Employee speech and conduct that occurs off campus, whether in the "real world" or in cyberspace, can be grounds for discipline or termination if it affects the employee's ability to perform his/her job or disrupts the educational environment. Recently, districts have begun to consider whether questionable content on an employee's Facebook or MySpace profile can or should be grounds for suspension or termination.

Most of the content of a Facebook or MySpace profile is private speech. As such, an employee has certain First Amendment rights that protect his/her speech on those websites. School districts may, however, still discipline employees for this speech as long as there is a legitimate justification for doing so. The district must be able to show that the employee's speech created a substantial disruption in the academic process. Districts must be careful to only restrict that speech which prevents them from operating efficiently and effectively.

A district's ability to respond to words or pictures on a MySpace profile is akin to the district's ability to respond to a teacher's actions outside of the school day. Has the teacher's profile in some way affected his ability to effectively instruct his students? Have students accessed the teacher's profile and seen risqué pictures of her? Has her ability to control and discipline her students been affected? If the answer is no, it will be very difficult for the district to discipline the employee.

For a broader discussion of employee free speech on and off the job, check out the new 10th Edition of the Educator's Desk Reference: A Guide to Navigating Policy and Legal Issues in Missouri Schools. MSBA policy districts should receive their copy in the next week.