New York court: Firing a teacher for social-media “vent” was “shockingly” unfair

The unemployment lines are littered with former public employees who made misfired jokes, shared PG-13 photos (or even G-rated ones), or aired complaints about their jobs on Facebook. But when a New York school district fired a teacher for a wisecrack about taking her students to the beach in hopes they’d drown, the punishment went too far, a state appeals court says.

After reading about the June 2010 drowning of a 12-year-old at a New York beach, Brooklyn teacher Christine Rubino posted a remark on her Facebook wall — visible only to her Facebook “friends” and not the general public — joking about taking her own misbehaving class on a trip to the seashore. In case that was too subtle, she elaborated: “I HATE THEIR GUTS! They are all the devils spawn!”

Mean-spirited, perhaps. Questionable judgment, perhaps. But grounds for termination?

In July 2012, a state trial-court judge found the punishment excessive, noting that the post was non-public and was deleted after three days. In a ruling issued May 7, three judges on the New York Appellate Division agreed:

Although the comments were clearly inappropriate, it is apparent that [Rubino’s] purpose was to vent her frustration only to her online friends after a difficult day with her own students.

The Appellate Division agreed with the trial-court’s finding that dismissal — of a teacher with an otherwise exemplary record — was a punishment “shocking to one’s sense of fairness.” That phrase is key, because it’s derived from an old 1974 ruling from New York’s highest court. That ruling limited the ability of judges to second-guess the disciplinary decisions of government agencies. Judges shouldn’t interfere with managers’ discretion, the justices cautioned, unless the punishment is so grossly disproportionate to the offense “as to be shocking to one’s sense of fairness.”

The Rubino decision reflects a welcome maturation about how the legal system treats social media. Context has always made a difference (often, a decisive difference) when weighing the legal status of speech. “That’s it, I’m going to shoot Obama!” is a criminal act if said while getting into a D.C.-bound taxicab with a loaded shotgun. But it’s a harmless joke if said with a smile while opening a letter containing a disappointing tax refund.

The pressures of the workplace, including school, have always provoked frustrated people to make over-the-top jokes not meant to be taken literally. No personnel manager who ever sat in the back of the school bus singing “mine eyes have seen the glory of the burning of the school” should ever begrudge a student, or teacher, a moment’s “inappropriate” laugh to get through a trying day.