LEGAL RIGHTS OF TEACHERS AND STUDENTS

Responses to Points to Ponder

Chapter 2: Tort Liability

Points to Ponder (p. 41)

1. During a faculty meeting, a high school principal mentioned that one of the teachers in the building had been arrested for shoplifting and that extra precautions should be taken to safeguard personal belongings. However, the principal failed to mention that although the teacher had been arrested, evidence was inadequate to support her guilt or conviction and that she was released soon after her arrest. Other than the fact that she was arrested, there was no reason to believe she was guilty. The principal did not mention the teacher by name, but his comments about her gender and teaching area left no doubt as to her identity. Her reputation was tarnished and her personal relationships were adversely affected. She sued the principal claiming defamation of character. Is she likely to win? Why or why not?

The teacher is likely to win. She is not a public person and therefore must show only that the statements were false and were communicated to a third party. The defense of privilege would not apply in a communication involving a principal and an entire faculty. Moreover, it is not relevant that the teacher was not mentioned by name, because persons with additional information were able to determine her identity based on the information provided by the principal. Also, it is not necessary for her to prove actual injury as the principal’s comments would qualify as defamatory per se.

2. A secondary school principal directed a student teacher in social studies to supervise a chemistry class, because the regular science teacher was ill. During lab, a student was injured in an explosion. The parents of the injured child sued the principal (even though he was not present during the explosion, nor had he instructed the class in regard to the chemicals) and the school district. Are the parents likely to prevail in this suit? Explain your reasoning.

Assuming the state does not provide immunity in such matters, the plaintiff is likely to succeed against both the principal and the school district. It is irrelevant that the principal did not personally instruct the class or was present at the time of the explosion. What is relevant is that a student teacher with inadequate instructional and supervisory training and experience was assigned to supervise a task that was foreseeably dangerous. Also of note is the fact that the plaintiff as a student qualified as an invitee, thereby enhancing the obligation of school officials to provide a safe place.

3. A physical education instructor requires a student to climb a 30-foot rope in physical education class even though the student informed the teacher that he was afraid of

1

heights (a fact that also is part of his school record). After the instructor threatened the student with corporal punishment, he climbed the rope, but fell when about half way up. He is not injured, but sued the instructor and the district, claiming negligence. Is he likely to win? Why or why not?

Although it might appear that the coach acted negligently, as that term is commonly used, legal negligence is not supported in this instance. To qualify as legal negligence, the plaintiff must show that defendant had a duty that was breached; that the coach’s action was the proximate cause of the injury, and that an actual injury resulted. In the above example, there was not actual injury for which a jury could base an award. Any minor emotional injury the student may purport would be an insufficient basis for damages.

4. While on the school bus, two students got into an altercation over a loud radio. The zydeco music (a type of cajun music) emanating from the boombox was more than the second student could tolerate. The owner of the boombox refused to turn off or even turn down the music. As a result, the one student informed the other that if the music was not turned off, the radio would be destroyed and the owner would be struck. Numerous passengers overheard the conversation. The boombox owner was a large, athletic, 18-year-old male; the confronting student was a small, frail, 12-year-old female. She had no special martial arts skill and did not give the impression of being capable of carrying out the threat. The male student sued the female, claiming assault. Will he succeed in his claim? Why or why not?

No liability would result in the above scenario. The words spoken by the female may appear as though they would qualify as an assault, but to qualify legally, a reasonable victim must perceive an actual threat. In the present case, the small, frail female did not pose a risk to the large, athletic male.

Chapter 3: Church/State Relations

Points to Ponder (p. 69)

1. Some courts have emphasized that for student-initiated devotional activities in public schools to be upheld, prayers must be “nonsectarian.” Can a prayer be nonsectarian, or is the term “nonsectarian prayer” an oxymoron?

According to Webster’s Third International Dictionary, “prayer” is defined as “a solemn and humble approach to Divinity in word or thought.” The term “nonsectarian” means not being an adherent of a particular religious sect or reflecting narrow attachment to a sect or denomination. Since prayer by its nature depicts a particular faith (those believing in prayer and God), “nonsectarian prayer” does appear to be an oxymoron.

2. A student who attended the middle school was killed in an automobile accident. The next day, a classmate asks you if she can lead the class in saying a prayer for the deceased student. What would be your response and why?

2

If the teacher or a student leads a public school class in a prayer during the school day, a court would likely find that the activity promotes religion in violation of the Establishment Clause. However, it would be constitutional to lead the class in a moment of silence to remember the deceased classmate, as long as students are not encouraged to pray during the period of silence. Those who want to say a silent prayer can do so, and those who would be offended by a prayer can still participate in the observance for the deceased.

3. The majority of the senior class engaged in a recitation of the Lord's Prayer five minutes before the high school graduation ceremony. School authorities did not lead the prayer, and although they had heard rumors that the student-initiated recitation was planned, they had not been officially informed. Did this activity represent the school? Did it violate an injunction prohibiting school personnel from authorizing, conducting, sponsoring, or intentionally permitting prayers during the graduation ceremony? See Goluba v. Sch. Dist., 45 F.3d 1035 (7th Cir. 1995).

In this case, a student who complained about religious observances in the graduation ceremony entered into a consent decree with the school district, under which school personnel were prevented from intentionally allowing prayers during graduation. After the “spontaneous” recitation of the Lord’s Prayer by the senior class, the complaining student alleged that the decree had been violated. Disagreeing, the court did not find sufficient evidence that the principal or other school personnel deliberately allowed the graduation prayer, regardless of whether the principal had heard about the students’ plans. Noting that the consent decree was somewhat ambiguous as to prohibited actions, the court nonetheless found no breech of an affirmative duty that would result in a contempt sanction for violating the decree. However, if there had been evidence of school personnel encouraging the students to say the prayer before the ceremony, the outcome of the case would likely have been different.

4. High school students have requested that their religious club be allowed to hold meetings in the public school during lunch when other student groups meet. They also have asked for access to student activity funds to promote their meetings and distribute religious materials, because other student groups can use such funds to support their activities. How would you respond and why? See Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002).

Courts seem to be broadly interpreting the federal Equal Access Act (EAA) and the Free Speech Clause of the First Amendment as requiring equal treatment of student religious and sectarian noncurriculum clubs in secondary schools. In Prince v. Jacoby, the Ninth Circuit declared that it would entail viewpoint discrimination to allow secular clubs to be featured in the yearbook free of charge but to deny this privilege to religious groups. Similarly, the court reasoned that the religious clubs must be treated like other student groups in terms of equal access to school funds and fund-raising activities, the public address system, and bulletin boards. The court concluded that once the secondary school decided to provide school time for clubs to meet and furnished supplies, audio/visual

3

equipment, and use of school vehicles, religious groups could not be treated differently from other student groups.

5. The “wall of separation” has been the dominant metaphor in church/state litigation for almost half a century. How viable is this metaphor today?

The “wall of separation” has been noticeably absent in the Supreme Court’s Establishment Clause decisions during the past decade. The current Court favors the concepts of equal access and equal treatment of religious groups more than the notion of separation of church and state. There is a trend in judicial decisions favoring governmental accommodation toward religion unless the controversy involves a blatant effort to promote particular religious doctrine.

Chapter 4: Instructional Issues

Points to Ponder (p. 96)

1. A school board decided to eliminate several books from the English curriculum, including The Learning Tree, The Adventures of Huckleberry Finn, and The Catcher in the Rye, because of parental complaints. Several teachers contend that they have a right to use these books in their classes, because the books relate to course objectives and their use is supported by the profession. How would the court rule and why?

These award-winning books have been frequent targets of censorship efforts because of their earthy language and subject matter dealing with race relations and youth coming of age. Courts lean over backwards to uphold decisions of local school boards. Only if the decisions are arbitrary or in violation of constitutional rights will the federal judiciary intervene. Although parental challenges to board decisions to use these materials would likely fail, courts will usually uphold school boards’ censorship decisions that are based on pedagogical concerns. Teachers do not have an academic freedom right to determine the curriculum; they must follow school board policies in this regard. Illustrating the broad discretion of school boards to censor instructional materials is Virgil v. School Board, 862 F.2d 1517 (11th Cir. 1989), in which the Eleventh Circuit upheld the school board’s authority to remove a humanities text from an elective course because board members perceived some of the selections (including Chaucer’s “The Miller’s Tale”) to be vulgar.

2. A school district has a policy stipulating that students cannot be promoted from third to fourth grade or from seventh to eighth grade until they demonstrate on proficiency tests that they have mastered specified skills. Parents of children who were promoted at both grade levels based on test passage have brought an instructional negligence suit against the school district. They claim that their child does not have the specified academic skills based on an external evaluation by a licensed psychometrist. Is the testing program vulnerable? Will the parents prevail in their educational malpractice suit? Why or why not?

4

School districts have the right to condition grade promotion and graduation on passage of a proficiency test. Thus, the imposition of a test requirement is not likely to be challenged successfully as long as: sufficient lead time is provided before conditioning benefits on test passage, the test covers what has been taught, opportunities for remediation and retaking the test are provided, and appropriate accommodations are available for children with disabilities. However, tests cannot be used as a diploma sanction in a school until all students subjected to the high stakes test entered first grade under desegregated conditions.

If the school is certifying that children who pass the proficiency test have specified skills, and certain children actually do not have such skills (based on valid external assessments), there possibly could be a successful claim against the school district. Although there have been no successful educational malpractice (instructional negligence) decisions to date, it is conceivable that one could be mounted if a district conditions benefits on invalid assessment practices.

3. A school secretary’s daughter gained access to a classmate’s file without permission and divulged that he was adopted. Should the school be liable for a FERPA violation? See Appelberg v. Devilbiss, No. 00-0202 BH-C, 2001 U.S. Dist. LEXIS 1456 (S.D. Ala. Jan. 30, 2001).

Central to the court’s finding that there was no violation of the Family Educational Rights and Privacy Act was the fact that the access was unauthorized in that school personnel did not share the data with third parties. No staff member had knowledge of the unauthorized access. This was an isolated incident, with no evidence of a pattern or practice of the school releasing information in violation of FERPA. So the school’s only vulnerability seems to be whether the records were kept in a sufficiently secure location. If the records were easily accessible to unauthorized individuals, possibly a successful FERPA challenge could be mounted. The remedy would be the withdrawal of federal funds, because the Supreme Court has rejected a private right to sue for damages for FERPA violations. Unless Congress amends FERPA to authorize such private suits (as has been proposed in Congress), the remedy for FERPA violations will remain tied to federal aid.

4. A school distributed an anonymous survey asking students about their attitudes and behaviors. The students and their parents were informed that participation was completely voluntary and that no student’s responses could be identified, but parents were not asked to give written permission for their children to participate. Parents claimed that the survey violated the federal Protection of Pupil Rights Amendment. How should the court rule? See C.N. v. Ridgewood Bd. of Educ., 146 F. Supp. 2d 528 (D.N.J. 2001), aff’d in part, remanded in part, 281 F.3d 219 (3d Cir. 2001) (unpublished opinion).

This amendment requires written parental permission before students participate in federally funded testing or treatment in specified sensitive areas as described in Figure

5

4-3. An important consideration is whether the survey in question is federally funded and if so, whether the questions pertain to the areas specified in the Pupil Rights Amendment. If the answer to both questions is yes, then written parental permission should be obtained before administering the instrument. However, if it does not pertain to federally funded activities, or even if it does and parents were advised about the voluntary survey, then written parental consent would not be necessary unless required by school board policy or state law.

Chapter 5: Student Expression, Association, and Appearance

Points to Ponder (pp. 118-119)

1. Students opposed to the United States’ military involvement in the Middle East organized several activities to protest the government’s policy. The students: a) Distributed flyers condemning the war to classmates at school, b) Posted flyers on school bulletin boards that announced an anti-war rally to be held after school, c) Led students in walking out of a school assembly to meet with protesting adults who were holding a rally across from the school, and d) Held a rally in front of the county courthouse after school. Could school authorities legally curtail any of these activities? Which activities implicate students’ First Amendment rights?

a) The flyers could be distributed subject to the same rules as applied to any distribution of student literature. There can be valid time, place, and manner regulations to ensure no interference with the instructional program, but a blanket prohibition on the distribution would violate the First Amendment.b) The designated purpose of the bulletin boards is key in determining whether they could be used by the students. If certain boards are designated as a forum for student expression, then the flyers could be posted unless they threatened a disruption or were vulgar or libelous. But if the bulletin boards are reserved solely for school purposes, the students’ request to post their materials could be denied.c) Students do not have a First Amendment right to walk out of a school assembly to protest government policies, because unlike wearing a black armband, the walkout disrupts the school. Thus, students can be disciplined for participating in a walkout.d) The rally in front of the county courthouse after school is not connected in any way to the school, so student participation could not evoke any school disciplinary measures unless the students’ actions interfered with the management of the school (e.g., encouraged classmates to participate in a boycott of classes).

2. Students developed a newspaper in their homes and distributed it at a local store. The articles were critical of school administrators and contained vulgar language. Can school authorities discipline the students for their expression? Would your conclusion be different if the paper were distributed over the Internet?

6

If there is minimal contact with the school, the students likely could not be disciplined. The main consideration is the impact of the activity on the school. If the material urges disruptive actions or otherwise threatens school operations, possibly the student distributors could be disciplined. Students’ Internet publications generally are considered private expression if students create and post the materials at home. However, some student Internet postings have generated disciplinary actions because the material has included threats of harm to school personnel or classmates or has otherwise interfered with the school program.

3. A high school allows a chess club to meet in a classroom after school. Three other student clubs have asked for similar privileges: the Gay/Straight Alliance, the Fellowship of Christian Athletes, and the Young Neo-Nazis. Must these groups be provided school access?

These groups likely have a right to meet in the public school under the Equal Access Act, if the school has created a forum for noncurriculum student groups to meet during nonschool hours. If school authorities can show that a particular group is disruptive or promotes unlawful activity (which might be shown with the Neo-Nazis), then the club could be denied access. Even if student groups are considered an extension of the curriculum and thus not subject to the EAA, particular curriculum groups cannot be denied access based on the views discussed at their meetings.

4. A school-based council has decided to adopt a policy requiring students to wear uniforms. What features should the policy include to survive a legal challenge?

The policy should have an opt-out provision if parents or students are opposed to uniforms on religious or philosophical grounds. Also, the policy should make provisions for children who cannot afford the uniforms. As long as the policy includes these features and is adopted for educational reasons and not to suppress student expression, the policy should survive a First Amendment challenge.

Chapter 6: Student Classifications

Points to Ponder (pp. 143-144)

1. A student and coach had a three-month affair that included sexual involvement. The student is 18 years old and voluntarily participated in all activities; the coach was tenured as a social studies teacher. The parents learned of the affair and informed the superintendent and principal. Both the student and coach admitted to their involvement. The coach was fired following an appropriate hearing; the parents nevertheless sued the district claiming a Title IX violation. How will the court respond?

Presumably, the school district was unaware of the affair until the parents reported it. Following an appropriate hearing, the coach’s contract was terminated. Clearly, the district did not act with deliberate indifference once it received actual notice of the

7

alleged impropriety. The facts that the student was eighteen or participated voluntarily (i.e., the relationship was not unwelcome) were superfluous.

2. An alternative school has been specially designed to address the unique needs of African American males; a comparable program has been developed for African American females. Both are to begin in the fall. Two suits are filed: one alleging a violation of Title IX, the other claiming a Title VI infraction. Who wins each suit and why?

Although the provision of male and female students does not violate the Fourteen Amendment (i.e., separate but equal is permissible under this standard), Title IX would be violated. New schools that are to be recipients of federal financial assistance must be open to students of both genders. Moreover, the practice would violate Title VI, even though the intended racial segregation may have been proposed in good faith.

3. A 4 1/2 –year-old child applies to kindergarten, but is denied admission as he is six months too young, given the cut-off date established in school district policy. Nevertheless, his parents want him admitted. He is reading at the second-grade level and is larger than his same-age peers. The parents sued the district under the Age Discrimination Act. Officials do not deny that the sole reason the child was denied early admission was his age. Will the parents be successful in this suit? Why or why not?

The school district should prevail. District officials have the authority to limit the benefits of their educational programs to persons of particular ages (e.g., age six for attendance in first grade; age 16 for attendance in college credit courses). Although the student may be large and academically ready for school, officials need not admit him contrary to established policy.

4. There is only one non-English-speaking child in the school district. Officials refused her parent’s request for a bilingual program. The parents then retained the services of three nationally known experts on bilingual education; each provided significant data that supported the use of bilingual education in the elimination of language barriers. Nonetheless, the district still refused to provide the requested program and, in the alternative, offered an English as a Second Language program. This program was successful in eliminating language barriers in the past (both in this district and throughout the state). School officials were unsure which of the two instructional methods was better, but claimed that they were not required to offer the best program. The parents sued the district under Title VI and the Equal Educational Opportunities Act. What will be the outcome of this legal challenge?

The district will win. The courts will require school officials to use techniques that work (i.e., eliminate language barriers) and will require bilingual education only if alternative approaches prove unsuccessful.

5. The local school district has been unitary for 10 years. Recently, however, the state implemented (1) a plan allowing students to enroll in private schools, (2) a program

8

where students were permitted to transfer to any adjacent public school district, and (3) a transfer program where students may attend any public school in the state if their home school failed to meet state guidelines. Under these provisions, the district once again becomes racially segregated. A lawsuit is filed under the Fourteenth Amendment and Title VI challenging recent changes that have resulted in resegregation. Will the plaintiffs succeed in this suit?

Although the actions of the district will be looked at closely, it is probable that the court will find that the resegregation of the district is defacto, rather than dejure. Moreover, the plaintiff would have to prove that the state/school district intended to segregate when implementing the policies. Accordingly, it is unlikely that the district would be required to correct the segregation caused by the choices of individuals and families.

Chapter 7: Rights of Students with Disabilities

Points to Ponder (pp. 169-170)

1. The state provides limited support to children with special needs above that provided for all children ($7,000 per pupil). A family moves into a poor, rural community and requests appropriate programs for two children, ages 5 and 6, with severe physical and mental disabilities. The cost per child will be over $100,000, primarily due to health care. The services will have to be provided for several years, as neither child’s health is likely to improve. The district refused to pay and claimed undue hardship. Following unsuccessful administrative review, the parents sued the district under the IDEA seeking a FAPE for their children. Are the parents likely to win the suit? Why or why not?

The parents are likely to win, assuming that each of the requested health services (1) is required for the children to benefit from special education, (2) must be provided during the school day, and (3) is not provided by a physician. There is no undue hardship defense under the Individuals with Disabilities Education Act as there is under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Accordingly, there is no cap on such expenditures; whatever the cost, it must be paid by the school district.

2. The school district considers itself to be a “full-inclusion” district. All children are initially placed in regular education with supplemental aids and services, as directed by the school administration. Parents, who recently moved into the district, contend that regular education is clearly not the appropriate placement for their child with severe disabilities. They request a more segregated placement, which is denied by school authorities. Following unsuccessful administrative appeals, the parents sued under the IDEA. Which party is likely to prevail?

If the parents are able to support the claim that general education is not the appropriate placement for their child, they will prevail. To place all children in general education without an individual determination that general education is both appropriate and least

9

restrictive violates the IDEA on its face. Understand, however, that general education will be the appropriate placement for most children if the district provides necessary supplemental aids and services.

3. A child in your homeroom has a mild learning disability. He lives one-half mile from school. His parents requested that transportation services be provided, but the request was denied. The district noted that the family lives less than a mile from the school (i.e., the distance established by the state to require the transportation of elementary school children), and that the nature of the student’s disability does not necessitate the provision of transportation. The parents pointed out that the bus travels in front of their home each day and would merely need to stop to allow their son to board. The district would incur no additional cost. The parents sued under the IDEA and Section 504. Are they likely to win?

The school district is correct in all respects. The child simply does not qualify for transportation, even if it could be provided at no cost and with little inconvenience. The key is that the student’s disability does not necessitate transportation. If it did, the distance from school would be irrelevant.

4. Your daughter wants to play softball for her school team, but was denied because of her low grade-point average. You sued the state athletic association under Section 504 when it denied her grade appeal. The association uniformly applies its academic, residency, and other requirements. You contend that the requirements should not apply to her, given that a learning disability is in large part responsible for her low GPA. Are you likely to win this suit? Explain.

The parent and student are unlikely to win this claim, if the district has assessed related eligibility criteria properly. Because a GPA requirement will foreseeably have an adverse impact on students with selected disabilities, the district is responsible for showing that the use of GPA as one of several criteria to determine eligibility supports a necessary and valid purpose (i.e., the importance of acquiring an education and the need to perform adequately in school). It also would be helpful to demonstrate that the plaintiff was properly placed at the time of the application to participate in sports and that his IEP was both appropriate and least restrictive.

Chapter 8: Student Discipline

Points to Ponder (pp. 201-202)

1. Under a school district’s zero tolerance discipline policy, a middle school student was expelled for one year for the possession of a knife on school property. A teacher discovered the knife when the student dropped his unzipped backpack and a number of items fell out, including a small Boy Scout pocketknife. The student claimed he had used the backpack for a camping trip the prior weekend and had forgotten to remove the knife. The parents filed suit, arguing that the automatic one-year expulsion was arbitrary and

10

violated their son’s due process rights. What issues will the court consider? What is the likely outcome of the case?

Under the gun-free schools requirement in the No Child Left Behind Act, local school superintendents retain flexibility to review whether mandatory expulsion is justified in a particular weapons possession incident. The court may review (1) whether an individual assessment was made, (2) the adequacy of due process procedures, and (3) the student’s intent (knowing possession). If the court invokes the knowing possession standard, it is likely that the student’s constitutional rights will be implicated since the circumstances surrounding the incident were not weighed.

2. A high school honor student was suspended for five days at the end of the fall semester. The suspension period included two days of the final exam period, and his request to make up three exams was denied. He asserted that the detrimental impact on his overall grade-point average demanded greater due process than an informal conversation with the principal. What procedural protections are due in this suspension?

Although the student may feel that the impact of the suspension is severe, courts maintain that a short suspension simply requires either oral or written notice of the violation and the intent to suspend, an opportunity to respond to the charges, and an explanation of the evidence that justifies the disciplinary action.

3. A 13-year-old student, who was in the hallway without a pass, belligerently responded when a teacher ordered him to return to his classroom. The teacher responded by grabbing the student and throwing him against a locker. The boy suffered a cut to the forehead, which required stitches. He filed suit, claiming that the teacher’s action impaired his substantive due process right to be free from unreasonable physical punishment. What issues are involved in this claim? Will the student succeed in his challenge?

Unreasonable physical punishment may violate a student’s substantive due process right to be free from brutal, shockingly excessive physical treatment. Courts, however, have established a high threshold for recovery. Among the factors considered are: the need for administering the punishment, the relationship between the need and the extent of the punishment, nature of the student’s injury, and whether force was used to maintain discipline or used maliciously with the intent to harm. This incident would not rise to the “conscience-shocking” behavior typically required to establish a violation of a student’s substantive due process right. Parents still retain the right to pursue a civil suit in a state court for damages against the teacher for inflicting the injury.

4. A high school student discovered that his small, digital recorder was missing from his backpack. He had left the backpack open at his desk while he worked in a small group across the room. The teacher asked everyone to look around the classroom for the recorder. When it was not found, the teacher requested that the students bring their backpacks and jackets to the front of the room to be searched. Each student’s possessions were searched, but the recorder was not found. The next day, the student’s

11

parents filed a complaint with the school principal, protesting the search of their son. Was this search reasonable under the circumstances? Explain.

A court would probably find this search reasonable under the specific facts and circumstances described. Reasonable grounds existed to suspect that a student in the room had taken the digital recorder. The extent of the search was reasonable in that it was limited to backpacks and jackets; it did not involve a personal search of each student—only a search of their possessions.

Chapter 9: Terms and Conditions of Employment

Points to Ponder (p. 203)

1. After a two-year recruitment effort, a prominent, successful basketball coach moved across the state to accept a position to coach the boys’ varsity basketball team and teach science in a well-known high school program. His failure to produce a championship basketball team led the school board to terminate his coaching contract four years later. Although he retained his teaching position, he challenged the board’s decision, arguing that he was recruited primarily to coach basketball and that he had moved, at great expense, to the community for the coaching opportunity. What are the teacher/coach’s legal rights? For two perspectives, see Lagos v. Modesto City Schs. Dist., 843 F.2d 347 (9th Cir. 1988) and Kingsford v. Salt Lake City Sch. Dist., 247 F.3d 1123 (10th Cir. 2001).

Typically, coaching contracts are not an integral part of the teaching contract and do not involve a protected property interest. Consequently, a school board can terminate the extra-curricular appointment at the end of the contract period without providing due process. The Ninth Circuit in Lagos v. Modesto City Schools District denied a coach’s claim based on state law that specified that extra-duty assignments could be discontinued at any time by the school board. In the absence of such a specification in state law, the Tenth Circuit in Kingsford v. Salt Lake City School District ruled that a school through its promise could create an expectation for continuation that would require the school board to show cause for termination of the coaching assignment. In this scenario, the coach’s legal rights would be interpreted in light of the particular state’s laws.

2. You have been offered employment in a school district for next fall. With the offer of employment, the superintendent notes several requirements that must be met prior to final school board approval. In addition to the typical physical examination, the board requires that all new appointees consent to fingerprinting, a criminal records check, and a drug test. Do these requirements implicate protected privacy rights?

State laws generally require school boards to check the background of teachers thoroughly prior to employment. Requiring new teachers to consent to fingerprinting and a criminal records check are routine measures. A drug test, however, raises significant concerns about violating teachers’ constitutionally protected privacy rights. Only one

12

circuit court (Sixth Circuit) has ruled that such testing is permissible because of the safety-sensitive position that teachers occupy.

3. A high school principal refused to appoint a teacher, former president of the teachers union, as Department Chair of History. The teacher questioned the decision, claiming that the denial was based on her union activities. What are the teacher’s protected rights?

Freedom of Association under the First Amendment provides teachers as public employees the right to belong to unions and participate in union activities. As such, schools officials cannot retaliate against teachers for either membership or active participation in union matters. The burden will fall on the teacher to show that denial was connected to the exercise of protected association rights.

4. Invoking the state Freedom of Information Act (FOIA), a group calling itself Concerned Citizens for Improving Our Schools requested extensive financial data as well as personnel data from the local school district. Teachers objected to the release of personal data related to their sick leave records, teaching licenses, and annual evaluations. Does this request violate teachers’ privacy rights? How do freedom of information laws affect these privacy rights?

State law delineates teachers’ privacy rights. Consult your state law to determine the specific rights of teachers. Typically, information related to sick leave records and teaching licenses must be disclosed. Under most state laws, disclosure of individual teacher evaluations would constitute an invasion of privacy. Freedom of information laws must be consulted along with privacy laws to gain a full perspective on teachers’ privacy rights. Under FOIA laws, information that must be maintained by law is generally considered public records (e.g., salary, teaching license, personal directory information).

5. After several weeks of noticing prominent bruises on a ten-year-old boy, a teacher expressed her concern to the principal. The principal responded that she had no cause to worry, particularly since the boy’s parents were prominent citizens in the community. What is the teacher’s legal responsibility in this situation?

All states require teachers to report suspected child abuse. If the teacher fails to report her suspicions after the conversation with her principal, she will be in violation of the mandatory reporting requirement.

Chapter 10: Teachers’ Substantive Constitutional Rights

Points to Ponder (p. 252)

1. A nontenured teacher has received mediocre evaluations for two years. The principal has provided him some instructional assistance but feels that the teacher is not making

13

sufficient progress. Thus, the principal recommends that the teacher’s contract not be renewed. Before the school board acts on the recommendation, the teacher writes a letter to the newspaper criticizing the school board’s adoption of a new math program for elementary grades. Is protected expression involved? Can the school board decline to renew the teacher’s contract?

The nonrenewal recommendation was made prior to the teacher’s critical letter, so the First Amendment would not be abridged. Even if the letter had been written before the recommendation and its content were considered protected expression, the board still could decide not to renew the teacher’s contract as long as there were other legitimate reasons to justify the action (e.g., the teachers’ lack of sufficient progress in remedying deficiencies). The exercise of protected expression should not place a teacher in a better position than the teacher was in prior to the expression.

2. A teacher complained to her principal that children with disabilities were being placed in the regular classroom for fiscal reasons, when the children needed more restrictive placements. Can the teacher be disciplined for such expression?

The key is whether the expression is considered a private grievance or an issue of public concern. Courts have not spoken with a single voice in this regard. In this case, the court would decide whether the complaint primarily pertained to the teacher’s working conditions (private grievance) or to the welfare of students (protected public concern).

3. A school board is concerned about the mounting drug problem in the community and particularly in the public schools. To address the problem, the school has instituted a drug- education program and a drug-testing program for all students who participate in extracurricular activities. Now, the board wants to adopt a requirement that all new teachers as part of their pre-employment medical exams must submit to urinalysis screening for drug use. Are teachers in safety-sensitive roles? Can such a drug-screening program be justified without individualized suspicion?

While courts have upheld mandatory drug testing for public school employees in safety sensitive roles (e.g., school bus drivers), only the Sixth Circuit has broadly interpreted “safety sensitive” to include teachers. However, given the judicial trend toward allowing drug testing of more and more students (first student athletes and then those who participate in any extracurricular activities or drive to school), possibly other courts will conclude that teachers and other school personnel who have contact with children are in safety sensitive roles and can be subjected to mandatory drug tests (see scenario 2, Chapter 9).

4. A homosexual tenured middle school teacher has not mentioned his sexual orientation to his students. Yet, he has been prominent in gay rights rallies and has been a guest on a radio talk show to advocate a law authorizing homosexual marriages. As a result, several parents have complained to the principal and asked that the teacher be dismissed. Can the homosexual teacher be removed from the classroom?

14

Given recent decisions, public school teachers are likely to establish that they have a liberty right to their private lifestyle choices and cannot suffer adverse employment consequences because of their sexual orientation. The Supreme Court’s 2003 ruling supports this conclusion [Lawrence v. Texas, 123 S. Ct. 2472 (striking down the Texas law criminalizing certain sexual acts between individuals of the same sex)]. However, if a lifestyle choice affects interactions with students or teaching effectiveness, the school board would have legitimate grounds to remove the teacher. Such a nexus possibly could be established if a teacher’s public advocacy of gay rights affected classroom interactions.

Chapter 11: Discrimination in Employment

Points to Ponder (pp. 278-279)

1. A math and science teacher at an elite (selective admissions), public magnet school had a knowledge base measured at the 99th percentile of all persons taking a standardized math test. He was hired because of his knowledge of math and his ability to teach (as evidenced by the exceptional evaluations he received at his former school in China, his native country). Unfortunately, little effort was made to determine his English language speaking skills, although his written English proficiency scores were satisfactory. After two semesters of unsuccessful teaching, his contract was not renewed. He was not tenured and did not have the guarantee of employment beyond the one-year contract that had just expired. He then sued the school under Title VII and the Fourteenth Amendment. School officials claimed that he was nonrenewed because of his horrible teaching evaluations (based overwhelmingly on poor verbal communication skills) and not because of national origin. Two other Chinese teachers remained on staff. Is the nonrenewed teacher likely to win this suit? Why or why not?

No, the school district will prevail. The basis for the nonrenewal was his poor performance and not his national origin. Being able to effectively communicate would be considered an essential function of the teacher’s job.

2. All candidates for promotion are required to take a standardized test. Only persons scoring in the top 10 percent make the first cut and are allowed to proceed to the interview portion of the promotion process. You do poorly on the test, as did several others within your racial classification. In fact, only 2 percent of those within your racial classification were in the top 10 percent, notwithstanding the fact that your race represents 25 percent of those in the pool of candidates with the seniority to be considered for promotion. Performance on the test has been shown to be predictive of success on the job. You sue under Title VII, claiming disparate impact. Will you be successful in this suit? Why or why not?

You will lose this suit. Although the test does result in adverse impact on your racial group, it has been validated as predictive of job performance. Had it not been predictive of job performance, you would have prevailed as each criterion that results in adverse

15

impact must be shown to help identify those who will succeed either in training or on the job.

3. A physically disabled school maintenance worker was terminated because of poor job performance. As a form of accommodation, he had requested additional time (with additional compensation) to perform the job or an assistant to do a portion of the work for him—he can perform two-thirds of the daily work assignment within an eight-hour day. Following his termination, he filed suit under Section 504 of the Rehabilitation Act of 1973. The school district, which receives federal funds, claims that he was not otherwise qualified to meet the essential functions of the job. How will this legal challenge be decided?

The employer will prevail. As indicated, the worker simply could not perform essential job functions. Employers are not required, under the guise of reasonable accommodation, to hire two people to perform the job for which one was hired.

4. A well-qualified male applicant for a first-grade teaching position was not hired admittedly because of gender. There were no other applicants for the position. The male principal made it clear that only females historically had been first-grade teachers and that they, by their nature, were better suited for such positions. Moreover, he encouraged the male to apply for a middle school position, for which he also was licensed, and virtually guaranteed the applicant that he would be selected. Following his initial rejection, the male applicant filed suit against the district under Title VII. Is he likely to win this case? Why or why not?

The teacher will likely win. The school district discriminated against him due to gender, and gender in this case would not qualify as a bona fide occupational qualification.

Chapter 12: Termination of Employment

Points to Ponder (p. 304)

1. An elementary teacher was nonrenewed for failure to meet the school district’s teaching expectations as she completed her third year of employment. A mentor teacher had worked closely to assist the teacher in pedagogical and classroom management issues, but little progress had been made. Her sixth-grade students consistently scored lower than other students in the school district, and parents frequently complained to the principal about her teaching. Upon receipt of the nonrenewal notice, the teacher asks for a hearing, claiming that the school board’s decision has severely damaged her reputation and affected her ability to obtain another position. Is she entitled to a hearing? Does the school board’s action violate her protected liberty interests?

The teacher does not possess a property interest entitling her to procedural due process. Some states provide teachers an opportunity to meet with the school board to discuss nonrenewal but such a meeting is not an evidentiary hearing that requires a board to show

16

cause. As argued by this teacher, damage to her reputation (liberty interest) may entitle her to a hearing. However, courts have consistently held that nonrenewal alone does not violate protected liberty rights. A hearing would be required only if serious charges were made against her character (such as dishonesty or immorality) that virtually foreclosed other employment opportunities. In this instance, the board’s action does not violate protected rights.

2. A school board sent a tenured teacher a notice of its intent to terminate him for insubordination after he repeatedly refused to develop a personal growth plan as required by school district policy. Even though he had not complied with the policy, the principal had given the teacher good teaching evaluations each year. Can the school board terminate his employment? What are the teacher’s rights if the school board pursues termination?

Insubordination is the willful disregard of or refusal to follow school regulations and orders. The school board policy requires each teacher to develop a personal growth plan; the teacher has repeatedly refused. This continuing refusal constitutes cause for dismissal if the school board decides to pursue termination. Since the teacher is tenured, he is entitled to full procedural due process including notice of charges, opportunity for a hearing before an impartial tribunal, representation by legal counsel, chance to present evidence and witnesses, and an opportunity to cross examine adverse witnesses.

3. A tenured, veteran teacher received a notice from the school board of its intent to terminate her employment for lack of teaching effectiveness. The brief letter cited the statutory language permitting teacher termination for cause and indicated that a hearing would be held in 10 days. Does this constitute adequate notice?

This written notice includes the statutory cause but fails to identify specific reasons for the proposed termination. School officials must note the exact charges against the teacher and enough detail about the charges for the teacher to defend herself. Vague and indefinite charges that merely restate the statutory basis are inadequate.

4. After two convictions for driving while intoxicated, a tenured, middle school teacher was dismissed on grounds of immorality. The teacher argued that the convictions did not relate to his teaching effectiveness, the students had been unaware of the incidents until his termination, and he was in a treatment program for his drinking problem. Do you think his termination will be upheld? Support your answer.

Teachers may be considered role models for students and expected to set a good example through their own behavior. However, to substantiate termination of employment, courts generally require schools officials to show that immoral behavior has an adverse impact on the teacher’s effectiveness in the classroom. In this instance, it would be difficult for school officials to argue that effectiveness had been impaired since students were unaware of the incidents prior to the termination proceedings.

5. A male teacher is arrested and charged with propositioning a male undercover police

17

officer. Subsequently, the charges are dropped, but the school board, with no statement of reasons, nonrenews the teacher’s contract at the end of the school year. Although state law and local policies do not provide for a hearing in nonrenewals, the teacher requests an opportunity to appear before the school board. Is he entitled to such a hearing?

The teacher may be entitled to an opportunity to appear before the school board to clear his name. If the nonrenewal of employment has raised serious accusations of immorality against the teacher, the charges may have created a stigma that damages the teachers’ reputation and future employability.

18