Stacy+Bryan's+Judicial+Review+Page

=__Focus: Non-Renewal of Contracts__ =

Autumn, Tara, and Ellen~ Thanks so much for your insight and suggestions. I used many of them in my revisions! ~Stacy

MEMO (DRAFT)

DATE: 06/13/2009 TO: All Administrators, Teachers, Parents, Students, and Community Members FROM: Dr. Stacy Bryan, Superintendent //<--- Yes, I gave myself a promotion AND a doctorate degree!!// RE: Use of Social Networking Sites, Non-renewal of Teacher Contracts, and Confidentiality

The purpose of this memo is to address recent concerns and questions related to the use of social networking sites, such as //My Space//, //Twitter//, and //Facebook//, and the potential impact that behavior on such sites may have on renewal of contracts for teachers. I have received many inquiries about the system's policy related to social networking from those who recognize that it is a challenge to keep up with the ever-changing impact that technology has on our daily personal and professional lives.

It is the stance of the Board of Education (BOE) that teacher use of networking sites is risky; the BOE suggests that teachers carefully weigh the risks and benefits of social networking in the light of their //contractual// obligations as public school teachers. The BOE suggests that teachers using social networking sites refrain from mentioning their affiliation with the school system, and for the safety and security of children, and to avoid confusion about their rights as private citizens in balance with their roles as public school employees, refrain from communicating with students and parents through these sites. (I am confused about the tense or something in this part- I understand what you are trying to say but am not feeling it flow as easily as I think it could- I changed a little bit to see if I could get it- TW)

Parents, we encourage you to monitor your child’s social networking, report any concerns related to school system employees directly to school administration, and reinforce why it is //not// appropriate for children to connect with teachers on social networking sites. A sentence about why is it not appropriate may add impact here- for those parents who have boundary isssues themselves, such as "Social networking sights are intended for peer interaction and school employees are not peers of their students. Interaction between students and school staff is expected to take place during the school day and within the assigned roles." - TW) Appropriate ways to communicate with your child's teacher are provided through the school system in the form of school e-mail accounts, a school web-page, and school based phone numbers and voice mail accounts. I advocate for open and consistent communication between home and school, but respectfully ask that you communicate through the system's provided methods.

Students, we request that you refrain from sending “friend requests” to link your pages to your teachers. Although it may seem fun to connect with teachers outside of school, and you certainly may trust them as important adults in your lives, they are teachers, not "friends". They are responsible to you during the school day in place of your parents, and should not be socializing with you as friends. Their job is to educate. It is important to respect the limits of your relationships with your teachers. Please understand that your teachers want to be there for you, but that using a social networking site is //not// the appropriate place or method for teachers to show support to children. I really like the way you distinctly address the parents and students. It is very clear what each audiences role in this situation is. (ET) Forget my commenting in the earlier paragraph- you had it with the students part- TW

Unfortunately, //inappropriate// social networking has called for the system to examine social networking as a practice, and it is, as always, the behavior of some that sets precedence and dictates the need for policy for all of us. The inappropriate use of social networking has resulted in non-renewal of contracts for teachers across the United States. All one needs to do is search on the Internet for articles related to "conduct unbecoming of a teacher" in order to understand the risks and reality of the situation. Technology has increased opportunities for voicing opinions and connecting with others; simultaneously, it has made the world a very "here and now" place, leaving little time to process and consider ramifications of our actions. Once something is posted, it is memorialized-- if not permanently on the Internet, often in the eyes and minds of the reader. Teachers are representatives of our learning community, and the role they play often extends beyond the school day. Even though the contract day is over, the community stills views teachers as role models for our students; this position of respect and honor requires teachers to be extra vigilant about attitudes, language, images, and messages publicized in affiliation with the school system.

There has been some question about whether the policy and recommendations of the BOE infringe upon a teacher’s First Amendment rights afforded by the //U.S. Constitution//. In //Spanierman v. Hughes, Druzolowski, and Hylwa// (2008), courts established that teachers who utilize social networking sites, whether with students or with other individuals, are **only** protected under the First Amendment when they are speaking out about matters of public concern and in their role as private citizens. The Board protocols and policies will ensure greater protection of both the teacher’s rights as a citizen, and of his/her ability to fulfill the obligations set forth by the contact and our negotiated agreement.

There are times when the system is faced with making decisions about non-renewal of contracts, whether in response to teacher use of networking sites, or for other reasons. **Please be advised that using such a site is __not__ reason for non-renewal, although information, images, and messages a teacher posts on the site //may// warrant disciplinary action, including non-renewal of a teacher's contract**. All issues of non-renewal are personally reviewed by me, and my recommendations are sent to the Board of Education for approval or denial. Teachers are hired to represent the system for the purpose of implementing the approved curriculum; when speaking in any setting as a teacher in our system, one //can// be held accountable to the limits of the contract.

Contract non-renewal is managed in different ways for two groups of teachers: non-tenured teachers and tenured teachers. Non-tenured teachers may be released from their contracts at the end of the contract year //without// a rationale statement. They are **not** entitled to a hearing under Board of Education policy, or under state and federal mandate. A non-tenured teacher can challenge the non-renewal of his/her contract is if he/she has evidence that his/her Constitutional Rights have been violated. The //only// contractual right a non-tenured teacher has is that he/she must be given timely notice of the non-renewal.

Tenured teachers are afforded certain rights beyond those afforded to non-tenured teachers. Tenured teachers not only are afforded the right to timely notice, but must be provided with a reason for non-renewal and an opportunity for a hearing to ensure that due process was afforded during the decision making process. Those rights are the privileges of tenure, which is earned by teachers based on performance generally following two complete years of successful teaching in our system. With respect to hearings for non-renewal of tenured teacher’s contracts, we turn to court findings to determine best practices. In the //Board of Regents of State Colleges v. Roth//, the courts established the precedence that procedural due process requirements only apply when there is a deprivation of specific interests, namely liberty and property; the range of the protected interests has limits. If the impartial hearing officers determine that due process was afforded, and that the rationale for non-renewal did //not// violate the teacher’s Constitutional rights, the non-renewal will stand.

It is our professional and ethical responsibility to maintain the confidentiality of our teachers. When a teacher’s contract is not renewed, public statements will not be provided from the system. As you speak with teachers who openly share their own status or rumors about the status of someone else (Do you want to comment on the possible issue of slander here?), be advised that the schools system and the Board of Education will not discuss human resources issues with anyone other than the parties directly involved in the contract. In any situation involving the safety of a child, School Counsel and appropriate law enforcement agencies are called as part of the protocol, and those directly involved will be contacted as appropriate. Each situation must be handled on an individual basis, with the deciding factor always being what is best for the child involved.

Should a teacher ever suspect that non-renewal of a contract is related to retribution for exercising rights as a private citizen protected under the First Amendment, he/she should contact me in writing to allow for a thorough review by our School Counsel, who is adept in advising me in all legal matters. It is always our desire to act in ways that are fair, equitable, and legal, and to attempt to resolve issues together.

It is always a difficult decision when I am asked to approve a motion for non-renewal of a teacher’s contract. There are so many factors to consider, but it is essential that all members of our educational community understand that the decisions are always made through the lens of what is BEST for our students. When a teacher’s personal choices //threaten// to affect or //actually// affect the quality of the education afforded to our children, or the safety of our children, the needs of the children must come first. It is simply not acceptable to allow any group of children to endure less than satisfactory teaching, or a less than safe environment. Ideally, decisions about non-renewal are intended to help us reach our vision and mission of providing an exemplary education to ALL students.

Comments Autumn Kelley The bold highlights in the document clarify for the reader/ audience what is to be determined with regard to disipline action and non renewal of contracts. Placing comments and information to the parents at the beginning of the memo is also key to allow them to access their information prior to the discussion in length regarding teachers. I would only question whether parents should have access to the facts regarding teacher contract renewal ect. It might be good to run the memo past the school board or a teacher union member to get clarity regarding if any of this information might not be appropriate for parent knowledge. I enjoyed reading your response. 

Dear Dr. Bryan:) Interesting! We looked at very similar cases and issues and went in totally different application directions! I really liked your approach to this memo. You made the issues relevant and included each audience member in the discussion. I wonder if there would be a way to bring in more specific actions that may have been defined in the court cases. For example, did the court clarify what was considered "matters of public concern"? Also, clarifying (if the court did) the range of liberty and property. From the perspective of a teacher, I would want to know what specific due process was afforded. Overall, well done. Your writing is clear and you effectively convey your message. I highlighted spelling mistakes in red:) Ellen

Stacy- everything you have is well written and informative. I found myself questioning a way to get the non-renewal information first, but the idea I had (parents asking for firing via a social networking site) would address more about their rights to speak rather than the rights of teachers. Or you could have issue that multiple requests were recieved by your office this year by student, parent, and peer sources- although I hardly think a superintendant would like to say "hey everyone, we provide such a bad education that everyone wants someone fired. If you are in this category-here is what you need to know" Oh the horror. Stick with the one you have- TW

__Week 3: Individual Judicial Review__
 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed. 2d 548
 * Board of Regents of State Colleges v. Roth**

1972

This case was brought forth by David Roth, whose contract was not renewed in 1968. Roth served as an assistant professor at Wisconsin State University on a one year contract that did not have a provision statement for rehire or tenure. Roth alleged that the University's decision not to rehire him contradicted his Fourteenth Amendment rights in substantive and procedural ways. He claimed that the actual reason for non-renewal of his contract revolved around freedom of speech, and the WSU's alleged dissatisfaction with his public criticism of the university. He also claimed that the University failed to provide a reason for non-retention in addition to failing to provide an opportunity for a hearing.

Did the respondent have a constitutional right to a statement of reasons for non-renewal and a hearing on the University's decision?

The respondent did no have a constitutional right to a rational statement or hearing related to the University's decision not to rehire him.

Procedural due process requirements only apply when there is a deprivation of interests, specifically liberty and property. The court found that, when considering protected interests, the right to a prior hearing is paramount, but that the range of protected interests has limits. That is, one has to consider the value, or "weight", of the interest at stake. According to The Supreme Court, liberty includes "freedom from bodily restraint", the right to develop contracts, the right to engage in any of the "common occupations of life", the right to gain "useful knowledge", the right to get married, the right to establish a home and bring up children, the right to worship, and the right to enjoy privileges historically deemed "essential" to the "orderly pursuit of happiness". The court held that there may be cases in which a State may refuse to re-employ a person wherein interests in liberty may be implicated, but in //Roth//, they did not find that to be true because they did not make any charges against Roth that "might seriously damage his standing and associations in his community", nor did they base his non-renewal on such a charge. In this case, the court did not deem that Roth's interest was in his "good name, reputation, honor or integrity".

__Week 4: Judicial Review__

 * Jeffrey Spanierman v. Abigail Hughes, Anne Druzolowski, and Lisa Hylwa**

3:06VO1196 (DJS)

September 16, 2008

Jeffrey Spanierman brought action against the Superintendent and the Assistant Superintendent for the district in which he was employed, and against the Principal at the school in which he worked, claiming that they violated his First and Fourteenth Amendment Rights under the U.S. Constitution. Spanierman was hired in 2003 as a high school English teacher in Connecticut. When he was notified that his contract would not be renewed, he was a non-tenured teacher as defined by the union negotiated collective bargaining agreement. It was documented that Spanierman used MySpace to network with students about both school related and non-school related topics on multiple occasions. A colleague counseled him about the content of his page, expressing that he should only use the school approved e-mail for educational communication with students, suggesting that he discontinue the use of the site, and documenting the conversation; his response was to delete one account and open another to continue casual networking with his students. In response, the colleague reported his behavior to the Principal. There were inappropriate images and dialogues on the pages; the content of the pages were witnessed by students, teachers, and the defendants in this case as well as personnel responsible for internal investigations within the school system. The system engaged in an investigation of Spanierman’s profile and pages, and found justification for non-renewal. A letter was sent from the Assistant Superintendent in March to inform Spanierman of the decision, and in April he and his attorney met with the Superintendent and the person who conducted the official internal investigation. The Superintendent upheld the Assistant Superintendent’s decision for non-renewal. Spanierman was paid through the summer of 2006, when his contract with the Department of Education for the 2005-2006 school year expired. Spanierman filed a retaliation claim, holding that his rights to free speech and free association, in addition to his rights to due process were violated. Spanierman also claimed that he was being treated differently than other teachers due to his association with MySpace. The final court order related to his claims was made on September 16, 2008, with the court examining each claim, providing multiple references to previous cases to support their findings.

Multiple issues were brought forth by this case: • Does the First Amendment protect teachers in their association with MySpace (or similar social networking sites)? • Did the DOE violate Spanierman’s First Amendment right to speak freely about issues of public concern? • Is there justification for a “class of one” suit in response to alleged unfair treatment? • Did the respondent have a constitutional right to a statement of reason for and a hearing related to the rationale behind the non-renewal of his contract?

Teachers who utilize MySpace for social networking, whether with students or with other individuals, are not protected under the First Amendment unless they are speaking out about matters of public concern, and in such a case, they would need to present evidence of a causal relationship between non-renewal of their contract and the information on the page. Additionally, the First Amendment does not protect employees from disciplinary action when behaviors are directly in conflict the policies. Additionally, non-tenured teachers do not have the right to due processes by nature of their contract.

Spanierman did not have a constitutional right to a hearing related to the Department of Education’s (DOE) decision not to renew his contract. Procedural due process requirements only apply when there is a deprivation of interests, specifically liberty and property; a non-tenured teacher’s contract is only good for the duration of the year, and there are adequate cases, beginning with Roth, that clearly document that non-tenured teachers cannot reasonably assume that their contracts will be renewed at the end of each year. In deciding about whether Spanierman’s right to speak freely were violated, the courts examined whether he was speaking as a citizen or a public employee. By examining the information on his MySpace page, the court determined that Spanierman spoke as an employee, and therefore that the Constitution would not protect him from employee discipline. Additionally, the court considered whether the information posted was a matter of public concern; the Supreme Court has held that a “federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” In reviewing the content of Spanierman’s MySpace pages, it was concluded, “almost none of the contents… touched on matters of public concern.” The only exception was a poem on the page related to the war in Iraq, but there was no evidence of causal connection between this poem and the decision not to renew his contract; the court noted that the 5-6 month lapse in time was not proof of causation, and that there was no evidence of that the defendants had any intention for retaliating against him for the poem’s contents. It is the responsibility of the respondent to prove causal connection when claiming a First Amendment violation, but even in the presence of such a violation, if there is evidence that the contract would not have been renewed for other reasons, the courts will uphold the DOE decision. The freedom of association claim had inadequate evidence to substantiate the claim; it was assumed that the association was with MySpace as an “organization”. Because users define their own groups on the website, MySpace is not recognized as an organization in and of itself. Additionally, other teachers with MySpace pages had their contracts renewed; this further undercut Spanierman’s arguments. Last, but not least, were the findings related to his “class of one” statements: Up until June 9, 2008, Spanierman may have had the ability to file a “class of one” suit against the board, and perhaps may have been able to prove such an allegation; after that date, the Supreme Court found that the “class of one theory” does not apply in the public employment context.