Overview
From time-to-time stories appear in the
media involving public school teachers whose professional
positions were either placed in serious jeopardy or terminated
because of something that occurred in their off-school grounds,
private, non-teaching life. In 2005, is it possible for a public
school teacher (especially a tenured teacher) to be fired for
something done in his/her private life? Is it the legal
prerogative of today’s public school officials to censure a
member of the teaching staff for private life behavior occurring
off school grounds? If this happens, on what grounds (usually
enumerated in state statutory law) are these adverse employment
actions taken? Is the teacher charged with “incompetency,” or
“immorality,” or “unprofessional conduct,” or “conduct
unbecoming a teacher,” or “behavior detrimental to the best
interests of the school district,” or do school officials simply
claim “sufficient cause,” or “good and just cause?” The purpose
of this commentary is to probe this area of education law and
identify implications for policy.
Privacy. Of all the rights and
privileges that we have as citizens, privacy is one of the most
valued and cherished. In recent years decisions from the United
States Supreme Court and the courts below it, along with the
passage of several federal and state statutes, have created
privacy protections for citizens. As one legal source
summarizes, “[c]itizens can expect to be free from the intrusive
acts of others, including government,” Bosher, Kaminski, and
Vacca (2003)
Expressed as a “right to personal autonomy”
Black’s Law Dictionary (1999), citizens can expect that
they as individuals and their personal property will not be
encroached upon without their consent. As mentioned above, this
expectation includes a protection from unauthorized and
unwarranted governmental interference in personal, intimate
affairs. Vacca and Bosher (2003) It must be emphasized, however,
that a person’s expectation of privacy changes according to
context (sometimes characterized as “zones of privacy”). For
example, an employee’s expectation of privacy in the workplace
is not the same as his/her expectation at home. As a general
rule remedy for invasion of privacy is actionable in court under
tort law, where defamation (injury to reputation and good name)
is alleged. Bosher, Kaminski, and Vacca (2004)
Teacher Privacy Rights. Are public
school teachers more vulnerable than workers in other employment
settings to disciplinary action by their employer for private
life behavior? If so, why?
Thirty-five years ago, in a published
article, I stated my belief that public school teachers possess
the same rights to act and behave in a manner practiced by all
other citizens; and, that they do not relinquish their basic
civil rights simply because they occupy the position “public
school teacher.” However, I cautioned, that public school
teachers must recognize that they exert great influence on their
students over and above academics. As such, it is vital that
teachers recognize that a relationship of “public trust” exists
between them and the community. In essence, this means that the
community holds certain “behavioral expectations for its
teachers” one of which depicts teachers as “role models” for
students. Vacca (1970)
More recently, an expert in school law
expressed a similar belief when he stated, “[p]ublic school
teachers serve in highly visible and significant positions. In
many instances, they exert important influences on the views of
students and the formation of their values. Based on their
roles, there is an expectation that a teacher’s character and
personal conduct be elevated above the conduct of the average
citizen who does not interact with children on a daily basis.”
Essex (2002)
In his treatise, Russo adds that most
courts expect educators’ character and conduct “to be above that
of persons not working in sensitive relationships with
children.” As such, “[w]hile there has been a discernible trend
toward affording teachers more freedom in their personal lives
than in the more distant past, it is difficult to draw a line
between their rights as private citizens and the obligations
they accept as educators.” The bottom line, Russo emphasizes, is
that “the private lives of educators are their own business
unless or until their actions impact on their professional
lives.” Russo (2004)
Alexander and Alexander concur. In their
view, “[t]eachers must be of good moral character, and statutory
requirements pertaining to the morality of teachers are
constitutional.” Defining immorality as a “course of conduct as
offends the morals of the community and is a bad example to the
youth whose ideals a teacher is supposed to foster and elevate,”
these experts demonstrate through case law analysis that
immorality, while often challenged as a vague and overbroad
charge, has been consistently upheld by courts “especially when
it relates to fitness to teach and there is a rational nexus
between the prohibited activity and the individual’s conduct and
decorum as a teacher.” (2005)
As Fischer, Schimmel, and Kelly have
observed, “many educators believe that their personal behavior
away from school is their own business and should be protected
by their right to privacy. Yet many administrators argue that
educators teach by example and thus should be role models for
their students….” (1999)
McCarthy and her colleagues emphasize a
need to strike a balance between the rights of teachers and the
prerogatives of school officials. As such, since the
“[c]onstitutional protection afforded to teacher’s privacy
rights is determined not only by the location of the conduct but
also the nature of the activity,” the courts have, as a general
rule, “attempted to balance the teacher’s privacy interests
against the school board’s legitimate interests in safeguarding
the welfare of the students and the effective management of the
school.” McCarthy, Cambron-McCabe, and Thomas (1998) Mawdsley
agrees, but cautions that “the question whether an employee has
a reasonable expectation of privacy must be addressed on a
case-by-case basis in balancing that expectation of privacy with
the employer’s ‘interest in ensuring that their agencies operate
in an effective and efficient manner’….” Mawdsley (2004)
School Board Authority and Teacher
Dismissal. In 2005, local boards of education continue to
assign, reassign, reprimand, discipline, and discharge classroom
teachers for a wide variety of reasons. The courts, both federal
and state, consistently hold that when evaluating teacher
competency and fitness local school officials are not restricted
to consider in-school and in-classroom behavior only. As the
United States Supreme Court established when speaking about
public school teachers, “context does not limit the meaning of
the word (competency) to lack of substantive knowledge of
subjects to be taught. Common and approved usage of the term
give a much wider meaning….” Beilan v Board of
Education (1958)
It is an established tenet of school law
that a teacher’s competence and fitness for his/her job are not
measured solely on the basis of professional, on-the-job
performance. Vacca and Bosher (2003) However, a “link between
action and evident unfitness to teach must be clearly
established. Where such a link is not made…the court will not
sustain a dismissal or revocation of a certificate.” Wood, et
al. (2000)
To accurately determine the scope of
authority granted to school officials in deciding the employment
status of classroom teachers and other school employees, the
researcher must turn to state law. In Virginia, for example,
local school boards have wide discretion in deciding whether or
not to continue employment of all personnel. Defined as an
“exercise of judgment,” state law requires that such decisions
be based on fact and supported by reasoned analysis, and must be
free of bias and capriciousness. 22.1-307 Code of Virginia
(Cum. Supp. 2004)
Emerging Issues and Court
Cases
Over the years, public school teachers have
been suspended, placed on probation, or dismissed from
employment for a variety of private life behaviors. Some
examples of situations that have resulted in court cases are:
engaging in sexual behavior with current and former students,
public lewdness, fornication and adulterous behavior, public
intoxication, drug possession, down loading child pornography
from the Internet, and numerous other involvements. It should be
obvious to the reader that the preceding list contains charges
that are generally categorized in most states as either
misdemeanors, or felonies, or crimes of moral turpitude.
In a 1965 Alaska case, the court made it
clear that a teacher’s private life behavior can be judged as
“immoral” if the acts of the individual teacher have a tendency
“to impair the overall effectiveness of the school system.”
This is especially true when the behavior brings “the teacher
involved and the teaching profession as well into public
disgrace and disrespect.” Watts v Seward (1965)
The Court of Appeals of Arizona made it
clear in a 1966 decision, that the position of “public trust”
occupied by teachers not only involves a teacher’s personal
conduct, but also the interaction of the entire community.
“Education is not effective,” said the court, “when these
relationships do not operate in a friendly, cooperative, and
constructive manner.” Williams v School District (1966)
In Gish v Board of Education (1976),
a New Jersey court held that when evaluating “teacher
effectiveness” local school boards are not restricted in
considering teachers’ in-school and in-class behavior only.
Local school boards have a duty to determine the general issue
of “teacher fitness.” Said the court, “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.’ ”
Flaskamp v Dearborn Public Schools
(2002) is a Michigan case involving a female teacher who was
denied tenure by her employing school system. The school board’s
tenure denial was base on a relationship that existed between
the teacher and a former student. The board said that the
relationship was “inappropriate,” and the school principal said
that he could no longer “trust the teacher.” In the opinion of
the court, since the relationship began while the student was
enrolled in the teacher’s class it did not fall within the scope
of the teacher’s privacy expectation. In other words her
relationship with a former student could not be described as
falling within the teacher’s “right of intimate association.”
Melzer v Board of Education (2003)
is a New York case involving the termination from employment of
male secondary school teacher. The teacher was dismissed from
his job after his membership in the North American Man/Boy Love
Association (NAMBLA) was exposed in a television broadcast.
Subsequently, the teacher challenged his dismissal on First
Amendment free speech and association grounds. The Second
Circuit affirmed a district court decision in the school board’s
favor. Convinced that because the teacher’s membership had
become the center of community discussion, the appellate court
held that his continued employment would have a disruptive
effect on the efficient operation of the school system.
Moreover, the trust of parents and students had been compromised
and parental cooperation is essential to the operation of a
school.
Policy Implications
In 2005, public school
teachers must recognize that that they have both ethical and
legal responsibilities to their employer (the local school
board) to work to protect and maintain the relationship of
public trust and reliance that exists between their school
system and the community; especially parents. Moreover, and as a
part of this public trust, that they are: (1) obligated to
conduct themselves in public in ways that do not offend the
community, and (2) expected to function as role models for the
student they teach. At the same time, however, local public
school officials must recognize and protect the rights of their
teachers to live private and personal lives free from
interference and encroachment by their employer. What both
teachers and school officials must realize is that courts of law
will not interfere in employment decisions unless such actions
are arbitrary, capricious, discriminatory, or in some other way
egregious in nature.
Based on this author’s more than
thirty-years of tracking the case law on this subject, the
following suggestions are made for consideration by today’s
local school boards as employment policies are drafted and
implemented. Local school system policies must make it clear
that:
- The
school system and its employees (especially classroom
teachers) have a responsibility to teach students the basic
values of civility and civic responsibility.
-
Evaluations and determinations of teacher competence are
based on more than academic performance and proficiency in
the classroom.
-
Classroom teachers are expected to comply with board and
administrative requirements for professional performance and
personal behavior associated with and required as a part of
their contractual (i.e., formal) position “teacher.”
-
Classroom teachers have, by virtue of their employment
contract, responsibilities to the community, parents, and
students to teach by example the responsibilities of good
and productive citizenship.
- A
teacher’s behavior (both professional and personal) has a
direct bearing on the relationship of public trust that
exists between the school system and the community,
especially parents.
-
Classroom teachers who engage in conduct (whether
on-the-job, or personal behavior in the community) that
either threatens the safety and security of students, or
interferes with the efficient and effective management of
the school, or is in some other way detrimental to the best
interests of the school system and its students will be
immediately terminated from employment.
Resources Cited
Alexander and Alexander, AMERICAN PUBLIC
SCHOOL LAW, Sixth Edition (Thompson West, 2005)
Beilan v Board of Public Education, 357
U.S. 399 (1958)
BLACK’S LAW DICTIONARY, Seventh Edition
(West, 1999)
Bosher, Kaminski, and Vacca, THE SCHOOL LAW
HANDBOOK: WHAT EVERY LEADER NEEDS TO KNOW (ASCD, 2003)
CODE OF VIRGINIA, 22.1-307 (Cum. Supp.
2004)
Essex, SCHOOL LAW AND THE PUBLIC SCHOOLS,
Second Edition (Allyn and Bacon, 2002)
Fischer, Schimmel, and Kelly, TEACHERS AND
THE LAW, Fifth Edition (Longman, 1999)
Fashkamp v Dearborn Public Schools, 232
F.Supp.2d 730 (E.D. Mich. 2002)
Gish v Board of Education, 366 A.2d 1337
(N.J. 1976)
Mawdsley, Teacher Expectation of Privacy
and Classroom Searches in Public Schools, 191 Ed.Law Rptr.
557 (2004)
McCarthy, Cambron-McCabe, and Thomas,
PUBLIC SCHOOL LAW: TEACHERS’ AND STUDENTS’ RIGHTS’, Fourth
Edition (Allyn and Bacon, 1998)
Melzer v Board of Education, 336 F.3d 185
(2nd Cir. 2003)
Russo, REUTTER’S THE LAW OF PUBLIC
EDUCATION, Fifth Edition (Foundation Press, 2004)
Vacca, Judicial Opinion and the Role of
Teachers, 45 The Clearing House 240 (1970)
Vacca and Bosher, LAW AND EDUCATION:
CONTEMPORARY ISSUES AND COURT DECISIONS, Sixth Edition (LexisNexis,
2003)
Watts v Seward, 381 U.S. 126 (1965)
Williams v School Board, 417 P.2d 376
(Ariz. 1966)
Wood, Cornelius, and Mendonca, Teacher
Dismissal, In Camp, et al., THE PRINCIPAL’S LEGAL HANDBOOK,
second Edition (ELA, 2000)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
