By Kevin Lungwitz
“There’s an online petition going around to get me fired started by an angry parent, and some board members know about it.”
“There’s an angry parent who is spreading falsehoods about me on Facebook.”
“There’s a student who created a satirical account about me on Twitter.”
These are similar to many of the questions TEPSA has received from members through the years. As social media grows, the ease and ability increases for people to share their anger about you, your school, and the school district. What are your rights when you are on the receiving end of this very public criticism?
Defamation
There are two kinds of defamation: 1. Libel: A false statement expressed in written or other graphic form that tends to… injure a living person’s reputation. 2. Slander: A false, spoken statement published to a third party without justification or excuse.1 To prove a claim for defamation, a plaintiff must show: (1) the publication of a false statement of fact; (2) that was defamatory to the plaintiff; (3) that was made negligently; and (4) damages, in some cases.2
Some Hurdles to Suing for Defamation
Public officials (and public figures) are expected to have thicker skin than the rest of us.3 A plaintiff who is a public official must show that a defamatory statement relating to the plaintiff was made with “actual malice,” that is, with knowledge the statement was false or with reckless disregard of whether it was false or not. See New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964). This is a much higher standard than proving mere negligence. Your would-be lawsuit for defamation against an angry parent could turn on whether you are a public official.
Are School Employees “Public Officials” for Defamation Purposes?
Maybe, but not necessarily. Just because you work for a public school district, doesn’t mean you are a public official for defamation purposes. If you have a public job that places you squarely in the public eye, and the public has an interest in your qualifications beyond other governmental employees, you might be a public official. A classroom teacher is generally not a public official, whereas a superintendent most likely is. What about a campus principal or assistant principal? The courts are divided.4 The facts that could determine your status could be your authority, your reputation, your public profile, the size of the campus or the nature of the issue being debated. If the principal finds herself in the middle of a contentious public issue, the principal is more likely to be considered a public official or public figure for defamation purposes.
What about Statements Made in School District Grievances?
An “absolute privilege” means there is no remedy at law for the alleged harm, including for a defamatory statement, even if it is made with malice. This applies to statements made in judicial proceedings, where witnesses can freely testify without the threat of being slammed with a collateral lawsuit. The effect? A courtroom witness caught lying could be prosecuted by the state for perjury, but cannot be sued by an individual for defamation.
The absolute privilege also applies in some “quasi-judicial” governmental proceedings because “every citizen should have the unqualified right to appeal to the agencies of government for redress without the fear of being called to answer in damages.”5 At least one Texas case has said the Texas school district grievance system is a “quasi-judicial” process, entitling all of its participants to absolute immunity, exactly like the immunity enjoyed by witnesses in court.6 The effect? A witness caught lying in a school district grievance could theoretically be disciplined by the school district, but cannot be sued by an individual for defamation. Angry parents, students and staff would be wise to bring their complaints within the formal grievance process, where their complaints are protected, rather than airing them out on social media.
The Texas Citizens Participation Act (TCPA), or Anti-SLAPP Law
Lawsuits that attempt to financially overwhelm a person for exercising their free speech have been informally referred to as “Strategic Lawsuits Against Public Participation” (SLAPP suits). SLAPP suits chill free speech activities by subjecting citizens who exercise constitutional rights to the intimidation and expense of litigation.
The TCPA is known as Texas’ anti-slapp law because it allows the defendant (i.e., the angry parent you sued) to move a court to dismiss your case.7 This is because the defendant in your suit (i.e., the angry parent) will almost surely claim they were criticizing you or the school, and thus exercising their free speech. The TCPA is the subject of lengthy legal articles and many court cases. At the risk of being too hasty here, any lawsuit filed against a parent, student or employee for criticizing a school district or school employee will almost surely see the TCPA used to dismiss that lawsuit, and possibly win other sanctions against you, the would-be plaintiff. Any lawyer you hire to file a defamation suit against an angry parent should discuss the possible adverse effects of the TCPA with you before filing.
Can the Student be Disciplined?
Recall the example of the student who creates a satirical Twitter account dedicated to you. Assume for the moment that suing a student is a financially losing proposition (not to mention the effects of the TCPA), what about disciplining the student? Even though students have First Amendment rights, a student’s speech at school may be disciplined if it is disruptive, vulgar or lewd, if it bears the “imprimatur” of the school (think school newspapers and other school communications), or if it is harmful to other students, such as certain drug-related speech.8
What about off-campus speech on social media? In two notorious cases, a federal appeals court found highly offensive, satirical websites created by students against their principals to be protected by the First Amendment.9 The court reasoned in both cases the students’ conduct was private (as opposed to speech at school), and neither was shown to disrupt the school environments.
The courts have shown less tolerance when it comes to abusive, private speech directed at students.10 Also, the First Amendment will not protect a true threat.11
Truth, Opinion and Satire
The First Amendment also protects truth, opinion and satire. An angry parent can wear a sandwich board sign that says “The Principal is a Jerk” and peacefully walk up and down the public sidewalks. While this method would say so much more about the parent than you, it is almost surely protected opinion because it cannot be objectively proven true or false. But if the sign says, “The Principal Stole PTA Money!” that is not protected opinion. That is a statement that is defensible if true, and actionable if false. Satire and humor is usually protected because an audience is less likely to assume the satirist is expressing fact.
Conclusion
Public criticism may be an unfortunate part of the public school administrator’s job. We live in the age of rapid fire news cycles. If you find yourself slammed on social media, chances are you won’t be news for long. No one has a right to defame your character, but whether you can discipline the student will depend on the impact and relation to the school environment. Whether you can sue a parent for defamation may tempered by the laws and factors above. In either case, you should preserve the evidence and consult legal counsel before acting.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
1Diamond Shamrock Refining and Marketing Co. v. Mendez, 844 S.W. 2d 198 (Tex. 1992)
2In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015).
3A public figure is basically a celebrity, or someone who is famous because of the issue (i.e., a central figure in a news story.) WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)
4See Johnson v. Robbinsdale Indep. Sch. Dist., 827 F. Supp. 1439 (D. Minn. 1993), and Collins v. Taos Bd. of Educ., 898 F.Supp. 2d 1193 (D.N.M. 2012). Both cases discuss whether principals are public officials and both courts hold that an elementary school principal is a public official.
5Hernandez v. Hayes, 931 S.W. 2d 648, 653 (Tex. App. – San Antonio 1996, writ denied).
6Id.
7TEX. CIV. PRAC. & REM. CODE § 27.003(a)
8Tinker v. Des Moines Sch. Dist., 89 S.Ct. 733 (1969); Bethel Sch. Dist. v. Frasier, 106 S.Ct. 3159 (1986); Hazelwood Sch. Dist. v. Kulmeier, 108 S. Ct. 562 (1988); Morse v. Frederick, 127 S.Ct. 2618 (2007)
9Layshock v. Hermitage Sch. Dist., 650 F.3d 205 (3rd Cir. 2011) (unanimous decision); J.S. v. Blue Mountain Sch. Dist. 650 F.3d 915 (3rd Cir. 2011) (8-6 decision), cert. denied, 132 S.Ct. 1097 (2012).
10See Kowalski v. Berkeley, 652 F.3d 565 (4th Cir. 2011).
11See Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765 (5th Cir. 2007) (Student’s punishment upheld for fictional writing considered a terroristic threat.)
TEPSA News, January/February 2021, Vol 78, No 1
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Note: Information from Legal Ease is believed to be correct upon publication, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
