Friday, January 09, 2015

The High School Teacher, the Blog and the First Amendment

Natalie Munroe filed a federal civil rights suit under 42 U.S. Code § 1983 against the Central Bucks (Pennsylvania) School District, its Superintendent N. Robert Laws, and Principal Abram Lucabaugh, alleging that “the school administration harassed and eventually terminated her after discovering a private blog in which Munroe has expressed criticism of the school, her co-workers, and her students.”  Munroe v. Central Bucks School District, 2014 WL 3700325 (U.S. District Court for the Eastern District of Pennsylvania 2014).
After the parties had engaged in discovery, the defendants moved for summary judgment on their behalf.  Munroe v. Central Bucks School District, supra. As Wikipedia explains, in U.S. civil practice a court can award summary judgment to a plaintiff or to a defendant,
effectively holding that no trial will be necessary. Issuance of summary judgment can be based only upon the court's finding that:
  1. there are no disputes of `material’ fact requiring a trial to resolve, and
  2. in applying the law to the undisputed facts, one party is clearly entitled to judgment.                      
The judge begins her opinion by explaining that Munroe was hired by the
Central Bucks School District in 2006. . . . to teach English at Central Bucks East High School. . . . [Her] performance evaluations showed that her supervisors regarded her as an effective, competent teacher. . . . [F]rom 2006 until 2010, all of her regular evaluations deemed her performance `satisfactory.’ In June of 2008, Lucabaugh, [her] immediate supervisor, wrote a letter of recommendation in support of [her] application to a graduate program, in which he described [Munroe] as a `woman of utmost integrity, character, and intelligence,” and wrote of her “meticulous, conscientious manner.’ Munroe received tenure in 2010 on the recommendation of her supervisors. Positive evaluations continued until the school's discovery of [her] blog in 2011.

In 2009, Munroe began a blog titled, Where are we going, and why are we in this handbasket? [She] blogged as `Natalie M’ and did not state where she worked or lived. Munroe published a total of 84 blog posts between 2009 and 2010, mostly writing about personal matters unlikely to be of interest to the general public. . . . But on a number of occasions, she wrote about her students and co-workers. Without using names or specific dates, Munroe complained about the rudeness and lack of motivation among her students, referring to them as `jerk,’ `rat-like,’ `dunderhead,’ `whiny, simpering grade-grubber with an unrealistically high perception of own ability level’ and `frightfully dim.’

[She] wrote that parents were `breeding a disgusting brood of insolent, unappreciative, selfish brats.’ She referred to a co-worker by first name and with a vulgar epithet.[She] also complained about the school administration, writing that she had observed the administration harass a colleague until he resigned because the administration felt he was an ineffective teacher. Munroe claims that, for most of its history, the blog enjoyed no more than nine subscribed readers, two of whom were [Munroe] and her husband.

The school administration learned of the blog in February 2011, when a reporter from a local newspaper . . . began asking questions regarding the blog and its contents. On February 8, 2011, the reporter wrote in an email seeking comment that `students apparently have been circulating [the blog] on [F]acebook and through other social media.’ The next day, Lucabaugh summoned Munroe to a meeting, confronted her with printed copies of the blog, and placed her on immediate, unpaid suspension. Later that day, [he] made a statement to the press regarding the blog. The following morning, [her] suspension attracted the attention of several major news agencies and syndicates, including CBS, ABC, NBC, CNN, Fox News, Reuters, the Associated Press, and the Philadelphia Inquirer.  . . . On June 15, 2011, Lucabaugh authored an evaluation . . . that deemed her performance for the preceding academic term `unsatisfactory.’ . . .

Defendants denied Munroe's request to transfer to another school within the district on the grounds that it was too late to effect such a change under her employment contract. Munroe's supervisors required her to complete detailed and exhaustive lesson plans, which she felt were deliberately engineered to be too difficult to complete adequately. Finally, after receiving notice of the school's intention to terminate her contract, Munroe's employment was terminated on June 26, 2012.
Munroe v. Central Bucks School District, supra.
She then took up the issues raised by the motion to suppress, explaining, first, that
[t]o state a § 1983 claim for unlawful retaliation based on her expression of constitutionally protected views under the 1st Amendment, [Munroe] must demonstrate that (1) the speech in question was constitutionally protected, and (2) the exercise of that protected speech was a substantial factor in the alleged retaliation. The first determination is a matter of law, the second a question of fact. Public employees such as [Munroe] do not surrender their constitutional rights as a condition of employment, but courts also have recognized the need of the public employer to maintain efficiency and effectiveness in performance of its official duties. Therefore, courts must `balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [public employer], in promoting the efficiency of the public services it performs through its employee.’
Munroe v. Central Bucks School District, supra.
The judge also noted that a “public employee's speech is protected when he or she (1) speaks as a private citizen upon (2) a matter of public concern, and (3) the employee's interest in exercising his or her 1st Amendment rights is greater than the employer's interest in the efficient operation of the public agency.” Munroe v. Central Bucks School District, supra.  She then noted that, “[f]or the purposes of this summary judgment motion, neither party disputes that Munroe wrote as a private citizen in her blog” and “did not direct her speech to her employers.” Munroe v. Central Bucks School District, supra.
The judge explained that while Munroe’s blog “as a whole” was
dominated by personal issues, within certain blog posts are occasional passages that touch upon broad issues of academic integrity, the value of honor, and students' lack of effort.  Each of these topics is a matter of political and social concern, despite the strong language [she] used. However, context matters. In Miller v. Clinton County, [544 F.3d 542 (U.S. Court of Appeals for the 3rd Circuit 2008),] an employee of a county probation office wrote a letter to a local Common Pleas judge, alleging that her supervisor was ineffective and had aired unprofessional opinions of probationers, whom he called `scum.’
Munroe v. Central Bucks School District, supra.
She went on to point out that, in this case, “on the few occasions” when Munroe
addressed issues of public concern in her blog, she did so in order to discuss other, personal issues. Far from implicating larger discussions of educational reform, pedagogical methods, or specific school policies, [she] mostly complained about the failure of her students to live up to her expectations, and focused on negative interactions between herself and her students. In one memorable passage, [Munroe] began by declaring that she was blogging `at work.’ She stated she had been entering grades and comments on the grades, something toward which she used to devote `a lot of time and effort’ when first teaching.

Instead of using this introduction as a springboard for any number of important discussions (such as the value of the grading system in public school, her personal opinion on the effectiveness of assigning grades, etc.) that might have touched upon real issues of public concern, [she] noted that `[f]or some kids, though, my scornful feelings reach such fever pitch that I have a hard time even putting “cooperative in class” and have, sadly, had some kids for which none of the comments fit.’ [Munroe] then made a list of comments she wished she could write, such as: `A complete and utter jerk in all ways. Though academically ok, your kid has no other redeeming qualities’; `Just as bad as his sibling. Don't you know how to raise kids?’; `Liar and cheater’; and `Utterly loathsome in all imaginable ways.’ Whatever public concern she occasionally touched on is subsumed by personal invective; the blog's `overall thrust’ devalues the discussion of public issues.
Munroe v. Central Bucks School District, supra.
The judge also found it significant that once the blog “became known” to the
school community, the language Munroe used to describe her students and co-workers in the blog soured [her] relationship with the school administration, and it had the potential to do so even before the case garnered the attention of the media. Although Munroe may have occasionally written as a private citizen on matters of public concern, she chose to do so in an opprobrious tone that was likely to generate a strong reaction from anyone connected with the school who read it.

[She] published her views on the internet, where they were later discovered and circulated to the extent that a local journalist learned of it. The discovery of the blog undermines [her] early assumptions that her small readership and relative anonymity would protect her personal comments from reaching their subjects, especially as the blog was not password protected. And although she had no legal obligation to mitigate the damage caused by the media's attention to her story, Munroe's media interviews did not take a conciliatory approach, and instead seem to have fanned the flames of controversy.
Munroe v. Central Bucks School District, supra.
She went on to note that “[i]n balancing the interests of the parties,”
the Court notes that the school had no regulation forbidding teachers from blogging until after the blog's discovery. Public employers may regulate disruptive or unprofessional conduct, however, even without the benefit of a proscriptive policy or ethical guideline. In addition, `where close working relationships are essential and where the speech does not involve matters of significant public concern, the organization need not wait for the full disruptive impact before taking action.’ [Munroe] worked in a school, where students `are impressionable and their attendance is involuntary.’ The position of public school teacher `requires a degree of public trust not found in many other positions of public employment.’ Students who read or were aware of Munroe's blog were confronted with [her] vivid and personal appraisal of their character. This is heightened by the fact that although no names were used, in some blog posts the students would have been identify themselves or their classmates.
Munroe v. Central Bucks School District, supra (citations omitted). As an example of the latter fact, the judge quoted from a Munroe blog entry entitled “`Things From This Day That Bothered Me”:
`4. The fact that the jerk who was out 3 days around our last major assessment because his family took him on trip to Puerto Rico and then emailed me all of this nonsense about how he shouldn't have to take the test on time because he was “excused” for those days, was out again today (the date of another assessment) because his family took him to the effing Master's golf [expletive] over Easter break. Can someone please tell me why Thursday–Wednesday wasn't enough time off to do what had to be done such that he could come back today when he KNEW there was an assessment? ? ? It's good that people value school so mu-wait, no, they don't.’
Munroe v. Central Bucks School District, supra.
The judge therefore found that the defendants were
within their rights to conclude that the blog posts would erode the necessary trust and respect between Munroe and her students, and the record shows that at the behest of concerned parent, the school permitted students to opt out of Munroe's class.
Munroe v. Central Bucks School District, supra.
She therefore held that the defendants were
within their rights to conclude that the blog posts would erode the necessary trust and respect between Munroe and her students, and the record shows that at the behest of concerned parent, the school permitted students to opt out of Munroe's class.
Munroe v. Central Bucks School District, supra.
The judge explained that unlike cases in which employees
spoke only to address matters of public concern, avoided use of personal or inflammatory invective, and although the letters in those cases provoked the ire of their superiors, there was no showing by the [employees] in either case that the statements had caused any serious disruption to office operations.
Munroe v. Central Bucks School District, supra (emphasis  She also noted that “Munroe's blog contains gratuitously demeaning and insulting language inextricably intertwined with her occasional discussions of public issues, and . . . attracted considerable negative attention, from concerned parents and from the public at large.” Munroe v. Central Bucks School District, supra. 
The judge then held that “[u]pon consideration of the entire record, the Court concludes that Defendants did not violate [Munroe’s] constitutional right to free expression.” Munroe v. Central Bucks School District, supra.  She therefore granted summary judgment to the defendants and ordered the Court Clerk’s Office to “close the case.”  Munroe v. Central Bucks School District, supra.
If you are interested, you can read more about the case in the news stories you can find here and here.  

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