A package of proposed revisions to the school division’s Professional Conduct policy has sparked concerns that employees’ free speech rights could be restricted and is likely headed back to committee for additional changes.
The School Board was briefed on the proposed amendments last week and directed the staff to complete minor changes before an anticipated adoption during its Oct. 13 meeting. Since then, employee concerns have continued to mount and a more involved re-write is expected.
The conduct policy covers professional expectations that prohibit bullying and drug use as well as inappropriate or intimate relationships with students. It also prohibits conduct that disrupts the school system operations, harms the school systems reputation or interferes with the work or educational environment.
The proposal states that “[n]othing in this policy or any other policy shall be interpreted as abridging an employee’s First Amendment right to engage in protected speech, however, based upon an individualized inquiry, speech, including but not limited to via social media, on matters of public concern may be outweighed by the school division’s interest …”
Among the new sections is one seeking to implement the superintendent’s Statement on Equity, which seeks to “reject racist and other racially motivated behavior and language, recognizing that it encourages discrimination, hatred, oppression, and violence. Employees are expected to support the school division’s commitment to action-oriented equity practices through the performance of their job duties, as the Division engages in the disruption and dismantling of white supremacy, systemic racism, and language and actions motivated by race, religion, country of origin, gender identity, sexual orientation, and/or ability.”
Under the policy, employees wouldn’t just be prohibited from making such harassing or discriminatory comments in the classroom, but also in their telephone, electronic and social media communications.
During last week’s meeting, School Board members questioned Assistant Superintendent of Human Resources and Talent Development Scott Ziegler about how administrators and employees can determine the line between protected and prohibited speech.
“In most cases, employee speech is protected, but in the employer/employee relationship not all speech is protected by the First Amendment,” Ziegler said. “Because we are a government agency, there are test that we have to do when we limit employee speech. If we were a private business, we could fire anybody at any time for whatever they say or don’t say for any reason and we don’t really have to have a reason. Private sector speech is not protected.”
He said speech about public matters in a public forum—such as criticizing a school division policy—would be protected.
“An employee who speaks about a student in a public forum and identifies that student by name, that speech is not protected because that speech is disruptive to the mission and operations of the school system. Similarly, speech that is incendiary or insensitive that disrupts the school or the environment may not be protected speech. And we look at each of those cases on a one-by-one basis and apply those tests,” he said.
Among those tests is whether the speech violates the “trust bestowed upon them by the school division,” a phrase Ziegler said was taken from case law.
“For instance, if an employee engages in racially insensitive speech in the classroom that would be a measurable way in which trust could be eroded if we get calls from parents who say ‘the teacher said “x” in the classroom, my student was present and heard it an feels betrayed. I no longer trust that teacher to be able to educate my child and I want my child removed from that classroom as a result of that speech’—that’s something we can measure because trust has been eroded in the classroom,” he said. “We’ve had cases like that where parents have used that exact language.”
Representatives of the Loudoun Education Association on Monday met with administrators to review employees’ concerns about the policy. President Sandy Sullivan said those talks resulted in agreement that the proposed language wasn’t clear enough and needed more work.
It was expected the School Board next week would send the policy back to its Human Resources and Talend Development Committee for refinement in November.