A New Jersey appellate panel has upheld the decision to fire a tenured first-grade teacher because of critical postings she made toward her students on her Facebook account. Jennifer O'Brien was a teacher in the City of Paterson's school district, with an unblemished record since the school district hired her in March 1998. In December 2010, the school district assigned O'Brien to teach first grade. O'Brien's class had twenty-three students, most of whom were six years old, and all of whom were either Latino or African-American. On March 28, 2011, O'Brien posted two comments on Facebook: "I'm not a teacher – I'm a warden for future criminals!" followed by, "[t]hey had a scared straight program in school – why couldn't [I] bring [first] graders?"
Reaction to O'Brien's posts was immediate and forceful.
On the morning of March 30, two angry parents went to the office of
principal Frank Puglise to express their outrage. Puglise also
received numerous angry phone calls throughout the day. At the end
of the day, a protest of approximately twenty persons formed
outside of the school. When Puglise approached O'Brien to
discuss the posts, O'Brien appeared "unrepentant,"
though she claimed that she did not intend to offend anyone.
Subsequently, Puglise suspended O'Brien, with pay, pending
further investigation. The following day, a number of reporters and
camera crews from major news organizations came to the school, and
many parents continued to express their outrage at a community
meeting later that evening.
On May 5, the district superintendant suspended O'Brien, this
time without pay. At a hearing before an Administrative Law Judge
("ALJ"), O'Brien testified that she posted her
comments out of frustration from her students' behavior, which
included stealing from her and other students, striking other
students, and, in one instance, striking her. O'Brien also
testified that she was not seriously advocating a "Scared
Straight" program for first graders and that she was surprised
by the reaction to her posts. The ALJ held that O'Brien's
comments warranted removal.
After the Commissioner of Education upheld the ALJ's decision,
O'Brien appealed to the Appellate Division. The Appellate
Division first needed to determine whether, as a public employee,
O'Brien's comments were protected by the First Amendment.
Based on the evidence, the Court found that O'Brien did not
encompass a matter of public concern, but instead her personal
dissatisfaction with her job. The Court also found that, even if
O'Brien was commenting on a matter of public concern, her
interests were outweighed by the State's need for efficient
operation of its schools.
The Appellate Division held that the evidence in the record was
enough to support the charges, since O'Brien's conduct
reflected a lack of self-control, tended to destroy public respect
for government employees, and damaged public confidence in the
school system. Finally, the Appellate Division held that, even
though the comments were O'Brien's "sole
transgression," they were sufficiently serious to warrant
removal from her tenured position.
Originally published on the Employer's Law Blog
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