Chapter+Four

** ED 627 Advanced Issues in Educational Law **  The development of state statutory provisions and the existence of a sizable body of case law have provided teachers with safeguards against arbitrary dismissal. According to **//Board of Regents of State Colleges v. Roth//**, a nontenured teacher need not be given reasons for nonrenewal unless the nonrenewal deprived the teacher of a “liberty” interest or if there was a “property” interest in continued employment. Depending on a state’s statutory provisions, dismissal of a tenured teacher or one under a continuing contract must be in conformance of state law. Additionally, all of the procedural aspects of the hearing process provided by state statute must be provided to the teacher. *These statements do not hold true for a private sector employee In 1968 the respondent, David Roth, was hired for a fixed term of one academic year. After the respondent completed the term he was informed that he would not be rehired for the next academic year. Roth had no tenure rights under Wisconsin statutory law. Tenure can be acquired after four years. A relatively new teacher without tenure is entitled to nothing beyond his one year appointment. The decision to rehire is up to university officials. As a matter of statutory law, a tenured teacher cannot be “discharged except for cause upon written charges” and pursuant to certain procedures. A nontenured teacher is protected to the same extent but only for the one year term. A non tenured teacher dismissed before the end of the year may have the opportunity to review the dismissal. The teacher must be informed by February 1 concerning retention or non retention for the upcoming year, but no reason need to be given. Wisconsin was in conformance with these rules. Roth brought this action in Federal District Court alleging that the decision not to rehire him for the next year infringed on his Fourteenth Amendment rights. First, he alleged that the true reason for the decision was to punish him for certain statements against administration, which violated his freedom of speech. Secondly, he alleged that the failure of university officials to give him notice of any reason of nonretention violated his right to due process. The District Court ordered officials to provide him with reasons and a hearing. The Court of Appeals affirmed this statement, and granted certiorari (process by which a case is moved from a lower court to a higher court for review). In reviewing if Roth had a constitutional right to a statement of reasons and a hearing on the decision; the court held that he did not. Procedure due process only applies to the deprivation of liberty and property, which did not fall into play in this case. The State, in not rehiring Roth, did not place any stigma on him or damage his standing in the community. In addition, there was no state statute or University rule or policy that secured his interest in reemployment. Another US Supreme Court decision dealt with an issue that may have significance in states without tenure. The Court held that if a teacher had de facto tenure (expectation of continued employment although tenure system does not exist) a hearing could be requested to challenge grounds for nonretention. A nontenured teacher’s nonrenewal was not upheld in **//Stoddard v. School District No. 1 (1979)//**. The teacher in this case was advised in a letter from her principal that her contract would not be renewed because of failure to maintain order in the classroom and lack of dynamics in motivating students. The teacher alleged that the real reasons for her nonretention were rumors about an affair, playing cards and not attending church regularly, and her obesity. In the private sector, federal statutes protect union members from arbitrary dismissal and all private sector employees from discrimination. Nonunion private sector employees are considered “at will”, which allows for dismissal without cause when the aforementioned discrimination is not involved.  This topic regarding public school teachers has received considerable court attention. It was commonly viewed that public school teachers had a limited right of freedom of expression. Many thought that public employment was a privilege rather than a right. Formal restrictions of government employees were embodied in the hatch Act. Several states have enacted “little Hatch Acts” restricting certain activities of state employees including teachers. **// Pickering //****// v. Board of Education of Township High School District 205 //** (Supreme Court of the United States, 1968) Teacher Marvin Pickering was dismissed from his position by the Board of Education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the Board and the district superintendent had handled the past proposals to raise new revenue for the schools. Pickering’s dismissal resulted from a determination by the Board, after a full hearing, that the publication of the letter was “detrimental to the efficient operation and administration of the schools of the district” and under Illinois statute that “interests of the school required his dismissal”. The letter wrote by Pickering was in response to the second proposal to increase the tax rate, which was defeated. Prior to the vote on the tax increase a variety of articles appeared in the paper urging passage of the increase. If it was not passed it would result in the decline in the quality of education afforded to the children. The Board dismissed Pickering for writing and publishing the letter. Due to Illinois law, the Board was then required to hold a hearing on the dismissal. At the hearing the Board said that numerous statements in the letter were false, which damaged the reputation of the Board and its members, including district administration. The problem in this case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. An examination of the statements in Pickering’s letter objected to by the Board reveals that they consist of criticism of the Board’s allocation of school funds between educational and athletic programs, and of the Board’s and superintendent’s methods of informing the taxpayers of the need for more tax revenues. The statements were in no way directed towards any person with whom Pickering would be in daily contact with as a teacher. Some false statements in Pickering’s letter include: The Board’s original charges included allegation that the publication of the letter damaged the professional reputations of the Board and the superintendent and would ferment controversy and conflict among the Board, teachers, admin, and residents. However, no evidence to support these allegations was introduced at the hearing. Most of the statements reflected difference of opinion, such as the district spending too much money on athletics. More importantly, the question whether the school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration cannot be taken as conclusive. Free and open debate is vital. Basically, Pickering made erroneous statements but they in no way interfered with the regular operation of the school or his classroom. In sum, we hold that, in such a case, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his rights to speak on issues of public importance may not furnish the basis for dismissal from public employment. Subsequent decisions have discussed a two-step process to determine whether a teacher’s speech enjoys First Amendment protection. First, the disputed speech must address a matter of “public concern”. Second, the interests of the teacher must be balanced against the interests of the state as employer in rendering a public service through its employees. This second statement is know as the Pickering balance and may be based on: i.  The need for harmony in the workplace ii. The need for a close working relationship between the speaker and the superiors and whether the speech in question undermines that relationship iii. Whether the speech impedes an employee’s ability to perform his or her daily responsibilities iv. The time, place and manner of the speech v.  The context in which a dispute arises vi. The degree of public interest in the speech vii. Whether the matter was one on which debate would be vital to informed decision making. **// Mt. Healthy City School District Board of Education v. Doyle //** (Supreme Court of the United States, 1977) Doyle claimed that the Board’s refusal to renew his contract in 1971 violated his rights under the First and Fourteenth Amendment. After a bench trial the District Court held that Doyle was entitled to reinstatement and back pay. The Court of Appeals for the Sixth Circuit affirmed the judgment. Doyle was employed by the Board in 1966. He worked under one year contracts for the first three years, and under a two year contract from 1969-1971. In 1969, he was elected president of the Teachers’ Association which during that time there was some tension in relations between the Board and the Association. Beginning in 1970 Doyle was involved in several incidents and arguments not directly connected with his role in the Association. One occurrence had been in an altercation with a colleague, argued with school cafeteria employees, swore at students, and made obscene gestures to female pupils. He also called the radio station. In February 1971, the principal circulated a memo to certain teachers relating to teacher dress. Doyle’s response to the memo was to convey it to a local DJ who announced it as a news item. One month later the superintendent made his recommendations for rehiring of nontenured teachers, which did not include Doyle. The same recommendation was made with respect to nine other teachers. Doyle questioned why he was not rehired and was told that he lacked tact in handling professional matters which was followed by references to the radio station incidents. The District Court found that all incidents had occurred and that the first call to the radio station was protected by the First Amendment, and because it had played a “substantial part” in the decision of the Board not to renew Doyle, he was entitled reinstatement and back pay. The Court of Appeals affirmed the opinion. The Board was not entirely in agreement with the court’s manner of reasoning. The District Court made the following conclusions: i.  If a non-permissible reason played a substantial part in the decision not to renew – the decision may not stand. ii. A non-permissible reason did play a substantial part. A rule of causation which focuses solely on whether protected conduct played a part, “substantial” or otherwise, in a decision not to rehire, could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing. The current decision to rehire in this case will accord tenure. Initially, the burden was properly placed upon Doyle to show that his conduct was constitutionally protected, and that this conduct was a “substantial factor” in the Board’s decision not to rehire him. The District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to Doyle’s reemployment even in the absence of the protected conduct. The Court’s opinion in Doyle reaffirms the doctrine that nontenured teachers have First Amendment rights, and they may establish a claim to reinstatement if the reason for not being rehired was in violation of these rights. However, engaging in constitutionally protected conduct may not prevent an employer from dismissing a teacher on the basis of his or her total performance record. Prior to this decision, some administrators claimed that poorly performing employees would purposely engage in protected activities to claim that such an action was the reason for their dismissal and not their alleged poor performance. 1.  that the conduct is constitutionally protected 2.  that it is a substantial or motivating factor in the punishment, while the school system can escape the liability 3.  showing that it would have taken the same action in the absence of the protected conduct The case upheld the teacher since the matter of her expression was of public importance.  Although several states have statutes covering the political candidacy of public school employees, most of the statutory provisions are far from comprehensive. Four significant issues are involved when a public school employee becomes a candidate for public office which includes: 1.  the school employee’s First Amendment rights of freedom of expression and association 2.  incompatibility of office provisions 3.  conflict-of-interest provisions 4.  nepotism provisions Well settled case law has established that a public school employee may not simultaneously hold a public office and his or her school employment if it is against: 1.  incompatibility of office provisions 2.  conflict of interest provisions 3.  provisions providing for the tripartite separation of the divisions of government Under state incompatibility of office and conflict of interest provisions, courts have established that public school employees may not maintain their employment while holding office on: 1.  their employing board of education; or   2.   any governmental body, or while holding an office that has supervisory powers over their employing school district Whether public school employees may maintain their employment and serve in the state legislature depends on the conflict of interest statute covering the state’s legislators. Under incompatibility of office provisions, courts have held that there is no incompatibility between local school employment and serving the state legislature. However, some courts have held that it is incompatible for employees of the state university system to serve simultaneously in the legislature and hold their university jobs. Under state nepotism provisions, a school employee’s continued employment may be in jeopardy when a relative is elected to his or her employing board of education. Some state courts, under general nepotism statutes, do not strictly apply nepotism provisions to certified school personnel. Public school employees have the First Amendment right to campaign for other political candidates and issues; however, this right is not absolute. These types of activities: 1.  may not take place during work hours 2.  may not take place in the classroom 3.  may not interfere with the school employee’s job performance 4.  are not permissible if the employee uses his or her position of employment to influence the outcome of the election. III. Academic Freedom Public school teachers’ academic freedom is difficult to conceptualize definitely because of its extent is influenced by such factors as grade level and the nature of certain courses. When ligitagation occurs involving teachers’ academic freedom, teaches generally allege they have a constitution right to present material to which students, parents, or school officials may object. A. Appropriate material //Fowler v. Board of Education Lincoln County// – In this case a tenured teacher by the name of Jacqueline Fowler was discharged for insubordination and conduct unbecoming of a teacher. She sued claiming her 1st Amendment Rights had been violated. Ms. Fowler showed an “R” rated movie, Pink Floyd-The wall to high school students (age 14-17) on the last day of school. Mr. Fowler did not preview the movie before she showed the class despite the fact she had been warned that portions were no suitable for viewing in the current content. She didn’t explain the movie or use it as an educational tool. She used it to keep her students occupied while she did grades. The courts concluded that the plaintiff’s conduct, although not legal, constituted misconduct and fell within the concept of conduct unbecoming a teacher under Kentucky law.  **Notes and Questions** //Boring v. Buncombe County Board of Education// - A drama teacher’s reassignment due to her choice of plays for a statewide competition was upheld in //Boring v. Buncombe County Board of Education.// The play dealt with controversial issues and the court found that the school had a legitimate pedagogical interest in not allowing the play. //Bauchman v West High School// - A Jewish student in a choir class alleged her music teacher’s choice of Christian religious music violated her rights. They found that there was no violation of Establishment Clause, because the teacher’s selection had the primary purpose of teaching music appreciation and the effect on the curriculum was not to advance or promote a religion. //Williams v Vidmar// - An elementary school teacher was an “avowed orthodox Christian” was restricted in using supplemental teaching material with religious content. The court upheld that teachers do not have the 1st Amendment right to determine what curriculum will be taught. //Valeria v Davis// //1998// – California voters approved //Proposition 227//, a voter initiative designed to dismantle the state’s bilingual education programs. The proposition replaced bilingual programs with a structured English immersion. The courts upheld Proposition 227 and ruled that the Equal protection Clause had not been violated in //Valeria v Davis//. B. Political Speakers //Wilson// //v. Chancellor// – Wilson and Logue seek declaratory and injunctive relief from a school board banning “all political speakers” from Molalla Union High School. The courts decided that since speakers, who were Democratic, Republican, and a member of the John Birch Society were allowed in the class and the Board didn’t allow the Communist to speak to the class, it was discriminatory in nature //Keefe v Geanakos// - A teacher assigned a highly offensive reading to his class. The teacher, Keefe, was asked not to use it again, he refused and was suspended. //Sterzing v Fort Bend Independent School// - a teacher disclosed to his civic class his lack of opposition to interracial marriage. Several parents complained and he was to confine his teaching to the assigned book. He ignored the request and was discharged for insubordination. //Parducci v Rutland// - A teacher was threatened with dismissal if she didn’t agree to not assign the book “Welcome to Monkey House” because parents complained. The act of teaching is a form of expression and the methods used in teaching are media. Wilson’s use of political speakers was his medium of etching: similarly, the short story was Parducci’s medium, the pamphlets were Sterling’s medium, and the article was Keefe’s medium. The various school boards which restricted the media employed by Wilson, Keefe, Parducci, and Sterzling suppressed expression which in turn the 1st Amendment protects. **Notes and Questions** //Cockrel v Shelby County School District// - A teacher asked Woody Harrelson into her class to discuss the environmental and industrial use of hemp. The teacher was dismissed. The court ruled her “speech” in inviting Harrelson was constitutionally protected. IV. Drug Testing In their reaction to the prevalence of drugs in American society, some school systems have attempted to screen teachers for drug use. When such screenign policies are contested as a violation of a teacher’s rights under the 4th amendment, the courts must balance the privacy interests of teachers with the government’s interest in having a drug free environment. In determining if the 4th Amendment has been violated, a two pronged policy is considered. Drug test can be administered and are not a violated of the 4th Amendment if:  //United Teachers of New Orleans v Orleans Parish School Board// – the school required teachers hurt at work to take a drug test. There is insufficient nexus between suffering an injury at work and drug impairment. //Hearn v Savannah Board of Education// – a teacher refused to take a drug test within 2 hours of drug sniffing dogs finding a partially burned marijuana cigarette in her car. The district had a zero tolerance policy and drug free workplace. Policy provide for immediate discharge. //Skinner v Railway Executives// – the court upheld blood and urine testing for train crews, in cases of accidents or the release of hazardous materials. V. Personal Appearance //East Hartford education Association v. Board of Education of East Hartford// – Richard Brimely is a public school teachers reprimanded for failing to wear a necktie while in school. The courts ruled that because the appellant’s clash with his employer has failed to directly and sharply implicate basic constitutional values, the court refused to upset the policies established by the school board. The 1st Amendment claim was frivolous. Brimely can remove his tie when the school day has ended. As public servants in a special position of trust, teachers may properly be subjected to many restrictions in their professional lives which would be invalid if generally applied. **Notes and Questions** //Downing v Board of Education// – not allowing a teacher to wear a t-shirt with  “Jesus 2000-J2K” was upheld. The teacher’s free speech and free exercise rights were not violated.
 * Chapter Four: Teachers and the Law **
 * 1) NONRENEWAL AND DISMISSAL
 * // Board of Regents of State Colleges v. Roth //** (Supreme Court of the US, 1972)
 * // Notes //**
 * // Gosney v. Sonora Independent School District (1979) //** : A school district’s refusal to renew a teacher’s contract for violating a policy against outside employment was not upheld because the policy was not uniformly applied. The court declared the district’s no-outside-employment policy was not itself unconstitutional.
 * // Ambach c. Norwick (1979) //** : The US Supreme Court has upheld a NY statute forbidding permanent certification as a public school teacher of any person who is not a US citizen unless that person has manifested an intention to apply for citizenship.
 * // diLeo v. Greenfield (1976) //** : In this case the phrases often used in state statutes “for other due and sufficient cause” as a grounds for dismissal was too vague.
 * // Taborn v. Hammonds (1986): //** A probationary teacher may not be dismissed at midyear except for the same reasons that a tenured teacher be dismissed. Dismissal must be according to the procedures to mid-year discharge of a tenured teacher.
 * // Haddle v. Garrison (1998): //** At will case before the US Supreme Court stated a claim for damages could be brought for an alleged wrongful firing. Haddle alleged that his employees conspired to have him fired from his job in retaliation for obeying a federal grand jury subpoena and deter him from testifying at a federal criminal trial in which his employer was charged with Medicare fraud.
 * 1) FREEDOM OF EXPRESSION
 * // Pickering //****// v. Board of Education of Township High School District 205 (1968) //** established a principle that public school teachers have the First Amendment right of freedom of expression.
 * // Mt. Healthy City School District Board of Education v. Doyle //** involved an untenured teacher who had been in an altercation with a colleague, argued with school cafeteria employees, swore at students, and made obscene gestures to female pupils. He also called the radio station. Doyle alleged that his not being rehired was due to the fact that he called the radio station. The Court reasoned that the proper test in such a case is whether or not the school board would have rehired the teacher even in the absence of the protected conduct.
 * 1) ** Tenured Teacher’s Public Expression **
 * // Notes //**
 * // Vargas-Harrison v. Racine Unified School District (2002): //** The court ruled that a school principal speaking out against school-district policy issues was not protected speech because she was considered to be in a policymaking position. The principal owed her superiors a duty of loyalty, and upheld her dismissal
 * // Seemuller v. Fairfax County School Board (1989): //** A teacher’s use of satirical language allegedly demeaning female students in a letter to a high school newspaper, for which he was disciplined, was viewed by a court as commenting on a matter of public concern.
 * // Brayton v. Monson Public Schools (1997): //** The suspension of a high school coach for referring to team members as cowards to a reporter did not violate his free speech because such an expression did not rise to a level of “public concern”. The coach’s ultimate termination from his extracurricular position as upheld because he had no protected property in the extracurricular position.
 * // Kinsey v. Salado (1992): //** A school superintendent who actively but unsuccessfully, supported a slate of school board members contended that his subsequent suspension was in retaliation for exercising his First Amendment rights. In its decision, a court held that the superintendent’s free speech and political association rights were not violated and he was not deprived of his constitutionally protected property interest because he was fully compensated.
 * // Johnson v. Pinkerton Academy (1988): //** Pickering would not apply to private school teachers because a private school does not operate under the “color of the state”. Nor would private school teachers necessarily have the civil rights protections available to public school teachers. Their rights would be governed by their contracts. A private school was upheld in its dismissal of a high school teacher who wore a beard in violation of the school’s rules. The school\’s participation in a state-operated teacher pension did not sufficiently bring the school under the “color of the state”.
 * 1) ** Nontenured Teacher’s Freedom of Expression **
 * // Notes //**
 * // Settlegoode v. Portland Public Schools (2004): //** A second year special education teacher claimed that her nonrenewal was in retaliation for nonpublic communications sent to her superintendent describing the deficiencies in the district’s special education program. Her first-year positive evaluations became negative after her letter writing. The appellate court engaged in a three part inquiry. The teacher must prove:
 * // Russo v. Central School District No. 1 (1972): //** A probationary teacher may not be terminated solely for refusing to participate in a flag salute ceremony.
 * // Palmer v. Board of Education of the City of Chicago (1980): //** Upheld the discharge of a teacher who, based on her Jehovah’s Witness faith, refused to lead her kindergarten students in patriotic exercises and failed to comply with certain aspects of the curriculum.
 * 1) POLITICAL ACTIVITES
 * // Montgomery //****// v. Carr (1996): //** A public vocational school district’s antinepotism policy that prevents a married couple from working together at the same school was challenged. In its decision, the court held that the policy did not violate the teachers’ First Amendment associational rights. The court declared that the policy was rationally related to legitimate goals.
 * // Castle v. Colonial School District (1996): //** A school district policy that prohibited teachers from engaging in political activities on district property at any time, thereby preventing off duty employees from soliciting votes at official polling places located on school property, was held to violate the teachers’ First Amendment right. The views of the employees involved matters of “public concern”.
 * // State Board for Elementary and Secondary Education v. Howard (1992): //**  The Kentucky Supreme Court upheld legislation that prohibited employees of local school district from taking part in the management of any political campaign for school board and that forbade school board candidates from soliciting or accepting any political assessment, contribution, or service of any employee of the school district.
 * Suspicionless drug testing for all individuals who apply for, transfer to, or are promoted to “safety sensitive” positions within the school
 * <span style="FONT-FAMILY: Georgia, serif">“ Reasonable suspicion” drug and/or alcohol testing of all school employees

VI. Teacher as Exemplar A teacher’s lifestyle was once determined to a large extent by a school system’s formal or informal rules. It has long been thought that teachers should be exemplars to their students in such areas as dress, grooming, the social amenities, and morals. In the contemporary world, changing lifestyles and frequent lack of agreement regarding proper conduct make it difficult for a teacher to know the norm and the community’s zone of acceptance. This is complicated by the level of tolerance in different areas of the country (metropolitan area vs. small town). Courts have taken several factors into consideration when examining controversial lifestyles: 1. was the conduct criminal or immoral under a state statute 2. was it based on unsubstantiated rumors 3. hampered teacher effectiveness 4. infringed on the teacher’s freedom of expression Courts have demonstrated a reluctance to enforce or bar conduct solely on the basis of conformity, historical precedent, or “expert” opinion. Court decisions upheald school authorities in the earliest cases dealing with claims by homosexual teachers that they had been denied a teaching position, dismissed, or had their teaching certificate revoked due to sexual orientation. //Gaylord v. Tacoma School District// a male teacher was discharged due to his status as a publicly known homosexual. The teacher had 12 years experience, graduated Phi Beta Kappa, had a master’s degree, and had been evaluated with high standards and teaching performance. The court based its decision on his being guilty of __immorality__ and __unfitness__. He was considered immoral under local school board policy and a Washington statute. The court held that Gaylord’s performance as a teacher was sufficiently impaired by his known homosexuality and his retention would indicate school board approval of homosexuality. In addition, in earlier cases the knowledge of a teacher’s homosexuality brought about a high degree of __notoriety__ and undue attention to the teacher and the school that rendered him unfit to teach. More recent decisions, have increasingly turned on __freedom-of-expression__ issues—namely, whether teachers may publicly express their sexual preferences or advocate homosexuality. //Downs v. Los Angeles Unified School District// A court declared bulletin boards were not free speech zones that teachers could use to oppose district policy. //Schroeder v. Hamilton School District// denied a middle and elementary school homosexual teacher’s complaint that his right to equal protection had been violated because reasonable measures had not been taken by the school district to prevent students, parents, and occasionally district employees from harassing him about his homosexuality. Obscenities, harassing phone calls, and bathroom graffiti direct at the teacher discipline identified students, but because of the anonymous nature of the incidents many offenses went unpunished. Schroeder requested the district conduct sensitivity training to combat race and gender discrimination but the district felt it would not be appropriate for elementary and middle school children to received the training and no other students or teachers were being targeted and, therefore the district did not conduct the sensitivity training. The court ruled that Schroeder had not demonstrated that the school district had been deliberately indifferent to his complaints. Homosexual teachers prevailed in two decisions decided in the late 1990’s. //Glover v. Williamsburg Local School District Board of Education// A gay teacher claimed his nonrenewal was based on discrimination because of his sexual orientation. The court found that administrators and board members had acted on the basis of __false rumors__ and did not confront Glover about the rumors, relied on false testimony which lowered his evaluations. The court held that he was discriminated against by the board’s action and stated that homosexuals are entitled to at least the same protections as any other identifiable group which is subject to disparate treatment. Glover received $46,492 for lost salary for two years and $25,000 for anguish and humiliation, in addition to attorneys fees and costs. //Weaver v. Nebo School District// A school district sought to restrict a lesbian teacher’s right to express her sexual orientation outside the classroom in addition to not rehiring her as volleyball coach. The court found that the community’s perception about Weaver—based on nothing more than __unsupported assumptions__, out dated stereotypes, and animosity—did not furnish a rational basis for not rehiring her as volleyball coach. The court ordered that Weaver be offered the volleyball coaching position and that letters requesting her not to discuss her homosexuality be removed from her personnel file. The public issued a complaint in court about her conduct in psychology class which was dismissed in district court. Governmental actions taken to protect the rights of homosexuals in larger population have special significance for the legal status of homosexuals employed in public education. Striking down sodomy statutes, allowing “same-sex civil unions” and marriage, and passing laws or ordinances that prohibit discrimination based on sexual orientation make it difficult, if not impossible for local school systems to deny employment or dismiss homosexuals on the basis of their sexual orientation. ** <span style="FONT-FAMILY: Georgia, serif">Don’t Ask, Don’t Tell policy among teachers ** <span style="FONT-FAMILY: Georgia, serif"> <span style="FONT-FAMILY: Georgia, serif">** B. Adulterous Teacher ** //Erb v. Iowa State Board of Public Education //(1974 Supreme Court of Iowa) Erb, a native Iowan, married with two young children and a teacher at Nishna Valley Community School and coach of wrestling, football, and acted as a senior class sponsor. A complaint was made about Erb by Robert M. Johnson, the husband of Maragaret Johnson, who Erb was having an affair with. Both Erb and Margaret were teachers in the Nishna Valley School District. Margaret and Erb were caught having the affair by Robert Johnson and other witnesses. Rober Johnson told Erb to tell his wife about the affair and Erb did so. Margaret and Erb ended the affair and Erb offered to resign his teaching position. The board unanimously declined Erb’s resignation. The board felt Erb’s teaching was highly rated by his principal and superintendent, he had been forgiven by his wife and the student body, and he had maintained the respect of the community. Erb remained a teacher for the remainder of the school year at Nishna Valley School. At a board meeting witnesses went before the board to vouch for Erb’s character and fitness to teach. The superintendent gave the same testimony in district court. The board did not allow Erb’s lawyer to cross examine Johnson or two witnesses in support of Erb’s character and fitness to teacher. Trial court ruled that Erb’s student-teacher relationship had not been impaired by his conduct. The board voted 5 to 4 to revoke Erb’s teaching certificate, and without making any findings of fact or conclusions of law, ordered it revoked. Trial court held Erb’s admitted adulterous conduct was sufficient basis for revocation of his certificate. Erb contends in his appeal that the board acted illegally 1. denying his right to cross-examine witnesses against him and limited the number of witnesses 2. failing to make findings 3. revoking this teaching certificate without substantial evidence that he is not morally fit to teach The board contends that fact Erb admitted adultery is sufficient in itself to establish his unfitness to teach. This assumes such conduct automatically and invariably makes a person unfit to teach. The legislature did not give the board that kind of power in Code 260.23. The sole purpose of the board’s power under 260.23 is to provide a means of protecting the school community from harm. Its exercise is unlawful to the extent it is exercised for any other purpose. A certificate can be revoked only upon s showing before the board of a reasonable likelihood that the teacher’s retention in the profession will adversely affect the school community (teachers, administration, student body, etc.). There was no evidence of such adverse effect in the present case. //Gillett v. Unified School District// (Supreme Court of Kansas) This case involves a controversy between a schoolteacher and school board over the nonrenewal of her teaching contract because of the existence of criminal charges of shoplifting pending against Mrs. Gillett in Hastings, NE. Jesse Mae Gillett is a tenured teacher who had been employed by the district for 7 years. Mrs. Gillett promptly filed a request for a due process hearing on the matter. There was substantial competent evidence showing good cause which justified the school board in its decision not to renew the teaching contract of Mrs. Gillett. Mrs. Gillett, at the time of her arrest, appeared to be acting strangely and out of touch with reality. Gillett did not deny taking the articles. A doctor found that Mrs. Gillett suffers from a mental condition and she was not criminally responsible for her actions. Dr. Peters conceded that Mrs. Gillett’s condition is brought on by food or lack of certain foods and can reoccur at undetermined times. It is significant that in this case the teacher did not personally take the witness stand to give her own explanation as the her physical and mental condition or to deny that she took property from Hasting, NE. She did not testify to her treatment she was undergoing or whether the treatment was effective in solving her problem or her relationship with students, teachers, and administrators. Not a single witness testified to the educational benefits she was making to the district. Based on the evidence presented, it is believed the board’s decision was made in good faith in maintaining an efficient school system for the students in the school district. //Barcheski v. Board of Education of Grand Rapids Public Schools// (Court of Appeals, MI) Mr. Barcheski has been charged with three separate incidences involving students alcohol, drugs, and sex. A review of the record discloses that the tenure commission’s findings are supported by substantial, material and competent evidence. Two female students provided eye witness testimony regarding the party and drug and alcohol consumption that took place at the party. Eye witnesses also stated they had smoked pot and drank before they arrived at the party making at least one witness unreliable. Barcheski testified that he was not aware taking Mary, a young, intoxicated female student home alone in his car constituted, by itself, ground for discipline. It is affirmed because of the foregoing reasons, the circuit court’s affirmance of the discharge was based on reasonable and just cause. VII. EMPLOYMENT DISCRIMINATION Often employment discrimination is found under one of the following areas: Title 7 of the Education Amendments of 1972 The Americans with Disabilities Act of 1990 The Pregnancy Discrimination Act of 1978 Title VII of the Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 states that it shall be an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color religion, sex, or national origin or To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. A) Racial Discrimination  Brown vs. Board of Education of Topeka—enormous impact on black teachers in formerly segregated schools. Court ordered desegregation plans often contained provisions effectively regulating the hiring, promotion, and dismissal of minority school personnel.   B)  Sex Discrimination Both Title VII and IX of the Civil Rights Act have been employed by plaintiffs alleging sex discrimination. Challenged on the basis of Title VII, Fuhr vs. School District of the City of Hazel Park, addresses the issue of sex-based discrimination in not hiring a woman as a boys’ varsity basketball coach. C) Pregnancy  Until a 1974 ruling by the Unites States Supreme Court, most local school systems ’rules pertaining to a teacher’s pregnancy were arbitrary. That year, a challenge to local school board policies that provided for mandatory leave at a particular time in a pregnancy and rules’ pertaining to re-employment after delivery was decided by the Court in Cleveland Board of Education v. La Fleur. In its landmark decision, the court held that mandatory maternity termination provisions stating the number off months before anticipated childbirth violated the Due Process Clause of the Fourteenth Amendment. The Court reasoned that arbitrary cutoff dates have no valid relationship to the state’s interest in preserving continuity of instruction, as long as the teacher is required to give substantial advance notice that she is pregnant.   D)  Religious Discrimination Title VII of the Civil Rights Act of 1964 provides in part that an employer must “reasonably accommodate to an employee’s…religious observances or practice without undue hardship on the conduct of the employer’s business. The teacher’s collective bargaining agreement allowed three days of paid religious leave and three days of paid personal business leave; religious observances were not included among the enumerated reasons for taking a leave of absence for personal business. E) Age Discrimination  Under the Age Discrimination in Employment Act(ADEA) of 1967 and its amendments, it is unlawful for an employer to discriminate against any employee or potential employee on the basis of age except where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age. In 1974 Congress extended the act’s substantive prohibitions to employers having a t least twenty workers and to the federal and state governments and, thus to public school employees.   VIII.  TEACHER BARGAINING   A wide range of practices exists among the fifty states pertaining to school employment relations. These practices vary from states that either have no statutory provisions or prohibit collective bargaining to those that mandate bargaining and allow teachers to strike. Although the majority of states have statutory provisions addressing issues surrounding school employment relations, several states rely on the authority of case law, and a handful of states rely on attorney general opinions. Some states leave teacher negotiation or bargaining rights to the discretion of local school boards, whereas others provide bargaining rights that compare favorably with those held by employees in the private sector. The range of issues addressed in the various statutes include whether or not there are exclusive bargaining rights for one teacher group, which groups may be included in the bargaining unit, dues, the establishment of agency shops, service fees, the scope of bargaining, impasse procedures and strike provisions. Lehnert v. Ferris Faculty Association This case presents issues concerning the constitutional limitations, if any, upon the payment, required as a condition of employment, of dues by a nonmember to a union in the public sector.
 * A. Homosexual Teacher **
 * C. Criminal Activities **
 * D. Impropriety with Students **