Don’t Post So Close To Me

As neoliberal logics enter more and more institutions, what it means to have civil rights may be gradually shifting. In her introduction to Ethnographies of Neoliberalism, Carol Greenhouse has pointed out that under neoliberal logics, the language of rights is increasingly used to sustain markets. Yet as anyone who has paid attention to recent arguments about government surveillance and privacy, it is not only the language of rights that is used to sustain markets. The very concept of rights is being revised to sustain markets, even in cases that seem too minor to require this imposition of neoliberal logic, such as when courts decide cases of wrongful dismissal. There is a category of person that in the United States has become one of the canaries in the coal mines for this process – K – 12 public school teachers. There are an increasing number of U.S. legal cases involving wrongful dismissal that address how teachers use new media. I am interested in how courts deal with the fact that teaching, along with many other jobs, is the kind of job in which sometimes teachers complain about their students and about the job itself. Teachers sometimes say things about their six-year old students such as “I am not a teacher – I am a warden for future criminals!” Teachers have been saying such things for many years, often wearily in their living rooms or a bit furtively in the school parking lot, having looked around first to make sure that there is no one who can overhear. Since 2006, they have also been typing such statements into their status updates on Facebook. When teachers do this on Facebook in the United States, it turns out that that they risk being fired. “My students are the future criminals of America,” or some such utterance, apparently is not something a teacher who wishes to remain a teacher says using new media. And sometimes, after the school system fires them, they or the union representing them, will sue, often pointing out that teachers are citizens, and saying unkind things about one’s students should be protected as a matter of free speech. In short, these legal cases are moments in which the U.S. courts reflect upon what it means to speak like a public school teacher, and adjudicate whether one’s First Amendment rights have or have not been violated because of one’s employment status.

Why teachers? I think that there are a couple of reasons why teachers and their utterances have become a focus of attention in the contemporary moment. First, teachers, because of the nature of their jobs, are constantly having to negotiate the unsettling properties of new media. They are constantly interacting with school administrators, fellow teachers, parents and students, all of whom have their own informal solutions to the communicative dilemmas that new media can pose to communities of users. Teachers are continually engaging with differently structured audiences, and often doing so using technologies that erase the boundaries between audiences – either literally merging audiences as Facebook’s interface often does, or through the ever-increasing ease of circulating words, as in the technological infrastructure of email and cell phones that enable people to forward emails and text messages so quickly and effortlessly.

At the same time, in the United States at the moment there is an ongoing effort by politicians and government bureaucrats to privatize education. Those funding education have increasingly been arguing that market-based solutions provide the best and most effective strategies to educate students. This involves breaking teachers’ unions, which are seen as preventing these market-based solutions and protecting inept teachers. The cases that come before the court are often cases in which teachers had tenure, and so were able to sue the school districts for wrongful dismissal, although there is in fact one case in which a teacher’s contract was simply not being renewed, supposedly for a rather turgid political poem he posted on Myspace months earlier. In short, by looking at teachers, I am turning to a moment in which audit culture meets the surveillance society.

This intersection has become particularly acute since 2006, when the U.S. Supreme Court ruled in Garcetti vs Ceballos that a public employee’s free speech is not protected under the Constitution, although a citizen’s free speech is. Ceballos, a deputy district attorney in Los Angeles, believed that there were substantial errors in an affidavit used to convince a judge to issue a search warrant. He wrote a memo suggesting that the criminal case be dropped, and ended up testifying in court after being subpoenaed by the defense counsel. He then faced what he considered retaliation at work for doing so – he was demoted, his cases were transferred to other less experienced colleagues, and he was barred from handling any future murder cases. The Supreme Court ruled that the salient question was whether Ceballos spoke as a public employee or a citizen, and in this instance, it was clear that he spoke as a public employee. As a public employee, he was not guaranteed protection under the First Amendment, his rights to free speech were only protected when he spoke as a citizen. With this ruling, the Supreme Court overturned 42 years of court decisions that had declared a public employee’s speech was in fact protected, now one’s job could determine what one was allowed to say. And subsequent relevant court cases reflect this changes, as the decisions now tend to revolve around how to define the defendant – as a citizen, public employee or simply employee. Other critical legal scholars have pointed out that this decision is extending a neoliberal logic by allowing employers to circumscribe someone’s rights to free speech when they define a position’s responsibilities. In these cases, one’s right to free speech is determined by one’s manager’s definition of the job. And this is in the background when courts decide cases about how teachers can use new media.

There are two primary ways in which new media is involved when teachers are fired. The first, and still most common situation, is when a teacher inappropriately sleeps with or sexually harasses a student or co-worker. In these cases, free speech is not an issue. The case revolves around whether or not the sexual misconduct did in fact take place. The court decision will mention people’s new media use, and primarily will discuss with some detail the frequency of contact between the teacher and student or co-worker. Tennessee vs. Binkley: “Those records indicated that the Defendant and C. B. exchanged messages with one another 841 times between March 10, 2008, and September 23, 2008 with some of those texts occurring as late as 1:00 am.” Frequency and time of communication here is part and parcel of court evidence of inappropriate interactions. In these cases, it is the relationship between the teacher and defendant and others that is at issue, and their use of a particular medium is relevant only inasmuch as the medium itself can enable police to trace how often and when contact was made.

But teachers also post things on Facebook or MySpace in which the utterance itself is considered the reason for firing someone, it is violation enough in itself, not merely a trace of other inappropriate practices. I want to turn to a case in North New Jersey that received quite a bit of media attention as well. In late March 2011, a teacher posted as a Facebook status update the following: “I’m not a teacher — I’m a warden for future criminals! They had a scared straight program in school — why couldn’t i [sic] bring 1st graders?” The Scared Straight program brings former inmates to talk to students who are 12 years old or older at schools, so when the teacher mentions being a warden, she is also implicitly referring to the program that took place at her school. In the hearing, the teacher explains her word choice in these terms. She had set up privacy settings for her Facebook profile, so only her 300 Facebook friends could see this status update. Her then principal was not one of her Facebook friends, but her former principal was. When her former boss saw the status update, he decided to contact her current principal by email, explaining he was troubled by the post, and cutting and pasting her status update into his email message. Her current principal then found a way to print out a copy of the actual Facebook profile and update, before meeting with the teacher and asking “what were you thinking”? After suspending her, news of her Facebook post circulated among parents and students, sparking a wave of protests. Her comments were interpreted as racist, in part because she had recently been transferred from another more affluent school to a poorer school where her first grade class was entirely comprised of African-American and Latino students. She had never been reprimanded before, but because of this Facebook post, she was dismissed. She was a tenured teacher, and so when she sued, claiming wrongful dismissal, her case went before an administrative law judge.

The judge’s decision reveals a deep concern with how best to conceptualize the role from which the teacher typed, as well as a critique of the teacher’s presentation of self, and in particular, of contrition. The judge describes at some length the ways in which the teacher apologizes, and why her words and lack of emotion did not count as a proper apology. The teacher seems to hold a different media ideology than the judge. The judge writes: “At the hearing, [the teacher seemed still unable to genuinely understand why her Facebook posts had engendered such an extreme reaction. But she disagreed with [the principal’s testimony that she did not apologize to him. [The teacher] stated that she told [the principal] that she was “very sorry that this caused trouble.” I offered [the teacher] an opportunity to elaborate on the reasons for her remorse by asking her why she apologized to [the principal]. [The teacher] reiterated that it was because she “was sorry for any fuss” her Facebook post created, and for the problems it created for her principal and herself.” The judge finds this apology unsatisfying, and later in her decision explains what the teacher should say – what a good teacher must utter in these circumstances: “If this was an aberrational lapse in judgment, a reaction to an unusually bad day, I would have expected to have heard more genuine and passionate contrition in [the teacher’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 [the teacher] 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.” In sum, it is not only [the teacher’s] Facebook posts that demonstrates she does not understand the correct ways to speak as a teacher, it is also her performance in the hearing – she continues to refuse to perform her role as a concerned and caring teacher properly according to the judge.

The judge is then faced with a dilemma – how best to explain that a Facebook post is not an issue of free speech. And here she resorts to a neoliberal argument to explain why free speech is not a relevant principle here. She argues that the teacher is like any other employee, obligated to the school as her employer to treat her customers well – and in this case the students and parents are defined as the customers. Businesses are supposed to be protected by law from employees’ rude speech to customers, and the judge determines that this Facebook posting violates this legal protection, and so the teacher can be legally dismissed.

These court cases become moments in which what it means to speak like a teacher are being both evaluated and policed. For the most part, when teachers speak in ways their schools and local communities judge inappropriate, these are dilemmas resolved more informally by principals and school boards. Courts are less frequently involved. However, the court cases themselves have a larger impact, teachers and prospective teachers have started policing their own new media presence. They are gradually realizing that their comments on social media are not only scrutinized, but can be a basis for dismissal. They become more and more aware that their individual understanding of how a particular medium structures what is or is not public speech must give way to a larger societal perception of what counts as public speech and what counts as private speech. In the process, they come to realize that the jobs one has determines the civil rights one has, that one’s relationship vis-à-vis business defines one’s speech far more than one’s relationship as a citizen vis-à-vis the state.
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Ilana Gershon is an Associate Professor in the Department of Communication and Culture at Indiana University.

16 thoughts on “Don’t Post So Close To Me

  1. There’s no limit to the repression that can be unleashed with regard to children, our sole remaining objects of worship, which primarily affects children themselves, and secondarily those who work with them. Fantastic piece, Ilana.

  2. Hmm, this case doesn’t seem all that different from the Arizona physicist who published all the crazy anti-semitic theories. I believe Facebook to be evil, but I’m not sure that it’s function in this is all that different from what’s come before. The one way it does play in is that remarks on it are being published in a public forum, even if that forum is limited (just like racist right-wing pamphlets). What’s interesting to me is the way this cuts across popular political lines. The case is taylor made for right-wingers, since the teacher (EDIT: SEE COMMENT BELOW) arguably made some racist remarks for which she was being punished (and, as evil as I also find parenting, if I were one, I guess I’d probably take issue with a teacher referring to my child as a “future criminal” — on that note, a teacher did imply once upon a time that I was a potential axe-murderer in front of the whole class). Right-wingers always get up in arms about taking free speech away from racists. However, the argument for dismissing her free speech right, and siding with the bleeding heart types (see just about any current controversy on tumblr or in the comic book blogosphere), is based on what tends to be a conservative view about freedom (self as property). My disposition is to not see a joke as anything but as a joke (even if it’s a shade racist), but I do enjoy the irony biting everyone on the ass. … And reject the society of the spectacle.

    Thanks for bringing this up. I hadn’t heard of it before.

  3. Hey Charles. Ilana didn’t want to include the teacher’s name and so contribute to her troubles. So I’ve removed the name and link from your comment as well, and would ask folks not to include it in comments. Obviously it’s not that hard to find online if you want to, but I’d like to respect Ilana’s wishes to the extent I’m able here.

  4. Texas Blogging Massacre! She was the cool English lit teacher, with a hip shag hairstyle, always wearing really tight rock t-shirts to school. The other boys loved her.

  5. Fascinating post, llana. I taught in public school for ten years, but before the dawn of Facebook.

    I think the teacher was foolish; I think the teacher is potentially racist; I think the teacher should apologize publicly for her comment (even though she did intend the comment to be public); I think the teacher should be heavily reprimanded and closely supervised; I think the teacher should agree to not post about her workplace ever again; I think the teacher should be fired if another incident of this nature happens again; but firing her now strikes me as outrageous.

    She did not make a public comment. She typed a private comment which someone else made public. Facebook is a murky private-public middle zone, which is reason to afford the teacher a second chance. I’m personally disturbed that the teacher was not contrite about her behavior, but I’m more disturbed that she was fired based on her failure to adequately perform contriteness. The harm done to her students and their parents, however, is in part the responsibility of the current principle who allowed the teacher’s comment to become public. The ex-principle and “Friend” had the right to go to the new principle with the equivalent of hearsay because the matter was important. The new principle should then have dealt with the problem in the privacy of an office, reprimanding and increasing supervision significantly. Making the insult public was the worst behavior in the whole case.

  6. As usual, Chris articulated my feelings perfectly. . .

    I haven’t taught in public K-12, but I have taught at two different public universities – and I have to tell you – teacher and administrator griping about students on social media is rampant. There is probably less at risk at the higher ed level in terms of parental outrage (though those helicopter parents don’t abandon their flight patterns in 13th grade).

    I think it is important for teachers to have a place to vent and commiserate, and increasingly social media is our place to do that regardless of our professions – but at the same time teachers also need to keep the welfare of their students as their priority regardless of their feelings and mediate their public griping accordingly – esp. when there is a racist underpinning to what they say. I mean, for all we know she might have been making a sharp comment on the school-to-prison pipeline in American education that is reinforced by structural inequality and racism – but probably not.

  7. I’m a bit baffled at your response, Chris: if the teacher said something worthy of reprimand, the parents of the students who were the subjects of what was said don’t deserve to know what was said? If a teacher says something about her students that likely reflects her treatment of them and a principal hears about it, isn’t it the responsibility of said principal to let the parents know? That way the parents can determine whether they want this teacher to continue teaching their children whom she thinks so negatively about. I’d say either she doesn’t deserve to be reprimanded, doesn’t need to apologize for the content of comments (as opposed to the “sorry you were offended” variety), or the principal had every right to report what she wrote (in fact, it would be his moral duty).

    As for Facebook, part of its real harm is how so many people still see it as private. That’s as good example of pseudoindividualism as one can get.

  8. The question must be asked– what is a private space any more? Are social networks private? If a teacher say, spoke to me or another friend about this, and an individual listened in and sent a recording to the school, it would be seen as very improper (and possibly legally actionable). This is important because in a world where social media is increasingly replacing the phone and even the face to face chat, the question of what can and cannot be used against a person becomes very important.

    There’s another factor here. When I taught (not much, and some time ago). I knew many teachers who would talk about “criminals in training” in the staff room, as was mentioned above. And it served an important purpose, letting them get their anger and frustration out in front of other adults, before they went back into a room where they *could* not say anything of the sort. If we start moving to the point where a teacher cannot say anything, arguing that they must always be on public display, I’d not be surprised at all to see more explosions in the classroom.

    Finally, there’s another factor–it’s already hard to get qualified teachers. Why bother honestly when you can make just about as much managing a fast food place, with a great deal less angina. The more things like this become set, the more difficult it would be to attract qualified teachers. We need teachers to be professional inside the classroom. I’m not so certain we need teachers to be terrified that they’re going to be fired for everything from off the cuff facebook comments (that their students can’t see) or for posting pictures of some legal drinking at a German bar.

  9. Charles, it is a difficult issue, and your point is important, but ultimately, no, the parents do not have a right to know what the teacher said about their children. And I say this as a parent of school children. If the teacher insulted the students in the classroom, or behaved in any manner that suggested she is prejudiced against them, then the situation is radically different. But my children’s teachers have the right to hate them, and frankly it is much much better that I not know–provided that the teacher is teaching effectively and without prejudice. All that matters is the teacher’s behavior in the classroom. It is the principle’s and only the principle’s responsibility to reprimand. I do not, can not, and should not supervise my children’s teachers.

  10. “If a teacher says something about her students that likely reflects her treatment of them and a principal hears about it, isn’t it the responsibility of said principal to let the parents know? That way the parents can determine whether they want this teacher to continue teaching their children whom she thinks so negatively about. ”

    Teachers are not politicians, so we do not have special elections to decide whether to fire them or not or hire them or not. (How else could parents possibly decide whether teachers should be hired or fired other than holding elections?)

  11. While I agree with your statement, Pallas, the sad fact is that teachers are very vulnerable to parental pressure. That’s one reason why I get twitchy when people talk about reducing a teachers contract protection– yes it protects bad teachers, but equally, I’ve seen more than a few good teachers who found their careers destroyed due to people with an axe to grind and an administration that pretty much was the platonic ideal of spineless.

    But in this case, unless we want to argue that teachers should live in caves, correcting papers by the light of a single candle, we’re going to have to see stronger legal (or social) rules arguing that what happens outside of the classroom, unless you can make a clear and direct link to behavior inside the classroom, should have no impact on a teacher’s career.

  12. Great piece. I do not think this teacher deserved to be reprimanded, much less fired. I share her bewilderment at the response to her nothing joke on a personal social media account. I’m appalled by the judge’s expectation for teachers to “love being [their students’] teacher” and to show deep remorse for a joke made in private. Despite what this judge may have encountered at the cinema, teachers are mostly ordinary people, working a difficult and low-paying job. They shouldn’t be held to a higher standard of personal conduct than any other working professional.

  13. I’m a middle school teacher. I will elaborate on that no further.
    I think if I was being fired for an off-handed joke made “in private” that had been made public by someone else, my anger and indignation would outweigh any visible contrition I might feel, especially when I’m on the stand.
    How does the judge know what she feels? If adequately expressing personal feelings is a requirement for legal decisions…well, that’s troubling.

  14. Full-time Chicago public high school teacher for ten years, freelance part-time teacher for five more years, and I agree totally with Cass. It’s pretty lame that libertarian types abandon all their freedom-of-racist-speech prattle at the slightest hint of someone saying “the children!” Teachers, as guardians of the culture, are utterly despised. Which is something all you critics should relate to.

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