By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
 
 

 
Dear Legal Mailbag:

I am a teacher and I listened with interest to the CAS webinar last week on Free Speech Rights in our Schools: What are the Rules? (recording found here; reference materials found here). It was good to know about my rights, but I was surprised to learn that there are limits to my free speech rights. I thought we live in America!

In any event, what are the limits for others who speak out with unfair criticism of a teacher? If a parent defames a teacher online using his/her full name because the parent believes the student was treated unfairly in a given situation, does the teacher have the right to pursue legal measures against the parent for defamation of character?

We see this all the time when parents share their frustrations publicly, but sometimes nasty parents use our actual names in their critiques, and it’s an outright attack! Fair is fair, right? When can I sue parents who criticize me by name on Facebook?

Signed,
Speak No Evil
 

Dear Speak:

Legal Mailbag regrets having to inform you that life is not always fair. As you know, you cannot reveal personally-identifiable student information, on your blog, at a dinner party, or wherever, given your obligations under FERPA. By contrast, parents are not similarly constrained, and they are free to disclose information about their children as they wish. Moreover, parents are free to refer to teachers by name, expressing their opinions about teachers, good and bad. Civility is important, but it is not a legal requirement.

The legal issue you raise is the possibility of a teacher’s bringing a defamation claim against a parent for saying mean things about the teacher publicly on Facebook or elsewhere. Given the elements of a defamation claim, however, it is quite difficult for teachers (or principals or superintendents) to succeed with a defamation claim against a nasty parent. The elements of a defamation claim are as follows:

• The assertion of a fact;
• Which is untrue;
• That harms one’s reputation

Most of the negative commentary that one may see on social media is not an assertion of fact, but rather the expression of opinion. You have the right, for example, to express your view that Legal Mailbag is boring or pedantic, which opinion you are free to express (wrong though you would be). By contrast, you do not have the right to state that Legal Mailbag is a thief, an assertion of fact that, untrue as it is, could give Legal Mailbag a defamation claim against you. Similarly, if a parent accused you of being a thief (or made some other untrue assertion of fact), you may have a defamation claim against that parent.

But wait, there’s more! To assure that the public’s right to free and open debate under the First Amendment is not stifled by the threat of defamation claims, the United States Supreme Court ruled in 1964 that a defamation claim against a public official will not stand unless the untrue statement is made with malice or reckless disregard for the truth. New York Times v. Sullivan (U.S. 1964). Sadly (for you as a teacher), the Connecticut Supreme Court has applied this additional requirement to defamation claims by teachers, ruling that teachers are “public officials” with respect to defamation claims:

Taking into account these considerations, we conclude that a public school teacher is a public official for defamation purposes. Robust and wide open debate concerning the conduct of the teachers in the schools of this state is a matter of great public importance. . . . Similarly, teachers’ positions, if abused, potentially might cause serious psychological or physical injury to school aged children. Unquestionably, members of society are profoundly interested in the qualifications and performance of the teachers who are responsible for educating and caring for the children in their classrooms. Further, teachers exercise almost unlimited responsibility for the daily implementation of the governmental interest in educating young people. In the classroom, teachers are not mere functionaries. Rather, they conceive and apply both policy and procedure. As a result of that significant public interest, it is also likely that the media would not only provide a teacher about whom allegations have been made with an opportunity to respond, but that the media would encourage comment by the teacher. Therefore, we conclude that the trial court properly instructed the jury that the plaintiff school teacher was a public official for defamation purposes.

Kelley v. Bonney, 221 Conn. 549 (Conn. 1992).

Given this ruling, a teacher will prevail with a defamation claim against a parent only when he or she can show that a false assertion of fact about the teacher that harms one’s reputation was made with malice or reckless disregard for the truth. Legal Mailbag agrees with you that we live in America, and those are the rules here.