Source:
NSBA Legal Clips; Free subscriptions available at www.nsba.org/legalclips. Reproduced with permission.
Copyright © 2013, National School Boards Association. All rights reserved.
In re Tenure Hearing of Jennifer O’Brien, No. A-2452-11T4 (N.J.
Super. Ct., App. Div. Jan. 11, 2013)
Abstract: A two-judge panel of the Appellate Division of the New Jersey
Superior Court has ruled that school district officials were justified in
terminating an elementary school teacher for posting derogatory remarks on
Facebook about her students, including referring to them as “future criminals.”
Agreeing with the administrative law judge (ALJ) and the Acting Commissioner of
Education, the panel concluded the teacher’s remarks were not protected by
the U.S. Constitution’s First Amendment Free Speech Clause because the remarks
were not made on a matter of public concern.
The panel also found evidence supporting the ALJ’s and
Commissioner’s determination that the teacher had engaged in conduct unbecoming
a tenured teacher. Finally, the panel agreed with the ALJ and Commissioner that
her termination was the appropriate penalty.
Facts/Issues: At the time of her termination, Jennifer O’Brien was
employed by the School District of the City of Paterson (PCSD) as a first grade
teacher. In March 2011, she posted two statements on Facebook that had cast her
students in a derogatory light, including referring to them as “future
criminals.” The remarks gained widespread public attention, with a number of
parents complaining about O’Brien’s comments.
After PCSD’s Deputy Superintendent filed charges against
O’Brien for conduct unbecoming a teacher, PCSD’s Superintendent found probable
cause to support the charges and O’Brien’s termination. The charges were then
filed with the Acting Commissioner of Education, who referred the matter to the
Office of Administrative Law for a hearing before an ALJ.
The ALJ rejected O’Brien’s argument that her remarks were
entitled to First Amendment protection on grounds that she had addressed a
matter of public concern, i.e.,
student misconduct. Instead, the ALJ found the remarks were “a personal
expression” of dissatisfaction with her job. The ALJ also concluded that even
if O’Brien’s speech was on a matter of public concern, her right to express her
views was outweighed by PCSD’s need to operate its schools efficiently. The ALJ
stated that “in a public school setting thoughtless words can destroy the
partnership between home and school that is essential to the mission of the
schools.”
The ALJ also found the evidence supported the charges of
conduct unbecoming a teacher because it showed O’Brien failed to maintain a
safe, caring, nurturing, educational environment. Additionally, the ALJ
determined that O’Brien breached her duty as a professional teacher. Lastly,
the ALJ found O’Brien’s conduct justified her removal because O’Brien’s
relationship with the Paterson school community had been irreparably damaged.
The Acting Commissioner adopted the ALJ’s ruling.
O’Brien appealed that decision, raising three arguments:
(1) the ALJ and the Commissioner erred by rejecting her constitutional claim;
(2) the tenure charges were not supported by the evidence and should have been
dismissed; (3) her removal was not the appropriate penalty.
Ruling/Rationale: The Appellate Division
panel rejected all of O’Brien’s arguments, finding them without merit, and
affirmed the ALJ’s and Commissioner’s decisions. The panel concluded that
O’Brien’s remarks did not constitute protected speech because they were
personal statements motivated by her dissatisfaction with her job and the
behavior of some her students. The panel also agreed that even if the remarks
were on a matter of public concern, PCSD’s interest in the efficient operation
of its schools outweighed her right to free speech.
The panel also found that the evidence supported the
ALJ’s determination that O’Brien had engaged in conduct unbecoming a tenured
teacher. It pointed out that both the ALJ and the Commissioner found that by
posting the comments, O’Brien had demonstrated a lack of control “inimical to
her role as a professional educator.”
Finally, the panel rejected the argument that O’Brien’s
termination was not an appropriate penalty. It stated: “We are satisfied that,
in determining the appropriate penalty, the ALJ and Acting Commissioner considered
all relevant factors and reasonably concluded that the seriousness of O’Brien’s
conduct warranted her removal from her tenured position in the district.”
In re Tenure
Hearing of Jennifer O’Brien, No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan.
11, 2013)
[NSBA’s
Editor's Note: In November 2011, Legal Clips summarized an article in
The Record, which reported on ALJ Ellen Bass' ruling. "O'Brien has demonstrated a
complete lack of sensitivity to the world in which her students live,” Bass
said. “The sentiment that a 6-year-old will not rise above the criminal element
that surrounds him cuts right to the bone.” Bass also noted that O’Brien had
failed to express genuine remorse during her August 2011 hearing. “I came
away with the impression that O’Brien remained somewhat befuddled by the
commotion she had created,” the judge wrote.]
