Private Rights, the Public Good and Social Media

Community standards and Human Rights can intersect in the actions of teachers in interesting ways.  An individual teacher’s actions, although not criminal in nature, may put their character into question.  As the use of technology permeates our lives in more intimate ways these intersections are bringing conflict to teachers where they once felt something was private (Outside of School) has now become public. Although the venue for exposure of teachers private affairs has widened due to technology the laws and societal expectations have remained the same. Educators some times make the mistake of thinking that because they do not include students in their social media circles that that somehow insulates them from recourse for their online behaviour.  It is my opinion that every teacher should conduct themselves online in a way that reflects what they should be expected to in a classroom.  Duality or operating two profiles is also a bad idea, as nothing online is absolutely iron-clad private see Snapchat, Facebook, or recent breaches due to viruses such as heartblead. If it is private, keep it off the net.

A teacher’s private life is relevant to any consideration of their fitness to teach. Although teachers enjoy the same freedoms listed in section two of the Canadian Charter of Rights and Freedoms as other citizens including “freedom of conscience and religion; freedom of thought, belief, opinion, and expression, including freedom of the press and media; freedom of assembly; and freedom of association” (1082), these rights and freedoms are somewhat qualified in consideration of their duties as teachers.  Part of being a teacher is adhering to the moral and cultural norms present in your environment.  Teachers are state agents who are placed in a position of great trust by parents who are legally obliged to send their children to school.  As state agents they are obliged to follow divisional and provincial policies as well as the Manitoba Public Schools Act.

The role of a teacher includes academic instruction, socialization, protection, discipline and other duties as assigned by the employer. Precedence for the standard that teachers must uphold was eloquently stated by the Honourable Mr. Justice G.V. La Forest (1998) states:

“Teachers occupy positions of trust and confidence and exert considerable influence over their students…  As a result, it is not enough for teachers to merely <<teach>> these values.  We also expect them to uphold them, and this may involve their activities both inside and outside the classroom…However, where teachers, by their extracurricular conduct, displace the trust and confidence reposed in them by the community and thereby disrupt the education experience of their students, society has an interest in intervening.” (p.207)

Although teachers, like other citizens, have a right to privacy they also must be aware that activities that occur in their private lives may have implications for their careers as educators. Caution must be exercised when engaging in activities which may erode the trust that is placed in them by the community.

The idea that there are no strong reasons for respecting the privacy of lifestyle in the case of teachers is also flawed.  There is a delicate balance between the rights granted by the Canadian Charter and the Rights and Freedoms and the rights of the community to have their children taught by teachers that they feel they can trust.

La Forest (1998) also said that “Needless to say, teachers, like other citizens, enjoy rights of privacy, and to a considerable extent their off-duty activities should not be subject to external scrutiny.”  The community tolerances for behaviour need to be identified by teachers so that they can avoid behaving in a way that upsets the community and potentially compromises their ability to teach in their classrooms.

I disagree with the idea that there is no reason for teachers’ rights to privacy to be protected as we are citizens of the same country and inherently have the same freedoms available to others.  However, the judicial meaning of the Charter’s application in everyone’s lives, including teachers, is very carefully measured by Supreme Court judges when interpretation is needed because these decisions become the basis of future application of the charter.

Common law precedents, which allow judges to rely on previous decisions as a guide, address some of the grey areas in education law.  The battle between individual rights and freedoms, and the rights of employers and community to take action against those who damage public organizations, has a colourful history.

There are  notable cases involving teachers who have been involved in activities which were legal but none the less viewed as unsavory by their communities.

One of the most noteworthy cases which made it to the Supreme Court was the Malcom Ross case.  Mr. Ross was a well regarded teacher who was involved in Anti-Semitic activities in his spare time.  His case highlighted his constitutional right to freedom of speech which was challenged in the courts.  The Supreme Court ruled in favor of the school division because it said teachers play a unique role and that Ross had undermined the general acceptance of the school.  He was subsequently fired and his teaching certificate removed.  This case established the idea that although teachers have rights they are also in special positions as state agents, and therefore the state may choose to terminate their employment if they are involved in activities which have potential to erode public acceptance and trust.

The second supporting case for the prosecution would be the Bhaduria case.  Mr. Jag Bhaderia publicly stated that his school district administrators should be “lined up and shot.”  He also wrote a letter saying “I wish that Lapine [sic] should have lined up you and your crony superintendants… and other co-conspirators against the wall and shot all of you” (Globe and Mail 1997.)   This privately sent letter which may or may not have led to criminal charges resulted in him being fired.  The Supreme Court “…ruled that teachers must adhere to a higher standard of conduct- both inside and outside the classroom- than people in other occupations.” The Bhaderia case shows how the courts protect school divisions and the public by applying a higher standard for the conduct of teachers and demand that they be removed if they do not conduct themselves accordingly.

The third and most similar case is the Abbotsford School District 34 Board of Trustees vs. Schewan.  A husband and wife who were both teachers were suspended for six weeks by their school board for having nude pictures of Mrs. Schewan published. In an appeal by the school board, the British Columbia Court of Appeal clearly defined why the private activities of the two teachers qualified as misconduct:

A teacher holds a position of trust, confidence, and responsibility.  If he or she acts in an improper way, on or off the job, there may be a loss of public confidence in the teacher and in the public school system, a loss of respect by students for the teacher involved, and other teachers generally, and there may be controversy within the school and within the community which disrupts the proper carrying out of the educational system. (MacKay and Southerland 2006).

The world is more connected than it was in 1998 when the Honourable Mr. Justice G.V. La Forest ruled that teachers must maintain public trust, but the centement of the idea does not change with the advent of social media.  Teachers must be cautious to protect their reputations to ensure that they are able to conduct their affairs in school with the confidence of parents in their communities.

Canadian Charter of Rights and Freedoms. (1982). Retrieved October 20, 2009, from the Government of Canada, Department of Justice Canada Web cite: http://laws.justice.gc.ca/en/ShowFullDoc/cs/C-00//20091020/en?command=search&caller=SI&search_type=all&shorttitle=Charter%20of%20rights%20and%20freedoms&day=20&month=10&year=2009&search_domain=cs&showall=L&statuteyear=all&lengthannual=50&length=50

La Forest, G. V. (1998). Off-duty conduct and the fiduciary obligations of teachers. In W.

F. Foster & W. J. Smith (Eds.), Navigating change in education: The law as a      

    beacon (pp. 207-223). Quebec: Imprimerie Lisbro Inc.

MacKay, A.W and L. Sutherland (2006). Teachers and the Law. Toronto: Edmond Montgomery.