Most school districts in Texas have adopted a policy that warns employees that they can face disciplinary consequences if their use of electronic devices interferes with their ability to do the job effectively.  The most interesting case that hinges on this policy is the famous “nude selfie” case. 

This started when a principal took a racy picture of herself, using her own cell phone in the privacy of her own home.  She texted it to her husband, who, we learn from the court’s opinion, was toiling away in the oil fields many miles away.  Thus: a gift from wife to husband. A thoughtful and kind gesture.  She didn’t show it to anyone else, and didn’t post it on social media.  But someone else did. 

The case never reveals who hacked into the woman’s account and disseminated what was meant to be the private communication from wife to husband. But it did get disseminated, and the board was concerned that the middle school principal would forevermore have a hard time being effective after students, teachers, and parents had seen the picture.  The superintendent recommended termination of her employment, and the board did just that. 

I think fair minded people can see both sides of this case.  The board wants the principal to be effective. Anything that gets in the way of that, regardless of whose fault it was, is important.  On the other hand, the principal did nothing wrong here. Is it fair that she be fired because she was the victim of an illegal hack of her phone?

Perhaps that’s why the case bounced back and forth so much.  Since this was a termination case, not a nonrenewal, the principal was entitled to a hearing before an IHE—Impartial Hearing Officer. That’s where the back-and-forth began. It went like this:

*The IHE sided with the principal, and recommended that she be reinstated.

*But the board rejected that, concluding that she had lost her effectiveness and should be terminated.

*The Commissioner of Education agreed with the board. 

*The state district court judge sided with the principal.

*The Court of Appeals went with the board. It upheld the decision of the board and of the Commissioner.  And that was the end of the litigation. The principal was terminated.

The decision of the Court of Appeals was unanimous among the three judges, but one of them, Justice Leticia Hinojosa, filed a concurring opinion that is worth quoting as an epilogue of sorts to this interesting case. She wrote:

This case presents a unique scenario whereby the malicious acts of a third person resulted in a school district’s policy decision that its employee’s effectiveness was impaired. The result is admittedly harsh, but we must respect ECISD’s determination in this regard.  We are now faced with the reality of an “always connected” society with rapidly evolving technologies. It is incumbent upon school districts in this State to continue to review and develop their policies to reflect this reality and to do so in ways that protect educators from the malicious acts of others. 

It’s Edinburg CISD v. Esparza, decided by the Court of Appeals for Corpus  Christi-Edinburg on March 19, 2020.  It’s at 603 S.W.3d 468.

DAWG BONE:  SO BE CAREFUL WITH THOSE CELL PHONES!!