From Matter of Rubino (N.Y. Sup. Ct. Feb. 1, 2012, posted online Feb. 7); the last three paragraphs, which discuss free-speech-related factors as to the magnitude of the penalty, are particularly interesting, though debatable:
In 1995, petitioner, a tenured teacher, began working for respondent New York City ]Department of Education (DOE). (Pet.). In February of 1997, she began working at Public School (P.S.) 203 in Brooklyn. (Petitioner’s Appendix [Pet. Appx.]).
On June 22, 2010, a New York City public school student fatally drowned during a field trip to the beach. On June 23, 2010, after the school day was over and petitioner was at home, she posted the following on her Facebook page: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!” One of her Facebook friends then posted, “oh you would let little Kwame float away!” to which petitioner responded, “Yes, I wld (sic) not throw a life jacket in for a million!!”
After viewing petitioner’s postings, one of petitioner’s Facebook friends, a P.S. 203 colleague, contacted the school’s assistant principal and expressed concern about the propriety of the postings…. [The hearing officer found that petitioner had engaged in “misconduct, neglect of duty and conduct unbecoming her profession” based on the comments and on the teacher’s allegedly “directing her friend, Joanne Engel, to provide false information to investigators by claiming to have written the comments on [petitioner’s] Facebook.com webpage … so that [petitioner] would not get in trouble.” –EV]…. In deeming termination the appropriate penalty for petitioner’s misconduct, the hearing officer emphasized the public nature of online postings and noted that petitioner had breached DOE’s trust by conspiring with her friend such that “it is impossible for her employment to be continued” and that teachers should instill in their students the importance of taking responsibility for their actions….
[The judge held that the finding of misconduct was not arbitrary and capricious — the legal standard used for review of such decisions under New York law — and found that he could not consider the First Amendment arguments as to that finding. But he then turned to the magnitude of the penalty:]
The standard for reviewing a penalty imposed after a hearing held pursuant to Education Law § 3020-a is whether the punishment imposed “is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.” … Here, petitioner’s 15-year employment history with the DOE was unblemished before she posted the offensive comments, and she posted them outside the school building and after school hours. Moreover, there is no indication in the record, nor any finding, that her postings affected her ability to teach.
There is also no evidence that her postings injured her students or that she intended any injury. Although the hearing officer emphasized the public nature of her postings and her creation of an “electronic footprint,” she made no finding as to their effect on petitioner’s past and future students. And, the specter of racism emerging from the postings did not originate with petitioner, and there is no indication in the record apart from the posting that she is intolerant or that the feeling she expressed, made after a hard day at work, affects the manner in which she teaches and treats her students.
While [for procedural reasons] I do not address the hearing officer’s determination as to the alleged violation of petitioner’s first amendment right to freedom of speech, in these circumstances, termination of petitioner’s employment is inconsistent with the spirit of the first amendment. Facebook has rapidly evolved from a platform used solely by American college students to a world-wide social and professional network. It is commonly used to advertise businesses, organize parties, debate politics, and air one’s grievances, among myriad other uses. Indeed, with Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend. Thus, even though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable. While her reference to a child’s death is repulsive, there is no evidence that her postings are part of a pattern of conduct or anything other than an isolated incident of intemperance.
Moreover, there is no reason to believe that petitioner will again post inappropriate or offensive comments online, as she repeatedly apologized during the administrative hearing for the posts, and expressed tearful remorse at oral argument before me….
And, while students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society. Ending petitioner’s long-term employment on the basis of a single isolated lapse of judgment teaches otherwise. While I do not condone petitioner’s conduct and acknowledge that teachers should act as role models for their students, termination in these circumstances does not correspond with the measure of compassion a teacher should show her students. Rather, it places far too great a strain on the right to express oneself freely among friends, notwithstanding the repulsiveness of that expression. (Cf Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 574  [“the point of all speech protection … is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.”]; Texas v Johnson, 491 US 397, 414 [“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”]). …