Leadership magazine March/April 2017 V46 No. 4 - Page 15

opportunity to invite public scrutiny .
School administrators also should be mindful that when they create an online forum for school district matters on social media , free speech protections might make it difficult to remove any unwelcome comments . When a school district creates an open forum for free speech online , a school district administrator may not be able to remove a post without suppressing the poster ’ s free speech , in violation of the U . S . Constitution . Speech that is obscene or discriminatory is not considered protected speech , but comments that are merely critical of district policies or procedures might be considered free speech that is protected by the United States Constitution .
To assert more control over what may and may not be posted by the public to a social media page , a school administrator may want to include a disclaimer , such as : “ This page is established to share achievements and information related to school district matters . Any comments that are obscene , discriminatory , illegal , irrelevant to school district business , in violation of school district policy , or harmful in any way may be removed .”
3 . Legal recourse against offensive posts
Unfortunately , social media may also be used for personal attacks against school administrators . While most school administrators have developed a thick skin and are used to defending themselves in the court of public opinion , online comments can have a far broader reach than traditional media and leave a longer lasting impression .
In a case that went all the way to the federal court of appeals , a 13-year-old girl went on social media and called a school administrator a child molester and his wife a gorilla . After the administrator disciplined the student , her parents filed a lawsuit arguing that the discipline violated her free speech rights for the “ parody ” she created online . The court sided with the student but noted that the school administrator could have brought a private action against the student .
If a school administrator is the subject of a personal attack on social media , there are
In any school community , there are bound to be differing views on any political issue before the public . Accordingly , school administrators should proceed with caution when making any social media post related to a political issue or ballot measure .
several steps available to take in response to such attacks . These options include but are not limited to : ( 1 ) requesting that the student , parent , or community member remove the offensive post ; ( 2 ) requesting that the social media site remove the post ; ( 3 ) initiating disciplinary action against a student , which may be permissible if the post causes a substantial disruption to school , or is threatening or is obscene ; ( 4 ) seeking an injunction to legally require the poster to remove the post ; or ( 5 ) filing a civil action against the poster in court , since a civil right of action may stand for libel , slander , defamation or harassment .
However , it is noteworthy that for purposes of defamation law , a school administrator would likely be viewed by a court as a “ public official ,” and there is a higher burden of proof to meet in order to prove defamation against public officials . As a public official , a school administrator would have to prove that an offensive comment was made with actual malice and reckless disregard for the truth . Conversely , an ordinary citizen may bring a case for defamation if an offending statement is merely negligent with regard to the truthfulness of the statement .
4 . Political speech is a touchy subject
In the November 2016 election cycle , we saw social media as a driving force to gain support or opposition for ballot measures of local , state , and national importance . In their role as private citizens , public school administrators are free to comment on political issues or ballot measures . However , in their role as public employees , only neutral , fact-based information should be shared with regard to political issues or ballot measures .
In the social media context , the lines are often blurred when a school administrator is speaking as a private citizen as opposed to speaking in their official capacity as a school administrator . If social media is used by school administrators to promote district achievement and upcoming events , then administrators can assume their posts will always be viewed as being made in their official capacity and could potentially influence a political issue , in violation of the law . Furthermore , even if a post regarding a political issue is legally permissible on a social media site maintained as a private citizen , school administrators should be mindful of the impact of their speech from a public relations standpoint . In any school community , there are bound to be differing views on any political issue before the public . Accordingly , school administrators should proceed with caution when making any social media post related to a political issue or ballot measure .
The foregoing recommendations are not intended to dissuade school administrators from promoting themselves and the school community through social media . Rather , school administrators are encouraged to “ think before they post ” and consider the potential impact of their statements online .
Gretchen M . Shipley is the Office Managing Partner in the San Diego office of Fagen Friedman & Fulfrost LLP . She is the cochair of the firm ’ s eMatters Practice Group . In her leadership role , she keeps the firm and its clients in front of the legal issues that stem from technology in today ’ s education environment .
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