Teacher Reinstated Despite Offensive Social Media Posts

by Maureen A. Lemon

“I can think of no better form of birth control than to have people observe my class for a day.” “You can miss 85 days in Oak Park and still pass 6th grade.” “This parent is nuts.” These are a few of the Facebook posts authored by tenured teacher Deidre Kelleher. The Oak Park Elementary School District No. 97 decided Kelleher’s writings were inappropriate and thus dismissed her. But, in a recent decision, the Illinois Appellate Court reinstated Kelleher with backpay because her actions were “remediable.” Kelleher v. Illinois State Board of Education, 2023 IL App (1st) 220058-U (2023). The Kelleher opinion is a masterclass in what—and what not—to do when your school district is confronted with employee malfeasance on social media.

It began with District 97 receiving a parent complaint about an alleged Facebook post containing a racial slur. During the District’s investigation, Kelleher admitted that her Facebook account identified her as a teacher who worked in District 97, and that her page was publicly viewable (although she thought it could only be seen by her friends). Kelleher also conceded she had made most of the Facebook posts and comments ascribed to her, but denied posting comment that included a racial slur. Kelleher justified her behavior by stating Facebook was a therapeutic area where she shared what happened in her classroom with others. Once she became aware of the administrative concerns, Kelleher immediately deleted the posts and reapplied the privacy settings on her account. She expressed remorse, acknowledging that posts that she considered innocent or humorous could be interpreted negatively by others.

District 97’s administration was among those who did not find Kelleher’s posts funny. It concluded that Kelleher’s social media writings were damaging to students and violated policies concerning ethics and confidentiality, including by volunteering information that could result in others identifying the students referenced in her posts.

The administration ultimately charged Kelleher with sixteen counts of misbehavior, including using a racial slur on Facebook, theft of District property, resignation without permission, and failing to report the misuse of laptops by students accessing adult material. On October 15, 2019, District 97’s Board of Education terminated Kelleher.

Kelleher challenged her dismissal before a hearing officer appointed by the Illinois State Board of Education. After a five-day hearing, the hearing officer sustained the charges stemming from violations of the District’s policies regarding the use of social media and confidentiality of student information. While the hearing officer recommended Kelleher’s termination for violating the District’s social media and student confidentiality policies, he requested that the school board confirm his findings that Kelleher was not guilty of several charges including any act of racial discrimination, using racial slurs on Facebook, or theft of District property. On March 13, 2021, the school board issued a written order adopting the hearing officer’s findings of fact and recommendation to dismiss Kelleher for cause but did not confirm that she wasn’t guilty of certain charges. Kelleher filed a complaint for administrative review, but the trial court affirmed the school board’s termination decision. Kelleher then appealed.

On appeal, Kelleher argued that the conduct for which she was fired was “remediable” and that she should have been issued a written warning rather than be dismissed. Under Section 24-12(d)(1) of the School Code (105 ILCS 5/24-12(d)(1)), school boards outside the City of Chicago must give tenured teachers reasonable warning in writing, stating specifically the causes that, if not removed, may result in dismissal for causes that are considered remediable. According to the Illinois Supreme Court’s decision in Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622, 67 Ill. 2d 143 (1977), the test to determine whether a cause for dismissing a tenured teacher is “irremediable” is (1) whether damage had been done to the students, faculty, or the school, and (2) whether the conduct resulting in that damage could have been corrected had the teacher been warned by their supervisor. Any such damage must be so severe as to justify dismissal without a written warning.

Applying the Gilliland test, the Kelleher court concluded that there was no express finding of damage or injury caused by the Facebook posts. District 97 argued that the “damage was done” and that it should not have to wait until a student complained about Kelleher violating their confidence or mocking them in a post. Yet, the court rejected the school board’s reliance on possible damage that might occur in the future, especially because Kelleher immediately made her Facebook account private and deleted the offensive posts. The court also discounted the initial parent complaint that Kelleher’s Facebook posts were unbecoming conduct of a teacher because that parent’s email pertained to the alleged post with a racial slur that was not sustained.

The court agreed that Kelleher’s Facebook posts were foolish and unprofessional, and did not wish to minimize the school board’s concerns about the damage that could flow from Facebook posts like hers. However, the court distinguished Kelleher’s case from those in which a teacher’s Facebook posts actually caused disruption within the student body or an uproar among faculty, parents, or the community. Nor was this a case involving criminal or immoral conduct. Because Kelleher’s malfeasance did not rise to that level, she was entitled to receive a written warning and a chance to remedy her conduct before being dismissed for a remediable cause under Gilliland.

The Kelleher decision serves as a reminder to ensure staff members are trained on your social media and student confidentiality policies. As illustrated by Kelleher, school districts must issue a clear written warning in the form of a Notice to Remedy to tenured teachers who have engaged in misconduct that is considered remediable under the Gilliland test. The written warning cannot be issued by administrators; it must be publicly issued by the school board. Even in situations where a tenured teacher’s personnel file is replete with progressive discipline issued by administrators (which was not the case in Kelleher), the Notice to Remedy has to be issued by the Board of Education to meet the statutory warning requirement. If those steps are observed and the misconduct continues, the courts will not likely reverse a school district’s termination decision. Otherwise, school districts run the risk of having a court reinstate a problem employee—with backpay.