A New Jersey appellate panel has upheld the decision to fire a tenured first-grade teacher because of critical postings she made toward her students on her Facebook account. Jennifer O’Brien was a teacher in the City of Paterson’s school district, with an unblemished record since the school district hired her in March 1998. In December 2010, the school district assigned O’Brien to teach first grade. O’Brien’s class had twenty-three students, most of whom were six years old, and all of whom were either Latino or African-American. On March 28, 2011, O’Brien posted two comments on Facebook: “I’m not a teacher – I’m a warden for future criminals!” followed by, “[t]hey had a scared straight program in school – why couldn’t [I] bring [first] graders?”
Reaction to O’Brien’s posts was immediate and forceful. On the morning of March 30, two angry parents went to the office of principal Frank Puglise to express their outrage. Puglise also received numerous angry phone calls throughout the day. At the end of the day, a protest of approximately twenty persons formed outside of the school. When Puglise approached O’Brien to discuss the posts, O’Brien appeared “unrepentant,” though she claimed that she did not intend to offend anyone. Subsequently, Puglise suspended O’Brien, with pay, pending further investigation. The following day, a number of reporters and camera crews from major news organizations came to the school, and many parents continued to express their outrage at a community meeting later that evening.
On May 5, the district superintendant suspended O’Brien, this time without pay. At a hearing before an Administrative Law Judge (“ALJ”), O’Brien testified that she posted her comments out of frustration from her students’ behavior, which included stealing from her and other students, striking other students, and, in one instance, striking her. O’Brien also testified that she was not seriously advocating a “Scared Straight” program for first graders and that she was surprised by the reaction to her posts. The ALJ held that O’Brien’s comments warranted removal.
After the Commissioner of Education upheld the ALJ’s decision, O’Brien appealed to the Appellate Division. The Appellate Division first needed to determine whether, as a public employee, O’Brien’s comments were protected by the First Amendment. Based on the evidence, the Court found that O’Brien did not encompass a matter of public concern, but instead her personal dissatisfaction with her job. The Court also found that, even if O’Brien was commenting on a matter of public concern, her interests were outweighed by the State’s need for efficient operation of its schools.
The Appellate Division held that the evidence in the record was enough to support the charges, since O’Brien’s conduct reflected a lack of self-control, tended to destroy public respect for government employees, and damaged public confidence in the school system. Finally, the Appellate Division held that, even though the comments were O’Brien’s “sole transgression,” they were sufficiently serious to warrant removal from her tenured position.