The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Westlaw just posted a very interesting employment arbitration decision from July of this year, and I thought I'd pass it along. First, the backstory, summarized well by the Brandeis Center (which took the teacher's side, but which I think laid out the facts fairly):
[I]n November of 2016, … a then-Stoughton High School senior ("John Doe") posted a swastika while the students were decorating the "Spirit Wall" as part of the school's annual "Spirit Week" activities. When other students asked him to remove the swastika—including a Jewish student, as the other students pointed out—John Doe responded, "well just burn it like they did to the Jews." John Doe served a six-day suspension for his actions.
As news of the incident and John Doe's suspension spread throughout the school, John Doe's mother complained to the superintendent of schools that Ms. Moll and the other teachers were targeting, defaming and bullying her son by discussing the anti-Semitic incident with others, causing him to suffer emotional distress. The mother also complained that Ms. Moll withdrew a letter of recommendation for acceptance at a college that she had submitted for John Doe [and that Ms. Moll provided some information about the incident to the college administrator who contacted her about why she withdrew her letter, and the information led the college to withdraw Doe's acceptance].
The school suspended Moll for 10 days (plus an extra 10 days for supposedly lying during the investigation, but I set that aside for the rest of the post, largely because the arbitrator found that Moll hadn't indeed lied); here was the school's argument, as set forth by the arbitrator:
[The school] asserts it had just cause to suspend [Moll] …, even though it was the first time she was disciplined, because she bullied a student, [and] violated the Employee Handbook …. When [Moll] heard that [Doe], a student for whom she had written a recommendation, may have been involved in a swastika incident, her first reaction was to confirm this so she could take action. She spread the story to other teachers, including [REDACTED] and pursued the topic with [REDACTED] repeatedly. She also contact the student's college of choice, reported that he had engaged in an action for which he was disciplined, and included details of the infraction.
[The school] does not challenge the fact that [Moll] had the right to withdraw her letter of recommendation; however, she went out of her way to inform the college of specifics of [Doe]'s actions, as she understood them, in what can only be described as an attempt to interfere with his acceptance to that college. [Moll] reached her conclusions about the student immediately upon confirming that [Doe] had made a swastika and an insensitive comment on November 22nd. In light of her comment to Dean [REDACTED] on November 23rd, it proves she made her decision to withdraw her letter without knowing all the details of the incident. The timing of [Moll]'s actions is significant because she informed the college before [Doe] had been afforded due process and before [the principal] had disciplined him in accordance with the Student Handbook. Nevertheless, [Moll] took it upon herself, without any thought to [Doe]'s rights, to interfere with his future. Again, she acted contrary to her stated interest in protecting students.
Although [the school] acknowledges [Moll] had every right to withdraw her letter of recommendation that is not why she was disciplined. Rather, [the school] contends [Moll] did not have the right to tell the college the details for which the student was disciplined or that he had been suspended. In fact, as [the principal] testified, in her six years as principal, she has never notified a college of a student's discipline. Students are expected to self-report on their applications any suspensions over ten days. If a college wants details about a student's disciplinary history, it will reach out to the school through the principal's office, not through individual teachers. Finally, even if she had the correct details, [Moll] knew or should have known that sharing the details of a student's discipline was not appropriate. Instead, she intentionally chose to give details rather than refer the college admission's office to [the principal] the person responsible for discipline. By doing so, [Moll] went outside the "chain of command" she insisted that she had to follow….
[The school] also argues [Moll] violated [the school]'s Employee Handbook. That Handbook contains a "Bullying Prevention and Intervention Plan." There is no dispute that [Moll] received a copy of the Handbook, and its contents clearly applied to her. It is well established that teachers hold a position of special public trust. Students must be able to reply on teachers to exercise sound judgment and maintain appropriate boundaries.
[Moll] violated that trust when she sought out teachers and students to discuss [Doe]'s actions. She took actions to ensure there were consequences, in addition to those imposed by the Administration, for his actions. [Moll] spoke to another student about the incident, selecting him because he was Jewish. She asked the student if he was angry about what had happened and when he said he was not, she told him she was disappointed in him, apparently trying to create a hostile environment for [Doe]. In addition, although the two female students who reported the swastika incident to [Moll] had said they were not in fear of or concerned by the student's actions, [Moll] portrayed them as upset, demonstrating that she was trying to get them to be angry with [Doe].
[The school argues Moll]'s actions meet the definition of bullying from the Employee Handbook …. The student's reaction to [Moll] supports this conclusion. [Doe] avoided [Moll] in the halls because she had created a hostile environment. The Administration disciplined [Moll] for failing to provide the appropriate educational climate, failing to perform her roles and responsibilities as a teacher, and failing to exercise sound judgment….
Finally, [the school] asserts the First Amendment is not applicable in this matter. [Moll] contends she was exercising her first Amendment rights when she spoke to the college, the teachers, and students; however, the right to free speech is not absolute. The First Amendment does not grant teachers the right to violate a student's rights under the Student Handbook or to violate the Employee Handbook.
The arbitrator largely agreed with Moll, and rescinded her suspension:
[Moll] did not engage in bullying, violate the Employee Handbook, act contrary to the mission of the school, or demonstrate conduct unbecoming a teacher, during any of her conversations with students or fellow teachers. She never discussed [Doe] or his discipline with any students. Rather, she was apprised of an incident by [REDACTED] and [REDACTED], which she said she would have to confirm. There is no evidence that [Moll] pursued the subject further with either of them.
She brought up the incident, not [Doe], in her conversation with [REDACTED] in the context of inquiring about his well-being. Furthermore, the record is clear that [Moll] never spoke to [Doe]. As for her conversations with other teachers, again the evidence does not support the allegation that [Moll] was targeting [Doe]. Rather, [Moll] and her peers were discussing a serious incident that was an ongoing topic among both the student population and the teachers, and was the subject of a sanctioned faculty meeting.
It is not unexpected for teachers to discuss matters affecting the student population and the educational environment. In fact, not only did the Employer fail to cite any rule or policy prohibiting teachers from engaging in such discussions, its Mission Statement states that the school's "goal is to provide students with the knowledge and skills needed to become articulate, productive, creative, and responsible citizens." Certainly collaborating with peers on how to address this topic within the school community would fall within the goal of providing students with the knowledge and skills needed to become responsible citizens. In addition, from the record evidence I conclude that [Doe] may have become emotionally distraught about all the attention the incident received and reluctant to attend school, but that was due to his behavior and not because of [Moll]'s actions.
The arbitrator concluded, though, that Moll could be reprimanded for giving extra details to the college to which Doe was applying, beyond just withdrawing the letter of recommendation:
With respect to [Moll] withdrawing [Doe]'s letter of recommendation, as the Employer acknowledged, she had every right to do so…. [H]owever, the matter did not end there. When the representative from the school of choice called her back the next day and asked if she could give reasons for withdrawing her letter, [Moll] proceeded to tell him it involved an anti-Semitic incident and used the words "hate speech." This went beyond [Moll]'s right to withdraw her letter or to express a protected opinion. [Moll] made a representation to the school of choice about an incident she knew was under investigation by her school's administration for possible disciplinary action rather than refer that representative to the administration.
The Union contends [Moll] cannot be disciplined because she did not have notice of a consistently enforced rule, reasonably related to the orderly operation of Employer' business, prohibiting her from disclosing this information. [Moll] admitted during her arbitration testimony, however, that she was aware her school had a "chain of command." Furthermore, she testified that, although teachers are mandatory reporters and are supposed to report incidents such as the swastika one, such incidents are supposed to be dealt with up the chain of command.
In fact, as [Moll] was well aware, the school administration was already handling the incident. When she went to see Dean [REDACTED] on November 23, he told her he was aware of the incident and it was being taken care of. Dean [REDACTED] had spoken to [Doe] that morning and given him a two-day emergency suspension pending a hearing with [the principal] The hearing took place on November 29, the Tuesday after Thanksgiving break, and [Doe] was suspended the next day, November 30. [Moll] called the school of choice to withdraw her letter the day before [Doe]'s hearing, and spoke to the representative the day of the hearing.
[Moll] was not a party to any of these proceedings. She had no access to student disciplinary records. She also had no authority with respect to student discipline. [Moll] disclosed information concerning an incident the administration was in the process of investigating and for which she had no first-hand information, rather than refer the school of choice to someone in the administration. In doing so she ignored her school's established chain of command.
I need not reach the First Amendment argument raised by the Union because this does not involve the issue of whether classroom speech is reasonably related to a legitimate pedagogical concern. Nor does it involve [Moll]'s characterization of the swastika. Rather, it involves [Moll]'s violation of an Employer protocol of which she clearly had knowledge and understood. For this reason the Employer had just cause to discipline [Moll].
[But I] do not agree with the Employer's assertion that by giving these reasons to the school of choice [Moll] engaged in bullying of [Doe] in violation the Employer's Bullying Prevention and Intervention Plan. Her speaking to the school of choice, while contrary to the Employer's established chain of command, does not fit within the definition of "bullying," as cited above. It did not cause physical harm to [Doe] or damage his property. It did not put [Doe] in reasonable fear of harm to himself or of damage to his property. It did not infringe on [Doe]'s rights at school, or materially and substantially disrupt the education process or orderly operation of the school. Furthermore, as I have already noted, to the extent [Doe] experienced emotional harm or felt the school had become a hostile environment, this was a direct result of his own behavior….
Because I have found that [Moll] did not commit the vast majority of infractions cited by the Employer, the suspensions it issued are not warranted. Having found, however, that the Employer had just cause to discipline [Moll] for disclosing to the school of choice information concerning the swastika incident in violation of an Employer protocol, some discipline should be imposed. As a general rule, discipline should be corrective and should be administered in a consistent manner, i.e., employees who engage in the same type of misconduct must be treated essentially the same unless a reasonable basis exists to vary the punishment.
[Moll] has been employed by the Employer as an English teacher in its High School for 16 years. Prior to this incident, she had an unblemished disciplinary record…. [O]ther teachers, who have been employed for similar periods of time and who also have unblemished records, were issued a letter of reprimand for their respective infractions [in other cases]. In light of [Moll]'s single instance of misconduct, her clean disciplinary record, and the existing comparative discipline of which I am aware, I find a letter of reprimand is appropriate.
Whether Doe should or shouldn't have been punished for his speech wasn't an issue in the arbitration, and I can't speak with whether such speech is protected by the First Amendment—that depends on whether it was seen as sufficiently likely to be sufficiently disruptive, and I don't know the facts on that. Likewise, I can't speak with confidence about whether the teacher's speech should have been seen as more constitutionally protected; I don't think the arbitrator was right to reject the First Amendment argument simply because the speech violated an employer rule, but it's possible that the violation might itself have been seen as disruptive enough to the school's mission to be constitutionally unprotected. The free speech rules in this area are pretty vague and can turn on subtle factual differences. But I just thought this was an interesting story to pass along, as an illustration of how some such controversies sometimes proceed.