edea 630

1. EDEA 630 Notes on Chapters 16 and 17 Due Process Rights of Teachers Discrimination in Employment

3. Four Aspects of Due Process 1. Substantive due process 2. Procedural due process 3. Vagueness test 4. Irrationality and presumptions test

4. Substantive due process This refers to the essence of life, liberty, and property, both explicit and implicit.

5. Liberty interests With respect to teachers, liberty interest refers to the right to live and work at whatever job he or she desires. Any action by the state that stigmatizes a teacher to the degree that future employability is adversely affected would implicate substantive and procedural due process.

6. Property interests For employment to be considered a property interest, a person must have a “legitimate claim of entitlement” to it. A substantive property interest in a teaching position may arise when a teacher possesses tenure, holds a permanent or continuing contract, or have a legitimate claim to employment by state law or state or local policy.

7. Procedural due process This establishes the mechanics of ascertaining the truth about a situation. It is required in situations in which an individual faces deprivation of substantive due process, such as termination due to exercise of a fundamental freedom (e.g.,speech, expression)

8. Balancing test for procedures Because circumstances vary, the courts have established a three-leveled balancing test for determining procedural due process. First, it may be used to determine whether an individual is entitled to a hearing before action is taken. Second, it may be used to determine whether a predeprivation or postdeprivation hearing is required, and third, it is used to consider the standard and extent of proof required for the deprivation to occur.

9. Vagueness test This protects individuals from arbitrary or capricious action. Laws are overly vague if a person of “common intelligence” is required to guess at their meaning. The degree of vagueness tolerated by the Constitution is determined by the nature of the regulation and its consequences. Those laws affecting substantive due process are held to a higher standard than those involving lesser civil penalties.

10. Cleveland Bd. Of Ed. v. Loudermill This case established that public employees with a property interest in their jobs are entitled to pretermination hearings. They must be given notification of the reasons for their termination and given the opportunity to respond.

11. Hortonville District v. Hortonville EA In this case, the school board fired teachers because they were striking and refused to return to their duties. The teachers sued, claiming that since the board was a party in the labor conflict, it was biased and/or acted out of ill will in the termination. The courts found for the board, saying that it was merely discharging its duties and that there was no evidence of malice or ill-will.

12. Loyalty Oaths Loyalty oaths have been found to be unconstitutional on the basis of vagueness. Loyalty oaths that are affirmative (“I will uphold and defend the Constitution”) or negative (“I will oppose the overthrow of the government…”) are constitutional. Those requiring teachers to swear they have never “aided, abetted, taught, or assisted in a subversive organization” are considered too vague because teachers may have unintentionally or unknowingly done so.

13. Cutoff dates for pregnancy Prior to the mid-1970s, it was common for school districts to place an arbitrary date for pregnant teachers to leave their positions without pay. Reasons cited were usually maintaining continuity in classroom instruction and protecting the health of the teacher. In Cleveland v. LaFleur, this was found to be unconstitutional on the basis of irrationality; that is, there was no rational connection between the rule and its intended outcomes.

14. Discrimination in Employment The equal protection clause of the Fourteenth Amendment prohibits actions by state governments that “draw lines” favoring or disfavoring a particular class of persons based on impermissible criteria. Equal protection is based on the theory of justice that each person has the right to the same advantages as any other person similarly situated.

15. Rakowski’s moral theory “The basic rational for adopting this principle is simple: People come into the world equally undeserving. Because no one has a greater claim to the earth or what lies on or beneath it than anyone else, all are entitled to equal shares.”

16. Three Standards of Review for Equal Protection 1. Burden of proof on plaintiff to show that legislation is unreasonable or irrational 2. Strict scrutiny shift burden of proof to government to show a compelling interest for the state. 3. Balancing test…(e.g., Plyler v. Doe)

17. Title VI Title VI of the Civil Rights Act states: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

18. Application of Title VI There have been questions officials are required to addressonly de jure segregation or if they must remedy de facto segregation as well.

19. Title VII Title VII deals with equal employment opportunities. It was amended in 1972 specifically to address educational institutions. It has been used most often to challenge discrimination in teacher and administrative employment.

20. Tests and Employment In Griggs v. Duke Power, the Supreme Court ruled that tests used for selection in employment purposes must be significantly related to job performance, according to Title VII.

21. United States v. South Carolina In this case, the US District court found that the use of the NTE for selection and compensation purposes in North Carolina did not violate Title VII. It employed the three standards of review (Burden of proof, strict scrutiny and balancing) and found that the test was valid, the state had made a strong case, and that the state had a legitimate business interest in using the test.

22. Hazelwood v. US This case upheld the use of a formula based on the percentage of African Americans in the labor market versus the percentage of African Americans hired in the school district as a basis for determining the fairness of hiring practices under Title VII.

23. Affirmative Action Affirmative action is a voluntary program of hiring that institutions and organizations may use in hiring. It is looked upon favorably by the courts as long as it isn’t too broadly applied.

24. Wygant v. Jackson Bd. Of Ed. In this case, the school district had used Affirmative Action to hire minority teachers, and then had to begin a series of reductions in force due to low enrollment. In order to retain the more recently hired minority teachers, it laid off more senior white teachers. The court found it to be unfair and in violation of the Fourteenth Amendment.

25. Taxman v. Piscataway In this case, the school district of Piscataway adopted an Affirmative Action plan that had no remedial effect; that is, there was no evidence of unfair hiring or assignment of teachers prior to its adoption. Layoffs began to occur, and two teachers of equal qualifications and equal seniority were tied for layoff, one black and one white. The district chose to retain the black teacher based on Affirmative Action. The white teacher sued, claiming that it wasn’t relevant, and the court agreed.

26. Sex Discrimination and Title IX Title IX prohibits any agency receiving federal funds from discriminating on the basis of gender.

27. Sexual Harassment The courts consider three types of sexual harassment: 1. Quid pro quo 2. Hostile environment 3. Retaliation

28. Masson v. Dade County In this case, a female teacher claimed that she was harassed by a male principal. The courts found that the school board was not liable for the harassment because it did not know of the harassment; there was a policy in place that the teacher could have used, but she failed to do so.

29. Trautvetter v. Quick This case found that a consensual sexual relationship between a superior and subordinate does not constitute sexual harassment.

30. Cowan v. Strafford R-VI In this case, a second grade teacher’s contract was not renewed because of a letter she sent to students, along with a “magic rock” at the end of the school year. Some parents objected, claiming it smacked of a new age religion. The court found the reason for dismissal violated Title VII.

31. Teachers with TB, AIDS The courts have found that TB is considered a handicap under Section 504 of the Rehabilitation Act of 1973. Teachers with AIDS cannot be prevented from teaching merely because of parental fear or apprehension.

32. Family and Medical Leave Act This Act allows employees to take reasonable leave for medical reasons, birth or adoption, and care of child or parent with a serious ailment. It has a special section for schools, and for people principally in instructional positions. It states that if the time missed will exceed 20 percent of the instructional period, the employer may require either that the leave be taken for a specific duration not to exceed the treatment, or that the employee transfer to a temporary alternative position.