Historically, teachers in the United States have had few rights other than those granted by local school boards. Public school teachers do not lose their constitutional rights when they sign a teaching contract; however, the courts tend to apply a balancing test when these rights are in conflict with legitimate school administration interests relating to the business of education. Teachers also are entitled to rights created by federal and state statutes. There has been considerable litigation since the mid-twentieth century over limitations imposed on teachers in and out of the classroom. As a result, the courts have defined the rights of teachers and permissible limitations on those rights and freedoms. Several federal acts provide additional protections via the Fourteenth Amendment, which prohibits states from depriving individuals “of life, liberty, or property, without due process of law.”
This entry looks at teachers’ rights in the areas of speech/expression, privacy, religion, and employment. The rights of teachers are complicated and may vary from state to state. Public School Law: Teachers’ and Students’ Rights, by Cambron-McCabe, McCarthy, and Thomas, is recommended for a more complete discussion of these rights.
Freedom Of Speech And Expression
Protected And Unprotected Speech
The courts have both supported and restricted the free speech rights of public school teachers. In 1968, the U.S. Supreme Court ruled in Pickering v. Board of Education that teachers have a First Amendment right to express viewpoints on matters of public concern. In Pickering, a teacher sent a letter to a newspaper criticizing the actions of the local school board. The school board dismissed the teacher, claiming parts of the letter were false and damaging to the board. The Court ruled on behalf of the teacher but noted there were circumstances where a school board’s interests would take precedence.
The Court set up a test balancing a citizen’s interest and constitutional right to express views on matters of public concern and the state’s interest in providing public services such as education. A school board can dismiss a teacher for what the board considers offensive speech or expression if, after conducting a reasonable investigation, the evidence supports the board’s position that the expression is not protected speech. Unprotected speech includes expressing views regarding personal employment issues, comments or attacks on supervisors, or any expression that disrupts the activities of the school. Employers may also limit protected speech under reasonable time, place, and manner restrictions.
Only school boards have the right to decide curriculum content. Teachers must get approval before using any unauthorized materials in the classroom or altering the approved curriculum in any manner. Teachers have the right to determine which strategies and methods are appropriate to use to teach the approved curriculum. Courts have generally looked at the age of the students, relevancy to course objectives, professional support, risk of school disruption, and community standards when evaluating the appropriateness of teaching strategies and materials.
Freedom Of Association Rights
The Supreme Court noted under Healy v. James (1972) that the right to associate, while not explicitly mentioned in the First Amendment, is implicitly included under freedoms of speech, assembly, and petition. Teachers and other public employees have the right to join political organizations, labor unions, and other types of groups. Teachers may also engage in political activities such as campaigning. They can discuss campaign issues as part of classroom instruction, but must make sure the discussion is fair and balanced. Teachers cannot use the classroom to indoctrinate students or campaign.
Generally, teachers cannot be punished or suffer negative employment consequences based on participation in political groups and activities. School officials can dismiss or sanction employees if political activities impair the employee’s job performance, or the individual’s job involves policymaking duties. In addition, state laws can prohibit or restrict public school teachers from holding certain elected offices.
Although teachers have the right to form or join unions, state law determines whether to recognize the union’s authority to engage in collective bargaining on behalf of its members. Nonunion teachers have the right to express their views at scheduled school board meetings regarding issues in negotiation between the board and teachers’ union. Except in limited circumstances, teachers do not have the right to strike.
Search And Seizure
The Fourth Amendment protects individuals from unreasonable searches and seizures by the government and requires a search warrant based on probable cause. The Supreme Court upheld warrantless searches of state employees under O’Connor v. Ortega (1987). The Court determined that state employers may search an employee’s office if the search is work-related and necessary to conduct the employer’s business. Public school teachers have a right to expect privacy when it comes to their desks and files on campus; however, school officials can search a teacher’s desk and files without a search warrant if there is reasonable suspicion that the search is necessary to carry out educational objectives. In order for such a search to be constitutionally valid, the Court will determine whether the educational objectives are more important than the teacher’s privacy expectations.
Drug And Alcohol Testing
School boards can require prospective teachers to submit to physical examinations as a requirement for employment. Court decisions regarding drug and alcohol testing of public employees indicate that this area of law is still changing. Courts have generally struck down state laws requiring mandatory drug testing of state employees unless the employee performs a safety-sensitive role. Court decisions have varied over what job duties constitute a safety-sensitive role in educational settings. Public school employees can be required to undergo testing where the employer has reasonable suspicion that an individual employee may be under the influence of drugs or alcohol; however, court decisions have varied with regard to what constitutes individualized suspicion and when state employees can be required to undergo drug tests where no suspicion exists.
Public school teachers have a privacy right to choose their lifestyle. The courts have held that school boards cannot dismiss or sanction an employee just because the board does not support the employee’s lifestyle choice. The board can restrict an employee’s personal and private behavior if the board finds that the teacher’s behavior negatively affects job performance or harms students. In Montefusco v. Nassau County (1999), the court ruled that the school board could impose sanctions against a teacher for possessing candid photos of minors in her home even though a criminal investigation did not find grounds for filing charges. This case and others indicate that school boards can fire a teacher based on evidence that would not support criminal charges; however, the courts have also ruled that rumor and innuendo are not sufficient grounds for dismissal.
Protection Against Discrimination And Harassment
Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act of 1978 (PDA) amendment to the Act prohibit discrimination practices in hiring, promotion, and compensation based on race, religion, national origin, color, gender, pregnancy, childbirth, or related medical conditions. Title VII and the PDA also make decisions regarding termination, contract nonrenewal, or denial of tenure that are based on gender, pregnancy, childbirth, or related medical conditions illegal. Employers can file for a bona fide occupational qualification (BFOQ) if they can show that discrimination based on religion, gender, or national origin is reasonably necessary for the operation of business activities. An BFOQ cannot cite race or color as occupation qualifications.
Employees have the right to work in an environment free from sexual harassment. The courts have defined sexual harassment as sexual advances, innuendoes, or demeaning gestures or acts that are repeated and unwelcome and based on gender rather than personal dislike or sexual orientation.
All employees have the right to work in an environment that is not hostile. The U.S. Supreme Court ruled that any conduct that reasonably interferes with a person’s ability to work, is intimidating, or is offensive may be hostile. The conduct cannot be merely offensive. The courts look at how often the conduct occurs, if the conduct is humiliating or physically threatening, and if the conduct interferes with the individual’s work performance. The Supreme Court ruled in Burlington Industries v. Ellerth (1998) and Faragher v. City of Boca Raton (1998) that employers can be liable for the actions made by an employee’s supervisor.
The Rehabilitation Act of 1973 protects the rights of disabled individuals. Under this act, if an individual is otherwise qualified for a position with any program or activity receiving federal monies, the person cannot be disqualified solely based on a disability. The Americans with Disabilities Act of 1990 (ADA) requires employers to make reasonable accommodations for a qualified disabled employee; however, employers are not required to make any accommodation that results in undue hardship for the employer. Section 504 of the Rehabilitation Act of 1973 and the ADA establish criteria for determining if a person qualifies as disabled.
Termination, Dismissal, And Nonrenewal Rights
Tenured and probationary teachers are entitled to due process procedures if dismissed for cause. Tenure grants the teacher a property interest in employment with the school; therefore, school boards can dismiss a tenured teacher only for cause as defined by state law. Causes for termination and dismissal vary from state to state. Most states include incompetence, immorality, insubordination, unprofessional conduct, and neglect of duty as grounds for termination or dismissal. School boards must meet numerous requirements when terminating or dismissing teachers; for example, probationary teachers may be entitled to a hearing, depending on whether the dismissal involves certain rights or creates a situation whereby the teacher will be unable to find future work as a teacher or educator.
Nontenured teachers do not have any right of due process if the school board does not renew their contracts at the end of the contract period. It is common for state statutes to require notification of a teacher on or before a set date that his or her contract will not be renewed. Teacher contracts may be nonrenewed with or without cause, as long as the cause is not a constitutionally protected right.
Retirement And Benefits Rights
The courts have determined that employers cannot set up different requirements for retirement contributions based on gender. The Age Discrimination in Employment Act (ADEA) prohibits employers from setting a mandatory retirement age.
Unless state or local laws prohibit it, school boards may limit employee benefits, such as insurance and retirement benefits, to the legal spouses and dependents of the employee. The Defense of Marriage Act of 1996 allows states to deny employee benefits to same-sex partners who may have been legally married in another state or country.
Public school employees have the right to reasonable accommodations to allow them to practice religious beliefs; however, the school does not have to make accommodations that may result in undue hardship on the school. Teachers do not have the right to indoctrinate students with a religious viewpoint inside or outside the classroom during normal school operating hours. It is permissible to teach about religion as long as it remains a topic and not dogma.
- Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
- Cambron-McCabe, N. H., McCarthy, M. M., & Thomas, S. B. (2004). Public school law: Teachers’ and students’ rights (5th ed.). Boston: Pearson Education.
- Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
- Healy v. James, 408 U.S. 169 (1972).
- Montefusco v. Nassau County, 39 F. Supp. 2d 231 (1999). O’Connor v. Ortega, 480 U.S. 709 (1987).
- Pember, D. R., & Calvert, C. (2007). Mass media law 2007– 2008. Boston: McGraw-Hill.
- Pickering v. Board of Education, 391 U.S. 563 (1968).
- Wohl, A. (2005). The extent and limitations of teachers’ rights. Human Rights: Journal of the Section of Individual Rights & Responsibilities, 32(4), 22–24.
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