Wash. teacher learns what happens online doesn’t always stay there

Tuesday, June 23, 2009

A public school teacher who claimed her online comments drew unconstitutional on-the-job repercussions has lost her case before a federal appeals panel.

Tara L. Richerson contended officials for the Central Kitsap School District in Silverdale, Wash., “involuntarily and unconstitutionally” transferred her from her position as curriculum specialist and instructional coach to a classroom teaching position because of her personal speech on her blog.

School officials countered that Richerson blogged negatively about school officials, including some of her fellow teachers and union representatives. For example, Richerson wrote about a union official: “What I wouldn’t give to draw a little Hitler mustache on the chief negotiator.” She also wrote negatively about someone hired to replace her when she received the instructional coach job. She blogged: “But after spending time with guy today, I think Boss Lady 2.0 made the wrong call in hiring him.”

A federal district court ruled against Richerson in March 2008. “Not only was the blog … a breach of confidentiality, it was racist, sexist and bordered on vulgar,” the district court wrote. The district court rejected Richerson’s suit, finding that her speech did not touch on matters of public concern or importance, an essential requirement under the U.S. Supreme Court’s seminal First Amendment public employee cases Pickering v. Board of Education (1968) and Connick v. Myers (1983).

The district court also ruled that even if Richerson’s speech did touch on a matter of public concern, it was not protected under the Pickering-Connick balancing test, which asks whether an employee’s free-speech rights are outweighed by an employer’s right to an efficient, disruptive-free workplace. Under the Pickering-Connick balancing test, courts must ask whether a public employee’s speech will harm close working relationships, cause loyalty or confidentiality problems or interfere with job duties.

Richerson appealed to the 9th U.S. Circuit Court of Appeals, which also ruled against her June 16 in Richerson v. Beckon.

The 9th Circuit assumed that Richerson’s speech touched on matters of public importance, but still ruled in favor of school officials, finding that the school district’s right to an efficient, disruptive-free workplace outweighed Richerson’s free-speech rights. The 9th Circuit unanimously determined that “Richerson’s speech had a significantly deleterious effect.”

Applying the Pickering-Connick balancing test, the 9th Circuit wrote: “Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog.” The court concluded: “Accordingly, the district court did not err in concluding that the legitimate administrative interests of the School District outweighed Richerson’s First Amendment interests in not being transferred because of her speech.”

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