Personal and Employer Rights vs. Free Speech
Ah, the furor, the hand-wringing, the angst that have filled the social media over the castigation of a reality TV star to the wilds of ex-stardom over his statements in a magazine interview regarding his distaste for homosexuals and his apparent lack of awareness that there was racial inequality in the far gone days of his youth in rural Louisiana. Has he no right to free speech? Well, sort of yes and mostly no.
In his situation.
Not all employment situations coalesce with the right of free speech and the law in exactly the same manner. For one easy example, we have a Seattle Seahawk pro football player whose has seen his career come to a screeching halt due to his repeated use of a recreational drug, reported to be marijuana. The use of marijuana is currently legal in this state. Do the rules of engagement and attendant penalties administered by the league whose rules he plays under trump state law? Evidently they do. Is he in jail? No. Can he no longer play? No. Perhaps he can find work in the Canadian Football League or some other pro football organization.
The reality is that not all employment situations are bound by the same standards and rules. I have personal experience with these differences in both (so far) of my careers.
For over three decades I was a teacher. Many are not aware of this (including most teachers) but during my entire career public school teachers could be fired in at least most states for “violating the moral standards of the community.” This included actions that were legal.
The restrictions are even looser for private schools of a religious persuasion, as in this week’s firing of a popular Eastside Catholic administrator because he chose to marry his male partner last summer. Of interest to me is that the students walked out in protest of this yesterday. This needs to be taken with a grain of salt, as students love the idea of a walk-out, as for many it’s merely a handy excuse to get out of school. My interest comes from the fact that the gentleman was the Vice Principal. In most schools the VP is in charge of discipline, and is usually the least favorite staff member from a student point of view.
My favorite example a community moral standards violator is a man with the easy to remember name of Bubba Wardinsky. He was a career English teacher in New Jersey. For many years he had a summer job, and a lucrative one; making porno films in California. That was not illegal. When the story broke of his firing, the papers made note that he allowed his students to call him “Bubba.” I thought that was hilarious. The horror!
The following week brought the other end of the story. As he aged, he found himself less able to “perform” the duties of his summer job, and he turned to directing and producing. It seems he invited one of his female students to travel to California with him and star in one of his productions. That in itself may or may not be illegal, although I think she was under 18. Cue a law professor, but needless to say, his actions violated the undoubtedly hypocritical moral standards of his community. The fact that porn films are enjoyed everywhere, presumably even in New Jersey, was moot. He was gone.
My own experience was less lurid. Three male students one year who chose to “celebrate” their graduation by vandalizing their own school. I was appalled at their actions, and more so by the response of the school district, which was less than a slap on the wrist that allowed them to take their finals and walk at graduation. I was sufficiently incensed that I wrote each of them a personal letter. I had taught each of them in multiple classes, and had been the announcer at games they had played in for all three years. I felt I was justified in venting my displeasure to them in a personal letter.
Pretty much alone on that one.
The parents were outraged, and complained. The District hauled me onto the carpet and told me that either I would sign a letter of apology written for me or the case would be sent to Olympia for possible revocation of my license. I chose to not sign the letter.
In (at that time) about 25 years of teaching I’d never had my professionalism questioned, and never been threatened in this manner. I was devastated. The teacher’s union, the same one I’d helped transform from a tame teachers’ association to a force to be reckoned with during my two years as the local president, chose to lie down. Their response was that it would have been so much better if I’d not put anything in print.
Matters reached their nadir at a post-year faculty party, ironically one held at my home. I could hardly speak to the principal, although it was a weak-willed VP who turned out to be the bad guy. I think the principal did not want to be in a position of calling out one of “her” team, and offered me some vague words of comfort that fell to the ground with a thud.
The football coach offered valuable solace. He said “You mean to tell me this is the first complaint to ever go in your file? Man, you need to get a move on – mine is about an inch thick.” That made me feel better.
Eventually things got to the district level and someone looked at it and decided this was ridiculous. I was sent a letter stating that the matter was closed and that no further action was taken. I never forgot it.
The next fall the VP who’d led the attack and was so scornful toward me called me in and offered to let bygones be bygones. He said that he wanted to shake my hand and start the new year. I refused to shake his hand with some vehemence. The next day he was transferred to a junior high, and the last thing I was told (a year or two later) was that he’d been fired for inappropriate acts with a female student. Good riddance to him.
Nevertheless, I came within range of a possible hearing to determine my legal ability to teach based on expressing my own opinion to three graduating seniors. Freedom of speech? A bit tenuous here.
Teachers (many of them do not know this one either) also work under a legal standard called “in loco parentis,” which means that “in this location” the teacher is the “parent.”
Just one of the precepts that falls under this is the responsibility of teachers to protect their “children” from abuse. If a teacher even suspects that a student is being physically, emotionally, or psychologically abused, by anyone, that teacher is required to report the suspicion. That is true even if the teacher has no evidence at all.
If a teacher suspects abuse, or should have, and fails to take action, the teacher can be sued, personally, by the student, even if years later, for not taking actions on a suspicion he or she did or should have had. This is sort of a reverse freedom of speech. You can be fired for not speaking, even if you have no evidence but merely sense something might be wrong.
I had experience with this one as well. I had a female student who was absent two to four days a week. In a school where ten absences a semester led to an automatic failing grade this meant she had no chance of earning a credit in any class. She was an adopted daughter from Rumania, although her English skills were adequate. I asked her about the absences, and received vague answers and assurances she would do better. The parents did not respond to messages mailed home – several of them.
Finally, after repeated failures to reach the parents of change the situation, I called Child Protective Services. I did not know what was going on, but something was definitely wrong here. When I told the principal (a different one from the anecdote above) she was angry. She asked me if I knew that when a teacher made a report the CPS the principal was required by law to fill out a ten page report. I did not know that, and actually did not particularly care (I think you could say that many administrators found me to be a pain in the ass). Anyway, once CPS called the home the parents withdrew her from school and transferred her to the Bellevue School District. That removed her from my district, and CPS did not have enough reason (or enough resources) to pursue the case.
However, there is a happy ending – sort of. Five years later I received a call from a gentleman at CPS to thank me for what I’d done. It seems the parents had adopted the girl and were using here pretty much as a full-time maid. Once she was old enough to leave the home, they applied to adopt another child for the same purpose, and it was only the notes from my complaint that put a stop to it.
So in both of these instances, teachers do not enjoy the same freedoms as others. In one case, they can be threatened with loss of employment for writing a personal letter to a graduating senior they will not teach again, and in the other can lose their job for NOT speaking out when they suspect, or can be shown to should have suspected, any kind of abuse.
Contrast this to a friend I had in the early 1970’s. I was a junior high teacher and he drove a forklift in a warehouse. Our friendship was based on our cars. We lived a block apart, and we owned a 1958 Corvette and he a 1959. Both of them had needs and we enjoyed working on them together on weekends.
During the week, he would clock in each day, drive his forklift for 8 hours, and clock out. He was not identified by his company affiliation, and in fact I never knew who he worked for. I was identified as a teacher at Rose Hill Junior High by everyone in the neighborhood. He could say anything he wanted at any time to anyone and it would not come back to impact his life. On the other hand, I had been taught in my first college teacher prep class to never purchase so much as a case of beer in the same town where I worked.
He was very good at his job and made more money than I did. He went skiing or worked on his stereo system in the evenings, while I graded papers. I did not want to trade places with him, but the differences were interesting, and I often wondered what it would be like to clock in and clock out and never think about your job on weekends or evenings. Or to be held responsible for your words and actions 7 days a week.
When I left teaching to enter the motorsports business I invented a position where most people associated me with the company I worked for, all the time. I was usually wearing clothing that “branded” me, as well. I was very aware of this, and tried never to say anything or act in a way that would reflect badly on my employer. That was part of my job, and because my job also involved a lot of speaking in public and frequently published writings, there was always a tinge of worry perched on my shoulder. I did have a few incidents where my mouth, or pen, got me in hot water.
At Cycle Barn I had a couple of e-mail conversations that would not end. One customer wrote to ask why tire changes cost such and such at Cycle Barn but were cheaper at another dealership. I replied that dealerships offer literally thousands of products and services, and if you went through them all you could find dozens of differing prices based on a whole menu of choices and decisions. At the end of the day, customers were free to shop at any dealership, or multiple dealerships, based on what they wanted at the time.
This did not go well. This enraged him (I still do not know why) and he fired back an angry response. I answered that one sincerely, which also did not go down well. Soon he was sending me a hostile e-mail almost every day, and they gradually became profanity laced and personally insulting. I had no idea what to do, and simply kept them in a file. Eventually word of this got to the owner, who called to ask me what was going on. I told him I had no idea, but sent him the file of a couple of dozen e-mails. Next thing I knew I was in his office being directed to find out how to lose this guy as a customer and also how to evict him from our HOG chapter, since neither of us knew how that could be done.
I sputtered, “But Jim, this guy has purchased five new Harleys from you.”
His eyes narrowed to slits and he replied “What’s your point?” He made it obvious that money (a lot of it) was not a consideration when a customer was abusing an employee. That impressed me a great deal.
And so I researched how to cast this guy out of the HOG chapter, which merely involved a letter from the owner, which I wrote and the owner signed. When word of this got to the HOG chapter (there were actually two situations like this going on at the same time – I have left off the other one for brevity) all holy hell broke loose. Guess whose fault all of this was? It took a long time to get past these two situations, and a lot of opportunities to keep my mouth shut. Most people “knew” what had happened, and of course they really did not know and I could not tell them.
On another occasion I had a customer who’d become a good friend, or so I thought. He was a guest on my radio show, and a very interesting one. He came in to the store one day to chat, and what ensued revealed him to be, in my opinion, a racist and a homophobe. I asked him the change the subject a couple of times, and finally I erupted and told him that he was a racist homophobic pig and to get away from me.
Oddly enough, he chose to complain to the management about my tirade, and I was asked, politely, to write him a letter of apology. I don’t know what would have happened if I had refused, but I knew I had gone too far. (Although I would do the same thing again in a similar situation) I was representing me, but I was also being paid at that time to represent the company, and I was on company grounds. I wrote a letter to him apologizing for losing my temper, which was something I did regret. I did not apologize for the labels I’d attached to him, which were accurate.
One thing I liked about working for Cycle Barn was that when I wrote or said something that could be questioned, I was asked to explain my intent. That is critical, it seems to me. On one occasion I’d started a newsletter for a women’s motorcycle club I had formed, and I called the newsletter “Mary Jane’s Newsletter.” The first article was about my deceased mother and why I had used her name for the newsletter title. I sent it out and the next week the Director of Operations called me to complain that it was the dumbest thing he had ever heard of or read and who cares about my mother and so on. I showed him a printout of the responses received from many women customers, all of them positive. Some had been moved to tears by my essay. That ended that, but I always respected the practice of asking the employee for his or her version first before the cudgels came out.
There were a couple of incidents at Ride West, but those are still too recent to allow me the comfort of speaking about them. Besides, I am still sort of on the sidelines with Ride West and may choose to work for them here and there in the future.
In issues of free speech and employer’s rights, I think it is important to not only not bite the hand that feeds you but also not to bite the hand that may feed you in the future. The employer does not forego all rights to have a mission statement or philosophy or standards of behavior, etc. because they are paying you.
They do have the right to negotiate wages, hours, and conditions of employment, but after that things can get murky, based on the particular job in question. When you choose to take on a job where you’re representing a company, the company retains the right to have some control, even if after the fact, over how it is represented in a public forum. Once you are associated with a company or group, your words and actions are to a large extent not entirely your own.
Ponder this: Does the President of the United States have the right of free speech? Technically yes, but ironically and in the real world I would say that he (or she) does not. Every second of every day, the President is representing me, and you, and a couple of hundred million others. Everything he or she says, or writes, or communicates in any way at any time to anybody for any reason, is analyzed and pored over in detail and may become the next controversy. That goes with the territory, but there are many other jobs that bring similar situations in diluted form.
That is not good or bad – it just is.
Copyright 2013 David Preston