On October 25, 2015, I appeared on Fox News’ Fox and Friends Weekend (@ffweekend) with my colleague David Schwartz (@SchwartzDefense) to debate two legal cases in the media. First, we discussed a juvenile student charged with assault as a result of throwing a baby carrot at a teacher. Next, we discussed a Utah teacher that came under fire by a school principal and parents for posting sexy bikini photographs on her Instagram account.
Social Media Teacher
As discussed, a Utah teacher was asked by her principal to make her Instagram photographs private because some district parents believed that the teacher’s fitness photographs were inappropriate. Initially, the teacher changed her preferences to private but then reversed the setting because she felt it was her right to post the photos. Ultimately, the school board backed down from the request and issued a press release stating they (1) cleared up any misconceptions with employees (2) ensured sites of serious concern to parents, even if not illegal, are blocked on district computer networks and (3) support employees’ rights to pursue legal business activities outside school hours.
As discussed in the appearance, I believe that the School District made the right decision by reversing course. First, none of the photographs contain pornographic material and most of the photographs are of her family, food or other fitness related photographs. Additionally, the teacher did not use her real name but instead used a pseudonym. Moreover, every photograph is posted with a motivational description and/or hashtags such as #startingover #mylife #divorce #momoffour #heart #love #flippingout #fit #fitfam #fitmom #singlemom #fighter #strong. Finally, it is clear that the teacher’s intentions were good, and as a single mother of four, she only wanted to be an inspiration for other women to take care of themselves and get fit.
I also discussed the important of collective bargaining agreements and its application to employer decisions to terminate employees. Generally speaking, employees are at-will and can be fired for any race or gender neutral reason. Conversely, teachers have contracts and these contracts give them additional rights and procedures. Apparently, based on the school’s decision, this conduct is not prohibited by the agreement.
Carrot Throwing Incident
In this case, a 13-year-old Virginia girl faces juvenile assault-and-battery charges after tossing a baby carrot into the forehead of her ex-teacher as a school prank. It is important to understand the distinction between the school’s administrative action and a prosecution by a prosecution. The two are completely separate and the decisions are not mutually exclusive. A juvenile can be disciplined by the school and also be prosecuted.
Here, the student’s conduct certainly met the criteria for a simple assault charge and I argued that the charge was appropriately brought. There is no lawful reason to launch a carrot at a former teacher’s face and that conduct deserves to be prosecuted. There are varying degrees of assaults depending on the intent and/injury and this is clearly the least serious type of assault. However, I certainly don’t think this is the crime of the century and the case can be resolved without significant penalties. There are certain resolutions that can be crafted to rehabilitate the juvenile instead of punishing her.