The school board earlier gave unanimous preliminary approval to the proposed policy, entitled "Employee Use of Social Media," but applied the brakes amid criticism from some parents, employees and outside organizations. It plans to take up the item again July 14.
"There's been a lot of comments and things about this policy, and I don't see it as necessarily being time-sensitive," board member Mike Gaudet said.
The delay did not mollify the small audience that stayed until the end of a seven-hour meeting until the board finally reached the item shortly before midnight Thursday. Many of them had come to express concerns about Superintendent Sito Narcisse's recent decision to forcible reassign 230-plus school employees to other schools and jobs.
"We don't know if we could be fired for being out here tonight and speaking our voices and trying to do what we think is best," said Mary Trigg, a middle school arts teacher.
Lauren Justice, an elementary schoolteacher, came out just to speak about the social media policy. She arrived just before midnight with her husband, Charles, dressed in her pajamas.
"The policy that is currently written is so strict that it is almost made to be violated," Justice said.
She said it could lead, for instance, to school employees losing their job if a picture of them shows up online of them having a drink at a restaurant.
"I don't want my boys to ever be afraid that Momma's gonna lose her job because they took a picture on Mother's Day because we went somewhere," Justice said.
Concerns had been building for days.
"Basically, our leadership wants to be able to fire any employee who has the audacity to speak out against them on social media," wrote Harmony Hobbs, a parent, in a public Facebook post Monday. "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 wrote in a letter Tuesday.
The East Baton Rouge Parish Association of Educators has sent board members its own letter, composed by Baton Rouge attorney Brian Blackwell. Citing several federal court rulings, Blackwell said while there are limits, public employees still enjoy ample protection under the First Amendment.
"In sum, in our opinion, when public employees vent on Facebook or another social media platform, they are not speaking pursuant to their official duties and should not be disciplined for their statements in the contexts described herein," Blackwell said.
Blackwell went to liken such behavior to when the U.S. Supreme Court in 1968 ruled in favor of a teacher in Illinois who had written a letter to the editor that got him fired.
"In those contexts, they are speaking more like Marvin Pickering did when he wrote his letter to his school board challenging their financial escapades," Blackwell wrote.
Despite such concerns, many school districts in Louisiana already 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. While it does not have specific rules dealing with what employees can do on the Internet outside of school, the school system sets out general "standards of conduct" for employees that can be invoked if they do something questionable outside of school.
The new policy would add 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 "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 receiving a request from Nichola Hall, chief officer for human resources. He 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 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 "overshoots the mark" and could run afoul of employees' First Amendment rights to free speech and their right to privacy.
For instance, Schwartzmann questions the policy's failure to define "professional" when it comes to posting things on the Internet, saying the word is "is vague and could be used to silence all speech critical of the school system."
Schwartzmann also finds worrisome the prohibition on "communication that can reasonably be anticipated to cause a substantial disruption to the school environment."
"Because this policy governs private chatroom speech," she said, "it could be used to fire teachers for trivial and culturally acceptable uses of language within the sphere of their own private life, just because if the speech were said in a classroom, which it has not been, it could cause a disruption."
©2022 The Advocate, Baton Rouge, La. Distributed by Tribune Content Agency, LLC.
