David J. Mongillo, Esq., firstname.lastname@example.org, (412) 594-5598
Cent. Valley Sch. Dist. v. Cent. Valley Educ. Ass’n, 2022 Pa. Commw. Unpub. LEXIS 482 (Pa. Commw. Ct., Nov. 7, 2022). In an unpublished opinion the Commonwealth Court of Pennsylvania upheld the decisions of an arbitrator and the trial court. The courts reinstated a teacher who participated in a TikTok video with her ninth-grade daughter, featuring a sexually explicit song and suggestive dancing. Crucial to the Court’s analysis was that the District provided no evidence the video was widely disseminated and viewed by District students or the District community.
On or about October 20, 2019, R.H., a third grade teacher at Central Valley School District (“District”), recorded a 15-second video with her daughter, a minor ninth-grade student. The video featured a song containing explicit lyrics, including words referencing a sexual act. In the video R.H. lip-syncs the lyrics to the song and uses “suggestive hand and body motions.”
The video contains nothing to identify R.H. as a teacher within the District, and was made during R.H.’s personal time, without using District-provided equipment. R.H. asked her daughter not to post the video to social media, but her daughter disregarded her mother’s request and posted the video to the TikTok website. After learning the video was posted to TikTok, R.H. requested her daughter remove the video but R.H. did not take any affirmative steps to ensure the video was removed.
District administration suspended R.H. without pay on November 1, 2019 and charged her with immorality, incompetency, intemperance, and willful neglect of duties in violation of Section 1122(a) of the Pennsylvania Public School Code of 1949 (“School Code”). The District’s Board of School Directors terminated R.H. at its next public meeting, effective December 9, 2019.
The Central Valley Education Association (“Association”) filed a grievance on R.H.’s behalf, alleging R.H. had been terminated without just cause in violation of the collective bargaining agreement between the parties.
The matter proceeded to arbitration and the central issue was whether R.H.’s conduct was immoral under the School Code. To uphold its charge of immorality, the District was required to prove that R.H.’s actions offended the morals of the community. The District presented testimony of several school administrators stating that R.H.’s actions were immoral. In response, R.H. and her daughter both testified, as did several members of the community who stated the video was not offensive and did not impact R.H.’s standing as a positive role model for students.
The arbitrator reinstated R.H. to her teaching position and ordered she be provided all lost back pay, seniority and benefits. The arbitrator’s decision was based on two findings. First, the arbitrator determined the District did not present evidence of the morals of the community, because the only District witnesses were District employees, rather than members of the community. Second, the arbitrator held the District presented no evidence the video was widely disseminated in the community and pointed out the video would have been not have been disseminated at all absent the actions of R.H.’s daughter.
On appeal the trial court and Commonwealth Court disagreed that school administrators were unable to testify regarding the morals of the community. However, the courts upheld the arbitrator’s decision, agreeing the District did not prove the video offended the morals of the community because there was no evidence the video was widely distributed, and therefore no evidence the video actually offended community morals or set a bad example for District students. The Commonwealth Court explained:
“[T]o establish a charge of immorality under Section 1122(a) of the School Code, a district must prove “(1) that the alleged immoral act actually occurred; (2) that the act offends the morals of the community; and (3) that the act sets a bad example for students.” Sch. Dist. of Phila. v. Jones, 139 A.3d 358, 365 (Pa. Cmwlth. 2016) [quoting McFerren v. Farrell Area Sch. Dist., 993 A.2d 344, 353-54 (Pa. Cmwlth. 2010)]. Like the trial court, we interpret the arbitrator’s determination as a finding that the video, because of its very limited dissemination, did not, in fact, offend the community or set a bad example for students.”
To prove a charge of employee immorality, a school district must not only prove the employee committed an immoral act, but also that the employee set a bad example for students. In the context of a video posted to social media, this opinion apparently holds a school district must prove the video was widely disseminated and viewed among the student body, in order to show the employee actually offended community morals and set a bad example for students. However, laws regarding social media postings are evolving quickly and the above opinion was unpublished and therefore does not represent binding precedent on lower courts. Therefore, it is important school districts seek guidance from their solicitor when facing similar situations.
February 17, 2023
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