Social media platforms continue to be a useful way to share information, keep in touch with friends and family, and even promote an independent school; however, they also can continue to create headaches for independent schools. Increasingly, employees, students, alumni, and parents have taken to social media to air their grievances, express political views, and discuss their opinions regarding school closings, face masks, COVID-19 vaccines, and other hot-button issues. Schools should take a fresh look at their social media policies and consider whether they address the latest challenges and issues that may arise.
Social media can be used to bully or attack other employees, students, board members, or school administrators on an individual or on a broad scale, often anonymously, creating the potential for individual upset as well as reputational harm. For example, a video clip taken out of context, shared widely, and then picked up by the media can cause disruption to the fabric of the school community as well as the school’s regular activities. Spreading misinformation, disagreement with school policies, and engaging in divisive discussions are just some of the ways that social media has impacted school communities.
Legal Challenges to Social Media Activity
When it comes to employees’ rights, contrary to popular misconception, independent school employees do not have First Amendment free speech rights within the context of their employment. The First Amendment only prohibits government suppression of free speech. In that light, a comprehensive social media policy can, and should, set the expectation that interactions and posts on personal social media can be grounds for employee discipline or termination if they are discriminatory, harassing, or bullying; reveal confidential information; create disruption; or otherwise reflect poorly on the school.
While the First Amendment does not apply, independent schools do have some limits on the boundaries they can impose on employee social media use. Section 7 of the National Labor Relations Act (NLRA) provides independent school employees, like all other employees, the right to act together to address the terms and conditions of their workplace. This protection extends to communications on social media, when employees are engaging with one another to discuss the terms and conditions of employment. While such discussions are protected, Section 7 does not protect such discussions if they are, for example, abusive, discriminatory, derogatory, or significantly disruptive.
In addition, laws governing employee use of social media vary by state. It is important for independent schools to ensure the school’s social media policies comply with both federal law and state law.
Key Policy Updates
Beyond setting expectations for appropriate boundaries and providing guidelines for privacy settings, schools would be wise to update policies to address the current climate, including in the following areas.
The policy should prohibit the dissemination of private and confidential information about students, employees, parents, alumni, and other members of the school community. Given the ease of photographing and recording with iPads and phones, the policy should specifically address posting photos and videos of students without permission. Employees should be reminded that the school may have permission to post photos of students on the official school account, but that permission does not extend to employee activities on their personal accounts.
Anonymous Accounts and “Temporary” Posts
There has been an increase in anonymous social media accounts or the use of “temporary” posting platforms to air concerns. Independent schools would be wise to remind their employees that anonymous communications on social media are not protected under the NLRA, since it is unclear whether these communications are between employees. Moreover, employees should be reminded that social media accounts are never truly “private” and can often be traced back to the poster. Similarly, temporary posts or posts that disappear after a period of time can be captured through screen shots and should be subject to the same precautions as more “permanent” posts.
The COVID-19 pandemic has caused many employees to discuss their thoughts on the pandemic and vaccines on social media platforms. Discussions regarding the pandemic and vaccines can – and have – spread misinformation on social media. To address misinformation and effectively reinforce the school’s policies, parents and employees should be encouraged to bring their concerns to school administrators who can properly discuss their concerns. Enrollment contracts and employment agreements should also specifically address the importance of supporting and complying with the school’s health and safety policies for members of the school community.
As with other walks of life, engaging in political activity is now commonplace on social media platforms. While employees and students may want to engage in certain types of political expression, schools should clearly communicate guidelines for participation. Consider such issues as use of the school’s name, logo, or hashtag, or otherwise representing that individual community members speak on behalf of the school. Employees and students must understand that while they can become involved in political activity and express their beliefs, they must be mindful that their actions reflect back on the school and can affect perceptions of safety within the school community.
Independent schools would be wise to revisit their social media policies with the help of legal counsel to ensure that they not only are legally compliant but also address issues that may arise in the current environment, and ensure that proper use of social media is a subject of back-to-school training.
The authors are grateful for the contributions of Imani Menard, a law clerk in Venable LLP's District of Columbia office.