Jennifer O'Brien was a first-year first-grade teacher when she posted on her Facebook page that "I'm not a teacherI'm a warden for future criminals!" and "They had a scared straight program in schoolwhy couldn't I bring first graders?" Outraged parents protested. O'Brien was charged with conduct unbecoming a teacher"the posting of such derogatory and demeaning comments about first-grade students showed a lack of self-control, insensitivity and a lack of professionalism." An administrative law judge recommended her termination. O'Brien appealed.

A state intermediate appellate court affirmed the final decision of the commissioner of education adopting the ALJ's order to remove O'Brien from her position. The court was "satisfied" with the decision for the reasons stated by the ALJ and the commissioner in their decisions. In O'Brien's case, the administrative law judge (ALJ) found that her remarks were not addressing a matter of public concern, but were a personal expression of dissatisfaction with her job. The ALJ concluded that O'Brien's right to express her views was outweighed by the Paterson school district's need to operate its schools efficiently. "In a public school setting thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools."

1. Would the outcome have been different if the plaintiff had been a private school teacher?

2. Would the outcome have been different if O'Brien had apologized?