Teacher fired for "butt-printing" art..
In a really humorous article in today's IDS , a Virginia teacher was fired after a video of himself "butt-painting" (on his own time) was circulated among his high school students. He's hired the ACLU to challenge his firing, and I'm assuming he's going to use his right to free speech as a 'substantial public policy' exception to at-will employment. By comparing his case to the four stipulations that must be met to successfully demonstrate an exception due to substantial public policy, (Feliciano v. 7-Eleven, Inc.) I think he might actually have a case. First, a clear public policy upholding free speech and expression is ubiquitous in American foundational law. Second, dismissing employees for circumstances like the teacher's might jeopardize the public policy and leave it vulnerable to further legal erosion. Third, the employee's dismissal seems to be related directly to the 'butt-printing.' However, the fourth stipulation might not be met. I think the employer (the school district) might be able to prove that they had overriding legitimate business justification for firing Murmur. They comment at the end of the article that "students have a right to receive their education in a positive learning environment and that teachers are expected to lead by example, be role models, and honor core values." What other ways that Murmur or the school board can back up their cases? How do you think it will turn out?
posted by mel at
4:30 PM
3 Comments:
I agree that because of the 4th stipulation (the school district had an overriding legitimate business justification for firing) that the teacher may not have a claim. Although freedom of speech is considered "substantial public policy", the context in which he shared his "butt-painting" with his students would also need to be accounted for. From your post it isn't totally clear as to whether or not he circulated the video during school hours or if the students came across it themselves. If the situation was that he shared it during class time, he would not have a claim as his video could be considered obscene and thus inconsistent with the district's stance that teachers should lead by example, etc. in that context. However, he may have a claim if the students came across the video on their own time and circulated it themselves, as this was out of his control. Basically, I think it comes down to the context in which the video was circulated and whether or not he played a part in its circulation to the students.
From the IDS article, I was led to believe that the students came upon the video in their own time, not that he showed it during class.
This is an interesting thought experiment and I really appreciate the post and the thoughtful commentary. Let me provide a couple of comments that might shed light on some other legal issues at work here.
First, chances are that the teacher is not an at-will employee. Most teachers are represented by a union, which likely has a collective bargaining agreement with the school system. Usually those collective bargaining agreements set up disciplinary procedures that limit the school's discretion in terminating employees. In this particular case, there is likely a behavior or morals clause that the school relied upon in terminating Mr. Murmur. Nevertheless, there's a potential contract issue at stake here beyond the at-will exceptions.
Second, because the school is a public institution (public meaning "governmental" not "publicly traded"), the First Amendment as incorporated through the Fourteenth Amendment imposes some limit on when a government employer can punish its employees for exercising their freedom of speech. To oversimplify, a court will conduct a balancing test to determine whether the rights of the employee to engage in speech on issues of public concern outweighs the government's interest in maintaining an efficiently operating workplace. That's why the IDS article refers to how the teacher could sue in federal court for a violation of the constitution. One major question is whether, in light of the Supreme Court's ruling in City of San Diego v. Roe, Murmur's butt-print paintings are speech about a matter of legitimate public concern.
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