New London School Board hears legal updates
By Robert Cloud
Can moderators of a school district Facebook page delete offensive comments?
Will Act 10 be repealed? Will teachers regain their bargaining powers if it is repealed?
Attorneys for the New London School District updated school board members on education-related legal issues.
Jim Macy and Ryan Heiden with von Briesen and Ropper S.C. spoke at a special board meeting Thursday, Feb. 1.
Among the issues, they discussed developments with Act 10 and social media obligations under the First Amendment.
Macy provided some historical background to Act 10.
He noted that when the law was enacted in 2011, it was controversial.
Act 10 ended collective bargaining for county workers, highway department workers, teachers and support staff in the schools.
Under Act 10, public employees could bargain only over wage increases no greater than inflation. It also prohibited the automatic withdrawal of union dues and mandated annual recertification votes for unions.
Police and firefighters were exempted.
A the time of its passage, the state legislature and school boards were being pressured to lower property taxes.
Macy said Act 10 targeted WEAC, the statewide teachers union, and not teachers.
“WEAC was very strong,” Macy said, noting that it was the biggest lobby group in the state.
In addition to the dues it collected, WEAC also had funds from its health insurance for teachers, Macy noted.
Act 10 has been unsuccessfully challenged twice in state court and once in federal court.
Macy said the 2023 state Supreme Court election has increased the likelihood that Act 10 may be overturned.
The Wisconsin Supreme Court majority has shifted from 5-4 conservative to 5-4 liberal with the election of Justice Janet Protasiewicz.
In 2011, Protasiewicz participated in protests against Act 10 and signed a petition to recall then-Gov. Scott Walker.
Protasiewicz has said she may consider recusing herself from a case challenging Act 10.
On the conservative side of the high court bench, Justice Brian Hagedorn was Walker’s chief legal counsel and had a role in drafting Act 10.
During his campaign for Supreme Court justice in 2015, Hagedorn would not commit to recusing himself from an Act 10-related case, the Associated Press reported.
Seven Wisconsin unions filed a lawsuit in Dane County Circuit Court, challenging Act 10.
They are challenging the law based on the state constitution’s guarantee of equal protection.
While Act 10 substantially burdens and “disfavors” most public-sector unions, it specifically sets aside “public safety” employees.
“During the 2010 campaign that led to the election of Scott Walker as governor, only five public employee unions and associations publicly endorsed him and each of those unions represented workers who are classified in Act 10 as favored ‘public safety’ employees, a classification never before known in Wisconsin law,” according to the civil complaint challenging Act 10.
Macy told the board that if the state Supreme Court eventually changes Act 10, the board will need to “take it one step at a time,” when bargaining.
Free speech, social media
Heiden’s presentation focused on the First Amendment rights of district employees and the First Amendment issues related to social media.
Discussing employee comments via social media, Heiden said the First Amendment only protects their speech as a private citizen and on a matter of public concern.
“If they’re speaking on social media while ate work or about things they only know because of work, they are not speaking as a private citizen but as an employee,” Heiden said.
He noted that while posts on social media may seem like a private communication, it can spread a message to dozens, hundreds or even thousands of people.
He said the district needs to be mindful of the level of disruption that a comment on social media may cause.
“Even if they are speaking as a private citizen on something that’s public concern, if the speech is so significantly disruptive, you guys still have the ability to take action in that regard, whether it be disciplinary or other,” Heiden said.
He added that the higher up in authority a district employee was, the more damage they could cause.
Heiden also addressed how the First Amendment affects what restrictions may be placed on visitors to a district-operated social media site.
He pointed to a lawsuit that challenged former President Donald Trump for blocking opposing viewpoints on his Twitter account.
The Knight Institute argued in a 2017 complaint that Trump and his aides blocked seven people from commenting on his Twitter site because they criticized him.
Trump argued that it was a personal account not a government account.
The Second Circuit Court of Appeals ruled that the account was a “public forum” and the government could not exclude people from that forum. Banning critics from commenting on the account also denied them their right to petition the government.
“It really doesn’t matter what the original purpose of that page was, it’s what you’re using it for now,” Heiden said.
If the school board creates an interactive page, it becomes a public forum.
“If you’re going to limit speech, you have to do it from what is called a ‘viewpoint-neutral basis,’” Heiden said. “You can’t take out comments because you like one viewpoint versus another.”
He told the board that they can moderate comments if they have criteria that are “very easy and objective rather than subjective.”
He said the administrator of a school social media page cannot delete comments because they are “offensive” because that is hard to define and subjective.
But it is permissible to establish a rule that swearing will be allowed in the comments on a school page.