Teachers and the Law

1. Teachers and the Law EDLD 611

2. Teacher Dismissal • Ever since the “Nation at Risk” (1983) Education has been all about reform, reinvention, renewal and revival. • Teacher quality is at the forefront • Teachers and Educational Leaders are being held accountable for student achievement

3. Teacher Contracts and Dismissal • Contracts control many of the actions that deal with teacher dismissal. • Components of a “legal” contract • The parties must have the legal authority to enter into a contract • There must be an offer and an acceptance of the contract • The contract must contain valid and adequate consideration • Start and end date • Specific amount of money to be paid • The contract must be generally be documented by a signed writing. (Verbal agreements may be enforceable, but are not recommended for anything long term)

4. The contract is not valid unless the teachers holds a legal certificate at the time the contract period begins • Contracts should contain specific duties to be performed by the teacher

5. Termination • A teaching contract may be terminated by mutual consent to of the Board and the Teacher • Teacher’s may also be discharged in three different situations: • Dismissal – Termination of contract for cause • Non-renewal – Discharge is due to the action of the Board. Procedures will vary if the teacher is “probationary” or “tenured” • Suspension – Removal of a teacher for a limited period of time. This is generally done pending due process procedures, a board of education meeting, or resolution of the problem. (Suspensions are done with pay)

6. Legal Status of Dismissal for Tenured and Non-tenured Teachers • Legal Status • Tenured teachers are viewed as having a greater right to due process that non tenured teachers • Both tenure and non-tenured teachers must be given notice and hearings if termination is during the period of a contract • Violation of a teacher’s constitutional rights whether they are tenured or non-tenured will afford them full due process rights

7. The Tenured Teacher • The purpose of “tenure” is to keep teachers from being discharged for “arbitrary and capricious reasons” • Stoddard v. School Dist., Nos. 77-1418, 77-1419, UNITED STATES COURT OF APPEALS, TENTH CIRCUIT, 590 F.2d 829; 1979 U.S. App. LEXIS 17844, September 27, 1978, Argued, January 5, 1979, Decided

8. As a general rule the following procedures must be provided to a “tenured teacher” prior to termination of their contract: • Notice of the infraction and the intent to terminate • Written statement of specific charges • A hearing on the charges • Assistance of legal counsel • Evidentiary procedures; and • The right to judicial review • Tenure periods very from state to state. The time period will run between 2 and 5 years

9. Causes for termination of a tenure teacher are the following: • Physical or mental condition unfitting him to instruct or associate with children • Immoral conduct; - Erb v. Iowa State Board of Public Instruction, No. 55838, Supreme Court of Iowa, 216 N.W.2d 339; 1974 Iowa Sup. LEXIS 1278, March 27, 1974, Filed ☼

10. Incompetency, inefficiency or insubordination in line of duty • Willful or persistent violation of, or failure to obey, the school laws of the state or the published regulations of the board of education of the school district employing him

11. Excessive or unreasonable absence from performance of duties • Conviction of a felony or a crime involving moral turpitude - Gillett v. Unified School Dist., No. 50,126, Supreme Court of Kansas, 227 Kan. 71; 605 P.2d 105; 1980 Kan. LEXIS 204, January 19, 1980, Opinion Filed ☼

12. Reduction in Force (RIF) • (In determining the professional competency of or efficiency of a permanent teacher, consideration should be given to regular and special evaluation reports prepared in accordance with the policy of the employing school district and to any written standards of performance which may have been adopted by the school board.)

13. Reduction-in-force (R.I.F.) • Reduces staff for financial reasons • Generally State Law will specify how the RIF will take place • Law generally gives teachers that have been RIF the opportunity to come back when the positions are reinstated

14. The Non-tenured Teacher • During the probationary period, the teacher has no property or liberty right in being reemployed • The probationary period will generally require the teacher to participate in: • Frequent evaluations • Development of Professional Development Plans • Mentoring

15. Probationary teachers are not generally provided with full due process rights, unless termination is due to a “constitutional issue” or if the contract is terminated prior to the end of the contract period • Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, No. 75-1278 , SUPREME COURT OF THE UNITED STATES , 429 U.S. 274; 97 S. Ct. 568; 50 L. Ed. 2d 471; 1977 U.S. LEXIS 29; 1 I.E.R. Cas. (BNA) 76, Argued November 3, 1976, January 11, 1977 ☼

16. Accountability in Teacher Dismissal • NCLB will allow teachers to be removed for non-performance (Very few precedents for this issue) • Highly Qualified has eliminated some teaching staff for not being certified in the areas in which they teach

17. Teacher Dismissal – Recommendations for Practice • Principals must understand that in most cases of teacher dismissal they are the ones who are providing the evidence for dismissal. Obtaining appropriate documentation and systematically observing teachers is critical. • Teacher dismissal can have a negative impact upon a school. Principals, as instructional and school leaders, need to understand and use teacher performance appraisal as a means to improve the quality of education for all students. • All state and school policies should be reviewed in light of new federal requirements found in NCLB.

18. The constitutional protections of tenure are diminishing as the constitutional protections of all teachers are expanding. Principals need to stay abreast of case law governing the constitutional rights of teachers. • Principals must know federal, state, and local statutes pertaining to teacher qualifications, teacher dismissal, and their relationship to student and school performance. • Principals and teachers need to be cognizant of their contract, written and implied, and its relationship to teacher dismissal. Most formal evaluations are conducted in the classroom to identify the instructional abilities of a teacher. Teacher dismissal occurs more often in the implied duties.

19. Principals must know the legal rights of teachers in dismissal cases. Different degrees of due process are often afforded both tenured and nontenured teachers. • Documentation of teacher performance is critical to the evaluation and dismissal of teachers. In all the cases reviewed, it is apparent that the principal must know what is going on in the classroom and have a record of teacher performance. • Evaluation, improvement, and teacher development should be systematized to ensure a qualified, effective teaching staff.

20. Current teacher certification statutes may be in conflict with NCLB requirements. This will require teachers. principals and the school district to understand the law as they apply federal statutes to state and local requirements. Principals will need to stay fully abreast of the changes that occur at all levels and become involved in the development of new rulings. • In all aspects of dismissal, principals must not engage in any un­reasonable, arbitrary. or capricious actions.

21. Teacher Certification • Teacher certification is largely governed by State Law • NCLB has stated that there will be a “qualified teacher” in every classroom – has modified the procedure for certification and revocation of certification • Principals need to check certification on all of their staff members each year. Check for expiration of certificate and when a change of assignment is involved, appropriate certification should be confirmed with each staff member

22. State Authority and Interest in Certification • The State Board of Education is statutorily the only agency authorized to set standards for teacher certification • “Teaching Certification is an acceptable method of satisfying a state constitutional mandate for the legislature to supply an education for youth”. • A certificate is supposed to assure that the teachers is “competent” • The certification process must be neutral in respect to race, color, sex, religion and national origin • States can required resident aliens to produce evidence of their intention to become naturalized citizens of the U.S. prior to issuing certification • Loyalty oaths can be required of teachers prior to teaching certificates being issued

23. Teacher Certification and Employment • Keep in mind that a certificate is not a contract • Contracts are not valid if certification is not current • Salary and benefits can be tied to the type of certificate a teacher possesses

24. The Revocation of a Teaching Certificate • States can revoke teaching certificates for “just cause” • The most frequent reason for revocation is due to immorality • As a general rule, revocation of a teaching certificate will required the same grounds as the termination of a tenured teaching contract • Due process procedures should be afforded to any teacher before revocation may take place

25. Teacher Certification – Recommendations for Practice • It is clear that any person seeking state teacher certification has the responsibility to see that all requirements are met and that the appropriate paperwork is completed. It also is that person's responsibility to ensure that the certificate is current and that appropriate action is taken to renew the certificate upon its expiration. • School principals should monitor carefully the certification status of the staff to ensure that the certificates are current and in order.

26. Principals may find that they are more involved in the initial assign­ment of teachers or in their reassignment because of fiscal problems or changing state curriculum regulations. Whether teachers may be assigned to teach outside of their area of certification is a question to be determined by the individual state. Principals should be aware that states differ in their interpretation of this issue. • School principals may be called upon to provide documentation in a certificate revocation case. Such documentation must provide substantial evidence of the alleged wrongdoing.

27. Academic Freedom and Censorship • Academic Freedom was generally thought to be applicable only to the realms of higher education. However, during the 60’s rights of teachers and students were coming to the forefront • Censorship – “The suppression of speech or other forms of expression.”

28. Pickering v. Board of Educ., No. 510, SUPREME COURT OF THE UNITED STATES, 391 U.S. 563; 88 S. Ct. 1731; 20 L. Ed. 2d 811; 1968 U.S. LEXIS 1471; 1 I.E.R. Cas. (BNA) 8, March 27, 1968, Argued, June 3, 1968, Decided ☼

29. Public school teachers have constitutional rights that they can exercise. They must be speaking on matters of public concern. • “Pickering” was the preempt to teacher tenure laws throughout the country. Established the terms describing the actions of administrators as “arbitrary and capricious”

30. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, No. 75-1278 , SUPREME COURT OF THE UNITED STATES , 429 U.S. 274; 97 S. Ct. 568; 50 L. Ed. 2d 471; 1977 U.S. LEXIS 29; 1 I.E.R. Cas. (BNA) 76, Argued November 3, 1976, January 11, 1977 ☼

31. Employees and boards of education have interests which must be balanced. Boards cannot ride roughshod over the rights of employees and employees cannot exercise speech to the extent that it interferes with the mission of the board of education.

32. Connick v. Myers, No. 81-1251 , SUPREME COURT OF THE UNITED STATES , 461 U.S. 138; 103 S. Ct. 1684; 75 L. Ed. 2d 708; 1983 U.S. LEXIS 153; 51 U.S.L.W. 4436; 1 I.E.R. Cas. (BNA) 178, November 8, 1982, Argued, April 20, 1983, Decided ☼

33. Pickering, Mount Healthy, Givhan and this case establish the conditions under which a public employee may exercise the right to freedom of speech in the work setting. (This case was established outside of the academic setting)

34. Boring v. Buncombe County Bd. of Educ., No. 95-2593, UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, 136 F.3d 364; 1998 U.S. App. LEXIS 2053; 13 I.E.R. Cas. (BNA) 1189, March 4, 1997, Argued, February 13, 1998, Decided,  Certiorari Denied October 5, 1998, Reported at: 1998 U.S. LEXIS 4802.

35. Lacks v. Ferguson Reorganized Sch. Dist. R-2, No. 97-1859EM, UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, 147 F.3d 718; 1998 U.S. App. LEXIS 13187; 74 Empl. Prac. Dec. (CCH) P45,542; 14 I.E.R. Cas. (BNA) 24, January 12, 1998, Submitted, June 22, 1998, Filed,  Rehearing Denied September 17, 1998, Reported at: 1998 U.S. App. LEXIS 23327. Certiorari Denied March 8, 1999, Reported at: 1999 U.S. LEXIS 1850.

36. Erskine v. Bd. of Educ., Civil Action No. DKC 2000-2552, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, 207 F. Supp. 2d 407; 2002 U.S. Dist. LEXIS 12295, July 2, 2002, Decided

37. Cockrel v. Shelby County Sch. Dist., No. 00-5259, UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, 270 F.3d 1036; 2001 U.S. App. LEXIS 24189; 2001 FED App. 0396P (6th Cir.); 145 Lab. Cas. (CCH) P59,473; 18 I.E.R. Cas. (BNA) 65, March 9, 2001, Argued, November 9, 2001, Decided, November 9, 2001, Filed,  Writ of certiorari denied: Shelby County Sch. Dist. v. Cockrel, 2002 U.S. LEXIS 5489 (U.S. Oct. 7, 2002).

38. Academic Freedom & Censorship – Recommendations for Practice • Principals of the twenty-first century have the guidance of a line of cases in which the courts, with notable consistency for two decades, have supported the authority of the public schools to control curriculum. Nonetheless, school administrators must realize that censorship of teachers' speech still carries with it the risk of a law suit with the possibility of the assessment of damages should the teacher win. Principals should know and respect teacher's rights. They should approach personnel problems with a spirit of fairness and attempt to resolve them by doing what is in the best interest of the students. Finally, they should recognize potential legal implications and act under the guidance of competent legal counsel before and not wait until after such problems develop. The lessons of the cases reviewed serve as the basis for additional suggestions that follow:

39. Be aware that outside of the classroom teachers have a First Amendment right to express opinions about matters of public concern even though those views may be controversial and unpopular. The only justification for interfering or punishing teachers for such speech is material and substantial disruption of the educational process.

40. Exercise extreme caution when recommending the release of inferior or otherwise undesirable teachers who at the same time may be engaged in protected speech or other constitutional rights. The evidence documenting the legitimate reasons for the action must convince the courts that those reasons alone would have resulted in the dismissal or other disciplinary action.

41. Do not base a recommendation for dismissal or other disciplinary action on what teachers may have said in a private conference because if the statements are about matters of public concern, they are protected speech. • If teachers are to be disciplined for what they say in the classroom or for the subject matter or methods they use, make certain that the school has and can show some legitimate pedagogical justification for the actions.

42. The twenty-first century began with public school administrators having broad judicial support for their authority to control the curriculum. IN the near future, there is little indication that this authority will be eroded by elementary and secondary school teachers’ claims of academic freedom. However, few would question the desirability of teacher involvement in curriculum decisions. Communication between principal and teach about what is taught and how it is taught is essential.

43. Sexual Harassment in the Workplace • Sexual harassment is viewed as a form of sexual discrimination and therefore is a civil rights violation • Sexual harassment results when someone in a “position of power” uses his/her status to extort sexual favors from a subordinate • Damages can range from $50k to $300k depending on the size of the company

44. Sexual harassment is difficult to measure and not easily defined. Generally it takes place between a man and a woman, however, it can also be in the form of “same sex” harassment as well. • Louis v. E. Baton Rouge Parish Sch. Bd., CIVIL ACTION NUMBER 01-493-B-M3 , UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA , 303 F. Supp. 2d 799; 2003 U.S. Dist. LEXIS 23741, December 19, 2003, Decided

45. Title VII • Title VII of the Civil Rights Act of 1964 and by the Civil Rights Act of 1991, together, provide for damages in the cases of intentional discrimination • Sexual harassment was not addressed until 1980 when the EEOC made regulations prohibiting sexual harassment • Title VII states: Unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature constitute harassment when • (1) submission to such conduct is made explicitly or implicitly a term or condition of an individual’s employment, • (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, • (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

46. Quid Pro Quo and Hostile Environment • Quid pro Quo “I will do this for you if you do will do this for me. • Corley v. Detroit Bd. of Educ., No. 119773 , SUPREME COURT OF MICHIGAN , 470 Mich. 274; 681 N.W.2d 342; 2004 Mich. LEXIS 1184; 95 Fair Empl. Prac. Cas. (BNA) 573, June 17, 2004, Decided, June 17, 2004, Filed

47. Employer Liability • Employers do have liability if they have not done a proper job of instituting policy and making sure that all employees and supervisors have knowledge of this policy • Investigation of each allegation of harassment should be done immediately

48. SCRIVNER v.SOCORRO INDEPENDENT SCHOOL DISTRICT 169 F.3d 969; 1999 U.S. App. LEXIS 4171; 79 Fair Empl. Prac. Cas. (BNA) 429; 75 Empl. Prac. Dec. (CCH) 1999

49. Title IX • Title IX will also addresses issues of sex discrimination and sexual harassment • Title IX is generally used more in student cases than with employees, but the courts have been able to use both in certain situations of harassment. Damages can be collected when there are violations of either Title VII or Title IX • AB v. Rhinebeck Cent. Sch. Dist., 03 CIV. 3241 (SCR) , UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK , 224 F.R.D. 144; 2004 U.S. Dist. LEXIS 17716, August 24, 2004, Decided, Partial summary judgment granted by AB v. Rhinebeck Cent. Sch. Dist., 2005 U.S. Dist. LEXIS 4686 (S.D.N.Y., Mar. 21, 2005)

50. Equal Protection • The courts have recognized some sexual harassment claims using the “equal protection clause” of the Fourteenth Amendment. In these cases the plaintiff must show that discrimination was intentional.