Recent events have brought the question front and center: When can public schools take action to regulate employees’ use of their personal social media accounts? While school employees have the right to their personal freedom of speech, those rights are limited by several key factors:
The subject of the speech. Public school employees do not have unfettered First Amendment rights to speak publicly about internal matters. This means that when employees post on social media about frustrations with coworkers or disagreement with board policies, their speech does not have full First Amendment protection. But when employees post on “matters of public concern” – for example, current events, political, social, or other issues of interest to the community – they generally have the same First Amendment rights as any private citizen (subject to paragraph 3, below).
Whether the speech can be attributed to the school district. Employees do not have the right to speak on behalf of the school district. When employees identify as or hold themselves out to be a school district employee on their personal social media account, it associates all of their posts and comments with the district. This gives the district more rights to act upon the employee’s posts than if the social media account does not identify the district.
Whether the speech (including likes and shares) creates a substantial disruption in school or diminishes loyalty and trust in the district. Just like with students, school districts can take action against an employee when the employee’s speech causes a substantial disruption in the school environment. If the speech impairs supervisors’ ability to discipline or causes disharmony among coworkers, if it damages relationships for which personal trust is necessary, or if it undermines the district’s mission, then the district likely may impose professional consequences based on the post.
In addition to the parameters of First Amendment law, Principle 9 of the Licensure Code of Conduct for Ohio Educators, and some school district policies, contain expectations for employees’ use of even their personal social media accounts. Now may be a good time to remind employees of those expectations, and to share the Office of Professional Conduct’s Social Media Tip Sheet.
Finally, Revised Code Section 3319.641, which went into effect in October 2024, prohibits schools from using “statements of commitment to specific beliefs, affiliations, ideals, or principles concerning political movements, or ideology” to make employment decisions. It is not clear that Section 3319.641 will apply to the types of posts schools have faced in recent days, but depending on the nature of the post, districts may want to consider it in conjunction with First Amendment law in analyzing how to address these issues.
Any determination of whether a district could discipline an employee for social media posts will be highly fact specific. You should consult with legal counsel to determine the best approach considering the legal parameters and your individual community.