Ethical Educator
The Persistent Bigot
School Administrator, September 2017

Scenario: The vice president of a suburban school board is under fire for posting images on his personal Facebook page that critics claim are racist, homophobic and bigoted. Protests before the start of a board meeting include demands for the board president and superintendent to insist the offender resign. The board president has asked him privately to stop posting such images, yet they continue. The superintendent says he doesn’t agree with the posts but sides with the First Amendment. The district does not have a code of conduct. Do the board and superintendent have options?


Meira Levinson:
The first thing the board needs to do is to create a code of ethical conduct so it doesn’t face such a dilemma in the future. Even in the absence of a current code, however, the board and district leadership absolutely have the option to ask the vice president to resign from the board—especially if board members are paid for their service. This is because of the Supreme Court’s ruling in Garcetti v. Ceballos (2006), which declared that government employers have broad discretion to restrict employees’ speech “that has some potential to affect the entity’s operations.”

This board member’s Facebook posts have clearly affected the school district’s operations given the public protests, and they rightly raise concerns about his capacity to set appropriate (e.g., non-racist) district policy moving forward. Teachers around the country have been fired for private Facebook posts that had nothing to do with their jobs but were nonetheless perceived to be inappropriate (see “Facebook Fired,” for a great summary of teacher firing cases related to social media use), and this case seems to be consonant with those.

At the same time as I am relieved the district does have options in this case, I confess that I’m unhappy about having to rely on Garcetti — and on the teacher firing examples — to justify asking the school board vice president to resign. I think Garcetti was wrongly decided, giving the government far too much power over employees’ speech both on the job and in private.

I also believe teachers should enjoy far greater speech protections than they currently do, in particular (but not only) in their private lives. This returns me, therefore, to my original recommendation that the district adopt a clear code of ethical conduct for its school board members and all employees as soon as possible so as to avoid having to make constitutionally permissible, but ethically dubious, claims about its intrinsic jurisdiction over individuals’ private speech.
 
 
Maggie Lopez:
The board president and the remainder of the board need to meet with the vice president. Although the vice president is doing this on his personal Facebook page, he is a public servant who represents the district, the community and the diversity of all students. 

The district should develop its code of conduct as soon as possible. Until then however, there may be a code of conduct for school board members through the state school boards association that applies to this situation. This would help the board address the concerns with the vice president. The board’s legal counsel will be valuable in helping the board and superintendent with the legal aspects and available actions regarding the postings, as well as the First Amendment rights issue.
 
Though the superintendent is the employee of the board, he still has a leadership responsibility to voice his concerns regarding this matter and how it is impacting the district and its students. Even if these postings are the board member’s First Amendment right to free speech, he has an ethical responsibility to be a positive role model for the students he is serving. In this age of social media, which is so second nature to youth especially, is this really what he wants to model for students? The community has given him a clear and strong message through the demonstration at the board meeting that he must reconsider his actions.   
 
 
Sarah Jerome:
The school board must adopt an ethical code of conduct policy. Almost every state school boards association has model policies to share with local school boards. These can be helpful especially when a policy needs to be put in place right away. The dialogue about these policies can be highly instructive and healthy for all members of the board.

Each board member represents all constituents. If images are posted by one member that are disrespectful, a breach is created with the public trust that is difficult to repair. The disrespectful postings also serve as an extremely poor example to the students in the district. 

Certainly, the board president and the superintendent along with the district's legal adviser should speak with the errant board member about his role and responsibilities as a board member.  He should be asked to resign if he can't or won't fulfill those responsibilities in a productive manner.  He may choose not to resign.  State laws vary regarding the recall or dismissal of an elected board member. Legal advice will be important in this arena.
 
Shelley Berman:
School board members are elected. The critics' ultimate resolution is to ensure this one isn’t reelected. Removal from office by the board is not a realistic option. It is unlikely that state law has provisions sufficient to recall him from office and neither the board nor the superintendent has the authority to remove him.  When it comes to free speech rights, even speech that some deem unpopular or offensive, the courts have historically given elected officials a good deal of latitude.

Any board action depends on the nature of the postings. The board must be exceedingly careful not to violate the member’s First Amendment rights and would have to show a compelling governmental interest in limiting an individual’s speech. If the postings rise to the level of hate speech, they could be reported to the police who have legal recourse to intervene.

Absent hate speech, there still are alternatives. The board president could request in a public meeting that the individual stop posting the images. If that is not sufficient, it could be argued that the postings compromise the member’s willingness and ability to enforce the district’s non-discrimination and harassment policies and thus create a significant disruption to the school district’s operations. The board could then pass a censure resolution stating the postings do not represent the views of the board or the district and calling on the member to stop posting such images. However, censure is only a public slap on the wrist unless there is specific board policy or state law that provides additional consequences. Even with a censure vote, the board cannot stop the individual from posting.

The superintendent’s role is even more constrained. Although he can publicize his concern about the posts and his support for inclusiveness, tolerance and respectfulness, the board member is his supervisor and the superintendent has no authority to intervene. He can personally meet with the individual and respectfully discuss how these actions may erode the community’s confidence in the member’s willingness to uphold district policy that prohibits racial and other discrimination and harassment. He can point out that the postings distract from the district's work and the superintendent’s ability to move the district forward and may also undermine community support for the schools.

However, the superintendent has few alternatives to personal persuasiveness. His best course of action is to help the member understand the implications of his postings and let the board and electorate deal directly with the member.
 

 
 Each month, School Administrator draws on actual circumstances to raise an ethical decision-making dilemma in K-12 education. Our distinguished panelists provide their own resolutions to each dilemma. Do you have a suggestion for a dilemma to be considered? Send it to: magazine@aasa.org. 

The Ethical Educator panel consists of Shelley Berman, superintendent, Andover, Mass.; Sarah Jerome, a retired superintendent in Arlington Heights, Ill., and an AASA past president; Meira Levinson, professor of education, Harvard University, and author of Dilemmas of Educational Ethics: Cases and Commentaries; and Maggie Lopez, interim superintendent, Eagle County, Colo.