Facebook Phobia! the Misguided Proliferation of Restrictive Social Networking Policies for School Employees

IntroductionA special education teacher in Florida posted on Facebook that he was "super horny" and "an A++ in bed."1 Another Florida teacher's Facebook post read, "I'm fairly convinced that one of my students may be the evolutionary link between orangutans and humans."2 In New Jersey, a teacher posted that homosexuality was a "sin" that "breeds like cancer."3 With controversial posts like these attracting public scrutiny, it is no surprise that legislators and school leaders are actively creating policies to restrict school employees' use of social networking.4 A Missouri law, dubbed the "Facebook Law," restricted educators from using social networking sites that allowed them to communicate privately with students.5 In 2011, however, a Missouri trial court found possible freedom of speech violations, and the law was later repealed.6Missouri's failed Facebook Law sparked national debate concerning the rights of school employees with regard to online speech. Nonetheless, policymakers and administrators continue to advocate for and enact similar restrictive policies.7 Proponents of these policies believe they are necessary to regulate employees' undesirable online activity.8 In addition to concerns over controversial employee posts, many believe that social networking promotes inappropriate, and often secret, relationships between teachers and students.9Yet opponents argue that punishing and prohibiting employees' use of social networking reaches too far and may even violate employees' constitutional rights to free expression and privacy.10 Those against restrictive policies contend that the focus should be on regulating the conduct rather than the mode of communication.11 Opponents agree that school districts should be free to discipline employees for conduct that negatively impacts teaching effectiveness. However, opponents do not believe modes of communication alone-such as e- mailing, texting, or social networking-deserve to be the target of regulation. They argue that, rather than imposing stricter limits, the existing restrictions should be lifted. They contend that current laws should better align with modern technology and culture.12Those challenging restrictive policies cite examples in which schools have disciplined employees for cyber behavior that is seemingly harmless. For example, Georgia teacher Ashley Payne claimed she was forced to resign after the district received an anonymous complaint that her Facebook page included vacation pictures showing her holding a glass of wine and a mug of beer, including a post explaining that she was going to play "Crazy Bitch Bingo."13 Payne claimed that nothing on her Facebook page was immoral or illegal. Further, she reasoned that she had taken special precautions by ensuring her page was private and by not "friending"14 any students.15When faced with situations that range from mildly unprofessional conduct to serious sexual misconduct, it is no easy task to determine how schools ought to react to employees' social networking. Administrators and policymakers are confronted with the difficult responsibility of balancing protecting school employees' constitutional rights, safeguarding the image of teachers as role models, and preventing inappropriate employee-student relationships.This Article offers guidance to those faced with this challenging balancing act. Specifically, it explains why restrictive employee social networking policies should not be adopted. To provide necessary background for this issue, Section II describes the two main reasons schools have enacted restrictive policies. Then, examples of restrictive social networking policies found in state legislation, statewide guidance, and district policies are summarized in Section III. In order to examine whether restrictive policies are necessary, Section IV analyzes twenty- six relevant cases. Based on the review of the case law, Section V recommends that schools adopt permissive social networking policies because existing law already addresses the concerns driving the enactment of restrictive policies. …