Facebook-Venting Teacher Keeps Her Job

A New York appellate court recently agreed that a teacher should not have been fired for complaining about her students on Facebook.  The appellate court’s May 7, 2013 decision in In the Matter of the Application of Christine Rubino v. City of New York is here, and the lower court’s Feb. 1, 2012 decision is here.

On June 23, 2010, after a long, tiring day, tenured fifth-grade teacher Christine Rubino decided to let off some steam on Facebook.  Her post, which refers to the drowning of a NYC public school student during a school trip the previous day, reads:

After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!

When one of her Facebook friends asked whether she would “let [a student] float away”, she responded that she would “not throw a life jacket in”.

The DOE charged Ms. Rubino with “misconduct, neglect of duty and conduct unbecoming her profession”.  Because she was a tenured teacher, she was entitled to a hearing under New York Education Law § 3020-a.  That hearing, which lasted several days, culminated in her termination.  Ms. Rubino challenged that determination as being “arbitrary and capricious”.

The trial court vacated her termination, finding it “so disproportionate to her offense as to shock one’s sense of fairness”.  It reasoned:

[Ms. Rubino’s] 15-year employment history with the DOE was unblemished before she posted the offensive comments, and she posted them outside the school building and after school hours. Moreover, there is no indication in the record, nor any finding, that her postings affected her ability to teach. …

There is also no evidence that her postings injured her students or that she intended any injury. Although the hearing officer emphasized the public nature of her postings and her creation of an “electronic footprint,” she made no finding as to their effect on petitioner’s past and future students. And, the specter of racism emerging from the postings did not originate with petitioner, and there is no indication in the record apart from the posting that she is intolerant or that the feeling she expressed, made after a hard day at work, affects the manner in which she teaches and treats her students.

While I do not address the hearing officer’s determination as to the alleged violation of petitioner’s first amendment right to freedom of speech …, in these circumstances, termination of petitioner’s employment is inconsistent with the spirit of the first amendment. Facebook has rapidly evolved from a platform used solely by American college students to a world-wide social and professional network. It is commonly used to advertise businesses, organize parties, debate politics, and air one’s grievances, among myriad other uses. … Indeed, with Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend. Thus, even though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable. While her reference to a child’s death is repulsive, there is no evidence that her postings are part of a pattern of conduct or anything other than an isolated incident of intemperance.

Moreover, there is no reason to believe that petitioner will again post inappropriate or offensive comments online, as she repeatedly apologized during the administrative hearing for the posts, and expressed tearful remorse at oral argument before me. Although she was found to have violated DOE’s trust by interfering with the investigation, petitioner denies having done so and thus cannot be expected to express remorse for it. … In any event, her clumsy attempt at a coverup reflects panic, not planning.

The court also seized upon the “teaching potential” of the situation:

[W]hile students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society. Ending petitioner’s long-term employment on the basis of a single isolated lapse of judgment teaches otherwise. … [T]ermination in these circumstances does not correspond with the measure of compassion a teacher should show her students. Rather, it places far too great a strain on the right to express oneself freely among friends, notwithstanding the repulsiveness of that expression.

Accordingly, the court granted Ms. Rubino’s petition “to the extent that [her] termination is vacated” and remanded the matter to the DOE “for the imposition of lesser penalty in accordance with” its decision.

The appellate court agreed, largely echoing the trial court’s reasoning:

The record shows that petitioner teacher posted comments on a social media website alluding to a tragedy involving an unknown student at a different school. Although the comments were clearly inappropriate, it is apparent that petitioner’s purpose was to vent her frustration only to her online friends after a difficult day with her own students. None of her students or their parents were part of her network of friends and, thus, the comments were not published to them, nor to the public at large, and petitioner deleted the comments three days later. Despite petitioner’s initial denials when confronted about the incident several months later, she admitted to making the comments at the disciplinary hearing, acknowledged that they were inappropriate and offensive, and repeatedly expressed remorse. Although the Hearing Officer found that petitioner engaged in a plan with her friend to mislead investigators right after the allegations surfaced, the court reasonably concluded that petitioner’s actions were taken out of fear of losing her livelihood, rather than as part of a premeditated plan. Under the circumstances, which includes the lack of a prior disciplinary history during petitioner’s 15-year career, and her expression that she would never do something like this again, Supreme Court properly found the penalty of termination to be shocking to one’s sense of fairness.

In sum, Ms. Rubino’s job was saved.  But it would be a mistake to read this decision as a “victory” for her, or as an endorsement of venting about work on social media. To the contrary, she was forced to endure an investigation and a multiple-day hearing, and appears to have been required to incur the costs of hiring an attorney to defend her.

Also, the result reached here was heavily fact-dependent, and may very well have been different if different judges heard the case.

Finally, as a tenured teacher, Ms. Rubino was entitled to the procedural protections of Education Law § 3020-a, which at-will employees of private companies do not enjoy.

The take-away is clear:  venting about one’s job on social media is risky business.

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