Business Law 13th Edition by Frank Cross, Kenneth Clarkson, Roger LeRoy Miller

تمرين 1

In The Language Of The Court
per curiam.
* * * * [Jennifer] O'Brien has been employed as a teacher in the [City of Paterson, New Jersey] schools since March 1998. She has a master's degree in education, and certifications as an elementary school teacher and supervisor.
* * * In December 2010, O'Brien was assigned to teach the first grade [at School No. 21].
* * * There were twenty-three students in O'Brien's first-grade class. Almost all were six years old. All were either Latino or African-American.
On March 28, 2011, O'Brien posted two statements on Facebook, an Internet social-networking site. The first statement was, "I'm not a teacher-I'm a warden for future criminals!" The second statement was, "They had a scared straight program in school-why couldn't I bring first graders?"
* * * * On March 30, 2011, [Frank Puglise, the principal of School No. 21] confronted O'Brien about the postings. According to Puglise, O'Brien insisted that she did not intend her comments to be offensive, but she was otherwise unrepentant [unapologetic]. O'Brien was suspended * * * , pending a complete investigation.
News of O'Brien's Facebook postings spread quickly throughout the district. * * * Two angry parents went to Puglise's office to express their outrage. One parent threatened to remove her child from the school. According to Puglise, the school received at least a dozen irate phone calls.
* * * There was a protest outside the school, attended by twenty to twenty-five persons. The following day, reporters and camera crews from major news organizations descended upon the school and remained there until late in the afternoon. A larger-than-usual crowd attended the Home-School Council meeting that evening, and the meeting was principally devoted to the Facebook postings. Parents expressed their outrage concerning the postings, and Puglise reassured the attendees that O'Brien had been removed from the classroom.
On April 14, 2011, the deputy superintendent of schools filed a complaint against O'Brien, charging her with conduct unbecoming a teacher. The charges were filed with the Commissioner of Education * * * , and the matter was referred to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ).
* * * * On October 31, 2011, the ALJ issued her initial decision. The ALJ rejected O'Brien's contention that her comments were protected by the First Amendment to the United States Constitution. The ALJ wrote that O'Brien's remarks were not addressing a matter of public concern, but were "a personal expression" of dissatisfaction with her job. The ALJ also wrote that * * * her right to express her views was outweighed by the district's need to operate its schools efficiently.
The ALJ stated that: An Internet social-networking site such as Facebook is a questionable place to begin an earnest conversation about an important school issue such as classroom discipline. More to the point, a description of first-grade children as criminals with their teacher as their warden is intemperate and vituperative [insulting]. It becomes impossible for parents to cooperate with or have faith in a teacher who insults their children and trivializes legitimate educational concerns on the internet.
The ALJ added that, while First Amendment protections do not generally rise or fall on the public reactions to a person's statements, "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 found that evidence supported the charges of conduct unbecoming a teacher. The ALJ determined that the evidence established that O'Brien failed to maintain a safe, caring, nurturing, educational environment * * *. The ALJ additionally determined that O'Brien breached her duty as a professional teacher * * *. In addition, the ALJ found that O'Brien's conduct endangered the mental wellbeing of the students.
The ALJ also determined O'Brien's actions warranted her removal * * *. The ALJ wrote,
If this was an aberrational [not normal] lapse in judgment, a reaction to an unusually bad day, I would have expected to have heard more genuine and passionate contrition in O'Brien's testimony. I needed to hear that she was terribly sorry she had insulted her young students; that she loved being their teacher; and that she wanted desperately to return to the classroom. I heard nothing of the sort. Rather, I came away with the impression that O'Brien remained somewhat befuddled by the commotion she had created, and that while she continued to maintain that her conduct was not inappropriate, she was sorry others thought differently.
The ALJ observed that, with some sensitivity training, and after some time to "reflect," O'Brien might successfully return to the classroom. The ALJ concluded, however, that O'Brien's relationship with the Paterson school community had been irreparably damaged, "not because the community thinks so, but because O'Brien fails to understand why it does." The ALJ ordered O'Brien's removal from her tenured position.
* * * The Acting Commissioner issued a final decision * * *. The Acting Commissioner concluded that O'Brien's Facebook postings were not constitutionally protected; the evidence established that O'Brien engaged in conduct unbecoming a teacher; and removal was the appropriate penalty. This appeal followed. [Emphasis added.]
* * * * We * * * affirm the Acting Commissioner's final determination substantially for the reasons stated by the ALJ and the Acting Commissioner in their decisions. * * * * * * * 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. Affirmed.
Legal Reasoning Questions
1. Certain interests of public employees and their employer are balanced to determine whether the First Amendment protects an employee's Facebook posts. What are those interests?
2. What did O'Brien do that constituted conduct unbecoming a tenured teacher?
3. What penalty did the administrative law judge impose? Why?
4. Would the outcome have been different if O'Brien had apologized? Discuss.