Teachers gone Wild: Lifestyle Privacy

Many public sector employees are held to higher standards than the average person due to the nature of their position and their potential influence on other people. Should they be? Is this discrimination? Is the discrimination justifiable?

bad teacher

courtesy of sony pictures

At times, we see a morals clause used to address potential misbehavior. A morals clause is a contract provision, typically used in relation to public figures (athletes, acting, news and political personalities) that prohibits the employee engaging in certain acts. These disallowed acts may include inappropriate sexual acts or drug use, but can include requirements that the employee “dress neatly in public, to conduct himself according to the highest standards of honesty and sportsmanship, and to refrain from doing anything that would be detrimental to the best interests of the team or league” (for further information, please see this article).   Engaging in social media insults of one’s employer could fall within a morals clause, but would not be something the typical employee/employer would encounter – although it is becoming more common for executives.  This, however, completely aside from the National Labor Relations Board’s decisions and guidances on social media policies.

Additionally, there are still certain career fields in which the employees are seen to be role models to our youth. One example of this relates to the private lives of teachers (see this story on a kindergarten teacher fired for nude photos). Before the advent of social media, teachers’ private lives were more easily separated from their professional lives. While being subject to public scrutiny may not be new, having one’s personal life so easily available is relatively new, as is facing severe repercussions from them (and this does not acccount for the egregious phenomena of impersonators).  Courts have taken two avenues to evaluate whether a teacher’s private actions are subject to employer review: a public official view or a student-speech view (whether the speech would substantially interfere with the educational duty) (Miller 2011).

Miller states that “[t]here are basically four types of internet speech that could put at risk a teacher’s relationship with his or her school district: 1) befriending students on social media sites and communicating inappropriately with them, 2) criticizing the district, school, students, parents, or the community online, 3) posting what school districts may deem as inappropriate photos  or comments (usually things that are sexually explicit or that promote alcohol or drug use, and 4) commenting on political or social issues.”  Teachers may see more disciplinary action and control if their private-life postings are viewed from a perspective of being a public official and in a position of trust than if considered whether their posting substantially disrupt the educational duty.

The question that we face is “Is this right?” Is it okay to restrict a teacher’s private life because we feel that they should be held to a higher standard than other people? What about cops, firemen, nurses, doctors, lawyers, preachers, etc.? More specifically – or more generally, I guess – is it fair to hold anyone to a certain standard in their private life as long as the behavior is not illegal?

Which brings us to lifestyle laws (more appropriately called lifestyle anti-discrimination laws, but for the sake of brevity and ease of conversation, I will call them Lifestyle laws). Lifestyle laws prohibit discrimination against someone at work based on their personal lifestyle choices – and in most cases, this is directed towards risky health behaviors, such as smoking, as applied to health insurance premiums through one’s employer.  In many states plus the District of Columbia, employers are prohibited from banning employees from smoking off work premises. Plus, twelve states protect the use of any lawful product during non-work hours, such as alcohol or even unhealthy foods. Currently, only California (CAL. LAB. CODE § 96(k)), Colorado (COLO. REV. STAT § 24-34-402.5(1)), New York (N.Y. LAB. LAW § 201-d(2)), and North Dakota (N.D. CENT. CODE § 14-02.4-03) have comprehensive protection statutes that protect employees for any lawful activity outside work.

Not only do the various state laws differ in what behavior they protect, but courts interpret them differently. Once you mix in social media, it’s a circus out there! People should be free to do what they want to do within legal boundaries and laws should not be required to permit people to do so. Good googli moo.

Keep in mind that there are federal laws (Title VII of the Civil Rights Acts of 1964) against discrimination of protected classes and disabilities (Americans with Disabilities Act)- so lifestyle laws are in addition to any protection under these areas. Plus, in general, government employees are protected by equal protection and due process clauses of the federal constitution.

I leave you with this thought – are we as a society free to engage in lawful behavior even when it indirectly impacts others’ lives (such as higher health care costs)?

 

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teaching, learning, doing,& dreaming

It’s been a dream of mine to teach college or more correctly, simply be involved with college students at some level. See, right out of law school, I worked at the Sandra Day O’Connor College of Law at Arizona State University. It was not named after that glorious woman when I started, but I was there during the renaming.

teachI’ve had this dream and as I write this entry, I have to wonder how this sounds. Do I think I am so great that I should have the chance to influence others? Or is it that those cannot do, teach? Not so narcissistic as the former and not so incompetent as the latter. Or so I hope.

I feel in love with the relationships one builds with students – how they change and grow, how they learn, how one small thing can change their lives and they can go on to change the lives of others. Yeah yeah. I’m a dreamer. But I truly believe in the power of people and only people can change this world. And we need all the people in this world to be part of the change – if you’re not part of the solution, you’re part of the problem, right?

I mentored a fabulous young man, Juan, starting when he was in 5th grade until he finished 8th grade. We stayed in touch and he came to live with us later to go to college. We had a conversation about why going to college was important when he could get (and he had) a job he loved that paid him well. It’s not about the money, it’s about the ability to participate actively in the governance of your community. Civic engagement. Now, that can happen at all levels, but in this nation, we have a huge problem – most leadership positions are held by a rather homogenous group. We need minorities and women to be equally represented. Until the leadership of this nation resembles that of its people, we will continue to experience the consequences of non-representation.

I had left academia due to my husband’s job and have been trying to get back to it ever since. Few colleges want to hire in someone who has been in the corporate world (and the pay cut is hard to take in order to work one’s way up the ranks), so my options are to volunteer and/or be an adjunct professor. (Now, if there is anyone with a college or university reading this – trust me, I am so worth the seeming risk. It’s my calling.)

This past year, my dream started coming true.  I am now teaching an online course in fundamental law to master’s students and an in-person course on privacy (big data and emerging technologies). And oh my goodness, the students are so worth it. I love the engagement, the discussions, the worries and questions. And I love having both populations of students: online grad students and in-person. Funny, I never considered that my in-person would include undergrad students, but it does! How cool is that?

I’ll never be a scholar (despite my PhD efforts) – I am not so eloquent or studious. I am a practitioner and a very practical one at that. I have the opportunity to combine my two loves – privacy and students. And for now, I am in hog heaven. good googli moo