May 8, 2013


Teacher's Post: "After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils spawn!" One of her Facebook friends then posted, "oh you would let little Kwame float away!" to which petitioner responded, "Yes, I wld not throw a life jacket in for a million!!" That was posted the day after a New York City public school student fatally drowned during a field trip to the beach. Rubino v. City of NY.

In 1995, the tenured teacher began working for the Department of Education. In February of 1997, she began working at P.S. 203 in Brooklyn. For 15 years she had a spotless record. Unfortunately for the teacher, one of her Facebook friends, a P.S. 203 colleague, contacted the school's assistant principal and expressed concern about the propriety of the postings. The assistant principal showed the postings to the principal, and upon her instruction, contacted the Special Commissioner of Investigation for the New York City School District, which initiated an investigation. Termination was recommended and the teacher went to court. The lower court disagreed with the position of the school authorities and held, "While her reference to a child's death is repulsive, there is no evidence that her postings are part of a pattern of conduct or anything other than an isolated incident of intemperance." Judge Barbara Jaffe continued, stating, "And, while students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society. Ending petitioner's long-term employment on the basis of a single isolated lapse of judgment teaches otherwise. While I do not condone petitioner's conduct and acknowledge that teachers should act as role models for their students, termination in these circumstances does not correspond with the measure of compassion a teacher should show her students. Rather, it places far too great a strain on the right to express oneself freely among friends, notwithstanding the repulsiveness of that expression."

Judge Jaffe's decision was upheld on appeal. The appellate court's decision is found at the following link: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_03272.htm

Judge Barbara Jaffe's decision is found at the following link:

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