees post on the Internet and could be used to target otherwise protected free speech.
"What does it mean to be professional and does that purport to cover criticism of otherwise public matters?" Schwartzmann said.
©2022 The Advocate, Baton Rouge, La. Distributed by Tribune Content Agency, LLC.
