Overview
It is a basic principle of education law
that individuals who accept employment in public school systems
do not automatically relinquish their rights and protections as
citizens. Pickering v Board of Education (1968) To
paraphrase the United States Supreme Court in Tinker (1969),
students and teachers do not “shed their rights at the
schoolhouse gate.” However, one emerging area of public school
law raising complex constitutional and legal issues involves
employee privacy in the workplace.
Privacy: What Does It Mean? In our
nation’s system of jurisprudence privacy is a bedrock
constitutional concept. Griswold v Connecticut (1965)
Ironically, however, the word itself is not specifically
contained in our constitution. (Vacca and Bosher, 2003)
Black’s defines privacy as “[t]he
right to personal autonomy….The right of a person and a person’s
property to be free from unwarranted public scrutiny or
exposure.” (Black’s Law Dictionary, 1999) Simply
stated, privacy creates an expectation that an
individual’s person, his/her intimate affairs, and his/her
property will be free from unwarranted interference and
intrusion by others, including government. In other words,
individuals expect to be “let alone.”(Vacca and Bosher, 2003)
Employee Privacy Expectations. As a
general rule, public school system employees do not relinquish
their personal privacy expectations when they enter their
workplace. Employees can expect that their private lives
(i.e., their “personal business outside the workplace”) will
remain that way while on the job. Ponton v Newport News Board
of Education (1985) However, because school administrators,
teachers, and other employees work a special environment where
direct contact with children is a central function, courts have,
at the same time, consistently opined that the rights and
protections of school employees are conditioned and in some ways
narrowed by on-the-job expectations. As one court stated more
than thirty-years ago, “A teacher’s fitness may not be measured
‘solely by his or her ability to perform the teaching function
and ignore the fact that the teacher’s presence in the classroom
might, nevertheless, pose a danger of harm to the students for a
reason not related to academic proficiency.’” Gish v Board of
Education (1976)
In Virginia, for example, teacher
competence is not limited to classroom performance only. By law,
local school boards have wide discretion in deciding whether or
not to continue the employment of all school system personnel,
so long as each decision is based on fact and supported by
reasoned analysis. (Code of Virginia, 2003)
In recent years courts of law have insisted
that a balance must be struck between the privacy
expectations of school system employees in the workplace
(e.g., in their office spaces, lockers, desks, file cabinets,
e-mails, personal property) and the prerogatives of school
officials to maintain a safe and secure learning
environment. (Bosher, Kaminski, and Vacca, 2004) For example,
the Code of Virginia (22.1-307) provides that no
teacher shall be dismissed or placed on probation solely on the
basis of a refusal to submit to a polygraph examination. As this
commentary will demonstrate, however, recent court decisions
tend to deviate from the traditional view and tip this
balance in favor of school officials.
Emerging Issues
Use of Workplace Technologies. One
emerging set of issues involves the impact of technology in the
workplace. More specifically, a growing number of employers are
monitoring their employees’ use of computers and other
technologies. Writing in the March (2004) New Jersey Law
Journal, Del Duca and Kelly report the results of a
recent survey conducted by the American Management Association
showing that “one out of every 5 companies reported that they
terminated an employee for an e-mail related infraction” At he
same time, the authors state that “one out of 20 companies
reported that they had been subjected to a work place lawsuit
triggered by e-mail.”
The authors emphasize the importance of
applying appropriate state law to work place privacy issues. For
example, in their jurisdiction (New Jersey), while employees
have a right to privacy in the workplace, employers have a valid
interest in monitoring both e-mail and internet use. It
therefore follows that an employee’s right to privacy is not
absolute, and “…monitoring employees’ use of workplace
technologies can greatly reduce the risks that come with doing
business in the modern electronic workplace.” (Del Duca and
Kelly, 2004)
Based on their research, Del Duca and Kelly
recommend that employers make it clear that: (1) workplace
computers and workplace e-mails are not the “private property”
of employees, and (2) the employer reserves the right to
“routinely inspect them.” Finally, where an employer “reasonably
suspects misuse” by an employee an employer has a “duty to
inspect.”
Christopher Borreca, an attorney with one
of our nation’s top education law firms, reminds public school
officials and administrators that federal law also comes into
play when employers monitor employee e-mail correspondence, or
control computer usage. For example, he cites the Electronic
Communications Privacy Act (18 U.S.C. 2510, et seq.)
which “criminalizes the interception of electronic messages,
such as e-mail, while in transmit….” However, he does not see
the ECPA as “a significant obstacle to school district
monitoring of employee e-mail communications.” Similarly, while
the Communications Decency Act (47 U.S.C. 230 [b]
[4]) also applies, it does not preclude “blocking and filtering
software to restrict a student’s and employee’s access to
inappropriate on-line material at school.” (Borreca, 2004)
Employee Drug Testing. A second area
of employment law producing controversy
involves public school systems establishing
and implementing employee drug testing (screening) policies and
procedures. As a general rule, persons applying for or who are
already employed as administrators, teachers, and other staff in
public school systems may be subject to random, blanket or
suspicionless drug or alcohol tests. As Alexander and Alexander
opine, recent courts have permitted testing public school
employees for drugs and alcohol “without a showing of
individualized suspicion.” (Alexander and Alexander, 2004)
In some school positions drug testing is
required by statute. For example, the Omnibus
Transportation Employee Testing Act of 1991 requires bus
drivers and other employees to be subject to pre-employment,
random, post-accident, and reasonable suspicion drug tests.
(49 U.S.C. 2717)
Last spring, an article in the Baltimore
Sun offered an excellent example of a newly revised public
school system employee drug/alcohol-testing program. In what the
newspaper described as “one of the toughest employee drug
testing programs in the state,” the Carroll County, Maryland,
public school system announced that it will immediately test all
teachers and other staff “where reasonable suspicion exists of
substance (drug/alcohol) abuse.” If a teacher or other staff
member tests positively he/she will be prohibited from returning
to work until evidence is shown that a treatment program has
been successfully completed. And, the employee must agree to six
months of unannounced drug tests over a twelve months period. (Baltimore
Sun, March 7, 2004)
The Carroll County program (drafted with
the help of the employees union) is not intended as punitive.
School officials characterize the policy as providing: (1) a
layer of protection for staff and students, and (2) help for
staff members having trouble or difficulty with drugs or
alcohol. (Baltimore Sun, March 7, 2004)
Case Law
At this point in time, few court decisions
related to public school employee privacy involve issues of
workplace technology. As the examples below demonstrate, most
cases involve issues of employer searches of employee offices,
desks, and file cabinets, and policies calling for drug testing
of employees.
O’Connor v Ortega (1987) involved a
doctor employed in a state hospital where he managed the
psychiatric residency program. Concerned about possible
improprieties in the residency program, officials placed the
doctor on paid administrative leave while an investigation was
conducted. As a part of the investigation hospital officials on
several occasions searched the doctor’s office. They seized his
personal property as well as property belonging to the state as
evidence of wrongdoing and terminated the doctor’s employment.
Subsequently he filed suit in a federal district court claiming
Fourth Amendment violations. In his opinion, he had reasonable
expectations of privacy in his office (an office that he had
occupied for 17 years).
Ultimately the United States Supreme Court
upheld the warrantless searches by hospital officials. In a
opinion written by Justice O’Connor, the Court made it clear
that public employees have a reasonable expectation of privacy
in their desks and file cabinets, but where and employer’s
search of employees’ offices, desks, and file cabinets are: (1)
pursuant to work-related reasons, (2) in search of work-related
misconduct, (3) to retrieve work-related materials, and (4) used
in administrative proceedings they are permissible.
In Knox County Education Association v
Knox County Board of Education (1998) a school board policy
required all individuals applying for or seeking transfer or
promotion to safety sensitive positions to submit to a
suspicionless drug test. Under the policy all administrative and
teaching positions, teacher aides, substitute teachers, bus
drivers were designated as safety sensitive. In upholding the
policy the court balanced the school board’s interests against
employee privacy interests and held that employee privacy
interests are diminished in an environment where school safety
and security are of paramount importance. In the court’s view,
teachers, for example, are on the “front line of school safety
and security.”
Aubrey v School Board (1998)
involved a custodian’s challenge to a school board policy
intended to eliminate drug use in the workplace. According to
the school board, the policy and procedures were “designed to
prevent drug users from obtaining a safety sensitive position
and to aid in detecting those employees in such positions who
use drugs so that they may undergo treatment as a prerequisite
to keeping their jobs.” In ruling for the school board the court
applied a “special needs” analysis and said that school
officials as “guardians” must protect children from other
children and adults who may cause harm.
Public employer control of work place
computer use by employees was taken to court in a Virginia case,
Urofsky v Gilmore (2000). The United States Court of
Appeals for the Fourth Circuit heard a challenge to a state law
that forbade state employees from accessing “sexually explicit’
materials on state owned computers. The college and university
teaching faculty plaintiffs argued that the law was too broad
and unreasonably limited their research and academic freedom. In
upholding the state statute the Court held that since the
computers are the property of the employer and not the employee,
it is reasonable for the employer to control and limit computer
use in the work place.
Crager v Board Of Education (2004) a
public school board’s random drug testing policy covering all
principals, assistant principals, teachers, teacher aides,
substitute teachers, school secretaries, and bus drivers.
Employees covered by the policy were subject to random drug
tests regardless of whether or not suspicion of drug use
existed. An elementary school teacher challenged the policy in a
federal district court on Fourth Amendment grounds. The school
board’s position was that the drug-testing requirement was
established to promote school safety and not to punish
employees.
Relying on the Supreme Court’s rationale in
Vernonia v Acton (1995), the district court utilized a
“special needs analysis” to balance the privacy expectations of
employees with the prerogatives of a public school board to
maintain school safety. In the court’s view, special needs arise
in safety sensitive positions where an employee’s job involves
“the discharge of duties fraught with risks of injury to
others….” The court stressed the need to: (1) utilize valid and
reliable drug tests, (2) protect access to test results and the
chain of custody of all test samples, and (3) maintain
confidentiality.
Shaul v Cherry Valley-Springfield School
District (2004) involved the suspension with pay (pending an
investigation) of a high school teacher who had been accused of
inappropriate conduct and sexual harassment of female students.
As a part of his leaving his work place the employee surrendered
his keys and other school system property. However, even though
he had been asked to remove personal items he failed to do so.
Subsequently, school administrators collected the personal items
and placed them in boxes for storage. They had to break into a
classroom cabinet to secure some of the personal items.
The teacher filed suit in federal district
court alleging that his constitutional right to privacy had been
violated. More specifically he claimed that his personal items
were seized in an illegal search of his classroom. The trial
court disagreed and the United States Court of Appeals for the
Second Circuit affirmed. In the appellate court’s view the
teacher did not have a privacy expectation of the personal items
kept in the classroom cabinet because (1) he had surrendered his
keys, (2) he had been suspended from his job at the school, and
(3) he did not take advantage of the opportunity to remove his
personal items from the classroom. Moreover, allegations of
sexual improprieties with students gave school officials
sufficient reasonable cause to break into the classroom cabinet
in search of workplace misconduct.
Implications for Policy
As the above case law examples demonstrate,
the implications for local school system policy are several.
What follow are some suggestions to consider as efforts are made
to balance the prerogative of school officials to maintain a
safe and secure learning environment in every school with the
privacy expectations of all employees. School boards must make
it clear that:
·
The authority to make all employment policies
legally vests with the school board.
·
All employees will be fully and regularly informed
of each school board policy governing employee conduct in the
workplace, including expectations for employee work performance,
and will be fully informed of permitted and expected use of all
school system owned property and equipment.
·
All employees are legally bound by and are
required to comply with school board policies.
·
All school board policies are intended to be in
compliance with appropriate federal and state law.
·
All employment policies are intended to foster a
safe, disruption-free, and positive learning environment in
every school.
·
All school system office spaces, storage cabinets,
desks, school system owned computers, telephones, other
technologies, mail service, and school equipment are to be used
for work-related purposes only.
·
School officials reserve the right to regularly
monitor, examine, and otherwise inspect employee use of school
system office spaces, storage cabinets, desks, school system
owned computers, telephones, other technologies, mail service,
and school equipment.
·
School officials will take immediate steps to
thoroughly investigate all allegations of employee work place
misconduct and wrongdoing.
·
Immediate disciplinary action will be taken in all
cases where employee work place misconduct and wrongdoing are
established.
·
Confidentiality and security of all information
relevant to each investigation and resulting administrative
action taken will be strictly enforced
Resources Cited
Alexander and Alexander, AMERICAN PUBLIC
SCHOOL LAW, Sixth Edition (West 2004)
Aubrey v School Board, 188 F.3d 559 (5th
Cir. 1998)
“Schools Revise Drug Policy,” Baltimore
Sun, Carroll Edition (March 7, 2004)
BLACK’S LAW DICTIONARY, Seventh Edition
(West 1999)
Borreca, Christopher, “Investigation of
Alleged Wrongdoing by Employees in the School Setting, Including
the Misuse of Technology.” In LAW AND EDUCATION: CRUCIAL ISSUES
2004 (LexisNexis 2004)
Bosher, Kaminski, and Vacca, THE SCHOOL LAW
HANDBOOK (ASCD 2004)
CODE OF VIRGINIA, 22.1-307 (2003)
Crager v Board of Education, 313 F. Supp.2d
690 (E.D. Ky 2004)
DelDuca and Kelly, “Understanding the
Contours of the Right to Privacy in the Electronic Workplace,”
New Jersey Law Journal (March 26, 2004)
Gish v Board of Education, 366 A.2d 1337
(NJ 1976)
Griswold v Connecticut, 381 U.S. 479 (1965)
Knox County Education Association v Knox
County Board of Education, 158 F.3d 361 (6th Cir.
1998)
Pickering v Board of Education, 391 U.S.
563 (1968)
Ponton v Newport News Board of Education,
632 F. Supp. 1056 (E.D. Va 1986)
O’Connor v Ortega, 480 U.S. 709 (1987)
Omnibus Transportation Employee Testing
Act, 49 U.S.C. 2717 (1991)
Shaul v Cherry Valley, 2004 U.S.App.Lexis
5581 (2nd Cir. 2004)
Tinker v Des Moines, 393 U.S. 503 (1969)
Urofsky v Gilmore, 216 F.3d 401 (4th
Cir. 2000)
Vacca and Bosher, LAW AND EDUCATION:
CONTEMPORARY ISSUES AND COURT DECISIONS, Sixth Edition (Lexis
2003)
Vernonia v Acton, 115 S.Ct 2386 (1995)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
