Teachers Rights Case Exam

Running head: TEACHERS’ RIGHTS CASE EXAM 1

Teachers’ Rights Case Exam

Stephen Richard

University of New England

Dr. Alan E. Liebowitz

School Law, EDU 702

December 5, 2014

TEACHERS’ RIGHTS CASE EXAM 2

Statement of Academic Honesty: I have read and understand that plagiarism policy as outlined in the “Student Plagiarism and Academic Misconduct” document relating to the Honesty/Cheating Policy. By attaching this statement to the title page of my paper, I certify that the work submitted is my original work developed specifically for this course and to the MSED program. If it is found that cheating and/or plagiarism did take place in the writing of this paper, I acknowledge the possible consequences of the act/s, which could include expulsion from the University of New England.

Teachers’ Rights Case Exam

What is the basis of Teachers’ Rights Law? (NOTE: Indicate U. S. Constitutional basis,

which amendments are pertinent, AND list landmark cases)

It is reassuring to know that teachers fall under the same constitutional rights as the rest

of the United States citizens and students. Just as students have the property right to a free

education, teachers have the property right to their profession, called tenure. The expectation that

something is guaranteed, tenure in the educational realm, varies from state to state. After being

employed for a specific number of years, the school district offers tenure which protects the

teacher from being fired without due process (Hillman & Trevaskis, 2014).

Tenure has a very negative association with keeping teachers employed who are no

longer proficient educators. To alleviate some of the negative reputation of tenure many states

have extended the years achieve tenure status, Florida and Idaho have abolished it altogether and

more states are on their way. As a teacher, you signed up for a profession that holds a high public

standard. Knowing teachers are held to a high standard, they must continually be aware of what

they teach, say and do, inside and out of school. Tenure is certainly assuring, knowing the level

of protection it brings, though it’s not always a sure thing. Case Chicago Teachers Union v.

Board of Education of the City of Chicago, No. 10-3396 (2012) did not honor tenure in the

laying off of an employee.


When speaking of terms of employment, seniority matters. Simply put, the longer you

have taught in a school district the “safer” you are. When school cutbacks are occurring, teachers

who have taught longer have the property right of continued employment over an educator who

has taught for less time in the district and also the same school. The seniority rule generally

makes sense and is followed in all but a few states such as Michigan and California (Hillman &

Trevaskis, 2014).

The advantage of tenure may not be in effect, and may even be disappearing, though

teachers still entitled to Substantive Constitutional Rights. A teachers’ Substantive Constitutional

Rights are as follows: Freedom of Expression, Academic Freedom, Freedom of Association,

Personal Appearance, and Constitutional Privacy Rights (Hillman & Trevaskis, 2014).

Freedom of Expression:

From the case Pickering v. Board of Education of Township High School District 205,

Will County, 391 U.S. 563 (1968), we arrived at four questions that aid in determining

expression. Marvin L. Pickering wrote a letter to the editor that criticized school policy and

appropriation of funds. The school dismissed him because it detrimental to the interests of the

school. In the end he offered his Job back because the court ruled in favor of Pickering using

these four questions:

1. Does the item being discussed relate to a public issue or is it a private or personal concern?

2. Disruption—did the speech interfere with the school’s operation? 3. Did it harm anyone’s reputation?

4. If some statements were false, were there ways to know they were false?

Two more questions are added to this list when more cases involving speech necessitated

them. Case Garcetti v. Ceballos , 547 U.S. 410 (2006), involves a “whistleblower,” someone


who speaks out about things that may be going wrong. Even if the employee thought he was

doing the right thing was fired because he was an employee speaking against the company, not

as a public citizen. A similar situation happened in case Burlington Northern v. White , 548 U.S.

(2006), though this time he speech was protected. Title VII was the difference, adding on

discrimination to the First Amendment. Adding to the retaliation Burlington case, the University

of Texas Southwestern Medical Center v. Nassar , 133 S.Ct. 2517 (2013) case also used Title VII

and the court instituted the “but-for” and “motivating factor” test used by the lower court. The

“but-for” test is used to prove that retaliation was the only factor in the firing. Using the

“motivating-factor” test, the plaintiff only needs to show that retaliation is just one factor of other

possible reasons for the firing (Hillman & Trevaskis, 2014). The two questions that are added

onto the four because of the preceding cases are:

1. Is the employee speaking pursuant to his/her job or is he/she speaking as

a private citizen?

2. Is the employee filing under any federal law that has anti-retaliation

protections?

Academic Freedom:

In the technology/information age we are teaching in, lesson plans must be enticing and

teachers need to be able to inspire students with innovative, unique teaching techniques.

Teachers need the freedom to teach how they think it will best provide for the students. Court

will look at five questions when determining the outcome of an academic freedom case:

1. Age and Maturity of Students 2. Words and Materials Used 3. Purpose of the Material/Relevance to the Curriculum 4. Opinion of other educators as to the quality of the material


5. Effect on Class (Disruption Test)

Two main cases are involved when academic freedom is the issue. The first is Fowler v.

Board of Education, 819 F.2d 657 (1987), involving the showing of an R rated movie and

teacher dismissal because it was unbecoming of a teacher and insubordination. The second case,

Keefe v. Geanakos, 418 F.2d 359 (1969) involved the dismissal of Keefe because of a highly

offensive and vulgar word in a text that Keefe gave to the students. After an assessment of the

five questions, Fowler did not get her job back while Keefe did. Teachers do have many

academic rights, though the school board has a higher governing voice. Educators need to use

quality judgment along with guidance from the board while teaching at any level (Hillman &

Trevaskis, 2014).

Freedom of Association:

Freedom of association is only applied in the Constitution, it is parcel to the freedom of

speech and used as a freedom to peaceably assemble. Case Goldsmith v. Board of Education, 225

P. 783, 66 Cal. App. 157 (1924) is used as the preceding case, involving the swaying of students

for a superintendent candidate. The case was governed by these three questions:

1. Was the teacher proselytizing or indoctrinating?

2. What is the age and maturity of the students?

3. Did the speech cause disruption?

According the three questions Mr. Goldsmith did not get his job back because he was found

guilty of proselytizing students to vote for a particular superintendent, the students were at an

impressionable age and yes, disruption occurred (Hillman & Trevaskis, 2014).

Personal Appearance:


In general, teachers and student alike need to follow a dress code according to that school

policy. The balancing test used for personal appearance is simple, if the dress or hair is

considered pure speech then use the freedom of expression test is used.

Again, a teacher should use fair judgment with how they present themselves, especially around

students. A few cases have used this test: E. Hartford Ed. Assoc. v Board of Education, 562 F.2d

838 (1977), James v. The Board of Education of Central District No. 1 of the Towns of Addison

et. al., 461 F.2d 566 (1972). Use common sense, tattoos are generally ok, religious clothing is

not accepted, especially with younger students (Hillman & Trevaskis, 2014).

Constitutional Privacy:

A teacher is held to a high moral/community standard period. All teachers need to know

the high standard prior to becoming a teacher, because they are seen as role models, in a positive

way or not. That being said there are three amendments in the United States Constitution that

imply certain protections:

1. Fourth Amendment—protection against unreasonable searches and seizures.2. Ninth Amendment—addresses rights that are not specifically listed in the Constitution so here a personal privacy right has been construed to be present.


3. Fourteenth Amendment—protection against state action impairing personal liberties without due process of law.

Now that the amendments protect the privacy rights what test questions are used when

determining a teacher privacy case? Similar to previous tests, the five questions are:

1. Has the teacher’s private life become public? 2. Is the activity against the law? 3. Does the behavior go against the community standards? 4. The disruption test 5. Does activity interfere with one’s ability to do his/her job?

Three major cases are observed using these five questions. First, Gaylord v. Tacoma

School District Number 10, 559 P.2d 1340 (1977), a teacher was discharged because he was a

homosexual and “immoral”. Because of the disruption and interference with teaching this would

cause, Gaylord did not get his job back. Second, Erb v. Iowa State Board of Public Instruction,

216 N.W.2d 339 (1974), involved a teacher who had an affair. In the end, he ended up keeping

his position because of his quality teaching and high respect in the community which didn’t

effect or disrupt his ability to teach. Lastly, case Governing Board v. Brennan, 18 Cal.App.3d

396 (1971), the principal admitted to smoking marijuana, which undeniably would affect her

ability to carry out her school duties, was let go (Hillman & Trevaskis, 2014).

Facts: According to Time, school officials at Albany High School have apologized after students were assigned the task of “explaining why Jews are evil” as part of a persuasive writing class. The English teacher responsible for the assignment has been placed on leave and could be terminated.

Students taking the course were asked to watch and read Nazi propaganda, and then pretend their English teacher was a fascist official whom they must convince of their loyalty. They were told they “must argue that Jews are evil, and use solid rationale from government propaganda to convince me of your loyalty to the Third Reich.”

Participants were urged to use information garnered from their history classes as well as “any experiences you have” to present a damning appraisal of the Jewish people. However, around one-third of the 10th graders involved refused to take part in the assignment, prompting a speedy response from school staff.


“I would apologize to our families,” Albany Superintendent Marguerite Vanden Wyngaard told a meeting called in response to the incident. “I don’t believe there was malice or intent to cause any insensitivities to our families of Jewish faith.”

The teacher responsible for the controversial class could face further disciplinary action including possible dismissal, reported the Albany Times Union. Vanden Wyngaard did not say when or if the district would allow the teacher back in the classroom, but suggested it may not happen before the end of the year.

Let’s say the teacher was terminated and is suing to get his job back. Analyze this case.

Mark which type of case this is:

Academic Freedom

The test

(one component per line)

Lawyer’s arguments for the teacher

Lawyer’s arguments for the school

Age of students and their maturity

High school age students should not be subjected to such an

inappropriate project, especially because it could be seen as racism that is considered

acceptable by a supposed role model. 10th graders could be as

young as 15 and too impressionable to be finding ways to write why “Jews are

evil”.

Just as in case, Keefe v. Geanakos, 418 F.2d 359 (1969), the court

ruled it as acceptable, crass language and action towards an individual, did not really cause

much disruption. Students of this age are aware of what actually

happened in history and know that it was wrong. Students are mature enough at the high school level to understand the project and it intent

to teach.

Words and materials used

“explaining why Jews are evil”

No student should ever have to explain why any race of people

are evil. The intent may not have been racism but this assignment

may have created it. Other materials are endless to teach

persuasive writing, couldn’t the teacher use a different one?

Just as the Fowler v. Board of Education, case didn’t hold up

“explaining why Jews are evil”

Obviously the teacher does not think that the Jewish race is evil

and the student should know that. The persuasive writing class

assignment simply used REAL life application materials to teach.

When something is real the students are more involved and

interested.


because of its inappropriate content, this will not hold up

either.

Purpose of the material/relevance to

the curriculum

Yes, the material is relevant to the class, though this assignment

was not in the curriculum otherwise the school board would

not have allowed it in the first place.

Of course the material is relevant to the curriculum of a persuasive writing class. Teachers have the

freedom to teach as they see fit to have their students learn. This

teacher even said “pretend they were a fascist official”, meaning

it’s NOT real. The project fits perfect into a persuasion paper.

Opinion of other educators as to the

quality of the material

If other staff were asked of the “quality of the assignment” I am sure they would reject it. Maybe the history teacher could use it to carefully explain the history of

what happened, but to ask students use prior knowledge and

the article to “explaining why Jews are evil” is not a “quality”

idea or assignment.

If other staff were asked any educator would understand the

root of the assignment and see that it would certainly use many persuasive skills to write the

paper. The “quality” is real and applicable because it is something that actually happened, which the

students respond well to.

Effect on class (disruption test)

Obviously the assignment caused a disruption in class, an entire

third of the class wanted nothing to do with the project. The other

two thirds most likely didn’t want to get in trouble for not

doing an assignment even though they didn’t agree with it.

Title VII protects any possible Jews in the room and this may

have created the disruption.

Two thirds of the class had no issue with the assignment. Students are always looking for a way out of an assignment, so they found a reason

not to do it this time.

Overall assessment - who will win the case, do you believe?

This is really not an easy case to decide. Just as other cases, limited information makes it

hard for informed decision. I believe that the one third of the class is enough to consider it a


disruption. It is also believe that 15 year old students are still impressionable enough to be

effected by such a project. As I am an educator (question 3), I would not approve of an

assignment because we are supposed to be role models and I would want my student to think I

am any kind or racist person at all. Like I mentioned, there are so many other options for writing

a persuasion paper, why would this one have to be used? The Fowler v. Board of Education, case

didn’t hold up because of its inappropriate content, I do not believe this will not hold up either.

(Hillman & Trevaskis, 2014)

Reference

Hillman, S., & Trevaskis, D. (2014). School Law: Legal Framework, Guiding Principles, and

Litigated Areas.

Documents

Teachers Rights Case Exam