Most teachers perform their jobs admirably and never face censure, but cases of teachers charged with incompetence or unethical or illegal behavior surface regularly. Teachers are protected by the constitutional and civil rights guaranteed to all citizens, but because they are entrusted with responsibility of educating impressionable students and serve as role models, they are held to higher standards in the classroom. Teachers need to protect themselves and must ensure the rights of their students, so it is recommended that they be knowledgeable of education law. There are many reasons why a teacher may be dismissed and each state has statutes for granting and withdrawing certification and school boards have established dismissal processes. Probationary teachers are generally not as fully protected as are tenured teachers who are guaranteed of the right to due process should they face charges for dismissal.
Keywords 1st Amendment; 14th Amendment; Certification of Teachers; Civil Rights; Dismissal of Teachers; Due Process; Faculty Rights; Fair Treatment; Just Cause; Teacher Certification; Tenure
A series of articles prepared by the Associated Press that appeared in newspapers across the nation in the fall of 2007 exposed the pervasiveness of sexual abuse by teachers. The sensational nature of the articles evoked the abuse scandals by priests in the Catholic Church and implied that school administrators are remiss in tracking perpetrators. The AP found that more than 2,500 teachers in the U.S. were punished for sexual misconduct over five years (Garcia, 2007; Irvine, 2007). Considering that there are around three million teachers in the United States, the percentage found guilty of abuse was small, but one would argue that one case is too many for professionals charged with the responsibility of educating and shaping young lives. Suits involving teachers surface regularly in local media around the country and the cases are frequently complicated. Charges involve many other misconduct issues. Likewise, the teacher is not always in the wrong and may be unjustly accused. The majority of teachers go about the business of educating the young and exercising their professional skills and judgments, but at the same time, the wise ones know the laws and are aware of their rights. One of those rights is to a good reputation which is why any teacher facing dismissal also has the right to due process (Jewett, 2007).
Most teacher education programs include some instruction on education law. Extensive research presented in a study by Schimmel and Militello (2007) indicates that many teachers are poorly informed about school law and would change their behavior if they knew more. They believe that teachers frequently violate students' constitutional rights without knowing any better and put themselves at risk. Their article points out that bringing charges against teachers in schools is expensive and litigation involving special education in particular has increased. The study concluded that a majority of teachers in their sample are uninformed or misinformed about a number of important issues concerning student and teacher rights. Ignorance of the law is not an excuse in a court room. Teachers are often not fully aware of rights until they learn about them when they run up against a problem. In today's litigious society, it is increasingly important that teachers raise their level of awareness.
Teachers are assured of the rights basic to all citizens under the Amendments of the U. S. Constitution including the freedoms of speech, religion, and association. Even the constitutional right to bear arms has become an issue for some teachers. A case reported in the national news in October 2007 when a teacher in Oregon who had a restraining order against her ex-husband and filed suit against her school district which refused to allow her to carry a gun to school. At the same time in Michigan, a state representative was introducing legislation to allow teachers with firearm certification to have access to a gun at school (Ash, 2007). Although each case is unique and even unusual, fundamental rights are continually being tested and court decisions help define national norms.
Wohl (2005), offered a primer on the "The Extent and Limitations of Teachers' Rights" by highlighting issues related to the essential freedoms of speech, religion and association. He contends that teachers' rights have become more clearly defined in the last fifty years and "… legal conflicts concerning limits on those rights and freedoms have also increased, adding an entirely new procedural layer to the job" (Wohl, 2005, par. 4).
The most frequently tested of teachers' rights is that of freedom of speech, both in and out of the classroom. The frequently cited case of Pickering v. Board of Education 391 U.S. 563 (1968) set a precedent for modern challenges to teachers' freedom of speech. The case allowed that Pickering, a teacher, had the right to criticize his school board and administrators in a public forum, but subsequent challenges have defined standards that require levels of civility and professionalism by disallowing vituperative remarks or disclosure of confidences (Wohl, 2005).
Issues in the Classroom
Discussion of political issues within a classroom is generally appropriate as long as teachers do not force their personal opinions on students. The most contentious issues related to freedom of speech involve academic freedom. Teachers are bound by assigned texts and the curriculum determined by school districts and the states. Deviations from those are limited, but teachers do retain the right to … "shape their lessons and to evaluate and comment on materials and issues related to their teaching and curriculum" (Wohl, 2005, par. 8). Further, Wohl quotes Justice Thurgood Marshall who said that we must "arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern, and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees" (par. 5).
School prayer and the teaching of evolution remain among the most incendiary of issues that test freedom of religion. Teachers are often in the center of the debate as cases arise. One of the most highly publicized cases of recent years occurred in Pennsylvania where parents sued, demanding that students be read a statement critical of evolution and that the concept of intelligent design be presented. The challenge fizzled as a federal judge ruled that intelligent design is a religious viewpoint and that evolution is backed by scientific evidence ("Ruling on intelligent design," 2005).
Teachers may not proselytize or indoctrinate their students. Official prayer is also banned from the classroom, but courts in recent years are less reluctant to restrict private prayer in schools. A former principal, Rooney (2007), offers a philosophical perspective on teaching and managing a school. She says that individuals pray all of the time in public schools as they draw on all strengths at their personal disposal to and expresses that no particular religious system prevails.
The freedom of association is tied closely to the right of teachers to organize in a union. As long as their assembly is disassociated from their professional responsibilities, teachers' rights to organize and assemble is permitted and closely regulated by the states.
Teachers are also covered by the Equal Protection Clause of the Fourteenth Amendment, which protects all citizens from discriminatory practices. It assures that a teacher will not be discriminated against on the basis of race, sex or national origin. Subsequent federal legislation offered further defines protection including the Civil Rights Act of 1964 and its amendment to include educational institutions in 1972; Title IX of the amendment protected discrimination based on sex and Title VII and IX prohibits sexual harassment in the workplace.
Tenured vs. Probationary Teachers
When discussing teachers' rights, a distinction must be made between those teachers who are tenured and those who are not. Newly hired teachers who are probationary serve at the pleasure of their school board. Probationary teachers have contracts that must be renewed from year to year and can usually be terminated without due process unless they can prove that that their dismissal "… violated a constitutional or statutory right (e.g., that the non-renewal occurred because of race, religion, age, or other discriminatory reasons)" (Imber, 2004, p. 303).
Teachers are granted tenure after a period of probation which is usually two to five years, depending on the state. All states have tenure statutes that define the process. Tenure is granted automatically in some states, but in others teachers must be appointed by the school board after undergoing evaluation. Teachers who are granted tenure have proven their competence and demonstrate professional responsibility. By definition, tenure confers on teachers the privilege of having their contract renewed automatically from year to year and having the right to due process should they be charged … They cannot be dismissed "for engaging in constitutionally or statutory protected behavior or because the school board believes that a better teacher could be found or even if a better teacher is found" (Imber, 2004, p. 404).
Dismissal procedures are generally well defined and due process guarantees that a tenured teacher be notified of termination, be told what the specific charges are, and have an opportunity for a hearing. The due process right of a tenured teacher facing dismissal requires that a school board must show substantial evidence that it has grounds for the action. Because of the cost of time, money and human resources, dismissals aren't entered into lightly. Grounds for dismissal defined by state statutes may include incompetence, insubordination or neglect of duty, incapacity, or immoral or criminal behavior; although each state and their courts may interpret specific actions differently.
Selected Cases Involving Teachers' Rights
Freedom of Speech
The case of Pickering v. Board of Education (1968) is the most often cited Supreme Court case that set precedent for a teacher's right of expression within school walls. Pickering, a social sciences teacher, had been dismissed by his school board for writing a letter to the editor of the local newspaper criticizing their management of funds. The Supreme Court decided 8-1 that the board had violated the teacher's freedom of speech. Pickering had expressed his view on a matter of public concern but it did not affect his students or cause harm. Justice Marshall wrote that we must "arrive at a balance between the interests of the teacher, as a citizen … and the interest of the state, as an...
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