Teacher Gender Identity

Teachers have often employed the courts to remedy treatment by school authorities with whom they disagreed. In many instances, personnel practices that had become institutionalized through custom have been challenged as being discriminatory, violative of statutory or constitutional provisions, or unfair. Although teachers have not always been successful in actions brought before the judiciary, their willingness to employ the courts for a redress of grievances has produced a climate in which public school administrators are sensitive to the necessity of treating teachers in a legally defensible manner.

This chapter focuses on law relating to nonrenewal and dismissal of teachers; teachers’ freedom of expression; academic freedom; drug testing; standards of dress; the teacher as exemplar; employment discrimination; collective bargaining; and the political rights of teachers.

I. NON RENEWAL AND DISMISSAL The development of state statutory provisions and the existence of a sizable body of case law have provided teachers with safeguards against arbitrary dismissal. School administrators have the primary task of evaluating teachers and determining their fitness; however, this task must be done in accordance with state statutory provisions and in the light of constitutional protections.

According to a United States Supreme Court decision, 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. Any statement regarding the reason for the nonrenewal could result in the teacher’s requesting a due process hearing.

Depending on a state’s statutory provisions, dismissal of a tenured teacher or one under a continuing contract must be in conformance with the state law. State provisions usually contain grounds for dismissal such as nonperformance of duty, incompetency, insubordination, conviction of crimes involving moral turpitude, failure to comply with reasonable orders, violation of contract provisions or local rules or regulations, persistent failure or refusal to maintain orderly discipline of students, and revocation of the teaching certificate. Additionally, all the procedural aspects of the hearing process provided by state statute must be afforded the teacher. These often

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include the following requirements: proper notice, containing charges and the names and nature of the testimony of witnesses and stating the time and place of the hearing; compulsory process or subpoena requiring the attendance of witnesses and the production of relevant papers and documents; a fair hearing; and an opportunity for appeal.

This relationship between public-school teachers and their employers is significantly different from that which operates in the private sector. Although workers in the private sector may have protection under contract law, union agreements, or governmental antidiscrimination provisions against arbitrary dismissal, when a private-sector employee is not covered by these protections, specific grounds for dismissal do not have to be given. Nor do private-sector employees, because their employment relationship is not with a government entity, have the protection of constitutional guarantees such as due process and equal protection.

BOARD OF REGENTS OF STATE COLLEGES v. ROTH Supreme Court of the United States, 1972 408 U.S. 564

MR. JUSTICE STEWART delivered the opinion of the Court. In 1968 the respondent, David Roth, was hired for his first teaching job as assistant professor of

political science at Wisconsin State University–Oshkosh. He was hired for a fixed term of one academic year. The notice of his faculty appointment specified that his employment would begin on September 1, 1968, and would end on June 30, 1969.

The respondent completed that term. But he was informed that he would not be rehired for the next academic year. The respondent had no tenure rights to continued employment. Under Wisconsin statutory law a state university teacher can acquire tenure as a “permanent” employee only after four years of year-to-year employment. Having acquired tenure, a teacher is entitled to continued employment “during efficiency and good behavior.” A relatively new teacher without tenure, however, is under Wisconsin law entitled to nothing beyond his one-year appointment. There are no statutory or administrative standards defining eligibility for re-employment. State law thus clearly leaves the decision whether to rehire a nontenured teacher for another year to the unfettered discretion of university officials.

The procedural protection afforded a Wisconsin State University teacher before he is separated from the University corresponds to his job security. 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, similarly, is protected to some extent during his one-year term. Rules promulgated by the Board of Regents provide that a non-tenured teacher “dismissed” before the end of the year may have some opportunity for review of the “dismissal.” But the Rules provide no real protection for a nontenured teacher who simply is not re-employed for the next year. He must be informed by February 1 “concerning retention or non-retention for the ensuing year.” But “no reason for non-retention need be given. No review or appeal is provided in such case.”

In conformance with these Rules, the President of Wisconsin State University–Oshkosh informed the respondent before February 1, 1969, that he would not be rehired for the 1969–1970 academic year. He gave the respondent no reason for the decision and no opportunity to challenge it at any sort of hearing.

The respondent then brought this action in Federal District Court alleging that the decision not to rehire him for the next year infringed his Fourteenth Amendment rights. He attacked the decision both in substance and procedure. First, he alleged that the true reason for the decision was to punish him for certain statements critical of the University administration,

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and that it therefore violated his right to freedom of speech. Second, he alleged that the failure of University officials to give him notice of any reason for nonretention and an opportunity for a hearing violated his right to procedural due process of law.

The District Court granted summary judgment for the respondent on the procedural issue, ordering the University officials to provide him with reasons and a hearing. * * * The Court of Appeals, with one judge dissenting, affirmed this partial summary judgment. * * * We granted certiorari. * * * The only question presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and a hearing on the University’s decision not to rehire him for another year. We hold that he did not.

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.

The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular interests involved. It concluded that the respondent’s interest in re-employment at Wisconsin State University–Oshkosh outweighed the University’s interest in denying him re-employment summarily. * * * Undeniably, the respondents re-employment prospects were of major concern to him—concern that we surely cannot say was insignificant. And a weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process. But, to determine whether due process requirements apply in the first place, we must look not to the “weight” but to the nature of the interest at stake. * * *We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property.

“Liberty” and “property” are broad and majestic terms. They are among the “[g]reat [constitutional] concepts . . . purposely left to gather meaning from experience . . . [T]hey relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.” * * * For that reason, the Court has fully and finally rejected the wooden distinction between “rights” and “privileges” that once seemed to govern the applicability of procedural due process rights. The Court has also made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money. By the same token, the Court has required due process protection for deprivations of liberty beyond the sort of formal constraints imposed by the criminal process.

Yet, while the Court has eschewed rigid or formalistic limitations on the protection of procedural due process, it has at the same time observed certain boundaries. For the words “liberty” and “property” in the Due Process Clause of the Fourteenth Amendment must be given some meaning.

“While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.” * * * In a Constitution for a free people, there can be no doubt that the meaning of “liberty” must be broad indeed. * * * There might be cases in which a State refused to reemploy a person under such circumstances that interests in liberty would be implicated. But this is not such a case. The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an

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opportunity to be heard are essential.” * * * In such a case, due process would accord an opportunity to refute the charge before University officials. In the present case, however, there is no suggestion whatever that the respondent’s “good name, reputation, honor, or integrity” is at stake.

Similarly, there is no suggestion that the State, in declining to reemploy the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case. * * *

To be sure, the respondent has alleged that the nonrenewal of his contract was based on his exercise of his right to freedom of speech. But this allegation is not now before us. The District Court stayed proceedings on this issue, and the respondent has yet to prove that the decision not to rehire him was, in fact, based on his free speech activities.

Hence, on the record before us, all that clearly appears is that the respondent was not rehired for one year at one university. It stretches the concept too far to suggest that a person is deprived of “liberty” when he simply is not rehired in one job but remains as free as before to seek another. * * *

The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests—property interests—may take many forms.

* * * Certain attributes of “property” interests protected by procedural due process emerge from these

decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients * * * had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.

Just as the welfare recipients’ “property” interest in welfare payments was created and defined by statutory terms, so the respondent’s “property” interest in employment at Wisconsin State University–Oshkosh was created and defined by the terms of his appointment. Those terms secured his interest in employment up to June 30, 1969. But the important fact in this case is that they specifically provided that the respondent’s employment was to terminate on June 30. They did not provide for contract renewal absent “sufficient cause.” Indeed, they made no provision for renewal whatsoever.

Thus, the terms of the respondent’s appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he did

not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.

Our analysis of the respondent’s constitutional rights in this case in no way indicates a view that an opportunity for a hearing or a statement of reasons for nonretention would, or would not, be

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appropriate or wise in public colleges and universities. For it is a written Constitution that we apply. Our role is confined to interpretation of that Constitution.

We must conclude that the summary judgment for the respondent should not have been granted, since the respondent has not shown that he was deprived of liberty or property protected by the Fourteenth Amendment. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Notes and Questions Roth was a five-to-three decision. In his dissent, Justice Douglas argued that

. . . Nonrenewal of a teacher’s contract is tantamount in effect to a dismissal and the consequences may be enormous. Nonrenewal can be a blemish that turns into a permanent scar and effectively limits any chance the teacher has of being rehired as a teacher, at least in his State. (p. 585)

Do you agree with his assessment? Why? Another United States Supreme Court decision dealt with an issue that may have significance in

states without tenure statutes. In that decision the Court held that if a teacher had de facto tenure—an expectation of continued employment after many years of satisfactory service although a formal tenure system did not exist—a hearing could be requested to challenge grounds for nonretention. See Perry v. Sindermann, 408 U.S. 593 (1972).

A nontenured teacher’s nonrenewal was not upheld in Stoddard v. School District No. 1, 590 F.2d 829 (10th Cir. 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 in a private conversation the principal informed her that the “real” reasons for nonrenewal were (1) rumors regarding an affair with another resident of her trailer park, (2) her propensity for playing cards and not attending church regularly, and (3) her obesity, which was the “lack of dynamics” referred to in the letter.

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. See Gosney v. Sonora Independent School District, 603 F.2d 522 (5th Cir. 1979). The court declared that the district’s no-outside-employment policy was not itself unconstitutional.

The United States Supreme Court has upheld a New York statute forbidding permanent certification as a public school teacher of any person who is not a United States citizen unless that person has manifested an intention to apply for citizenship. See Ambach v. Norwick, 441 U.S. 68 (1979).

State statutes often contain a catchall phrase such as “for other due and sufficient cause” as a ground for dismissal. The question of overbreadth and vagueness of such a phrase was discussed in diLeo v. Greenfield, 541 F.2d 949 (2d Cir. 1976), and the court agreed that the phrase was too general.

A probationary teacher may not be dismissed at mid-year except for the same reasons that a tenured teacher may be dismissed, such as lack of funding. Dismissal must be according to the

procedures applicable to mid-year discharge of tenured teachers. See Taborn v. Hammonds, 350 S.E.2d 880 (N.C. Ct. App. 1986).

Does your state have statutory provisions dealing with nonrenewal and dismissal of teachers? What are your local school system’s policies regarding nonrenewal and dismissal?

II. FREEDOM OF EXPRESSION

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Public school teachers’ status regarding their rights of freedom of expression has received considerable court attention. Prior to this attention, several historic forces had contributed to the commonly held view that public employees, which included teachers, had a limited right of freedom of expression. A strong force contributing to this view was that public employment was considered a privilege rather than a right. Although this distinction has been modified, the belief that public employment was a privilege had received considerable credibility, especially since 1892, as the result of Justice Holmes’ often-quoted statement, “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” This judicial view, coupled with the notion that the quid pro quo for government employees’ increased job security (a result of the ravages of the spoils system), had the effect of allowing the forfeiture of certain constitutional rights. Formal restrictions of government employees’ political activities were embodied in the Hatch Act at the federal level. Several states have enacted “little Hatch Acts,” and other states have statutory provisions restricting certain activities of state employees and/or teachers. Such legislation, combined with a judicial view that public employment was a privilege and not a right, tended to solidify the long-held contention that government employees, which included teachers, had a limited right of freedom of expression.

A heightened concern with individual rights during the 1960s, combined with a seemingly receptive federal judiciary, resulted in teachers challenging that they had a limited right of freedom of expression. Several Supreme Court and lower-court decisions upheld the teachers’ contention.

Pickering v. Board of Education of Township High School District 205, a Supreme Court decision, established the principle that public school teachers have the First Amendment right of freedom of expression. Pickering was dismissed from his teaching position for writing a letter, published in a newspaper, critical of several of the school board’s actions. These included allocation of school funds between educational and athletic programs and the board’s and superintendent’s methods of informing, or neglecting to inform, the school district’s taxpayers of the real reasons why additional tax revenues were being sought for the schools. In attempting to balance the teacher’s interest as a citizen in making public comments, against the state’s interest in promoting the efficiency of its employees’ public services, the court struck the balance on the side of the teacher.

Another Supreme Court decision, 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 a radio station and provided them with a memorandum from the principal relating to teacher dress and appearance. Doyle alleged that his not being rehired was due to his exercising his First Amendment rights in calling the radio station. The Court, in vacating and remanding the lower court’s decision in upholding Doyle, reasoned that the proper test in such a case is whether the school board would have rehired the teacher even in “the absence of the protected conduct.”

A. Tenured Teacher’s Public Expression

PICKERING v. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT 205 Supreme Court of the United States, 1968 391 U.S. 563

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MR. JUSTICE MARSHALL delivered the opinion of the Court. Appellant Marvin L. Pickering, a teacher in Township High School District 205, Will County,

Illinois, was dismissed from his position by the appellee 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 of schools had handled past proposals to raise new revenue for the schools. Appellant’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 hence, under the relevant Illinois statute, * * * that “interests of the school require[d] [his dismissal].”

* * * In February of 1961 the appellee Board of Education asked the voters of the school district to

approve a bond issue to raise $4,875,000 to erect two new schools. The proposal was defeated. Then, in December of 1961, the Board submitted another bond proposal to the voters which called for the raising of $5,500,000 to build two new schools. This second proposal passed and the schools were built with the money raised by the bond sales. In May of 1964 a proposed increase in the tax rate to be used for educational purposes was submitted to the voters by the Board and was defeated. Finally, on September 19, 1964, a second proposal to increase the tax rate was submitted by the Board and was likewise defeated. It was in connection with this last proposal of the School Board that appellant wrote the letter to the editor * * * that resulted in his dismissal.

Prior to the vote on the second tax increase proposal a variety of articles attributed to the District 205 Teachers’ Organization appeared in the local paper. These articles urged passage of the tax increase and stated that failure to pass the increase would result in a decline in the quality of education afforded children in the district’s schools. A letter from the superintendent of schools making the same point was published in the paper two days before the election and submitted to the voters in mimeographed form the following day. It was in response to the foregoing material, together with the failure of the tax increase to pass, that appellant submitted the letter in question to the editor of the local paper.

The letter constituted, basically, an attack on the School Board’s handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools’ educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue.

The Board dismissed Pickering for writing and publishing the letter. Pursuant to Illinois law, the Board was then required to hold a hearing on the dismissal. At the hearing the Board charged that numerous statements in the letter were false and that the publication of the statements unjustifiably impugned the “motives, honesty, integrity, truthfulness, responsibility and competence” of both the Board and the school administration. The Board also charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment “controversy, conflict and dissension” among teachers, administrators, the Board of Education, and the residents of the district. * * *

* * *

To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. * * * At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public

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concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.

* * * Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run.

An examination of the statements in appellant’s letter objected to by the Board reveals that they, like the letter as a whole, consist essentially of criticism of the Board’s allocation of school funds between educational and athletic programs, and of both the Board’s and the superintendent’s methods of informing, or preventing the informing of, the district’s taxpayers of the real reasons why additional tax revenues were being sought for the schools. The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant’s employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning.

* * * We next consider the statements in appellant’s letter which we agree to be false. The Board’s original charges included allegations that the publication of the letter damaged the professional reputations of the Board and the superintendent and would foment controversy and conflict among the Board, teachers, administrators, and the residents of the district. However, no evidence to support these allegations was introduced at the hearing. So far as the record reveals, Pickering’s letter was greeted by everyone but its main target, the Board, with massive apathy and total disbelief. The Board must, therefore, have decided, perhaps by analogy with the law of libel, that the statements were per se harmful to the operation of the schools.

However, the only way in which the Board could conclude, absent any evidence of the actual effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members’ own interests with that of the schools. Certainly an accusation that too much money is being spent on athletics by the administrators of the school system * * * cannot reasonably be regarded as per se detrimental to the district’s schools. Such an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest.

In addition, the fact that particular illustrations of the Board’s claimed undesirable emphasis on athletic programs are false would not normally have any necessary impact on the actual operation of the schools, beyond its tendency to anger the Board. For example, Pickering’s letter was written after the defeat at the polls of the second proposed tax increase. It could, therefore, have had no effect on the ability of the school district to raise necessary revenue, since there was no showing that there was any proposal to increase taxes pending when the letter was written.

More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.

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In addition, the amounts expended on athletics which Pickering reported erroneously were matters of public record on which his position as a teacher in the district did not qualify him to speak with any greater authority than any other taxpayer. The Board could easily have rebutted appellant’s errors by publishing the accurate figures itself, either via a letter to the same newspaper or otherwise. We are thus not presented with a situation in which a teacher has carelessly made false statements about matters so closely related to the day-to-day operations of the schools that any harmful impact on the public would be difficult to counter because of the teacher’s presumed greater access to the real facts. Accordingly, we have no occasion to consider at this time whether under such circumstances a school board could reasonably require that a teacher make substantial efforts to verify the accuracy of his charges before publishing them.

What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.

* * * In sum, we hold that, in a case such as this, absent proof of false statements knowingly or

recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. * * *

Notes Justice Thurmond Marshall, who wrote the Pickering opinion, became the first black to be named to the Supreme Court. He was appointed by President Johnson in 1967. He had been counsel for the National Association for the Advancement of Colored People and the NAACP Legal Defense and Educational Fund for twenty-five years. During that time, he argued many civil rights cases, including the 1954 landmark public school desegregation case, and he “won” twenty-nine out of the thirty-two cases in which he appeared before the Court. Justice Marshall resigned from the Court in 1991 and was replaced by Clarence Thomas in the same year.

Although the case did not involve educators, the United States Supreme Court, in Connick v. Myers, 461 U.S. 138 (1983), a five-to-four decision, did not extend the Pickering rationale to a questionnaire circulated within a district attorney’s office. In this case, an assistant district attorney was transferred to different job responsibilities. In protest, she circulated

among her coworkers a questionnaire related primarily to the transfer policy. In approving her termination, the Court contended that protecting the circulation of the questionnaire would “require a public office to be run as a roundtable for employee complaints over internal office affairs” and that normal office functioning would be endangered. Additionally, the Court asserted: “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” However, the majority reiterated the following caveat from Pickering: “Because of the enormous variety of fact situations in which critical statements by . . . public employees may be thought by their superiors . . . to furnish grounds for dismissal, we do not deem it either appropriate or feasible to lay down a general standard against which all such statements may be judged.”

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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 determination, known as “Pickering balancing,” may be based on (1) the need for harmony in the workplace; (2) the need for a close working relationship between the speaker and superiors and whether the speech in question undermines that relationship, especially if personal loyalty and confidence are involved; (3) whether the speech impedes an employee’s ability to perform his or her daily responsibilities; (4) the time, place, and manner of the speech; (5) the context in which a dispute arises; (6) the degree of public interest in the speech; and (7) whether the matter was one on which debate would be vital to informed decision making. See, for instance, Vargas-Harrison v. Racine Unified School District, 272 F.3d 964 (7th Cir. 2001), cert. denied, 537 U.S. 826 (2002), which discussed Pickering balancing. This court ruled that a school principal speaking out against school-district policy in regard to job-related policy issues was not protected speech because she was considered to be in a policy-making position. As a policy maker, the court reasoned, the principal owed her superiors a duty of loyalty; and in upholding her subsequent dismissal, the court stated that “the government employer’s need for political allegiance from its policymaking employee outweighs the employee’s freedom of expression . . .” In this instance, the court contended, the political stance that she took placed her in square opposition to the stated goals and policies of her superiors.

A teacher used satirical language in a letter to a high school newspaper that was perceived by some as demeaning females. His letter, which actually made fun of his wife and daughter, was in response to an anonymous letter from students accusing him and the P.E. staff of chauvinism. His letter was met with complaints from some members of the community, faculty, and a human relations committee. He was disciplined for his actions by receiving a “needs improvement” in his evaluation, which he thought was responsible for his not receiving a step increment in pay for the following school year. In upholding the teacher, the court in Seemuller v. Fairfax County School Board, 878 F.2d 1578 (4th Cir. 1989), ruled that the teacher’s published response was a matter of public concern protected by the First Amendment.

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 expression did not rise to the level of public concern, which is protected by the First Amendment. Conditions imposed for the soccer coach’s reinstatement, which were also held not to violate the coach’s First Amendment free speech or associational rights, included not communicating with coaches or players regarding soccer and not participating in or attending games, practices, award programs, or any other activities related

to the soccer program. The coach’s ultimate termination from his extracurricular position, which he had held for over twenty-five years, was also upheld since he had no protected property interest in his position as extracurricular coach. See Brayton v. Monson Public Schools, 950 F. Supp. 33 (Mass. 1997).

In another instance, 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, nor denied due process, because he was fully compensated. See Kinsey v. Salado Independent School District, 950 F.2d 988 (5th Cir. 1992), cert. denied, 504 U.S. 941 (1992).

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. Rights of private-school teachers would be governed by their individual contracts with their school and the degree to which a linkage existed between a private school and the state or federal government. A private school was upheld in its dismissal of a high school

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teacher who wore a beard in violation of the school’s rules. The school’s participation in a state-operated teacher pension fund did not sufficiently bring the school under the “color of the state.” See Johnson v. Pinkerton Academy, 861 F.2d 335 (1st Cir. 1988). Also see, Curay-Cramer v. The Ursuline Academy, 450 F.3d 130 (3rd Cir. 2006), which upheld the firing of a teacher at a Catholic school because she signed her name to a pro-choice advertisement in a local newspaper.

B. Nontenured Teacher’s Freedom of Expression

MT. HEALTHY CITY SCHOOL DISTRICT BOARD OF EDUCATION v. DOYLE Supreme Court of the United States, 1977 429 U.S. 274

MR. JUSTICE REHNQUIST delivered the opinion of the Court. Respondent Doyle sued petitioner Mt. Healthy Board of Education in the United States District

Court for the Southern District of Ohio. Doyle claimed that the Board’s refusal to renew his contract in 1971 violated his rights under the First and Fourteenth Amendments to the United States Constitution. After a bench trial the District Court held that Doyle was entitled to reinstatement with backpay. The Court of Appeals for the Sixth Circuit affirmed the judgment. * * *

* * * Doyle was first 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 to 1971. In 1969 he was elected president of the Teachers’ Association, in which position he worked to expand the subjects of direct negotiation between the Association and the Board of Education. During Doyle’s one-year term as president of the Association, and during the succeeding year when he served on its executive committee there was apparently some tension in relations between the Board and the Association.

Beginning early in 1970, Doyle was involved in several incidents not directly connected with his role in the Teachers’ Association. In one instance, he engaged in an argument with

another teacher which culminated in the other teacher’s slapping him. Doyle subsequently refused to accept an apology and insisted upon some punishment for the other teacher. His persistence in the matter resulted in the suspension of both teachers for one day, which was followed by a walk-out by a number of other teachers, which in turn resulted in the lifting of the suspensions.

On other occasions, Doyle got into an argument with employees of the school cafeteria over the amount of spaghetti which had been served him; referred to students in connection with a disciplinary complaint, as “sons of bitches”; and made an obscene gesture to two girls in connection with their failure to obey commands made in his capacity as cafeteria supervisor. Chronologically the last in the series of incidents which respondent was involved in during his employment by the Board was a telephone call by him to a local radio station. It was the Board’s consideration of this incident which the court below found to be a violation of the First and Fourteenth Amendments.

In February 1971, the principal circulated to various teachers a memorandum relating to teacher dress and appearance, which was apparently prompted by the view of some in the administration that there was a relationship between teacher appearance and public support for bond issues. Doyle’s response to the receipt of the memorandum—on a subject which he apparently understood was to be settled by

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joint teacher-administration action—was to convey the substance of the memorandum to a disc jockey at WSAI, a Cincinnati radio station, who promptly announced the adoption of the dress code as a news item. Doyle subsequently apologized to the principal, conceding that he should have made some prior communication of his criticism to the school administration.

Approximately one month later the superintendent made his customary annual recommendations to the Board as to the rehiring of nontenured teachers. He recommended that Doyle not be rehired. The same recommendation was made with respect to nine other teachers in the district, and in all instances, including Doyle’s, the recommendation was adopted by the Board. Shortly after being notified of this decision, respondent requested a statement of reasons for the Board’s actions. He received a statement citing “a notable lack of tact in handling professional matters which leaves much doubt as to your sincerity in establishing good school relationships.” That general statement was followed by references to the radio station incident and to the obscene-gesture incident.

The District Court found that all of these incidents had in fact occurred. It concluded that respondent Doyle’s telephone call to the radio station was “clearly protected by the First Amendment,” and that because it had played a “substantial part” in the decision of the Board not to renew Doyle’s employment, he was entitled to reinstatement with backpay. * * * The District Court did not expressly state what test it was applying in determining that the incident in question involved conduct protected by the First Amendment, but simply held that the communication to the radio station was such conduct. The Court of Appeals affirmed in a brief per curiam opinion. * * * Doyle’s claims under the First and Fourteenth Amendments are not defeated by the fact that he did not have tenure. Even though he could have been discharged for no reason whatever, and had no constitutional right to a hearing prior to the decision not to rehire him, * * * he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms. * * *

That question of whether speech of a government employee is constitutionally protected expression necessarily entails striking “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.” Pickering v. Board of Education. There is no suggestion by the Board that Doyle violated any established policy, or that its reaction to his communication to the radio

station was anything more than an ad hoc response to Doyle’s action in making the memorandum public. We therefore accept the District Court’s finding that the communication was protected by the First and Fourteenth Amendments. We are not, however, entirely in agreement with that court’s manner of reasoning from this finding to the conclusion that Doyle is entitled to reinstatement with backpay.

The District Court made the following “conclusions” on this aspect of the case:

“1) If a non-permissible reason, e.g., exercise of First Amendment rights, played a substantial part in the decision not to renew—even in the face of other permissible grounds—the decision may not stand (citations omitted). “2) A non-permissible reason did play a substantial part. That is clear from the letter of the Superintendent immediately following the Board’s decision, which stated two reasons—the one, the conversation with the radio station clearly protected by the First Amendment. A court may not engage in any limitation of First Amendment rights based on ‘tact’—that is not to say that the ‘tactfulness’ is irrelevant to other issues in this case.” * * *

At the same time, though, it stated that:

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“[i]n fact, as this Court sees it and finds, both the Board and the Superintendent were faced with a situation in which there did exist in fact reason . . . independent of any First Amendment rights or exercise thereof, to not extend tenure.” * * *

Since respondent Doyle had no tenure, and there was therefore not even a state-law requirement of “cause” or “reason” before a decision could be made not to renew his employment, it is not clear what the District Court meant by this latter statement. Clearly the Board legally could have dismissed respondent had the radio station incident never come to its attention. One plausible meaning of the court’s statement is that the Board and the Superintendent not only could, but in fact should have reached that decision had not the constitutionally protected incident of the telephone call to the radio station occurred. We are thus brought to the issue whether, even if that were the case, the fact that the protected conduct played a “substantial part” in the actual decision not to renew would necessarily amount to a constitutional violation justifying remedial action. We think that it would not.

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 difficulty with the rule enunciated by the District Court is that it would require reinstatement in cases where a dramatic and perhaps abrasive incident is inevitably on the minds of those responsible for the decision to rehire, and does indeed play a part in that decision—even if the same decision would have been reached had the incident not occurred. The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.

This is especially true where, as the District Court observed was the case here, the current decision to rehire will accord “tenure.” The long-term consequences of an award of tenure are of great moment both to the employee and to the employer. They are too significant for us to hold that the Board in this case would be precluded, because it considered constitutionally protected conduct in deciding not to rehire Doyle, from attempting to

prove to a trier of fact that quite apart from such conduct Doyle’s record was such that he would not have been rehired in any event.

* * * Initially, in this case, the burden was properly placed upon respondent to show that his conduct

was constitutionally protected, and that this conduct was a “substantial factor”—or, to put it in other words, that it was a “motivating factor” in the Board’s decision not to rehire him. Respondent having carried that burden, however, 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 respondent’s reemployment even in the absence of the protected conduct.

We cannot tell from the District Court opinion and conclusions, nor from the opinion of the Court of Appeals affirming the judgment of the District Court, what conclusions those courts would have reached had they applied this test. The judgment of the Court of Appeals is therefore vacated, and the case remanded for further proceedings consistent with this opinion.

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So ordered.

Notes

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, as the Court stressed, engaging in constitutionally protected conduct may not prevent an employer from dismissing a teacher on the basis of his or her total performance record. Later decisions have referred to using the total performance record in conjunction with constitutionally protected conduct as “mixed-motive” analysis. Prior to this decision, some administrators claimed that poorly performing employees would purposely engage in protected activities to claim that such action was the reason for their dismissal and not their alleged poor performance.

A second-year special education teacher claimed that her nonrenewal was in retaliation for nonpublic communications sent to her superiors describing the deficiencies in the school district’s special education program. Facts in the case revealed that her first-year positive performance evaluations became increasingly negative after her letter writing. The school system claimed that the teacher did not meet minimum standards in managing student behavior; maximizing student instructional time; interacting positively with administrators, colleagues, supervisors, students, and parents; and particularly in writing instructional education programs (IEPs). The appellate court engaged in a three-part inquiry to determine whether or not a government employee had been retaliated against for exercising the right of freedom of expression. The teacher in this inquiry must prove (1) that the conduct is constitutionally protected and (2) that it is a substantial or motivating factor in the punishment, while the school system can escape liability by (3) showing that it would have taken the same action even in the absence of the protected conduct. In upholding the teacher, the court, in Settlegoode v. Portland Public Schools, 371 F.3d 503 (9th Cir. 2004), cert. denied, 543 U.S. 979 (2004), declared:

. . . There was a strong interest in allowing Settlegoode to express herself. Not only were Settlegoode’s core First Amendment rights implicated, but her speech may have had important effects for the disabled students in the district and their parents. Teachers are uniquely situated to know whether students are receiving the type of attention and education that they deserve and, in this case, are federally entitled to. We have long recognized “the importance of allowing teachers to speak out on school matters,” . . . because “‘teachers are, as a class, the members of a community most likely to have informed and definite opinions’” on such matters. (quoting Pickering, 391 U.S. at 572). This is particularly so with respect to disabled children, who may not be able to communicate effectively that they lack appropriate facilities. Teachers may therefore be the only guardians of these children’s rights and interests during the school day. Whether or not Settlegoode’s assertions were accurate, or were communicated in the best manner possible, it is clear that the subject matter of her expression was of public importance. (p. 514)

Additionally, the court maintained that the school system had not adequately documented the teacher’s deficiencies, especially the IEPs. In addition to attorney fees, the teacher was awarded $500,000 in noneconomic damages, $402,000 in economic damages, and $50,000 in damages against two former supervisors.

A probationary teacher may not be terminated solely for refusing to participate in a flag-salute ceremony. The teacher stood silently at attention during daily classroom recitation of the Pledge of Allegiance, in which school regulations required her to participate. See Russo v. Central School District No. 1, 469 F.2d 623 (2nd Cir. 1972), cert. denied, 411 U.S. 932 (1973). However, see Palmer v. Board of Education of the City of Chicago, 603 F.2d 1271 (7th Cir. 1979), cert. denied, 444 U.S. 1026 (1980),

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which 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. In upholding the discharge, the court distinguished between the freedom to believe in certain religious tenets and following an appropriate curriculum.

III. ACADEMIC FREEDOM

Public school teachers’ academic freedom is difficult to conceptualize definitively because its extent is influenced by such factors as grade level and the nature of certain courses. Litigation often occurs when a school system’s views regarding academic freedom are not in congruence with a teacher’s perception of autonomy in determining specific subject matter for a particular class, appropriate teaching methods, or the selection of appropriate materials. In this type of litigation, teachers generally allege that they have a constitutional right to present material to which students, parents, or school officials may object. Although courts have recognized that teachers have the right to academic freedom, as with other constitutional rights, it is not absolute and must be balanced against the competing interests of the larger society.

A. Appropriate Material

FOWLER v. BOARD OF EDUCATION OF LINCOLN COUNTY United States Court of Appeals, Sixth Circuit, 1987 819 F.2d 657,

cert. denied, 484 U.S. 986 (1987)

MILBURN, Circuit Judge. Defendants, the Board of Education of Lincoln County, Kentucky, individual board members, and

the Superintendent of the Lincoln County Schools, appeal from the judgment of the district court awarding reinstatement and damages to plaintiff Jacqueline Fowler on the ground that her employment was terminated in violation of her First Amendment rights. Plaintiff cross-appeals on the ground that K.R.S. § 161.-790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff’s action.

Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. The basis for this action was that she had an “R” rated movie, Pink Floyd—The Wall, shown to her high school students on the last day of the 1983–84 school year. The students in Fowler’s classes were in grades nine through eleven and were of the ages fourteen through seventeen.

The day on which the movie was shown, May 31, 1984, was a non-instructional day used by teachers for completing grade cards. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had “one bad place in it.”

* * * When Fowler had the movie shown on the morning of May 31, 1984, she instructed Charles

Bailey, the fifteen-year-old student who had seen the movie, to edit out any parts that were unsuitable for viewing at school. He did so by attempting to cover the 25” screen with an 81⁄2” by 11” letter-sized file folder.

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There is conflicting testimony as to whether, or how much, nudity was seen by the students. At the administrative hearing, several students testified that they saw no nudity. One student testified that she saw “glimpses'' of nudity, but “nothing really offending.” * * * It is undisputed that the audio portion of the movie, which contained enough offensive language to mandate an automatic “R” rating under motion picture industry standards, was played through the entire movie.

There is also conflicting testimony regarding the amount of sexual innuendo existing in the “unedited” version of the film. Because some parts of the film are animated, they are susceptible to varying interpretations. One particularly controversial segment of scenes is animated in which flowers appear on the screen, are transformed into the shape of male and female sex organs and then engage in an act of intercourse. This segment of the film was shown in the morning session. Other segments involving a violent rape, nudity, a suggestion of oral sex, and a naked woman and naked man in bed engaging in foreplay and intercourse were also shown in the morning.

* * * In addition to the sexual aspects of the movie, there is a great deal of violence. One scene

involves a bloody battlefield. Another shows police brutality. Another shows the protagonist cutting his chest with a razor. Another scene shows children being fed into a giant sausage machine.

* * * On July 10, 1984, plaintiff Fowler appeared with counsel at the administrative hearing. She

testified that, despite the fact that she had never seen the movie before having it shown to her students, and despite the fact that she was posting grades on report cards and left the room several times while the movie was being shown, she believed it had significant value. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. She testified that she would show an edited version of the movie again if given the opportunity to explain it. She stated that she did not at any time discuss the movie with her students because she did not have enough time.

The board viewed the movie once in its entirety and once as it had been edited in the classroom. The board then retired into executive session. Following this executive session,

the board returned to open session and voted unanimously to terminate plaintiff’s employment for insubordination and conduct unbecoming a teacher.

* * * The district court concluded that Fowler’s conduct was protected by the First Amendment, and

that she was discharged for exercising her constitutionally protected rights. Consequently, it awarded her reinstatement, back pay with interest, reimbursement of funds necessary for her reinstatement with the Kentucky Teachers Retirement System, damages for emotional distress and damage to professional reputation, compensatory damages for costs incurred in seeking new employment, costs, and attorney’s fees.

* * * The Supreme Court has consistently recognized the importance of the exercise of First

Amendment rights in the context of public schools. First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. * * * Many courts have recognized that a teacher’s First Amendment rights encompass the notion of “academic

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freedom” to exercise professional judgment in selecting topics and materials for use in the course of the educa-ional process. * * *

Among the “special circumstances” which must be considered in defining the scope of First Amendment protection inside the classroom is the “inculcat[ion of] fundamental values necessary to the maintenance of a democratic political system.” (Bethel quoting Ambach) * * *

Indeed, the “fundamental values necessary to the maintenance of a democratic political system” disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the “work of the schools.” Fraser * * *

The single most important element of this inculcative process is the teacher. “Consciously or otherwise, teachers . . . demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Inescapably, like parents, they are role models.” Fraser (emphasis supplied). * * *

The accommodation of these sometimes conflicting fundamental values has caused great tension, particularly when the conflict arises within the classroom. * * * In the final analysis, the ultimate goal of school officials is to insure that the discipline necessary to the proper functioning of the school is maintained among both teachers and students. Any limitation on the exercise of constitutional rights can be justified only by a conclusion, based upon reasonable inferences flowing from concrete facts and not abstractions, that the interests of discipline or sound education are materially and substantially justified. . . . “The problem in any 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.” James, 461 F.2d at 571–72 (quoting Pickering v. Board of Education), * * *

* * * However, I conclude that Fowler’s conduct in having the movie shown under the circumstances

present here did not constitute expression protected by the First Amendment. It is undisputed that Fowler was discharged for the showing of the movie, Pink Floyd—The

Wall. Such conduct, under the circumstances involved, clearly is not “speech” in the traditional sense of the expression of ideas through use of the spoken or written word.

* * * In the present case, plaintiff Fowler had a fifteen-year-old student show a controversial, highly

suggestive and somewhat sexually explicit movie to a group of high school students aged fourteen to seventeen. She did not preview the movie, despite the fact that she had been warned that portions were unsuitable for viewing in this context. She made no attempt at any time to explain the meaning of the movie or to use it as an educational tool. Rather, she had it shown for the purpose of keeping her students occupied during a non instructional day while she was involved in posting grades on report cards. We conclude that the statute proscribing “conduct unbecoming a teacher” gave her adequate notice that such conduct would subject her to discipline. Accordingly, we conclude that the statute is not unconstitutionally vague as applied to Fowler’s conduct.

* * * In the present case, we conclude that plaintiff’s conduct, although not illegal, constituted serious

misconduct. Moreover, there was a direct connection between this misconduct and Fowler’s work as a teacher. She introduced a controversial and sexually explicit movie into a classroom of adolescents

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without preview, preparation or discussion. In the process, she abdicated her function as an educator. Her having the movie shown under the circumstances involved demonstrates a blatant lack of judgment. Having considered the entire record, including the viewing of the movie, which we describe as gross and bizarre and containing material completely unsuitable for viewing by a classroom of students aged fourteen to seventeen, we conclude that such conduct falls within the concept of conduct unbecoming a teacher under Kentucky law. Accordingly, for the reasons stated, the judgment of the district court is VACATED, and this cause is DISMISSED.

* * * MERRITT, Circuit Judge, dissenting. Federal judges and local school boards do not make good movie critics or good censors of movie

content. What one judge sees as “gross and bizarre,” another may find, * * * mild and not very “sexually suggestive.”

The movie here seems to me to present a message similar to that expounded by Dr. Spock: abuse of sex and drugs as well as various forms of mental instability and antisocial conduct are associated with an overly authoritarian society. The message is that unloving, overly rigid and authoritarian parents, teachers, judges and officials create disturbed individuals and societies. This lack of love is the figurative “wall” shown in the movie.

* * * . . . , Mrs. Fowler was not discharged because she entertained her students: she was discharged because the school board did not like the content of the movie. Mrs. Fowler proved at trial, . . . that she was discharged because the board members regarded the movie as “immoral, antieducation, antifamily, antijudiciary, and antipolice.” There is no support for the proposition—or does the school board argue—that a teacher’s academic freedom or a student’s right to hear may be abridged simply because a school board dislikes the content of the protected speech. Furthermore, since this was a “free day” for the students, no departure from a board-mandated curriculum occurred. It is obvious, therefore, that Mrs. Fowler’s discharge was prompted by the content of the movie.

Assuming that the school board could have properly discharged Mrs. Fowler for poor judgment and lack of remorse in showing an “R-rated” movie which had short scenes depicting nudity and sexual foreplay, but not for the other reasons given, this case must be decided under the “mixed-motive” analysis of Mt. Healthy City School Dist. Bd. of Educ. v. Doyle. * * * Where a plaintiff can show that her constitutionally-protected conduct was a “substantial” or “motivating” factor in the discharge decision, the employer must prove “by a preponderance of the evidence that it would have reached the same decision as to. . . . re-employment even in the absence of the protected conduct.” Mt. Healthy,* **

* * * In Cohen v. California * * * the Supreme Court held constitutionally protected the act of wearing

a jacket bearing the words “!?X! the Draft” into a courthouse corridor. Writing for the Court, Justice Harlan stated that “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” * * *

Therefore, I disagree with the distinction between instruction and entertainment drawn by Judge Milburn and the conflation of vulgarity and antiestablishment ideas set forth by Judge Peck. As the District Court correctly found, the school board in this case had to negate the testimony of its own

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members that the determinative causative factor in Mrs. Fowler’s discharge was her decision to allow “antieducation, antifamily, antijudiciary, and antipolice” views to be expressed in her classroom. The District Court held that the school board failed to carry this Mt. Healthy burden. I agree with both of these findings. Therefore, I would affirm the judgment of the District Court.

Notes and Questions A review of modern case law dealing with academic freedom reveals that it is no longer as strong a defense as it once was for teachers. Recent decisions suggest the concept of academic freedom provides more protection for a teacher for what is said outside the school as a private citizen than for what is said inside the classroom. For the academic freedom defense to prevail for classroom conduct, it must be shown that the teacher did not defy legitimate state and local curriculum directives; followed accepted professional norms for that grade level and subject matter; discussed matters that were of public concern; and acted professionally and in good faith when there was no precedent or policy.

The court’s majority held that Fowler’s conduct was not expressive or communicative and therefore was not protected by the First Amendment. Additionally, they declared that the statute proscribing “conduct unbecoming a teacher” was not unconstitutionally vague. On the other hand, the district court judge and the dissenting court of appeals judge contended that the case should have been decided under the “mixed-motive” analysis of Mt. Healthy City School District Board of Education v. Doyle. Under such analysis the burden switches to the defendant to show that the same decision to dismiss an employee would have been made even in the absence of using constitutionally protected conduct. What is the distinction between these differing legal viewpoints?

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, 136 F.3d 364 (4th Cir. 1998), cert. denied, 525 U.S. 813 (1998), a seven-to-six decision, by an en banc court. The controversial play

dealt with a single-parent family, including a divorced mother, a lesbian daughter, and an unmarried pregnant daughter. The teacher claimed a First Amendment right to participate in the development of the school curriculum through the selection and production of the play; however, the majority opinion held that curriculum development should be left to the local school authorities rather than to teachers. In its decision, the court held that the play was a part of the curriculum and the choice of plays was not a matter of public concern, consequently, not protected speech, [citing Connick v. Myers, 461 U.S. 138 (1983)]; therefore, the school had a legitimate pedagogical interest in not allowing the play [citing Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)]. Another teacher’s termination for allowing excessive profanity in her students’ creative projects was upheld in Lacks v. Ferguson Reorganized School District R-2, 147 F.3d 718 (8th Cir. 1998), cert. denied, 526 U. S. 1012 (1999). Words such as “fuck,” “shit,” “ass,” “bitch,” and “nigger” were used 150 times in a forty-minute videotape, and a student read a poem aloud in the classroom that contained profanity and graphic descriptions of oral sex. Although the teacher thought the district policy of not allowing student profanity in the classroom did not apply to creative projects, the court held that the school board had a legitimate interest in prohibiting such profanity and that the teacher could not claim her free speech rights were violated when she knowingly violating the

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district policy. Race was introduced in this case, but there was insufficient evidence that her termination was race related. Lacks was white, and her supervisors and students were black.

School officials were sued for compelling students to attend a sexually explicit AIDS (acquired immunodeficiency syndrome) awareness assembly at their public school without following school policy and state law requiring that parents be given advance notice and opportunity to opt-out of sex-education programs. In upholding school officials, a federal court of appeals held that conscience-shocking acts were not alleged that would have given rise to a claim for violation of substantive due process rights, even though the school officials’ failure to provide opt-out procedures displayed callousness towards the teenagers’ sensibilities. Furthermore, the court declared that parents’ right to direct the upbringing and education of their children does not encompass a broad-based right to restrict the flow of information in public schools. See Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995), cert. denied, 516 U.S. 1159 (1996).

A Jewish student in a choir class alleged that her music teacher’s choice of explicitly Christian religious music and Christian religious sites for performance of the high school a’cappella choir violated her rights under the United States and Utah Constitutions. The court, in Bauchman v. West High School, 900 F. Supp. 254 (Utah 1995), held that these actions did not violate the student’s Establishment Clause rights because the teacher’s selection had the primary purpose of teaching music appreciation, and the effect of the curriculum was not to advance or promote religion or constitute excessive entanglement. The court concluded that the choice of religious music, which was offensive to the student, did not automatically render its inclusion in the choir’s performance repertoire violative of the student’s free exercise rights because the student would receive an A for the course and was expressly permitted to avoid classroom practice and performance of religious songs to which she objected. Additionally, the court noted that a’cappella, to describe a choir, means “in the chapel” and that choral music is often associated with religion and is not automatically unconstitutional as excessive entanglement or primarily religious; nor, the court reasoned, were songs with religious content ipso facto equivalent of “prayer,” despite reference in some songs to “God” and the “Lord.” A different holding was rendered in Skarin v. Woodbine Community School District, 204 F. Supp.2d 1195 (Iowa 2002). Students who did not hold Christian beliefs were members of a school choir, for which they received graded academic credit, and objected to participating in rehearsals and at graduation in a performance of the “The Lord’s Prayer.” In upholding the students’ position, the court, citing Santa Fe Independent School District, declared that “[t]he school cannot within the confines of the Establishment Clause force a student to choose between attending and participating in school functions and not attending only to avoid personally offensive religious rituals.”

An elementary school teacher who was an “avowed orthodox Christian” was restricted from using supplemental materials with a religious content, sending home materials of a religious nature, and engaging in sectarian religious classroom discussions. In its decision in Williams v. Vidmar, 367 F. Supp.2d 1265 (Cal. 2005), the court held that the teacher’s free speech rights were not violated by restricting his religious handouts or class discussion about religious matters. The court held that teachers do not have a First Amendment right to determine what curriculum will be taught. The Court also rejected Williams’s claim that his due process had been violated because he was not disciplined or otherwise deprived of life, liberty, or property. Additionally, the court held, restrictions placed on him by his principal did not violate the Establishment Clause. Speaking about religion historically, culturally, or as a current issue is acceptable; however, the court cautioned that there is a “difference between teaching about religion, which is acceptable, and teaching religion, which is not.” Williams had also contended that the policy restricting his religious speech because he was a Christian constituted hostility to religion. In rejecting this notion, the court employed the second prong of the Lemon test, which provides that a policy must, as its primary effect, neither advance nor inhibit religion. Requiring him to submit his supplemental list for approval prior to distribution, the court asserted, did not prevent him from practicing his religion

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as he had alleged. In discussing the claim of equal protection violation, the court ruled that if Williams could prove that other teachers were allowed to use similar supplemental materials, which he was restricted from using because he was an avowed Christian, it would then be a violation of the equal protection clause.

School officials did not allow a mother to read verses from the Bible during a curricular “show and tell” activity at her son’s kindergarten class. School officials thought that such a reading to kindergarten students might violate the Establishment Clause. The court in, Busch v. Maple Newtown School District, 567 F.3d 89 (3rd Cir. 2009), cert. denied, 558 U.S. ___ (2010) agreed with the school officials and held that their action was not unreasonable in thinking this could be an Establishment Clause violation. In its holding the court recognized that:

In the elementary school classroom, “the appropriateness of student expression depends on several factors, including the type of speech, the age of the locutor and audience, the school’s control over the activity in which the expression occurs, and whether the school solicits individual views from students during the activity.” * * * As we have explained, “the age of the students bears an important inverse relationship to the degree and kind of control a school may exercise: as a general matter, the younger the students, the more control a school may exercise.” * * * “While secondary school students are mature enough and are likely to understand that a school does not endorse or support speech that it merely permits on a nondiscriminatory basis, kindergartners and first graders are different.” * * * For elementary school students, “the line between school-endorsed speech and merely allowable speech is blurred, not only for the young, impressionable students but also for their parents who trust the school to confine organized activities to legitimate and pedagogically-based goals.” * * * (pp. 95–96)

And the court concluded its decision by ruling: Accordingly, the school’s actions do not violate the Establishment Clause because they were motivated by a permissible purpose to comply with the Establishment Clause; they do not evidence hostility toward Wesley’s faith; and they are not excessively entangled with religion. (p. 101)

A badly divided Supreme Court, as evidenced by seven separate opinions, addressed the issue of a school board’s authority to remove books from a school library. Although there was no majority opinion, the plurality opinion does offer some guidance. School authorities may not exercise their discretion in the removal of books for narrow partisan or political purposes or to deny students’ access to ideas with which school authorities disagree. Additionally, the justices suggested several constitutionally legitimate standards that could be applied in determining a book’s candidacy for removal, such as the book’s educational suitability. Specific suitability criteria could include relevance to the curriculum and appropriateness for an age level. A book considered obscene for minors, pervasively vulgar, or offensive in its language could also be legitimately excluded. See Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982).

Removal of The Adventures of Huckleberry Finn and A Rose for Emily from a school’s cur-riculum because they contained the word “nigger” was held to violate students’ First Amendment rights in Monteiro v. Tempe Union High School District, 158 F.3d 1022 (9th Cir. 1998). Although the court recognized a history of racial prejudice toward blacks in America, it contended that removing such literary works would take away a school board’s discretion to establish an appropriate and educational curriculum and “. . . could have a chilling effect on a school district’s willingness to assign books with themes, characters, snippets of dialogue, or words that might offend the sensibilities of any number of persons or groups.” Citing specific examples of this, the court averred:

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White plaintiffs could seek to remove books by Toni Morrison, Maya Angelou, or other prominent black authors on the ground that they portray caucasians in a derogatory fashion; Jews might try to impose civil liability for the teachings of Shakespeare . . . where writing exhibits a similar anti-Semitic strain. Female students could attempt to make a case for damages for the assignment of some the works of Tennessee Williams, Hemingway, or Freud, and male students for the writings of Andrea Dworkin or Margaret Atwood. (p. 1030)

In an earlier decision, barring a textbook that contained Lysistrata by Artistophanes and the Miller’s Tale by Chaucer from an elective humanities course in which the readings were optional has been upheld. The court reasoned, under the deferential standard established in Hazelwood School District v. Kuhlmeier, that the school board’s actions were reasonably related to its legitimate pedagogical concerns regarding the appropriateness of such readings given their explicit sexuality and admittedly vulgar language. The court pointed out that the materials were still available in the library and that the materials could be assigned or discussed in class. See Virgil v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1988).

In 1998 California voters approved Proposition 227, a voter initiative designed to dismantle that state’s bilingual education programs. The proposition stated that “the government and the public schools of California have a moral obligation and a constitutional duty to provide all of California’s children . . . with the skills necessary to become productive members of our society, and of these skills, literacy in the English language is among the most important.” The proposition replaced bilingual education with a “structured English immersion” system in which limited English proficient students (LEPs) are “taught English by being taught in English.” Under the ini-tiative, “children who are English learners shall be educated through sheltered English immersion during a temporary transition period not normally intended to exceed one year.” Upon becoming proficient in English, LEPs students are transferred into mainstream English-language classrooms. In upholding Proposition 227, the court in Valeria v. Davis, 307 F.3d 1036 (9th Cir. 2002), reh’g denied, 320 F.3d 1014 (9th Cir. 2003) ruled the Equal Protection Clause had not been violated.

B. Political Speakers

WILSON v. CHANCELLOR United States District Court, District of Oregon, 1976

418 F. Supp. 1358

BURNS, District Judge. Plaintiffs Wilson and Logue seek declaratory and injunctive relief from a school board order

banning “all political speakers” from Molalla Union High School (MHS). They contend that the order violates the First Amendment and the equal protection clause of the Fourteenth Amendment, and is unconstitutionally vague and overbroad. * * *

Wilson teaches the political science class at MHS in which Logue was a student. This dispute arose when Wilson invited a Communist, Anton Kchmareck, to speak to that class. Wilson already and without objection had presented a Democrat, a Republican, and a member of the John Birch Society. The Communist was to be the last of this quadrumvirate through which Wilson hoped to present, in the words of the adherent, each of four points of view.

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Wilson followed customary procedure and reported this invitation to the principal. The principal approved. Defendant school board discussed the invitation at its November 1975 meeting and also approved. This procedure was neither unprecedented nor customary. The board’s approval inspired mixed reviews. Two severe critics called a community meeting on December 4 where they circulated a petition asking the board to reverse the decision; approximately 800 persons eventually signed it. Several townsfolk, in letters to the newspaper, mentioned the possibility of voting down all school budgets and voting out the members of the board.

Faced with this petition and many outraged residents, the board on December 11 reversed its decision and issued orally an order banning “all political speakers” from the high school.

* * * Miss Logue contends the order violates her First Amendment right to hear the speech of others.

The right to hear customarily is invoked by prisoners denied access to periodicals, * * * members of a potential audience for a speaker prohibited from speaking, * * * or persons asserting either the public’s “right to know,” * * * or the emerging right of privacy * * * . Of these cases, only the potential audience cases are applicable here. * * * These cases and my recognition that the First Amendment exists to protect a broad range of interests persuade me that Logue suffered an infringement of her First Amendment rights. * * *

Few courts have considered whether and to what extent the First Amendment protects academic freedom. Honored in Germanic tradition and prominent in academic debates, the theory rarely surfaces in legal opinions. Moreover, even its most enthusiastic advocates usually distinguish between the freedom to be accorded university professors and that to be accorded elementary and secondary school teachers. It seems to be assumed that the former engage in the search for knowledge and therefore should have far greater freedom than the latter who merely disseminate knowledge.

The Supreme Court of the United States has discussed academic freedom in “eloquent and isolated statements.” * * * Lower courts have spoken more frequently, but none has clearly defined the theory’s legal contours. Nor will I. This case can be decided by using purely conventional freedom of expression analysis.

A teacher’s teaching is expression to which the First Amendment applies. The right to freedom of expression is not absolute; it may be restricted, and restrictions on a teacher’s expression should be judged in light of the “special characteristics of the school environment.” * * *

In imposing restrictions and making other decisions, school boards should be allowed great discretion. No court should intervene merely because a board’s decision seems unwise. But if school boards, in exercising their discretion, act so as to interfere impermissibly with the constitutional rights of students or teachers, or both, courts must and will intervene if their jurisdiction is properly invoked. These considerations in mind, I address two pivotal questions: First, is a teaching method or vehicle a form of expression protected by the First Amendment? Second, if so, is the restriction at issue here reasonable?

Three cases have treated teaching methods as protected forms of expression: Keefe v. Geanakos, 418 F.2d 359 (1st Cir. 1969), Parducci v. Rutland, 316 F. Supp. 352 (M.D. Ala. 1970), and Sterzing v. Fort Bend Independent School District, 376 F. Supp. 657 (S.D. Tex. 1972).

The teacher in Keefe assigned his class an Atlantic Monthly article containing a word which “admittedly highly offensive, is a vulgar term for an incestuous son.”

A school committee summoned Keefe to defend his conduct. When he was asked to agree not to use the word again, he declined. He subsequently was suspended, and sought a temporary injunction against the committee’s dismissal hearing.

The district court denied an interlocutory injunction pending a decision on the merits. The court of appeals reversed, holding that plaintiff had demonstrated he probably would succeed on his lack of notice and academic freedom claims.

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In Parducci, the teacher assigned her eleventh grade English class a Kurt Vonnegut, Jr. short story, “Welcome to the Monkey House.” Several parents complained. School officials admonished the teacher not to use the story in any of her classes, and threatened to dismiss her if she refused. The teacher resigned. In her suit for injunctive relief she contended that the school’s action violated her First Amendment rights.

The court recognized such a right, but concluded that it must be balanced against competing societal interests, most prominently the “state’s vital interest in protecting its young people from any form of extreme propagandism in the classroom.” * * * The court also recognized that Tinker * * * requires the state to demonstrate that:

“[T]he forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’ “ * * *

The court then held that because the assignment was appropriate and presented no threat of disruption, the teacher’s dismissal for assigning the short story violated her First Amendment rights.

In Sterzing a teacher disclosed to his civics class his lack of opposition to interracial marriage. After several parents complained, school officials urged Sterzing to confine his teaching to the assigned textbook. He ignored this request and several times departed from the text during the ensuing five months. Shortly after Sterzing administered an allegedly propagandistic test on race relations, the school board voted to discharge him for insubordination.

The district court ordered that Sterzing be reinstated. It held that a teacher has a substantive right to choose teaching methods which serve a demonstrated educational purpose. “A responsible teacher,” wrote the court, “must have freedom to use the tools of his profession as he sees fit.” * * *

* * * These cases also recognize the validity of a popular maxim, “the medium is the message.” The expresser’s medium can affect the persuasiveness of his message, the duration of its influence, and the size and type of audience which it reaches. 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 for teaching; similarly, the short story was Parducci’s medium, the pamphlets were Sterzing’s media, and the article containing the controversial words was Keefe’s medium. The various school boards which restricted the media employed by Wilson

here, and by Keefe, Parducci, and Sterzing in the cases cited, suppressed expression which the First Amendment protects.

But the school boards may restrict teachers’ expression if the restrictions are reasonable in light of the special circumstances of the school environment. Thus, question two: was this order reasonable?

I conclude that the order was not reasonable and therefore violated the First Amendment. The order barred political speakers absolutely, yet no disruptions had occurred in Wilson’s classes, or at other school gatherings where political subjects were discussed. Further, none were expected in the future.

The defendants have not shown that outside speakers impair high school education. If they did, the board still would lack justification for banning only outside political speakers. Moreover, the evidence demonstrated that the use of outside speakers is widely recommended, widely practiced, and professionally accepted.

The boards cannot justify the ban by contending that political subjects are inappropriate in a high school curriculum. Political subjects frequently are discussed at Molalla High School and other schools throughout the country, as required by law. Nor does the board have a valid interest in suppressing, as it did, political expression occurring in the course of recognized extracurricular activities.

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The board cannot contend it was acting within its discretionary power to exclude incompetent speakers. It acted under pressure from those who feared, rather than doubted, the speaker’s competence by banning all speakers without regard to competence.

The board’s only apparent reason for issuing the order which suppressed protected speech was to placate angry residents and taxpayers. The First Amendment forbids this; neither fear of voter reaction nor personal disagreement with views to be expressed justifies a suppression of free expression, at least in the absence of any reasonable fear of material and substantial interference with the educational process.

The order, by granting school officials discretion to bar political speakers before those persons speak, creates a system of prior restraint.

Prior restraints are not unconstitutional per se, but their invalidity is heavily presumed. * * * They are valid only if they include criteria to be followed by school authorities in determining whether to allow or forbid the expression and procedural safeguards in the form of an expeditious review procedure. * * *

The Molalla board order was completely bare; it failed to include either criteria by which to define “political speakers” or procedural safeguards in any form.

The order therefore constitutes an invalid prior restraint. Although our language contains many words and phrases which require no further definition, the phrase “political speakers” is not among them. * * *

* * * Classifications which restrain conduct protected by the First Amendment are unconstitutional

unless they suitably further an appropriate governmental interest. * * * Appropriate governmental interests include the desire to promote effective education by preventing material disruptions of classroom work, substantial disorders, or invasions of the rights of others, * * * or by averting a clear and present danger * * * .

Because I already have concluded that the order did not further any appropriate governmental interests, and therefore violated the First Amendment, I must also conclude that it violated the equal protection clause. The order exists to silence absolutely the expression of an unpopular political view, solely out of fear that some will listen. This the government, acting through the school board, cannot do. The board discriminated in a third way. It allowed Wilson to invite a Republican, a Democrat, and a member of the John Birch Society to speak to his class, but it forbade him from inviting a Communist. The effect was discriminatory. Persons with palatable views could speak; those with less readily digestible views could not.

An order prohibiting Wilson from inviting a Republican to class after a Democrat had spoken there clearly would be discriminatory. That Wilson invited a Communist rather than a champion of the current political orthodoxy has no constitutional significance.

* * * I do not imply that members of a community now may sue to compel schools to open their doors

to particular outside speakers. Such compulsion would restrict a teacher’s freedom rather than protect it, contrary to the important policies that I have outlined.

Nor do I suggest that Federal courts stand ready to regulate the regimen and to control the curricula of our public schools. A teacher is not required to have outside speakers contribute to class. I hold only that this regulation, as it applied in this particular set of facts, does not withstand constitutional scrutiny.

And I do not malign the defendant board members. Their position is sensitive, at once both a challenge and an opportunity. They serve a community in which many persons equate Communism with violence, deception, and imperialism. Yet violence, deception, and imperialism have occurred under many flags and in the name of many creeds. School boards could eliminate much of the high schools’ curricula by restricting them to theories, philosophies, and practices of resolutely pacifistic, honest, non-expansionist societies.

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It seems these same residents fear that young Molallans will become young Marxists and Maoists, virtually overnight. Because Oregon law * * * requires the schools to specially emphasize our form of government, respect for the flag, and obedience to our laws, this fear seems ill-founded. Moreover, today’s high school students are surprisingly sophisticated, intelligent, and discerning. They are far from easy prey to even the most forcefully expressed, cogent, and persuasive words.

Finally, I am firmly convinced that a course designed to teach students that a free and democratic society is superior to those in which freedoms are sharply curtailed will fail entirely if it fails to teach one important lesson: that the power of the state is never so great that it can silence a man or woman simply because there are those who disagree. Perhaps that carries with it a second lesson: that those who enjoy the blessings of a free society must occasionally bear the burden of listening to others with whom they disagree, even to the point of outrage.

* * *

Notes and Questions

Who has the ultimate authority to decide what will or will not take place in a classroom? A teacher? Building-level administrators? Central office administrators? The local school board? State department of education? State legislature? The Department of Education? Courts? What factors would influence your decision? Does the grade level and/or nature of the subject matter being taught affect the decision?

Although there was much parental and fellow teacher opposition to a teacher’s inviting the television and movie actor Woody Harrelson (of sit-com Cheers fame) to speak to her fifth-grade class about the environmental and industrial benefit of using hemp, a lower-court decision upholding the teacher’s discharge was reversed. The court, in Cockrel v. Shelby County School District, 270 F.3d 1036 (6th Cir. 2001), cert. denied, 537 U.S. 813 (2002), explained that industrial hemp was a plant that grows in stalks and from which fibers can be taken to make various goods such as paper and clothes. The court stated that hemp is considered an illegal substance in

Kentucky, but unlike marijuana, industrial hemp contains an insufficient amount of THC ( the active chemical in marijuana) to have any narcotic effect. After engaging in constitutionally protected free speech analysis, the court held that the school district’s interests in an efficient operation of the school and a harmonious workplace did not outweigh Cockerel’s interests in speaking about the benefits of industrial hemp, which was an issue of substantial political and economic concern in Kentucky. Since Cockerel’s speech touched on matters of public concern and because the balancing of interests under Pickering weighed in her favor, 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 screening policies are contested as a violation of a teacher’s rights under the Fourth Amendment, courts must balance the privacy interests of teachers with the government’s interest in having a drug-free environment. Courts take several factors into consideration when attempting to balance these competing interests, including the intrusiveness of the search, the extent of an alleged drug problem, the degree of suspicion that triggered the search, and whether a “special needs” exception exists in a particular situation that would overcome the need for individualized suspicion. The court in Knox County Education Association v. Knox County Board of Education, 158 F.3d 361 (6th Cir. 1998), cert. denied, 528 U.S. 812 (1999), determined the Fourth Amendment was not violated by a two-pronged policy that required (1) suspicionless drug testing for all individuals who apply

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for, transfer to, or are promoted to “safety sensitive” positions within the school system (safety sensitive positions include principals, assistant principals, teachers, traveling teachers, teacher aides, substitute teachers, school secretaries and bus drivers) and (2) “reasonable suspicion” drug and/or alcohol testing of all school employees. In upholding suspicionless drug testing, the court emphasized the unique role teachers play in the lives of their students and in the in loco parentis obligations imposed on them, the “safety sensitive” aspect of providing a safe and secure environment for students, and that teachers’ privacy interests are diminished by their working in a highly regulated profession. The court also noted that the suspicionless drug-testing policy did not include a random testing component and only tested those people who were candidates for and attempting to transfer to a select group of positions. Once the initial test was passed, there was no ongoing testing. The court found the “reasonable suspicion” feature of the second prong of the school’s policy dealing with drugs within the reasonableness requirement of the Fourth Amendment, because a search under this policy was clearly based on a finding of individualized suspicion. However, enforcement of a drug-testing policy mandating the random testing of teachers was enjoined in American Federation of Teachers-West Virginia v. Kanawha County Board of Education, 592 F. Supp.2d 883 (W. Va. 2009). In its ruling, the court determined that teachers did not have a reduced expectation of privacy by being school employees or that there was a “special governmental need to guard against a concrete risk of great harm.”

In United Teachers of New Orleans v. Orleans Parish School Board, 142 F.3d 853 (5th Cir. 1998), a rule was challenged that required teachers and other school employees injured in the course of employment to submit to drug testing. In holding the rule violative of the Fourth Amendment, the court held that there had not been any identified problem of drug use by teachers, their aides, or clerical workers. Additionally, the court stated “. . . there is an insufficient nexus between suffering an injury at work and drug impairment.”

Termination of a teacher for insubordination, who refused to take a drug test within two hours after a partially burned marijuana cigarette was found in her car in the school’s parking lot, was upheld in Hearn v. Savannah Board of Education, 191 F.3d 1329 (11th Cir.1999), cert. denied, 529 U.S. 1109 (2000). The marijuana was discovered by a drug-sniffing dog during a campus-wide “drug lock down.” The car was unlocked and the passenger side window open. Under the district’s “Drug-Free Workplace Policy'' and “zero-tolerance” approach to drugs, the teacher was required to take the test within a two-hour limit of an incident that generated “reasonable suspicion.” The policy also provided for immediate discharge for failing to cooperate by refusing to submit to testing. In another instance, two tenured teachers reported for work under the influence of marijuana. One of the teacher’s eyes was red, she had a swollen face, and she appeared to have a lack of coordination. The other teacher had a strong odor of marijuana about her and her eyes were hazy and glazed over. Both of the teachers tested positive for marijuana and were discharged. The court in, Younge v. Board of Education of Chicago, 788 N.E.2d 1153 (Ill. App. 2003), ruled that the teachers’ criminal conduct of being under the influence of marijuana at work constituted “irremediable conduct” under statutory law justifying immediate dismissal.

Three United States Supreme Court decisions, although not dealing with school personnel, shed light on the drug-testing issue. A Georgia statute requiring candidates for certain state offices to submit to and pass a drug test within thirty days prior to qualifying for office was held to be unconstitutional in Chandler v. Miller, 520 U.S. 305 (1997). In its decision, the Court held that suspicionless testing did not meet the Fourth Amendment’s “special needs” exception to overcome the need for individualized suspicion of wrongdoing because there was no evidence of a drug problem among state officeholders. In

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Skinner v. Railway Executives’ Association, 489 U.S. 602 (1989), the Court upheld blood and urine tests for train crews, in cases of train accidents involving fatalities or release of hazardous material, without the necessity of showing individualized grounds for suspicion. Additionally, the Court opined that individual suspicion may be dispensed with when the individual’s privacy interests are minimal and when an important governmental interest furthered by the intrusion would be placed in jeopardy by requiring individual suspicion.. The Court, in National Treasury Employees’ Union v. Von Raab, 489 U.S. 656 (1989), has also upheld mandatory drug testing for all applicants for employment with the Customs Service for positions in which the duties involve drug interdiction, enforcement of related laws, and the carrying of firearms. Additionally, courts have upheld the testing of employees who work on natural gas and hazardous liquid pipelines, IBEW Local 1245 v. Skinner, 913 F.2d 1454 (9th Cir. 1990), and random urinalysis testing of airline personnel with safety responsibilities, Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990), cert. denied, 498 U. S. 1083 (1991).

V. PERSONAL APPEARANCE

Although no longer much of an issue, personal appearance of teachers in respect to dress and grooming has received attention in the courts. In these cases, school authorities generally contended that proper dress and grooming establish a professional image for teachers, promote good grooming among students, and aid in the maintenance of respect and decorum in the classroom. Teachers, in contrast, generally alleged that local regulations governing their personal appearance invade their rights of privacy and liberty. Incongruous as it may seem today, concerns have included: the wearing of “long” hair or sideburns for males; wearing of a beard; mandatory wearing of a tie and/or jacket for a male; and improper skirt length, and wearing of slacks or immodest attire for a female.

EAST HARTFORD EDUCATION ASSOCIATION v. BOARD OF EDUCATION OF TOWN OF EAST HARTFORD United States Court of Appeals, Second Circuit, 1977

562 F.2d 838

Before KAUFMAN, Chief Judge, and SMITH, FEINBERG, MANSFIELD, MULLIGAN, OAKES, TIMBERS, GURFEIN, VAN GRAAFEILAND and MESKILL, Circuit Judges.

On petition for Rehearing En Banc MESKILL, Circuit Judge: Although this case may at first appear too trivial to command the attention of a busy court, it

raises important issues concerning the proper scope of judicial oversight of local affairs. The appellant here, Richard Brimley, is a public school teacher reprimanded for failing to wear a necktie while teaching his English class. Joined by the teachers union, he sued the East Hartford Board of Education, claiming that the reprimand for violating the dress code deprived him of his rights of free speech and privacy. Chief Judge Clarie granted summary judgment for the defendants. * * * A divided panel of this Court reversed and remanded for trial. At the request of a member of the Court, a poll of the judges in regular active service was taken to determine if the case should be reheard en banc. A majority voted for rehearing. We now vacate the judgment of the panel majority and affirm the judgment of the district court.

The facts are not in dispute. In February, 1972, the East Hartford Board of Education adopted “Regulations for Teacher Dress.” At that time, Mr. Brimley, a teacher of high school English and filmmaking, customarily wore a jacket and sport-shirt, without a tie. His failure to wear a tie constituted a violation of the regulation and he was reprimanded for his delict. Mr. Brimley appealed to the school principal and was told that he was to wear a tie while teaching English, but that his informal attire was proper during filmmaking classes. He then appealed to the superintendent and the board without success,

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after which he began formal arbitration proceedings, which ended in a decision that the dispute was not arbitrable. This lawsuit followed. Although Mr. Brimley initially complied with the code while pursuing his remedies, he has apparently returned to his former mode of dress. * * *

In the vast majority of communities, the control of public schools is vested in locally-elected bodies. This commitment to local political bodies requires significant public control over what is said and done in school. * * * It is not the federal courts, but local democratic processes, that are primarily responsible for the many routine decisions that are made in public school systems. Accordingly, it is settled that “[c]ourts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.”* * *

* * * Because the appellant’s clash with his employer has failed to “directly and sharply implicate basic

constitutional values,” we refuse to upset the policies established by the school board. Mr. Brimley claims that by refusing to wear a necktie he makes a statement on current

affairs which assists him in his teaching. In his brief, he argues that the following benefits flow from his tielessness:

(a) He wishes to present himself to his students as a person who is not tied to “establishment conformity.”

(b) He wishes to symbolically indicate to his students his association with the ideas of the generation to which those students belong, including the rejection of many of the customs and values, and of the social outlook, of the older generation. (c) He feels that dress of this type enables him to achieve closer rapport with his students, and thus enhances his ability to teach.

Appellant’s claim, therefore, is that his refusal to wear a tie is “symbolic speech,” and, as such, “is protected against governmental interference by the First Amendment.”

We are required here to balance the alleged interest in free expression against the goals of the school board in requiring its teachers to dress somewhat more formally than they might like. * * * When this test is applied, the school board’s position must prevail.

Obviously, a great range of conduct has the symbolic, “speech-like” aspect claimed by Mr. Brimley. To state that activity is “symbolic” is only the beginning, and not the end, of constitutional inquiry. * * * Even though intended as expression, symbolic speech remains conduct, subject to regulation by the state. * * *

As conduct becomes less and less like “pure speech” the showing of governmental interest required for its regulation is progressively lessened. * * * In those cases where governmental regulation of expressive conduct has been struck down, the communicative intent of the actor was clear and “closely akin to ‘pure speech.’ ” * * * Thus, the First Amendment has been held to protect wearing a black armband to protest the Vietnam War, * * * burning an American Flag to highlight a speech denouncing the government’s failure to protect a civil rights leader, * * * or quietly refusing to recite the Pledge of Allegiance. * * *

In contrast, the claims of symbolic speech made here are vague and unfocused. Through the simple refusal to wear a tie, Mr. Brimley claims that he communicates a comprehensive view of life and

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society. It may well be, in an age increasingly conscious of fashion, that a significant portion of the population seeks to make a statement of some kind through its clothes. * * * However, Mr. Brimley’s message is sufficiently vague to place it close to the “conduct” end of the “speech-conduct” continuum described above. * * * While the regulation of the school board must still pass constitutional muster, the showing required to uphold it is significantly less than if Mr. Brimley had been punished, for example, for publicly speaking out on an issue concerning school administration. * * *

* * * Balanced against appellant’s claim of free expression is the school board’s interest in promoting

respect for authority and traditional values, as well as discipline in the classroom, by requiring teachers to dress in a professional manner. A dress code is a rational means of promoting these goals. * * *

This balancing test is primarily a matter for the school board. Were we local officials, and not appellate judges, we might find Mr. Brimley’s arguments persuasive. However, our role is not to choose the better educational policy. We may intervene in the decisions of school authorities only when it has been shown that they have strayed outside the area committed to their discretion. If Mr. Brimley’s argument were to prevail, this policy would be completely eroded. Because teaching is by definition an expressive activity, virtually every decision made by school authorities would raise First Amendment issues calling for federal court intervention.

The very notion of public education implies substantial public control. Educational decisions must be made by someone; there is no reason to create a constitutional preference for the views of individual teachers over those of their employers. * * * The First Amendment claim made here is so insubstantial as to border on the frivolous. We are unwilling to expand First Amendment protection to include a teacher’s sartorial choice.

Mr. Brimley also claims that the “liberty” interest grounded in the due process clause of the Fourteenth Amendment protects his choice of attire. * * * This claim will not withstand analysis.

* * * * * * If Mr. Brimley has any protected interest in his neckwear, it does not weigh very heavily on

the constitutional scales. As with most legislative choices, the board’s dress code is presumptively constitutional. It is justified by the same constitutional concerns for respect, discipline and traditional values described in our discussion of the First Amendment claim.

The rights of privacy and liberty in which appellant seeks refuge are important and evolving constitutional doctrines. To date, however, the Supreme Court has extended their protection only to the most basic personal decisions. * * * Nor has the Supreme Court been quick to expand these rights to new fields. * * * As with any other constitutional provision, we are not given a “roving commission” to right wrongs and impose our notions of sound policy upon society. There is substantial danger in expanding the reach of due process to cover cases such as this. By bringing trivial activities under the constitutional umbrella, we trivialize the constitutional provision itself. If we are to maintain the vitality of this new doctrine, we must be careful not to “cry wolf” at every minor restraint on a citizen’s liberty. * * *

The two other Courts of Appeals which have considered this issue have reached similar conclusions. In Miller v. School District, 495 F.2d 658 (7th Cir. 1974), the Seventh Circuit upheld a grooming regulation for teachers. * * * The First Circuit reached the same result in Tardif v. Quinn, 545 F.2d 761 (1st Cir. 1976), where a school teacher was dismissed for wearing short skirts. * * *

Both Miller and Tardifare stronger cases for the plaintiff’s position than the instant case. Both involved dismissals rather than, as here, a reprimand. Moreover, Miller involved a regulation of hair and beards, as well as dress. Thus, Miller was forced to appear as his employers wished both on and off the

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job. In contrast, Mr. Brimley can remove his tie as soon as the school day ends. If the plaintiffs in Miller and Tardif could not prevail, neither can Mr. Brimley.

Each claim of substantive liberty must be judged in the light of that case’s special circumstances. In view of the uniquely influential role of the public school teacher in the classroom, the board is justified in imposing this regulation. 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. * * * We join the sound views of the First and Seventh Circuits, and follow Kelley [425 U.S. 238 (1976), a challenge to a police department’s hair grooming regulations], by holding that a school board may, if it wishes, impose reasonable regulations governing the appearance of the teachers it employs. There being no material factual issue to be decided, the grant of summary judgment is affirmed.

Notes and Questions

Other federal courts of appeals held similarly to the East Hartford decision. Some observers find it baffling that school authorities have more control over teachers’ dress than they do over students’ dress. How would you explain this seeming incongruity? As a practical matter, although authorities have been successful in the courts, teacher dress is no longer the contentious issue it once was, and as dress styles continue to evolve, a “rule of reason” appears to prevail.

Not allowing a teacher to wear a T-shirt with the inscription “Jesus 2000–J2K” prominently displayed was upheld in Downing v. West Haven Board of Education, 162 F. Supp.2d 19 (Conn. 2001). The court held that the teacher’s free speech or free exercise rights were not violated and

also stated, “. . . whatever First Amendment rights were implicated by Downing wearing her T-shirt must give way to the defendants’ legitimate concerns about a potential Establishment Clause violation in a public school.”

VI. TEACHER AS EXEMPLAR

At one time, a teacher’s lifestyle was determined to a large extent by a school system’s formal or informal, often rigid, rules. An example is Rules of Conduct for Teachers, which was published by a local West Virginia Board of Education in 1915.

Rules of Conduct for Teachers

1. You will not marry during the term of your contract. 2. You are not to keep company with men. 3. You must be home between the hours of 8:00 p.m. and 6:00 a.m. unless attending a school function. 4. You may not loiter downtown in ice cream stores. 5. You may not travel beyond the city limits unless you have the permission of the chairman of the board. 6. You may not ride in a carriage or automobile with any man unless he is your father or brother. 7. You may not smoke cigarettes. 8. You may not dress in bright colors. 9. You may under no circumstances dye your hair. 10. You must wear at least two petticoats. 11. Your dresses must not be any shorter than two inches above the ankle. 12. To keep the schoolroom neat and clean, you must sweep the floor at least once daily; scrub the floor at least once a week with hot, soapy water; clean the blackboards at least once a day, and start the fire at 7:00 a.m. so the room will be warm by 8:00 a.m.

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Not all schoolteachers worked under such restrictive rules. However, a belief had developed over the years that teachers should act as examples to their charges and that they should be exemplars to their students in such areas as dress, grooming, the social amenities, and morals.

Although it may at times have been difficult for a teacher to uphold the community’s view of exemplary conduct, this expectation was generally well known to the teacher. In those days, a teacher knew that improper dress or grooming, being seen drunk in public, and, for women, divorce would result not only in school authorities’ disapproval but also possibly in dismissal. The same rules applied to extramarital affairs, “improper” or “immoral” conduct on the part of single teachers, and homosexuality.

In the contemporary world, changing lifestyles and frequent lack of agreement regarding, not necessarily exemplary but, merely “proper” conduct may make it difficult for a teacher to know when a norm is transgressed or exceeds school authorities’ or a community’s zone of acceptance. This problem is further heightened by the fact that teacher conduct that may be tolerated in a metropolitan area may not be condoned in a small town with a homogeneous population that considers itself conservative.

In examining controversial lifestyles, courts have taken several factors into consideration, including whether the conduct: was criminal or immoral under a state statute, hampered teacher effectiveness, was based on unsubstantiated rumors, or 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. However, in today’s environment, dismissal of adulterous teachers, an unmarried pregnant teacher, or an unmarried teacher living with a person of the opposite sex is rarely brought before the courts.

A tenured male elementary school teacher who underwent sex-reassignment surgery to change his external anatomy to that of a female was dismissed because there was a fear that retention would have an adverse effect on the students. The legal issue the court had to address was whether the “incapacity” of the teacher, a term used in the state statute as grounds for dismissal, can be established by a teacher’s allegedly having an adverse effect on the students. In its decision, the court In re Grossman, 316 A.2d 39 (N.J. Super. Ct. App. Div. 1974), determined that a transsexual teacher who had been sexually reassigned could create anxieties among younger children and have a negative effect on their mental health. However, the court stressed that the decision applied only to this school system and expressed no opinion with respect to her fitness to teach elsewhere and under different circumstances than revealed in this case.

A. Homosexual Teacher

Beginning in the early 1970s, court decisions upheld school authorities in cases dealing with claims by homosexual teachers that they had been denied a teaching position, been dismissed, or their teaching certificate revoked because of their sexual orientation. In one of these earliest cases, Gaylord v. Tacoma School District No. 10, 559 P.2d 1340 (Wash. 1977), cert. denied, 434 U.S. 879 (1977), a teacher who had acknowledged his homosexuality was discharged “due to his status as a publicly known homosexual.” The teacher had over twelve years of experience at the school, had graduated Phi Beta Kappa, had a master’s degree, and had a recent evaluation that stated he “continues his high standards and thorough teaching performance.” In upholding his discharge, 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 at the time of the trial and, the court declared, on the basis of homosexuality being widely condemned as being immoral just as it had been during biblical times. The court also held that Gaylord’s performance as a teacher was sufficiently impaired by his known homosexuality. In addition, the court cited that he had sought out homosexual company; a student, three teachers, and others connected with the school found his presence objectionable; and his retention would have indicated school board approval of his homosexuality.

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In addition to immorality and fitness, another issue emerged in the earlier cases; namely, whether knowledge of a teacher’s homosexuality brought about such a high degree of notoriety and undue attention to the teacher and the school that it rendered him or her unfit to teach. More recent decisions, however, have increasingly turned on freedom-of-expression issues; namely, whether teachers may publicly express their sexual preferences or advocate homosexuality.

A nontenured vocational guidance counselor informed several colleagues that she was bisexual and had a female lover. In upholding her nonrenewal, a federal appellate court held that her First Amendment rights had not been violated. In citing Connick v. Myers, 461 U.S. 138 (1983), the court stated, “If a public employee’s statement cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary to scrutinize the reasons for the discharge.” The court opined that the teacher was speaking in her personal interest and that there was no evidence of any public concern in the high school or community with the issue of bisexuality among school personnel. See Rowland v. Mad River School District, 730 F.2d 444 (6th Cir. 1984), cert. denied, 470 U.S. 1009 (1985).

The U.S. Court of Appeals for the Tenth Circuit upheld a portion of an Oklahoma statute proscribing homosexual activity, but it declared unconstitutional the portion prohibiting the advocacy of such activity. Specifically, the court found fault with a section that barred “advocating, soliciting,

imposing, encouraging or promoting public or private homosexual activity in a manner that creates a substantial risk that such conduct will come to the attention of school children or school employees.” The court stated that this provision purported to regulate “pure speech” and that the First Amendment protects advocacy of legal as well as illegal conduct as long as such advocacy does not incite imminent lawlessness. See National Gay Task Force v. Board of Education of Oklahoma City, 729 F.2d 1270 (10th Cir. 1984), aff’d by an equally divided Court, 470 U.S. 903 (1985).

Schroeder v. Hamilton School District, 282 F. 3d 946 (7th Cir. 2002), cert. denied, 537 U.S. 974 (2002), did not uphold a middle and elementary school homosexual teacher’s complaint that his right to equal protection had been violated. He alleged that reasonable measures had not been taken by the school district to prevent students, parents, and occasionally district employees from harassing him for his homosexuality. Obscenities such as “faggot” and “queer” were shouted at him by students in hallways and during bus duty; harassing phone calls were made with students chanting “faggot, faggot, faggot”; and bathroom graffiti identifying Schroeder as a “faggot,” and describing, in explicit terms, the type of perceived sexual acts he engaged in with other men. School administrators disciplined students identified with the offensive behavior; however, because much of the harassment was anonymous, it went unpunished. Some parents and teachers allegedly made statements that Schroeder’s former lover died of AIDS, he was a pedophile, and he sexually abused small boys. Schroeder’s request that sensitivity training be conducted, as had been done to counter race and gender discrimination, was not heeded. In its decision, the court noted that school administrators had taken certain measures such as the circulation of a memorandum to teachers and other staff noting that students were continuing to use “inappropriate and offensive racial and/or gender-related words or phrases” and that, if students were observed using inappropriate language or gestures, they should be disciplined. Schroeder conceded that the district took some action in response to nearly all of his complaints. The court also noted that although the district had policies against race and sex discrimination, but not against sexual-orientation discrimination, this did not mean the school district was deliberately indifferent to Schroeder’s harassment complaints. Unlike blacks and women, the court asserted, homosexuals are not entitled to any heightened constitutional protection. Therefore, the court concluded, “discrimination against homosexuals, or for that matter the elderly, overweight, undersized, or disfigured, will only constitute a violation of equal protection if it lacks a rational basis.” Consequently, the court found the decision not to implement a separate policy against sexual-orientation discrimination was not based on any animus toward Schroeder or homosexuals in

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general. There was no evidence, for instance, of any discrimination against homosexual teachers or students in the district; rather, the evidence showed that only one teacher, who happened to be a homosexual, was harassed because of his homosexuality. The court found Schroeder’s request for student sensitivity training that would make them more accepting of homosexuals to be especially problematic in an elementary or early middle school setting because the court contended, there was “no simple way of explaining to young students why it is wrong to mock homosexuals without discussing the underlying lifestyle or sexual behavior associated with such a designation.”

Given this factual situation, the court ruled that Schroeder had not demonstrated that the school district had been deliberately indifferent to his complaints. Nor had he proved an equal protection violation, which required Schroeder to show that the school system:

. . . (1) treated him differently from others who were similarly situated, (2) intentionally treated him differently because of his membership in the class to which he belonged (i.e., homosexuals), and (3) because homosexuals do not enjoy any heightened protection under the Constitution, . . . that the discriminatory intent was not rationally related to a legitimate state interest. (pp. 950–951)

Beginning in the late 1990s, court decisions reveal homosexual teachers prevailing in cases dealing with nonrenewal and freedom of expression regarding their sexual orientation. In Glover v. Williamsburg Local School District Board of Education, 20 F. Supp.2d 1160 (Ohio 1998), 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 that he had held hands at school with his partner during a holiday party. In its decision, the court criticized the defendants for accepting the rumor as fact, not confronting Glover with the rumors, lowering evaluations of Glover due in large part to the defendants’ reliance on false rumors, and board members’ testimony that was contradictory and not entirely credible. The court held that he was discriminated against by the board’s action and stated that: “[h]omosexuals, while not a ‘suspect class’ for equal protection analysis, are entitled to at least the same protection as any other identifiable group which is subject to disparate treatment by the state.” In addition to being reinstated Glover received $46,492 for lost salary for two years and $25,000 for anguish and humiliation, in addition to attorney fees and costs. In another instance, a lesbian teacher who was open and forthcoming about her sexual orientation, often attended school functions with her life partner, and did not discuss her sexual orientation or private life with her students challenged her nonrenewal. She had been told that she would be rehired under a three-year contract. But this recommendation was withdrawn upon school authorities learning about her PowerPoint presentation to two government classes concerning the “National Day of Silence,” a day designed to bring attention to the harassment, prejudice, and discrimination faced by gay and lesbian students. In addressing the nonrenewal, an Ohio federal district court in an unpublished opinion, Beall v. London City School District Board of Education,* denied defendants’ motion for summary judgment regarding equal protection and academic freedom claims. The court stated

It is clearly established that homosexuals, as a class, are entitled to equal protection of the laws. Romer [v. Evans], 517 U.S. at 633-36; * * * . Moreover, discrimination based on sexual orientation cannot be described as objectively reasonable. Romer, 517 U.S. at 634-35 (“a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest”) * * * .

In Weaver v. Nebo School District, 29 F. Supp.2d 1279 (Utah 1998), 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. In its decision, the court found that the community’s perception about Weaver based on nothing more than unsupported assumptions, outdated stereotypes, and animosity did

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not furnish a rational basis for not rehiring her as volleyball coach. Regarding her free speech restriction, the court held that “[a]s impermissible as it is to restrict a state employee’s right to speak on a matter of public concern, it is equally impermissible to retaliate against that employee when he or she does indeed speak on a matter of public concern.” 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. Soon after Weaver initiated her lawsuit, members of the community submitted formal complaints against her in civil litigation. Their displeasure was based on her conduct as a psychology teacher, and they alleged that:

. . . Weaver administered personality tests to her students, scoring and discussing the results of those tests in class, and also required her students to keep dream journals and interpret their

_________________ *Unpublished opinion 2:04-cv-290, U. S. District Court, Southern District of Ohio, June 8, 2006.

dreams in class. Weaver criticized and disparaged the Church of Jesus Christ of Latter-day Saints during class and pressured a student to express his religious and moral beliefs in a hostile class environment. Additionally, Weaver encouraged students to question traditional sources of authority and determine for themselves whether alternative “lifestyles” are right or wrong. Miller v. Weaver, 66 P.3d 592, 594 (Utah 2003).

Largely on procedural grounds, the Utah Supreme Court in Miller affirmed a district court’s dismissal of the complaint.

Epilogue. Although animus toward homosexuals has seemingly been replaced by incremental degrees of acceptance nationwide, the issue of gay rights continues to be increasingly controversial. An examination of governmental action reveals endeavors that may be described as being both pro- and anti-gay.

Anti-gay actions include federal and state legislation that does not recognize gay marriage and a Court decision not allowing homosexuals to be Boy Scout leaders. In 1996 the Defense of Marriage Act was passed, which stated that the federal government would not recognize gay marriages and allowed states to refuse to recognize such marriages licensed in other states. More than forty states have laws or constitutional provisions prohibiting the recognition of marriage for gay couples. The Supreme Court has upheld a Boy Scouts of America policy that did not allow a homosexual to be appointed as an assistant scoutmaster. In its decision in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court declared that New Jersey’s antidiscrimination law ran “afoul of the Scouts’ freedom of expressive association.”

Some governmental action may be perceived as being pro-gay, resulting in homosexuals receiving protections and rights that they heretofore did not have. Presently, eighteen states (California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Wisconsin) and the District of Columbia have passed laws prohibiting discrimination on the basis of sexual orientation in such areas as employment, housing, public accommodations, education, and obtaining credit. Several cities have passed antidiscrimination ordinances aimed at broadening employment protection for homosexuals by focusing on “job relatedness” as a basis for dismissal. A number of school boards have adopted antidiscrimination policies regarding sexual orientation. Courts in Massachusetts (2003), Connecticut (2008), and Iowa (2009) issued rulings legalizing gay marriage. In 2010, after several years of considerable political debate, the “Don’t Ask, Don’t Tell policy was repealed by congressional action. Under this policy a person was separated from the military if he or she were discovered to be or stated

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that they were homosexual. This policy was instituted in 1993, and it has been estimated that 15,000 service members were discharged under its auspices over the 17 years it was in effect. Antisodomy statutes, which existed in all fifty states since the 1960s, have come under increased legal and legislative pressure. Presently, sodomy statutes that prohibit consensual sodomy among same-sex couples remain in only a handful of states. Teachers were often dismissed on the basis of their violating such criminal statutes. Romer v. Evans, 517 U.S. 620 (1996), was instrumental in the drive to repeal antisodomy laws. In that case, the Court held that an amendment to Colorado’s constitution, prohibiting any legislation or judicial action designed to protect the status of a person based on sexual orientation, violated the Fourteenth Amendment. The Court noted that the “inevitable inference” that arises from laws of this sort is that it is “born of animosity toward the class of persons affected.” In 2003 the United States

Supreme Court, in Lawrence v. Texas, 539 U.S. 558 (2003), overturned a seventeen-year-old Court decision that had upheld Texas’ sodomy law. In its six-to-three decision, the Court held Texas’ sodomy laws unconstitutional and declared that homosexuals’ “right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention.” However, in his dissent, Justice Scalia argued vigorously against the Court’s decision in decriminalizing sodomy and stated that “[m]any Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home [emphasis added].”

Governmental actions taken to protect the rights of homosexuals in the 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, being able to serve openly in the military, 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.

In retrospect, have some public schools had an unofficial “Don’t Ask, Don’t Tell” policy over the years? A reading of several early decisions reveals that some courts held that teaching effectiveness was impaired if homosexual teachers brought undue attention to themselves by acknowledging their sexual orientation. Did this suggest that homosexuality among teachers was acceptable if it was not admitted or overt?

B. Adulterous Teacher

ERB v. IOWA STATE BOARD OF PUBLIC INSTRUCTION

Supreme Court of Iowa, 1974 216 N.W.2d 339

McCORMICK, Justice. In this appeal plaintiff Richard Arlan Erb challenges the revocation of his teaching certificate.

The certificate was revoked by defendant Board of Educational Examiners after a hearing on July 16, 1971. Erb brought an action in certiorari alleging the board’s action was illegal. After the trial the writ of certiorari was annulled. Erb appealed. We reverse.

* * *

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Erb, a native Iowan, military veteran, and holder of a master’s degree in fine arts, received his Iowa teaching certificate in 1963. Since then he has taught art in the Nishna Valley Community School which serves an area including the towns of Strahn, Emerson, Hastings, and Stanton. He resides in Emerson, is married and has two young sons. In addition to teaching he has coached wrestling, assisted with football, and acted as senior class sponsor.

The complaint against Erb was made by Robert M. Johnson, a farmer whose wife Margaret taught home economics in the Nishna Valley School. Johnson told the Board of Educational Examiners his goal was removal of Erb from the school and not revocation of his teaching certificate. He read an extensive statement in which he detailed his observations relating to an adulterous liaison between Erb and Johnson’s wife which began and ended in spring 1970.

Margaret planned to quit teaching and open a boutique in Red Oak. Her association with Erb began in early spring when he agreed to assist her with design of the store. They saw each other often. By May, Johnson became suspicious of Margaret’s frequent late-night absences from home. He suspected Margaret and Erb were meeting secretly and engaging in illicit activity in the Johnson automobile. One night in May he hid in the trunk of the car. Margaret drove the car to school, worked there for some time, and later drove to a secluded area in the country where she met Erb. Margaret and Erb had sexual intercourse in the back seat of the car while Johnson remained hidden in the trunk. Johnson did not disclose his presence or his knowledge of the incident.

Instead he consulted a lawyer with a view toward divorcing Margaret. He told the board he was advised his interests in a divorce action would be better served if he had other witnesses to his wife’s misconduct. After several days of fruitless effort to catch Margaret and Erb in a compromising situation, he and his “raiding party” eventually located them one night in June parked in a remote area. Johnson and the others surrounded the car and took photographs of Margaret and Erb who were partially disrobed in the back seat. Johnson told Margaret not to come home and that further communication would be through lawyers. He told Erb to disclose the affair to his wife.

Erb did so. He and Margaret terminated their affair. Erb offered to resign his teaching position, but the local school board unanimously decided not to accept his resignation. The board president testified 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 was retained for the ensuing school year and continued to teach in the Nishna Valley School.

Witnesses before the board included Erb’s past and present high school principals, his minister, a parent of children in the school, and a substitute teacher. All vouched for his character and fitness to teach. His superintendent gave essentially the same testimony in district court. The board refused to allow Erb’s attorney to cross-examine Johnson or two witnesses in support of Erb’s character and fitness to teach. Trial court ruled in its pretrial order that under the admitted record Erb’s teacher–student relationship had not been impaired by his conduct.

The board voted five to four to revoke Erb’s teaching certificate and, without making any findings of fact or conclusions of law, ordered it revoked. Revocation was stayed by trial court and then by this court pending outcome of the certiorari action and appeal. Trial court held Erb’s admitted adulterous conduct was sufficient basis for revocation of his certificate and annulled the writ.

* * * In this appeal Erb contends the board acted illegally (1) in denying his right to cross-examine witnesses against him and limiting the number of his witnesses, (2) in failing to make findings, and (3) in revoking his teaching certificate without substantial evidence that he is not morally fit to teach.

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I. Limitations at the hearing. Erb did not object before the board to the board’s denial of his right of cross-examination and limitation on the number of his witnesses. These questions cannot be presented for the first time here. Erb was obliged to raise them before the board and the trial court. * * * Since he did not do so he failed to preserve error in these respects for review here.

II. Failure of the board to make findings. A different situation exists concerning the board’s failure to make findings of fact. Erb’s first opportunity to complain of the absence of board findings was in his certiorari action, and he did raise the issue there. We hold the board acted illegally in failing to make findings of fact.

Although Iowa does not have an administrative procedure act to guide administrative boards, we have held such boards are required, even without statutory mandate, to make findings of fact on issues presented in any adjudicatory proceeding. Such findings must be

sufficiently certain to enable a reviewing court to ascertain with reasonable certainty the factual basis and legal principle upon which the administrative body acted. * * *

The board violated this precept in the present case. No findings were made. This would be sufficient basis to hold trial court should have sustained the writ of certiorari. However, reversing the case on that basis would return the case to the board which could make its findings on the present record and would not answer the remaining issue whether there is substantial evidence in the record which would permit the board to find Erb is not morally fit to teach. If that issue is resolved favorably to Erb, the case will be ended now in his favor rather than sent back to the board for findings.

III. Sufficiency of the evidence. Since the board made no findings there is no intelligible way to determine what interpretation the board gave to its statutory authorization to revoke the certificate of one not “morally fit to teach.” But nothing prevents us from determining whether there is substantial evidence in the record which would have supported revocation if the proper standard had been applied. Erb contends there is not. We agree. We will first examine the standard and then the sufficiency of the evidence.

This court has not previously been called upon to decide what constitutes moral unfitness to teach. The legislature provided no definition in code chapter 260.

* * * The board contends the 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. We are unwilling to make that assumption. It would vest the board with unfettered power to revoke the certificate of any teacher whose personal, private conduct incurred its disapproval regardless of its likely or actual effect upon his teaching. The legislature did not give the board that kind of power in Code § 260.23. The label applied to the teacher’s conduct is only a lingual abstraction until given content by its likely or actual effect on his fitness to teach. Morrison v. State Board of Education, 461 P.2d 375, 394 (Cal. 1969); * * * 68 Am Jur. 2d Schools § 134 at 465 (“Where the courts have been presented with the question whether or not specific conduct of a teacher constitutes moral unfitness which would justify revocation, they have apparently required that the conduct must adversely affect the teacher–student relationship before revocation will be approved.”).

As observed by the Morrison court, “Surely incidents of extramarital heterosexual conduct against a background of years of satisfactory teaching would not constitute ‘immoral conduct’ sufficient to justify revocation of a life diploma without any showing of an adverse effect on fitness to teach.”* * *

We emphasize the board’s power to revoke teaching certificates is neither punitive nor intended to permit exercise of personal moral judgment by members of the board. Punishment is left to the criminal

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law, and the personal moral views of board members cannot be relevant. A subjective standard is impermissible and contrary to obvious legislative intent. 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.

In Morrison the California court discussed factors relevant to application of the standard:

“In determining whether the teacher’s conduct thus indicates unfitness to teach the board may consider such matters as the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likeli-

hood of the recurrence of the questioned conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers.”* * *

These factors have relevance in deciding whether a teacher is morally fit to teach under Code § 260.2. Since the same standard is applicable in determining whether a certificate should be revoked under Code § 260.23, a certificate can be revoked only upon a showing before the board of a reasonable likelihood that the teacher’s retention in the profession will adversely affect the school community.

There was no evidence of such adverse effect in the present case. No one even asserted such an effect. The complainant himself acknowledged his purpose was to remove Erb from the school rather than from teaching. The evidence showed Erb to be a teacher of exceptional merit. He is dedicated, hardworking and effective. There was no evidence to show his affair with Margaret Johnson had or is likely to have an adverse effect upon his relationship with the school administration, fellow teachers, the student body, or the community. Overwhelming and uncontroverted evidence of local regard and support for Erb is a remarkable testament to the ability of a community to understand, forgive and reconcile.

There was no evidence other than that Erb’s misconduct was an isolated occurrence in an otherwise unblemished past and is not likely to recur. The conduct itself was not an open or public affront to community mores; it became public only because it was discovered with considerable effort and made public by others. * * * Erb made no effort to justify it; instead he sought to show he regretted it, it did not reflect his true character, and it would not be repeated.

* * * [W]e are persuaded the evidence adduced before the board would not support a finding that Erb is morally unfit to teach in Iowa. The board acted illegally in revoking his certificate. Trial court erred in annulling the writ of certiorari.

Reversed.

Note

Changing American mores and a lack of agreed-upon societal standards regarding “proper” conduct in American life would make it an unwarranted invasion of privacy for local school boards, other than in some insular communities, to attempt to monitor the private lives, especially living arrangements, of its teachers. However, such reasoning would not necessarily apply to private school employment. A female Catholic school teacher’s contract was not renewed because she had an adulterous affair with a married

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father of three children enrolled in the same school. In upholding the nonrenewal, the court in Gosche v. Calvert High School, 997 F. Supp. 867 (Ohio 1998), aff’d, 181.F.3d 101 (6th Cir. 1999), held that Gosche was not meeting her employer’s contractual expectations under which she agreed to “by word and example . . . to reflect the values of the Catholic Church.”

C. Criminal Activities

GILLETT v. UNIFIED SCHOOL DISTRICT NO. 276 Supreme Court of Kansas, 1980 605 P.2d 105

PRAGER, Justice: This case involves a controversy between a schoolteacher and school board over the nonrenewal

of her teaching contract. Unified school district No. 276 appeals from a judgment of the district court reversing the school board’s decision not to renew the teacher’s employment contract. The trial court ordered the teacher to be reinstated with back pay.

The facts in the case are not greatly in dispute and essentially are as follows: Unified school district No. 276 is located in Jewell County. Jessie Mae Gillett is a tenured teacher who had been continuously employed by the school district for a period of seven years. Her last term of employment covered the 1976–77 school year. On March 11, 1977, the school board delivered to Mrs. Gillett a notice of nonrenewal of her teaching contract for the following year pursuant to K.S.A. 1977 Supp. 72-5437. The notice, which was contained in a letter from the president and clerk of the school board, was in the form required by statute. The reason given for nonrenewal was the existence of criminal charges of shoplifting pending against Mrs. Gillett in Hastings, Nebraska. Mrs. Gillett promptly filed a request for a due process hearing on the matter. On May 5, 1977, the board served on the teacher a notice which contained a supplemental list of reasons for nonrenewal including the following:

1. Inability to properly handle school funds; 2. Excessive absences from teaching school duties for allegedly being ill; 3. Improper use of sick leave; 4. Physical and mental instability; and 5. Loss of community, student, and school board respect for this teacher.

Mrs. Gillett, through her counsel, objected to the consideration of the supplemental reasons contending they were not timely served. The hearing committee overruled the objection, stating that it would consider the supplementary reasons.

* * * The recommendation of the hearing committee was delivered to the school board, which

considered all of the evidence presented in the case together with arguments and briefs of counsel. The board unanimously decided to follow its previous decision of nonrenewal of Mrs. Gillett’s contract. The board made no findings of fact and gave no specific reason in writing for rejecting the committee’s recommendation. Mrs. Gillett then appealed the school board’s decision to the district court, using K.S.A. 60-2101(d) as required by K.S.A. 1977 Supp. 72-5443. The district court reviewed the transcript of the evidence presented at the due process hearing and heard arguments of counsel. The district court entered judgment in favor of Mrs. Gillett, ordering her reinstated with back pay. * * *

* * * The primary issue raised on this appeal is whether the district court erred in holding that the

school board had failed to present substantial evidence to support its reason for nonrenewal. From the evidentiary record in the case, we have concluded that 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. In the original notice of nonrenewal served on the teacher on March 11, 1977, the reason given for

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nonrenewal was the criminal charges pending against Mrs. Gillett in Hastings, Nebraska. The evidence of the pendency of these two criminal cases was undisputed. Although Mrs. Gillett did not take the stand herself, the evidence presented on her behalf showed without question that she had taken articles at two stores in Hastings, Nebraska, on October 16, and November 17, 1976. The teacher did not deny that she took the articles of property. Her defense to the accusation was that, because of her mental condition at the time, she was not criminally responsible for her actions. Dr. Dale W. Peters, a practicing psychiatrist, testified that he was a consultant to the Sunflower Guidance Center in Concordia. Mrs. Gillett was referred to that center for psychiatric evaluation in March of 1977. Dr. Peters examined her to determine her mental capacity and state of health, primarily for determining her mental state in

relationship to the shoplifting incidents in Hastings, Nebraska. From these examinations, he concluded that, although she was not mentally ill, she was subject to altered states of consciousness resulting from sensitive reactions to a wide variety of foods. Various tests showed her sensitive to numerous foods which at times interfered with the functioning of her brain cells. During these attacks, she would become mentally disturbed and her judgment adversely affected.

At the time of her arrests in Hastings, Nebraska, it appeared that Mrs. Gillett was acting strangely and out of touch with reality. The thrust of Dr. Peters testimony was that, at the time of the shoplifting incidents in Hastings, Nebraska, Mrs. Gillett, being in an altered state of consciousness, was not responsible for her actions. The evidence showed that she had been involved in another shoplifting incident in 1973. Apparently on a number of occasions, she had become confused and lost while driving her motor vehicle. Each of these situations involved an altered state of consciousness which came on gradually. Dr. Peters testified that acute episodes can be dramatic. Such episodes could last up to one hour and could occur at any time, including during classroom hours. Dr. Peters conceded that Mrs. Gillett could again be involved in shoplifting incidents in the future and that she was still under treatment at the time of the hearing. Although Dr. Peters was of the opinion that there was no danger to the students in the classroom, he indicated an attack during class could be disruptive. Similar attacks could occur either from the consumption of certain foods or from a withdrawal from such foods. At the time of the hearing Mrs. Gillett was in the course of an elimination diet which, hopefully, might eliminate her problem. If it did not work, then additional testing and treatment would be required. Dr. Peters mentioned over 80 foods which could cause Mrs. Gillett to go into an altered state of consciousness. He further stated that this list was inconclusive and that there might be other foods which could affect her in the same way.

A teacher testified that at one time she had observed Mrs. Gillett in an altered state of consciousness while seated in her automobile. After the arrests at Hastings, she heard a student discussing the fact that Mrs. Gillett had been arrested. Another teacher testified that she had also heard students mention the fact that Mrs. Gillett had been arrested. This was the first time the teacher had known about it. There was no evidence presented at the hearing as to the ultimate outcome of the criminal actions. There was testimony tending to show that Mrs. Gillett had been careless in keeping candy sale proceeds in her desk drawer and in failing to make daily deposits at the bank as directed by the school superintendent. However, there was no proof of any misappropriation or loss of any money as the result of Mrs. Gillett’s handling of the school funds. In regard to excessive absences from teaching duties for allegedly being ill, the record is devoid of any misconduct on the part of the teacher in this regard. In regard to loss of community, student, and school respect for the teacher, the president of the school board testified that in his opinion the school board had community support in the nonrenewal of Mrs. Gillett’s contract. A substitute teacher testified about a classroom incident where students were caught copying. When she told them copying wasn’t allowed, the students responded: “The teacher can get away with it.”

Mr. Ralph Hooten, who was president of the school board at the time the letter of nonrenewal was delivered to Mrs. Gillett, testified that the school board had unanimously decided that Mrs. Gillett’s teaching contract should not be renewed because of the criminal charges of shoplifting pending in

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Nebraska. This conclusion was reached only after substantial discussion by the board over a period of hours. The board had concluded that these shoplifting charges reduced her efficiency as a teacher. It appeared to him that, with the charges pending, the learning atmosphere would be improved if her contract was not renewed. Mr. Hooten stated that the board was aware of a similar charge of shoplifting in the year 1973 which was subsequently dismissed. At the time the board decided not to pursue the matter further. When the charges came up again in 1976, the board felt that they

could not ignore those charges, having knowledge of the prior incident in 1973. It is fair to conclude, from Mr. Hooten’s testimony, that the school board was very much concerned about the criminal charges against Mrs. Gillett, that the board spent hours discussing the situation, and that they decided to nonrenew her contract rather than to terminate her in midyear.

The issue to be determined here is whether there is substantial evidence in the record sufficient to establish good cause, justifying the school board’s decision of nonrenewal of the teaching contract. The district court found that there was not. We have concluded there was. The problem presented in this case was obviously one of great difficulty for the school board. The trial court specifically found that the school board had not arbitrarily and fraudulently refused to accept the findings of the hearing committee. The district court was correct in that finding. It is difficult to reconcile that finding with the additional finding that there was no substantial evidence to support the board’s reason for nonrenewal. Here the evidence was undisputed that, for a period of at least three years, the teacher had been subject to altered states of consciousness, during which she did not know what she was doing and her judgment and her conduct were adversely affected. At the time of the hearing, a testing and treatment program for Mrs. Gillett had been undertaken but not completed. She was attempting to get to the cause of her problem and was taking appropriate action to do something about it. However, we do not believe that, at that time, the school board acted unreasonably in concluding that it would be for the best interests of the school system to nonrenew Mrs. Gillett’s teaching contract for the following school year.

We think it significant that in this case the teacher did not personally take the witness stand to give her own explanation as to her physical and mental condition or to deny that she, knowingly with larcenous intent, took property from the stores in Hastings, Nebraska. She did not testify that the treatment then being administered was effective or was beginning to solve her problem. She did not testify as to her relationship with the students, or with other teachers, or with the school administrators. Not a single witness testified as to any contributions she was making to the educational program of the school district. We cannot in good conscience find from the evidence that the board’s action was not taken in good faith, or that it was arbitrary, irrational, unreasonable, or irrelevant to the school board’s objective of maintaining an efficient school system for the students in the school district. It follows that the judgment of the district court must be reversed and the case remanded to the district court with directions to enter judgment in favor of the school board.

It is so ordered.

Notes

In a similar case, a permanent teacher’s indefinite contract was terminated because of three instances of alleged immoral conduct: stealing a teapot that was a prop in a school play, stealing $20 from a basketball game’s receipts, and stealing a set of the school’s books. See Kimble v. Worth County R-III Board of Education, 669 S.W.2d 949 (Mo. Ct. App. 1984).

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A teacher who had pled guilty to possession of marijuana and cocaine in a criminal proceeding was not reinstated to his teaching position after his criminal record had been expunged. The court, in Dubuclet v. Home Insurance Company, 660 So.2d 67 (La. Ct. App. 1995), contended that expungement did not erase the fact that he had committed the act, nor did it erase the moral turpitude of the teacher’s conduct.

Failure to take appropriate measures in response to her husband’s use of the family home for growing and selling marijuana was not held to be a “neglect of duty” on a teacher’s part, and her reinstatement by the Oregon Fair Dismissal Appeal Board was upheld. See Kari v. Jefferson County School District, 852 P.2d 235 (Or. Ct. App.1993).

D. Impropriety with Students

BARCHESKI v. BOARD OF EDUCATION OF GRAND RAPIDS PUBLIC SCHOOLS

Court of Appeals of Michigan, 1987 412 N.W.2d 296

OPINION BY: PER CURIAM. * * * * * * On October 18, 1976, the Board of Education of the Grand Rapids Public Schools voted to

proceed on three charges brought against petitioner. * * * Those charges were as follows:

1. That on or about August 10, 1976, Mr. Barcheski invited two female members of his driver education class to a party to be held on Friday night, August 13, 1976, the night before the raft race. 2. The two female students attended the party and drank beer and smoked pot during the evening in the presence of Mr. Barcheski. 3. Mr. Barcheski took one of the female students, Mary . . ., home in his automobile after leaving the party. Mary . . . was 15 years of age at the time in question. On the way to the residence of Mary . . ., Mr. Barcheski parked his automobile and had sexual intercourse with [her] in his automobile.

* * * * * * Our review of the record discloses that the tenure commission’s findings are supported by

substantial, material and competent evidence, and we therefore affirm. Regarding the first finding, i.e., that petitioner invited two female members of his driver’s

education class to a party, Commissioner Gibson’s majority opinion relied heavily on the credibility of one of petitioner’s students, “Mary.” Mary admitted to the board of education that she had originally misled board investigators in her account of the party and petitioner’s invitation, but stated that shortly thereafter she told them the truth. Mary testified before the board of education that on about August 10, 1976, she discussed an upcoming raft race with petitioner and that petitioner told her that he was going to a party on Friday, August 13, 1976, the night before the raft race. She stated that petitioner invited her and Wendy to attend the party and that the three of them talked about the party “every day” that week. At the tenure commission hearing, Mary’s testimony concerning petitioner’s alleged invitation was substantially the same as that offered before the board of education.

* * *

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Petitioner testified before the board of education that he had never invited the two students to the party. He said that when they asked him one day at the driving range whether he was going to attend the upcoming raft race he told them “no,” but explained to them that he went to an annual pre-raft-race party at the Michigan Wheel Test Basin.

When they asked where Michigan Wheel was located, he simply gave them directions. Moreover, although he did not specifically remember having written down a telephone number on Wendy’s book, he said he often provided his number to students in case they needed a ride home from driver’s training classes. Petitioner conceded that, out of fear, he had originally lied to board of education investigators about the girls’ presence at the party.

In the tenure commission’s decision, Commissioner Gibson gave little weight to the testimony of Wendy and petitioner, finding that the former’s midstream change in story which had apparently been precipitated by prior meetings with petitioner and the latter’s attempts to persuade Wendy to falsify her testimony seriously jeopardized the credibility of these witnesses. On the other hand, Commissioner Gibson saw no reason not to credit Mary’s testimony, even though Mary herself had experienced many personal problems, such as drug and alcohol use and unwed motherhood.

* * * We believe that the tenure commission majority’s finding that petitioner invited at least one

female student to the party was supported by competent, material and substantial evidence on the record when viewed as a whole. * * *

* * * The tenure commission’s second finding, i.e., that the two female students drank beer and smoked

marijuana in petitioner’s presence at the party, is also supported by competent, material and substantial evidence.

Petitioner stated that he arrived at the party at about 7:30 p.m. with two male friends and that about one-half hour later the students arrived. Two friends of petitioner who were at the party said petitioner looked surprised to see the students. There was conflicting testimony as to what occurred when the two students first came in contact with petitioner at the party. Petitioner testified that the students said they were “out partying” and that they looked somewhat “loose,” like they had been drinking. Petitioner said that he introduced the students to his friends and chatted with them for about ten minutes, after which they disappeared. Petitioner said he never told the students to leave because he thought they had left on their own. He acknowledged that fifteen minutes after he initially saw the two students he saw Wendy standing down near the cement foundation of a metal derrick constructed on the riverbank, but that thereafter he saw neither of the students until preparing to leave the party several hours later. He testified that he spent most of the party in an out-of-the-way spot behind a wrecker parked next to the Michigan Wheel building, some seventy feet from the derrick where the students allegedly spent most of their evening. It was undisputed that many of those attending the party were drinking alcoholic beverages and smoking marijuana.

Mary admitted to the board of education that she and Wendy had smoked two “bowls” (two pipes full) of marijuana and had drunk several beers before having arrived at the party. She also testified that when they arrived, petitioner gave them some beer and that, during the course of the evening, they smoked marijuana in petitioner’s presence. Before the tenure commission, Mary altered her testimony somewhat and testified that petitioner had not handed them their first beer but had, instead, directed them

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to a refrigerator where they could get their own. Petitioner and several of his friends denied that peti-ioner had ever given the students beer at the party. * * *

Both before the board of education and the tenure commission Mary testified that she had smoked marijuana and had drunk beer in petitioner’s presence at the party. At the board of education hearing, Wendy also affirmed that Mary had smoked marijuana and had drunk beer in front of petitioner. She noted, however, that she intentionally hid her own marijuana smoking from petitioner out of embarrassment.

Before the tenure commission, Wendy recanted part of her board of education testimony. She testified that neither she nor Mary smoked marijuana or drank beer in petitioner’s presence during the party. Six of petitioner’s friends testified that although each had seen the students smoke marijuana and drink beer at the party, this had never taken place in petitioner’s presence.

Some of Wendy’s unrecanted testimony weakened petitioner’s blanket denial that he had lost sight of the two students through most of the middle portion of the party. Wendy testified before the tenure commission that during the party petitioner and Wendy would sometimes see each other and acknowledge each other’s presence with a smile. Wendy also reluctantly testified before the tenure commission that she had seen a blonde-haired woman next to petitioner and later at the party, or at some later time, had asked petitioner if the woman was his wife. Petitioner’s wife testified before the board of education that she arrived at the party at about 8:30 p.m. and that she and her husband spent most of their time in the cement area down by the river, an area very near the derrick where the two students spent most of their evening.

Wendy also gave unrecanted testimony before the board of education that just before leaving the party, Mary was sitting in a police car with her arm around petitioner and at one point reached over and kissed him. Wendy said that both she and Mary drank beer during this time by the police car. Petitioner conceded before the tenure commission that just as he was leaving the party he saw the two students standing next to a police car drinking beer. Observing that the students were intoxicated, petitioner convinced a friend to drive the students home. Petitioner, two of his male friends, Mary and Wendy then left the party together in a car.

Thus, besides the direct testimony of Mary, who flatly asserted that she had smoked marijuana and had drunk beer in petitioner’s presence at the party, there was also testimony suggesting that petitioner maintained some visual contact with the students during the party and had spent at least some of his time near where the students were smoking and drinking. Under these circumstances, we cannot conclude that the tenure commission’s finding that the students drank beer and smoked marijuana in petitioner’s presence is not supported by substantial evidence.

* * * Next, petitioner argues that the tenure commission improperly made its third finding regarding

petitioner’s having driven Mary home alone after the party because he was never put on notice that taking the student home by itself constituted a basis for a charge of wrongful conduct.

* * * Based on petitioner’s own testimony, however, we believe that petitioner was, or should have been, well aware that taking Mary, a young, intoxicated female student home alone in his car constituted, by itself, grounds for discipline. Petitioner stated that the students appeared intoxicated when they arrived at the party and were in even worse shape when he found them several hours later as he was leaving the party. Moreover, petitioner testified that on previous occasions, he had asked another driver’s training instructor to give Mary a ride home because he thought she had a “crush” on him. Petitioner also explained that on one occasion Mary had placed her head on his shoulder while his class was watching a movie. As noted

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previously, Wendy testified that at the end of the party Mary put her arm around petitioner and kissed him. Wendy gave unrecanted testimony that when petitioner’s friend, Michael Maxim, gave the two students and petitioner a ride to the social hall where petitioner had left his car, Mary kept her hand near the zipper of petitioner’s pants and that petitioner made no effort to remove it. Mary herself said that she and petitioner kissed passionately while riding in the back seat of Maxim’s car.

Given this factual scenario and the earlier findings of the board of education on this issue, petitioner was adequately put on notice that driving Mary home alone constituted by itself conduct supporting a charge of improper or wrongful conduct which could properly be considered in deciding whether a penalty would be appropriate.

* * * For the foregoing reasons, the circuit court’s affirmance of the tenure commission’s ruling that petitioner’s discharge was based on reasonable and just cause is affirmed.

Affirmed.

Notes

A high school science teacher’s termination for belonging to the North American Man-Boy Love Association (NAMBLA), which advocates sexual relations between men and boys, was addressed in Melzer v. Board of Education of School District of New York, 196 F. Supp.2d 229 (N.Y. 2002). NAMBLA advocated:

(1) abolition of age-of-consent and all other laws which prevent men and boys from freely enjoying their bodies (2) release of all convicted pedophiles (3) abolition of all laws which limit freedom of expression, including child pornography laws (4) support of all boys and men who voluntarily choose to participate in teenage hustling, and opposition to all attempts by the state to interfere with consensual and non-coercive sexuality (5) replacement of existing age-of-consent laws with laws empowering children—including the right to alternative home environments (such as homes operated by children), self-education (i.e., the option not to attend), and the right to conduct their sexual lives with no more restriction than adults

Melzer served on the New York City chapter’s Steering Committee, was treasurer, and served on the editorial staff of the local group’s newsletter. He admitted that he was a boy lover and was attracted to boys up to the age of about 16. Yet, he professed belief in the notion that laws should not be broken and that it was unhealthy for underage youths to engage in sexual acts with adults because the psychological and social repercussions would be great. Melzer brought notoriety to himself when he was identified in a local television news story as a NAMBLA member and shown counseling a nontenured teacher about “laying low” regarding his NAMBLA membership until he received tenure. As a result of this exposure, Melzer became fodder for other print and electronic media.

Melzer argued that his “participation in NAMBLA and publication of the NAMBLA Bulletin was expression on public issues and therefore on the highest rung of the hierarchy of First Amendment value.” He claimed that he was terminated in retaliation for his expressions, which were “unrelated to his job and spoken outside the employment context”; therefore, his termination was unconstitutional. Relying on Pickering and Connick analysis, the school district countered that Melzer’s expressions did not touch on a

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matter of public concern. The district also revealed that the majority of students, parents, and teachers did not want Melzer returned to the classroom. Students, in particular, articulated that it would be difficult for them to concentrate in a class taught by someone who advocated sex between men and boys, that they could not comfortably

interact with such a teacher, and that they would probably refuse to attend his classes. In its decision, the court held that the government can discipline an employee for speaking on a matter of public concern “if it can show that it reasonably believed that the speech would potentially interfere with or disrupt the government’s activities. . . .” In this instance, the court decided that “the potential disruptiveness was sufficient to outweigh the First Amendment value of that speech.”

Termination of a teacher based on sexual misconduct occurring twenty-four years earlier was upheld. The teacher objected to the school publicizing his disciplinary conviction; however, the court in De Michele v. Greenburgh Central School District. No. 7, 167 F.3d 784 (2d Cir. 1999), held that the public had a strong interest in protecting schoolchildren from a sexual predator, and the public’s interest outweighed those of the teacher.

A teacher’s dismissal, based on a grand jury’s indictment for sexual misconduct withteenage pupils, was upheld. Although the teacher was not provided a hearing before the school board to refute the allegations of misconduct, the court ruled that the dismissal did not violate his right of due process. In the event that the school board brought the charges, the court held, the teacher would have been entitled to a hearing before the board. The court stated:

After the grand jury had acted, the issue for the board was not whether Moore had committed the acts charged by the girls or whether he was guilty or innocent under the indictments but whether the existence and pendency of the indictments justified his suspension and the refusal to act upon the matter of his contract renewal. (p. 1073)

See Moore v. Knowles, 482 F.2d 1069 (5th Cir. 1973). Revocation of the teaching certificate of a junior high school teacher, accused of immorality

because of her sexual misconduct with school-age children, especially a fifteen-year-old male student, was upheld in Howard v. Missouri State Board of Education, 913 S.W.2d 887 (Mo. Ct. App. 1996). In her defense, the teacher alleged that she was acting under the influence of either mental illness or medications associated with that illness and lacked the intent to commit any immoral act. In rejecting this defense, the court declared that it was not necessary to prove intent in order to revoke a teaching license for immorality.

Important lessons may be learned from the Iowa Supreme Court’s rationale in deciding a tragic case. In this instance, alcohol was consumed by students at a party hosted by a teacher on her property. The party had started at 2 p.m. Later that evening, after the consumption of much alcohol by student attendees and while driving to purchase more alcohol, four students were killed. In upholding the teacher’s termination, the court in Walthart v. Edgewood-Colesburg Community School District, 694 N.W.2d 740 (Iowa 2005), agreed with the school board that:

. . . Walthart had knowledge that alcohol was being consumed on her property, she allowed that to continue without adequate monitoring, and she did nothing to stop the party except to take some of the car keys. The board concluded this damaged her reputation as a teacher and was detrimental to her ability to be an effective role model. It found she lacked support from other faculty members, indicating her effectiveness as a teacher was greatly diminished. The board concluded that:

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for the Board to retain her on the faculty would render its anti-alcohol policy meaningless and subject to utter disregard by the student body and perhaps even the faculty. (p. 748)

Although the notion that teachers should be role models is controversial and disputed by some educators and legal scholars, educators should take note that this court specifically considered teachers to be role models. Additionally, this decision again revealed that a teacher’s improper off-campus conduct can result in severe teacher sanction.

VII. EMPLOYMENT DISCRIMINATION

Certain personnel practices that have had an impact on racial minorities, women, pregnant women, religious groups, older persons, and people with disabilities have been challenged as being discriminatory. Although it has been argued that some of these practices may have reflected custom and did not have an overt discriminatory intent when instituted, those directly affected by them have alleged that they were in fact discriminatory.

In addition to constitutional protections under the Fourteenth Amendment’s Equal Protection and Due Process Clauses, several federal statutes protect public school personnel against employment discrimination. These statutes include Sections 1981 through 1983 of Title 42, U.S. Code; Title IX of the Education Amendments of 1972; the Americans with Disabilities Act of 1990 as amended and Section 504 of the Rehabilitation Act of 1973; the Pregnancy Discrimination Act of 1978; and Title VII of the Civil Rights Act of 1964.* The Civil Rights Act of 1964 was the seminal legislative enactment of the movement to eradicate discrimination in the United States. Title VII, 42 U.S.C. § 2000e (1964), the section dealing with discrimination, in both the public and private workplace, provides in part:

SEC. 2000E2 [§ 703]**

(a) It shall be an unlawful employment practice for an employer (1) 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 (2) 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 oppor-tunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin, . . .

(e) (1) it shall not be an unlawful employment practice . . . to hire and employ employees . . . on the basis of . . . religion, sex, or national origin in those certain instances where reli-gion, sex, or national origin is a bona fide occupational qualification reasonably neces-sary to the normal operation of that particular business or enterprise, . . . (h) . . . it shall not be an unlawful employment practice . . . to [use] a bona fide seniority or merit system, . . . provided that such differences are not the result of an intention to dis-criminate . . . nor shall it be an unlawful employment practice . . . to give and to act upon the results of any professionally developed ability test, provided that such test . . . is not designed, intended or used to discriminate . . . (j) Nothing . . . contained in this subchapter shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an im-balance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer . . . in com-parison with the total number or percentage of persons of such race, color, religion,

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sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.

* * *

____________________ *See Appendix D for a partial text of these statutes. **Bracketed section numbers refer to the public law citation.

SEC. 2000E5 [§ 706] (g) If the court finds that the [employer] has intentionally engaged in . . . an unlawful employment practice . . . the court . . . may order such affirmative action as may be appropriate, . . .

A. Racial Discrimination

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), which declared de jure segregation to be a violation of the Equal Protection Clause of the Fourteenth Amendment, had an enormous impact on black teachers in formerly segregated schools. Court-ordered desegregation plans subsequent to Brown often contained provisions effectively regulating the hiring, promotion, and dismissal of minority school personnel. Many courts also imposed affirmative action plans on school districts that had violated Title VII. As a consequence of these actions, the issue of racial discrimination in the hiring, treatment, and dismissal of black teachers became a much-litigated one during the early days of desegregation.

Involuntary termination of black teachers in school systems that were under court order to desegregate often resulted in severe action against offending school systems. Court action in such cases included awarding monetary damages, back pay, and attorneys’ fees to minority plaintiffs; assessing court costs against defendant school districts; reinstating personnel; freezing the hiring of white teachers; and requiring districts to report all personnel actions to the court for a specified time. Such severe judicial enforcement of desegregation remedies, coupled with the vigorous application of Title VII, has been effective in reducing discriminatory employment practices against black teachers.

Over the years, court decisions have continued to address issues of alleged racial discrimination against black teachers. Several Supreme Court decisions have addressed the limits of affirmative action plans. Although not a decision dealing with educators, a six-to-three Supreme Court decision upheld the “last-hired—first-fired” principle as applied to Memphis firefighters. The Court asserted that seniority systems, as long as they are unbiased, may not be disrupted to save the jobs of newly hired minority workers. The decision states that “it is inappropriate to deny an innocent employee the benefits of his seniority in order to provide a remedy in a pattern or practice suit such as this.” See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984).

Additionally, the Supreme Court did not uphold a layoff plan that was part of a school district’s collective bargaining agreement. Although the plan called for retaining teachers by seniority, it also stipulated that minorities were not to be dismissed in proportions greater than their representation in the district. When, in accordance with the racially sensitive stipulation, white teachers were terminated instead of less-senior black teachers, the displaced white teachers claimed reverse discrimination. In its five-to-four decision, the Court agreed, holding that the policy was a violation of the nonminority teachers’ constitutional equal protection. Racial classifications such as that imposed by the policy were justified only when narrowly tailored to accomplish a compelling state purpose. However, the Court found that other, less intrusive, means were available to the district to accomplish its purpose—for example, the adoption of hiring goals. Although the policy would have been allowable to remedy past de jure discrimination, no such finding had been made in court. See Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).

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A federal court rejected an affirmative action plan preferring minority teachers over non-minority teachers when candidates to be laid off appeared to be equally qualified. Under this

plan, a white female business education teacher was laid off instead of a black female teacher with the same seniority, solely on the basis of race. The court held that the board’s plan violated Title VII, was not adopted to remedy discrimination or the effects of past discrimination, was designed to promote racial diversity for the sake of educational purposes, unnecessarily trammeled nonminority interests, was devoid of goals and governed by the board’s whim, and imposed job loss on tenured nonminority employees. See Taxman v. Board of Education of the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996), cert. dismissed, 522 U.S. 1010 (1997). Prior to the Supreme Court making its decision, a settlement of $433,500 by the school board, 70 percent of which was paid by the Black Leadership Forum, preempted further Court review. Because the case dealt with the loss of a job, based solely on race, opponents of affirmative action claim that the settlement was effected to prevent a possible Supreme Court assault on both private and public affirmative action programs. Title VII of the Civil Rights Act of 1964 applies to both private and public employment.

A Supreme Court decision involving cannery workers in Alaska, Wards Cove Packing Company v. Atonio, 490 U. S. 642 (1989), had a dramatic, if not chilling, effect on civil rights litigation. Prior to this decision, statistics revealing a racial imbalance between unskilled and more highly skilled positions were, in many instances, sufficient to make out a case of “disparate impact” under Title VII of the Civil Rights Act of 1964. Courts often ruled that disparate impact occurred when an identical standard was equally applied to all applicants or employees, but its application negatively affected some groups such as African Americans. This view was originally established in Griggs v. Duke Power Company, 401 U. S. 424 (1971), when the Court held that a facially neutral employment practice may be deemed to be violative of Title VII without evidence of an employer’s subjective intent to discriminate. The decision in Wards Cove significantly altered these notions by holding that statistics alone were not enough to prove discrimination; rather, causation must be shown between an employment practice and the alleged disparity in hiring; although minorities may be disproportionately concentrated in unskilled positions, the relevant question is the size of the pool of minority candidates for the higher skilled positions, and the burden of proof is on the plaintiffs to show that employers engage in practices that dis-proportionately exclude minorities and women.

The Civil Rights Act of 1991 nullified or modified Supreme Court decisions such as Wards Cove and several others rendered in the late 1980s that had made it more difficult for workers to win antidiscrimination suits. Under this law, victims of employment bias based on race, sex, disability, religion, or national origin may collect limited compensatory and punitive damages. Damages had heretofore only been available to victims of discrimination based on race. Employment practices, under the Civil Rights Act of 1991, must be “job-related for the position in question and consistent with business necessity.” Another major purpose of the law was to return to the standard set by the Supreme Court prior to the Wards Cove decision, which required employers to prove that an employment standard that results in adverse impact is necessary for successful job performance.

A high school band teacher who failed to have his contract renewed claimed that his discharge was racially discriminatory. Reasons for the nonrenewal included parental concern over disorder and inconsistency in the band program; failure to care for the band’s equipment and facilities; the program’s being loosely structured; failure to provide leadership or to command respect; and deficiency of organizational skills. The federal appellate court held that “the reasons asserted by the school district may have been based partly on subjective considerations, but they were premised on objective factual

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observations that clearly constitute legitimate reasons for not renewing the plaintiff’s contract.” See Tyler v. Hot Springs School District No. 6, 827 F.2d 1227 (8th Cir. 1987).

A ten-year veteran black teacher was terminated after receiving unfavorable evaluations and failing to cure her serious and repeated performance deficiencies. Testimony from evaluators revealed that her teaching methods were ineffective and even “harmful to students” because of her negativity in the classroom and, compared to other teachers that had been evaluated, ranked “at the bottom of the list.” She was reprimanded for using the word “fucking” during a confrontation with a student. On another occasion she called a student a “dumb shit” and told him, “if [she] was not a teacher, [she] would knock [the student] upside [his] head with a stick.” In rejecting the teacher’s race discrimination claim, the appellate court in Shanklin v. Fitzgerald, 397 F.3d 596 (8th Cir. 2005), held that there were legitimate, nondiscriminatory reasons for her discharge, namely that she did not improve in the deficient areas in which she was repeatedly counseled. Additionally, the court averred that the teacher failed to show that the school board’s actions were a pretext for unlawful race discrimination.

Concern over excellence in the public schools has brought increased attention to the quality of teachers and to the adequacy of teacher-training programs. One result of this concern has been the increased use of competency testing of both prospective and practicing teachers, prior to their certification, hiring, promotion, or retention. Such tests have raised racial discrimination issues because these tests have often had a disproportionate impact on racial minorities. It should be noted that Title VII specifically condones professionally developed employment tests when such tests are not used to discriminate.

Teacher competency tests have been challenged, primarily in southern states, on a variety of constitutional and statutory grounds, including alleged racially biased content and alleged failure sufficiently to validate the tests’ job relatedness. Courts have found that such testing fulfills a legitimate state function, and they have upheld tests and cutoff scores that objective validation has shown to be indicative of actual job qualifications. The decision in United States v. South Carolina, 445 F. Supp. 1094 (S.C. 1977), upheld the use of the National Teacher Examination as a requirement for state certification, despite the fact that its use disproportionately disqualified African Americans. And in United States v. LULAC, 793 F.2d 636 (5th Cir. 1986), the Texas Pre-Professional Skills Test, which college students were required to pass before scheduling more than six hours of professional education courses at any state college or university, was upheld. The testing of veteran teachers was upheld in Texas v. Project Principle, 724 S.W.2d 387 (Tex. 1987).

Most states use one or more of the Praxis Series tests or state-specific tests for prospective teachers, active teachers, or state licensing. Unfortunately, the goal of supplying quality teachers to the classroom is not always achieved by using these tests. Qualifying scores on tests have often been set abysmally low in those states that have such pressures as a serious teacher shortage, a fear of discrimination lawsuits, and meeting such deadlines as getting a “highly qualified” teacher in every classroom which was a requirement under the No Child Left Behind Act of 2001. It should also be noted that these tests are designed to weed out teachers who do not have critical knowledge and pedagogical skills, rather than distinguishing between highly qualified and merely ordinary teachers.

B. Sex Discrimination

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Both Title VII and Title IX of the Civil Rights Act have been employed by plaintiffs alleging sex discrimination. Challenged on the basis of Title VII, Fuhr v. 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.

FUHR v. SCHOOL DISTRICT OF THE CITY OF HAZEL PARK

United States Court of Appeals, Sixth Circuit, 2004 364 F.3d 753

ALICE M. BATCHELDER, Circuit Judge. Defendant-appellant School District of the City of Hazel Park (“Hazel Park”) appeals from a jury

award in favor of plaintiff-appellee Geraldine Fuhr, in Fuhr’s sexual discrimination suit brought under Title VII,. . . . Hazel Park also appeals the district court’s subsequent injunctive order requiring the school district to hire Fuhr as head coach of the school’s varsity male basketball team, as well as the award of attorneys’ fees to the plaintiff. Plaintiff appellee Fuhr cross-appeals the district court’s order striking the jury’s award of future damages following her installment as the boys’ varsity basketball head coach. For the reasons set forth below, we will AFFIRM the judgment of the district court in all respects.

This suit arises from Hazel Park’s 1999 decision to hire John Barnett rather than Fuhr for the vacant position of boys’ varsity basketball coach. At that time, Barnett, a relatively new male teacher at Hazel Park, had coached the boys’ freshman basketball team for two years. On the other hand, Fuhr, a female teacher at Hazel Park, had been the head coach of the girls’ varsity basketball team for some ten years, and coach of the boys’ junior varsity and assistant coach of the boys’ varsity basketball teams for eight years.

In 1999, Charles Kirkland, the boys’ varsity basketball coach, announced his intention to retire from coaching at the end of the year. Fuhr and Barnett were the only individuals who applied for the post. At the same time, David Aldred, who had been the Hazel Park High School athletic director for thirteen or fourteen years, announced that he was retiring on July 1, 1999. The committee assembled to interview the candidates for the position consisted of Superintendent James Anker; Dan Grant, the district athletic director; Victor Mayo, the assistant superintendent; Jim Meisinger, the high school principal; and Tom Pratt, the individual replacing Aldred as the high school athletic director. Neither Aldred nor Kirkland, both of whom who supported Fuhr for the coaching job, was on the committee. According to Aldred, Grant told him that Anker did not want Aldred to participate in the interviews.

The committee interviewed Barnett first, followed immediately by Fuhr. Anker, who made the ultimate hiring decision, left Fuhr’s interview shortly after it started and did not return. In the committee conference following the interviews, some members expressed concerns about unspecified community complaints against Fuhr and the idea that Fuhr would be coaching two major varsity sports in quick succession. Anker eventually returned to the meeting and, according to Meisinger, informed the committee that several members of the school board did not want Fuhr to be named the boys’ varsity basketball coach, and that “he had to comply with their request.” According to Aldred, this story was supported by comments made by Clint Adkins, the board president, who said he was “very concerned about a female being the head boys’ basketball coach in Hazel Park.” A day after the interview, Anker announced that Barnett would be the new boys’ varsity basketball coach.

In October 1999, Fuhr filed suit in the Eastern District of Michigan, seeking compensatory damages, punitive damages, judgment for past and future lost wages and benefits, an order of the court placing her in the position of boys’ varsity basketball coach, attorneys’ fees, and any other appropriate equitable relief. * * *

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The jury returned a verdict in Fuhr’s favor, awarding her $245,000 in present damages and $210,000 in future damages. The district court thereafter granted Fuhr’s request for injunctive relief, ordering Fuhr named boys’ varsity basketball coach. In an amended order, after receiving briefs on the subject of future damages, the district court struck the jury’s award of future damages in its entirety. The district court also granted Fuhr attorneys’ fees, and denied Hazel Park’s motion for a new trial, motion for remittitur, and renewed motion for judgment.

* * * The ultimate question of discrimination in this case is whether Hazel Park “failed or refused to

hire . . . or otherwise . . . discriminated against [Fuhr] with respect to her compensation, terms, conditions, or privileges of employment, because of [Fuhr]’s . . . sex.”. . . Under the circumstances of this case, that question includes a determination of whether there was evidence from which the jury could have concluded that the action of which Fuhr complains was adverse to her. * * *

The district court directly addressed this issue in its order denying Hazel Park’s motion for a new trial:

Defendant continues to argue that this is a failure to transfer case, in spite of the court’s previous ruling that what is at issue is either a failure to promote plaintiff from coach of the boys’ junior varsity basketball team to boys’ varsity coach, or a simple failure to hire case. When viewed as a failure to promote or failure to hire case, the pay differential between the boys’ junior varsity and varsity positions makes it clear that plaintiff has established adverse employment action.

* * * We think the district court was entirely correct here. Although Fuhr stated during trial that she would be willing to quit coaching the girls’ varsity team in order to coach the boys’ varsity, it is clear from the testimony at trial that the decision-makers at Hazel Park thought Fuhr intended to coach both teams. The relevant inquiry is therefore not whether the boys’ varsity position would have resulted in an increase in pay over that of the girls’ varsity position, but rather whether it would have resulted in an increase in pay over that of the junior varsity position. Clearly it would have. Contrary to Hazel Park’s assertion, Fuhr did suffer an adverse employment action.

* * * Here, in addition to her prima facie case, Fuhr presented direct evidence that gender was a factor

in the decision not to hire Ms. Fuhr as the boys’ varsity basketball coach. There was testimony that Clint Adkins, the President of the School Board, had stated that he was “very concerned about a female being the head boys basketball coach in Hazel Park.” The Superintendent, James Anker, admitted that members of the Board had indicated to him that they did not want Fuhr to get the job as boys’ varsity coach. Following the decision not to hire her, Fuhr also had conversations with Principal Jim Meisinger, who confirmed that the reason she did not get the job was her gender.

* * * Hazel Park has failed to demonstrate a reasonable probability that the jury was improperly

influenced by these comments. Hazel Park offers no support for its contention that the jury would not have awarded $245,000 in present damages, had the jury known that Fuhr could have sought injunctive relief once the jury found that Hazel Park had denied her the position on the basis of her gender. Hazel Park’s assertions alone are not enough to establish reasonable probability of improper influence.

Hazel Park claims that Fuhr did not present any evidence at trial of economic damages, and that Fuhr did not suffer any non-economic damages related to the boys’ varsity basketball coaching position. The record, however, is to the contrary. There was testimony that Fuhr earned a lower percentage of her teacher’s salary as coach of the boys’ junior varsity team than she would have earned as the boys’ varsity coach. The difference between these two figures represents the economic loss directly attributable to Fuhr’s failure to obtain the position of boys’ varsity basketball coach. While there is conflicting evidence as to

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the existence of non-economic damages sustained by Fuhr, the jury found that Hazel Park’s discrimination caused Fuhr emotional injury. The district court then found, quite reasonably, that the jury’s decision to award $245,000 was not clearly excessive in light of the evidence presented.

* * * Even if we could separate from the jury’s total award the amount of future lost earnings

(generously estimated by the district court to be around $50,000), this Court cannot say, based on the record, what the remaining amount of emotional damages should be. Fuhr has argued that the school district created an atmosphere at Hazel Park High School which will make it difficult for her as boys’ varsity coach, and that she will suffer future damages as a result of a hostile work environment. But whether she will in fact suffer such harm is entirely speculative and in any event, that kind of harm was never considered by the jury, which considered only the harm resulting from Fuhr’s not being the coach of the boys’ varsity basketball team. The district court therefore did not err by striking plaintiff’s future damages after granting injunctive relief.

CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court.

Notes

Title VII of the Civil Rights Act of 1964, a vastly different statute from Title IX, details the conduct that constitutes prohibited discrimination. It prohibits unequal treatment with respect to “conditions of employment.” Courts have construed “conditions” to include insulting and degrading treatment; therefore, Title VII applies to such issues as sexual harassment on the job.

The Supreme Court has addressed the issue of whether lewd joking made during a meeting evaluating job applicants constituted sexual discrimination under Title VII. During a review of job applicants, a female school district employee was present when her male supervisor read aloud a psychological report regarding one of the applicants. The report stated that the applicant had once told a coworker, “I hear making love to you is like making love to the Grand Canyon.” After reading the remark at the meeting, the male supervisor said he did not understand it, and another male employee at the meeting said he would explain it later, whereupon both men chuckled. The female administrator complained about the incident to school-district personnel. She also filed a complaint against the school district with the Equal Employment Opportunity Commission and instituted court action against the district. In time, she was transferred within the district. The United States Supreme Court, in Clark County School District v. Breeden, 532 U.S. 268 (2001), held the remark not to be sexual harassment, which is regarded as an aspect of sex discrimination under Title VII of the Civil Rights Act. In a per curiam opinion expressing its unanimous view, the Court stated that “sexual harassment is actionable under Title VII only if it is so ‘severe or pervasive’ as to alter the conditions of [the victim’s] employment and create an abusive working environment.” In this instance, “no reasonable person,” the Court asserted, could have believed that the remark made in Breeden’s presence met that test. And the Court re-terated, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’”

Whether Title IX regulations covered employment practices of schools and colleges was addressed in North Haven Board of Education v. Bell, 456 U.S. 512 (1982). This six-to-three decision by the United States Supreme Court reasoned that Congress had intended Title IX to cover employment.

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In Grove City College v. Bell, 465 U.S. 555 (1984), the Supreme Court, referring to private institutions, declared that Title IX did not apply to schools and colleges as a whole but only to those parts of an institution that received federal aid directly. The Court essentially held that Title IX was “program specific.” However, provisions of the Civil Rights Restoration Act of 1987 (20 U.S.C. § 1687 (2000)) were designed to overturn the Grove City College decision. The act made it clear that if one part of an entity receives federal funds, then the entire entity is covered.

In a five-to-four decision, Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) the Supreme Court held that there was a private right of action under Title IX for retaliation against a person complaining about sex discrimination. In this instance, a girls’ basketball coach at a public high school complained unsuccessfully to his supervisor that the team was not receiving equal funding and equal access to athletic equipment and facilities. Jackson pointed out such factors as his team playing in an old gym with bent rims and car pooling to games rather than riding school buses as the boys did, and how this made it difficult for him to do his job as the team’s coach. These kinds of complaints resulted in the coach receiving negative work evaluations and ultimately being removed as the girls’ coach. In its holding, the Court stated “. . . that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.” And such retaliation, the Court reasoned, constitutes another form of intentional sex discrimination covered under Title IX. Moreover, the Court stated “teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators. Indeed, sometimes adult employees are ‘the only effective adversar[ies]’ of discrimination in schools.”

C. Pregnancy

Until a 1974 ruling by the United 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 reemployment after delivery was decided by the Court in Cleveland Board of Education v. La Fleur, 414 U.S. 632 (1974). In its landmark decision, the Court held that mandatory maternity termination provisions stating the number of 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. And the Court stated that the challenged provisions created a conclusive presumption that every teacher is physically incapable of continuing her duties at a specified time in her pregnancy. Additionally, the Court struck down the provision that a mother could not return to work until the next regular semester after her child was three months old.

Shortly after this decision, many court challenges were brought against policies pertaining to disability benefits, sick leave, and health insurance involving pregnancy. The issue was addressed by the United States Supreme Court in a noneducator-related case, General Electric Company v. Gilbert, 429 U.S. 125 (1976). Largely as a result of the Gilbert decision, which upheld the exclusion of pregnancy-related disabilities from General Electric’s comprehensive disability plan, Congress passed the Pregnancy Discrimination Act,* which went into effect in 1979.

___________ *See Appendix D for a partial text of this statute.

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This act is an amendment to Title VII. The Pregnancy Discrimination Act stipulates that employment discrimination “because of sex” or “on the basis of sex,” as prohibited by Title VII, includes discrimination “because of or on the basis of pregnancy, childbirth or related medical conditions.” Women so situated must be treated as other applicants or employees are: on the basis of their ability to work. Women may not be fired, be denied promotions, or be refused employment as a consequence of their being pregnant or having an abortion. They may not be forced to take leave while they still can work. They may not be required to exhaust their vacation benefits prior to receiving sick leave or disability benefits, unless the same policy applies to other disabled employees. If other employees are entitled to resume their jobs after disability leave, so too are women who have been absent because of pregnancy. Usually, however, they have no guarantee of returning to their former positions or schools.

In the area of fringe benefits, such as disability benefits, sick leave, and health insurance, the same principle applies. A woman unable to work for pregnancy-related reasons is entitled to disability benefits or sick leave on the same basis as employees unable to work for other temporary medical reasons. Also, any health insurance provided must cover expenses for pregnancy-related conditions on the same basis as coverage given for other medical conditions. However, health insurance for expenses resulting from abortion is not required, except where the life of the mother would be endangered if the fetus were carried to term or where medical complications have arisen from such an abortion.

ECKMANN v. BOARD OF EDUCATION OF HAWTHORN SCHOOL DISTRICT

United States District Court, Northern District of Illinois, 1986 636 F. Supp. 1214

ROSZKOWSKl, District Judge. * * *

On June 6, 1982, plaintiff Jeanne Eckmann instituted this civil rights action against the Board of Education of Hawthorn School District No. 17 (the “School Board”) and various School Board members. Plaintiff sought compensatory and punitive damages for her allegedly unconstitutional discharge. * * *

* * * The burden of proof instruction tendered to the jury in this case was drafted according to the

dictates of Mount Healthy City Board of Education v. Doyle. * * * * * *

Based on Mount Healthy, there are three burdens in a case of this sort. The teacher must first show some constitutionally protected conduct. Once this is established, the teacher carries the burden of showing that the protected conduct was a “substantial” or “motivating” factor behind the school board’s conduct. Once the teacher carries these two burdens the school board must then show by a preponderance of the evidence that it would have taken its action even if the teacher had not engaged in the constitutionally protected conduct. * * *

The constitutionally protected conduct plaintiff alleges motivated the School Board to fire her in this case was her out-of-wedlock pregnancy coupled with her decision to raise her child as a single parent. While plaintiff’s conduct is not protected by a specifically enumerated constitutional right, this court considered it to be covered by “substantive due process.”

* * *

In Loving v. Virginia, * * * the Supreme Court held that the freedom to decide whom “to marry, or not marry . . . resides with the individual and cannot be infringed by the state.” In other words, it is

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improper for the state to interfere with a person’s decision to marry, or as it relates to this case, not to marry. The Supreme Court later stated that:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

* * * The next year, in Roe v. Wade (1973), the Court held that the constitutional right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Supreme Court precedent thus clearly shows that the individual’s decisions regarding marriage and child bearing are constitutionally protected from improper state infringement. * * * Under the overwhelming weight of this authority, it is beyond question that plaintiff had a substantive due process right to conceive and raise her child out of wedlock without unwarranted state (School Board) intrusion.

In its motion for a JNOV (judgment notwithstanding the verdict), the School Board does not contest that plaintiff’s out-of-wedlock pregnancy and her decision to raise her son as a single mother are protected by substantive due process. Rather, the School Board focuses its attack on whether plaintiff showed that her conduct in fact motivated the Board when discharging her. In a nutshell, the School Board’s position is that:

In this case a review of all of the evidence taken as a whole, in the light most favorable to the plaintiff without speculation or drawing unreasonable inferences which conflict with undisputed facts clearly shows that beyond any doubt the Defendant School Board would have taken the same action against the Plaintiff if the language referencing immorality had never been included in the documentation.

To support its position, the School Board states that “[e]very witness called by the Plaintiff or the Defendant testified that the Board would have taken the same action even without the immorality language.” * * *

This court agrees with the School Board that each Board member specifically testified that plaintiff would have been terminated even if she had not been pregnant. This court also agrees that each Board member testified that the only reason charges of “immorality” were included in plaintiff’s “Notice to Remedy,” “Letter of Dismissal” and the accompanying Bill of Particulars, was on advice of the Board’s lawyer. The Board’s lawyer confirmed this testimony. This court also recalls the numerous defense witnesses that testified as to “the cruelty, abuse, disregard and other difficulties that they had with [plaintiff] from 1979 until the time of dismissal.” * * *

What the School Board overlooks however * * * is that plaintiff did present evidence that her supposed “immorality” was the motivating factor for her discharge. For example, plaintiff submitted the “Notice to Remedy” given her by the School Board. The Notice listed numerous charges of deficiencies in plaintiff’s teaching abilities and stated that there were 11 matters that could be remedied. One such charge was:

Your conduct in becoming pregnant outside the state of marriage has diminished your ability to teach and the ability of your students to learn their lessons from you.

The Notice then cautioned plaintiff “not to engage in such conduct in the future.” Plaintiff also presented Administrative Law Judge Sidney Mogul’s written report ordering her reinstatement with full back pay. The issue in front of ALJ Mogul was whether the School Board could prove by a preponderance of the evidence that plaintiff was guilty of “negligence, insubordination, cruelty and immorality” as charged in the “Letter of Dismissal.” Following a lengthy hearing, ALJ Mogul issued a twenty-five page decision in which he found that:

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(1) “In support of the charge that the Teacher is an unfit role model, the Board has failed to show that the Teacher proselytized pupils or that the fact of childbirth out of wedlock had any substantial effect upon the Teacher’s students.” (2) “The Board has shown no evidence of significant harm to students, faculty or school, resulting from the Teacher’s unwed motherhood.” and, (3) “There is no evidence in the record that the Teacher was an immoral person. On the contrary, the record indicates that she was an eminently moral person, a religious person and staunch in her beliefs.”

ALJ Mogul went on to note that “were it not for her pregnancy and childbirth out of wedlock, this dismissal would probably not have taken place,” and that “the charges of negligence, insubordination or incompetency were purely embellishments to soften the effect of the Board’s reliance upon its charge of immorality.” * * *

* * * Also submitted was evidence to the effect that following the Notice to Remedy in July of 1981,

the School Board voted to cut plaintiff’s pay and instructed the superintendent to tell her that she could no longer manage the student council, coach the cheerleaders, organize school fundraisers or trips, or participate in graduation exercises. All of these restrictions were imposed because she was a mother.

Plaintiff also submitted an evaluation written by Board member Ed O’Brien to the effect that she was doing fine at school and that the quality of the teaching in her classroom was excellent. Plaintiff never received this evaluation. Mr. O’Brien mailed it to Board Attorney Weiler for approval. Attorney Weiler simply filed the letter away.

The School Board makes much of the fact that the immorality language was only used at the suggestion of Attorney Weiler. While this may have relevance with regard to the good faith of the Board members, the School Board as an entity enjoys no such immunity. * * *

Juries are not required to determine cases merely by weighing the number of witnesses and volume of testimony presented by each side. Were this so, the School Board would clearly have carried the day. Juries are allowed—indeed it is their task—to judge the credibility of witnesses and they are free to believe or disbelieve testimony as they see fit. The fact that the jury in this case chose to discredit the Board member’s self-serving testimony and credit plaintiff’s admittedly less-voluminous evidence does not require that its verdict be set aside.

* * * Since the verdict in this case depended in large part upon the credibility of the Board member’s

testimony and since plaintiff presented sufficient evidence to support a jury verdict contrary to this testimony, the School Board’s motion for a JNOV must be denied.

* * * * * * While the exact dollar amount of compensatory damages requested by plaintiff’s counsel is

somewhat confusing, she never asked for an amount even approaching $2,000,000. This court is fully aware that plaintiff is not limited to the amount of damages requested in argument. The amount awarded however must bear at least some relationship to the evidence presented at trial. In this court’s opinion, $750,000 will more than adequately serve to compensate plaintiff for the injuries she suffered in this case. The damage award against the School Board is remitted accordingly.

* * *

Notes and Questions

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In a seven-to-two decision, the United States Supreme Court established that an insurance plan violated the 1964 Civil Rights Act and the Pregnancy Discrimination Act because it offered full hospitalization benefits to husbands of female workers but excluded pregnancy from the full coverage offered to the wives of male workers. The decision stated that under the plan “husbands of female employees receive a specified level of hospitalization coverage for all conditions; the wives of male employees receive such coverage except for pregnancy-related conditions. . . . The 1978 act makes clear that it is discriminatory to treat pregnancy-related conditions less favorable than other medical conditions.” Therefore, the plan “unlawfully gives married male employees a benefit package for their dependents that is less inclusive than the dependency coverage provided to married female employees.” See Newport News Shipbuilding and Dry Dock Company v. Equal Employment Opportunity Commission, 462 U.S. 669 (1983).

A U.S. Court of Appeals for the Fifth Circuit recognized that a Florida teacher’s decision to breastfeed her baby had some constitutional dimensions. In its decision, the court contended that the teacher’s right to breastfeed her baby could be limited if this practice interfered with important educational interests that were furthered by the rules that prohibited teachers from bringing their children to work with them for any reason. See Dike v. School Board of Orange County, 650 F.2d 783 (5th Cir. 1981). In 1993, Florida became the first state in the nation to pass legislation guaranteeing a woman’s right to breastfeed her baby in public. The law forbids the arrest of a breastfeeding mother for obscenity, lewdness, or public nudity.

Two other United States Supreme Court decisions addressed issues related to pregnancy. In California Federal Savings and Loan Association v. Guerra, 479 U.S. 272 (1987), a six-to-three decision, the Court upheld a California law granting four months of unpaid maternity leave to pregnant workers and guaranteeing that they could return to their former jobs. However, a unanimous Supreme Court decision upheld a Missouri law that did not provide either reinstatement or unemployment benefits to a woman who left her job because of pregnancy. Under the law, benefits were available only to those who left work for job-related reasons. Layoffs or illnesses caused by a job were considered job-related; pregnancy was not. See Wimberly v. Labor and Industrial Relations Commission of Missouri, 479 U.S. 511 (1987).

Although receiving positive formal evaluations during a teacher’s probationary period prior to her pregnancy, her evaluations after returning from maternity leave and an unpaid child-care-related leave resulted in her termination and denial of tenure. The teacher claimed that after coming back to work she was subjected to harsh treatment, given a “pop-in” evaluation (a relatively rare occurrence for third-year probationary teachers), told she was not “a good fit” for the school, and given less favorable formal evaluations. She claimed these actions were largely based on pregnancy discrimination toward her for taking extended leave due to her pregnancy. In denying the school system summary judgment, the court in Helmes v. South Colonie Central School District, 564 F. Supp2d 137 (N.Y. 2008) observed:

. . . she has produced evidence calling defendants’ legitimate nondiscriminatory reasons into question. Her evidence indicates, among other things, that shortly after returning from maternity leave she was subjected to harsh treatment and a “pop-in” evaluation . . . ; she received a “middle box” report [after returning] despite receiving “top box” reports up until that time; she was replaced by a person outside of the protected class; some teachers outside of the protected class with similar credentials were granted tenure; and some teachers in the protected class with similar credentials were denied tenure or otherwise treated unfavorably. While plaintiff has not produced a single, weighty piece of evidence showing pregnancy

discrimination, the cumulative effect of the evidence she has produced is enough to defeat summary judgment. (p. 152)

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A federal district court held that a single teacher had a constitutional right to become pregnant by artificial insemination. Denying her this right, the court reasoned, would be sex discrimination under Title VII. See Cameron v. Board of Education of Hillsboro, Ohio City School District, 795 F. Supp. 228 (Ohio 1992).

A private school’s dismissal of a teacher for engaging in nonmarital sex was upheld in Boyd v. Harding Academy of Memphis, Inc., 88 F.3d 410 (6th Cir. 1996). Although the teacher alleged she was dismissed because she was pregnant, which would have been a violation of Title VII, the school maintained her dismissal was based on violation of the extramarital sex policy for which both men and women had been dismissed over the years.

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.” In Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), the Court considered a teacher’s request to use, for religious purposes, his allotment of “necessary personal business” leave. 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. The school board required the teacher to take unpaid leave for all religious observances exceeding three days. Upholding the board, the Court declared the policy to be a “reasonable accommodation” under Title VII.

Most states have laws similar to Title VII that require employers to accommodate employees’ religious practices. However, a point exists at which such accommodation may violate the Establishment Clause of the United States Constitution’s First Amendment. The Supreme Court struck down a Connecticut statute that allowed employees to absent themselves from work on any day that they claimed as their Sabbath. The Court found that the statute imposed on employers the absolute duty to conform their business practices to the religious practices of their employees. The statute allowed no exceptions, for example, in the event of a teacher’s claiming a Friday Sabbath. The Court concluded that the law’s primary effect was the advancement of a particular religious practice. See Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985).

Pennsylvania’s “Garb Statute” was challenged under Title VII by a Muslim teacher who had the conviction that Muslim women should, when in public, cover their entire body except for the hands and face. A federal appellate court upheld the school district’s refusal to allow her to wear such dress. The court ruled that the preservation of an atmosphere of religious neutrality in the public schools is a compelling state interest justifying statutes prohibiting teachers from wearing religious garb while teaching. The court concluded that it would have imposed an “undue hardship” on the school system to accommodate the teacher. See United States v. Board of Education for the School District of Philadelphia, 911 F.2d 882 (3rd Cir. 1990). However, a lower court held that a person who was not given a job because she wore head coverings, in keeping with her religious faith, during the interview was religious discrimination. The sought-after position was for a third-grade counselor with a private corporation providing services to non-public-school students under a contract with a public school district. The court reasoned that Pennsylvania’s religious garb statute was inapplicable because third-grade students would not recognize the head coverings as indicating the applicant’s Muslim faith. The fact that the head coverings would offend the religious sensibilities of persons affiliated with parochial schools was also insufficient in bringing this issue under the statute. See EEOC v. READS, Inc., 759 F. Supp. 1150 (Pa. 1991). Oregon laws that disallowed the wearing of religious dress while teaching and that provided for suspension and teaching certificate revocation have also been upheld. In this instance, the teacher wore the white clothes and turban of a Sikh Hindu. See Cooper v. Eugene School District No. 4J, 301 Or. 358,

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(1986), appeal dismissed, 480 U.S. 942 (1987). “Garb” in such statutes is often defined as any dress, mark, emblem, or insignia indicating a teacher’s membership in or adherence to a religious order, sect, or denomination. Would such a definition include a cross, crucifix, Star of David, hairstyle, or yarmulke?

A federal appellate court struck down a requirement that teachers at the private Kamehameha School be Protestant. The court reasoned that except for the school’s religious education teachers (who had a “bona fide occupational qualification” under Title VII), other teachers at the school provided instruction in the traditional secular way, and there was nothing to suggest that adherence to the Protestant faith was essential to the performance of that job. The interpreted section of Title VII stated that:

. . . it shall not be an unlawful employment practice for an employer to hire and employ employees

. . . on the basis of his religion . . . in those certain instances where religion . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. (p. 465)

See EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458 (9th Cir. 1993), cert. denied, 510 U.S. 963 (1993).

Teachers’ use of school facilities for religious meetings has also come under judicial purview. An unwritten but consistently applied Indiana school-district policy that prohibited the use of school facilities for religious activities of teachers was upheld. In this instance, several teachers had used the school facilities to pray, sing, and discuss the Bible before they were to report for duty. When the group was ordered to stop holding the meetings, they alleged that their freedom of speech had been violated. In its decision, the court noted that no other teachers held meetings of any sort before school, nor did any members of the community, and since the school had never authorized such meetings, the school was not an open forum; therefore, there was no violation of anyone’s constitutional right of free speech. See May v. Evansville-Vanderburgh School Corporation, 787 F.2d 1105 (7th Cir. 1986).

In another case, a teacher disputed not being allowed to attend an after-school meeting of a Christian-based after-school program for students on school grounds. The school system had a “Community Use of School Facilities” policy, which allowed various community organizations to use school district buildings; however, the district also had a policy that prohibited district personnel from participating in religious activities at any school or school-sponsored activities, even if activities happened after school hours. Denying the teacher’s participation in the club’s activities was based on the district’s concern that such involvement might be perceived as an establishment of religion. The teacher, on the other hand, maintained that she was engaging in private speech in a limited open forum on her own time. In its decision, the court, in Wigg v. Sioux Falls School District 49-5, 382 F.3d 807 (8th Cir. 2004), stated:

The arguments highlight the considerable tension among the clauses of the First Amendment—particularly when an issue arises in a public school setting. Does a school’s concern for avoiding accusations of establishment of religion justify inhibiting the free

speech and association rights of employees after work hours when the relevant activity takes place on school property? In this case, we do not believe so. (p. 812)

* * * . . . we conclude that Wigg’s participation in the after-school Club constitutes private speech. Wigg’s private speech does not put SFSD at risk of violating the Establishment Clause: Wigg’s speech did not occur [during a school-sponsored event;] she did not affiliate her views with SFSD

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(Wigg’s counsel proposed a disclaimer explaining that any school district employees participating in the Club were acting as private citizens and did not represent SFSD in any manner); students participated in the meetings with parental consent; and nonparticipating students—unless supervised—exited the building before the meetings began. (p. 815)

Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools, issued by the Secretary of Education as required by the No Child Left Behind Act, addressed the issue of the use of school facilities for religious activities by teachers. It stated:

Before school or during lunch, for example, teachers may meet with other teachers for prayer or Bible study to the same extent that they may engage in other conversation or nonreligious activities. . . . Is the 1986 May decision in conflict with the Guidance?

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.” Initially the ADEA was limited to workers between the ages of forty and sixty-five, and the act did not apply to the federal government, to the states and their political subdivisions, or to private employers with fewer than twenty-five employees. An important effect of the range’s upper limit is to define the minimum age for mandatory retirement.

Over the years, Congress has amended ADEA several times, resulting in extending the act’s substantive prohibitions. In 1974 Congress extended the act’s prohibitions to employers having at least twenty workers and to the federal and state governments and, thus, to public-school employees. Amendments in 1978 raised the upper limit to age seventy from sixty-five and removed the cap entirely for federal workers. A 1987 amendment took the age-70 lid off for teachers. Tenured professors in higher education were given an exemption in 1978, which expired in 1982, and another exemption in 1986, which expired in 1993. Expiration of this last exemption effectively removed the cap for tenured professors.

There is often confusion between retirement age under ADEA and an individual state’s pension retirement system regarding benefits. Are you familiar with your state’s pension retirement system’s age requirements?

________________ *See Appendix D for material pertaining to this legislation. 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.

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In those states having statutes pertaining to school employment relations, provisions vary considerably. Some 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 checkoff, the establishment of agency shops, service fees, the scope of bargaining, impasse procedures, and strike provisions.

Seventy percent of the states have statutes providing for good-faith bargaining between local school boards and bargaining groups. Several states have statutes requiring that a school board “meet and confer” or bargain in good faith with representatives of employee organizations. According to a 2008 study by the Education Commission of the States, 15 states do not have a policy that allows collective bargaining for teachers.*

Virtually all the states with collective bargaining legislation require supervisory personnel—individuals above the assistant principal level—to be in separate bargaining units. In some of these states, statutory provisions or local policies exclude supervisory personnel from the collective bar-gaining process entirely.

The right of public school teachers to strike is a highly controversial subject. Not all statutory school employment provisions address the issue of strikes. In fact, less than a dozen states give teachers a right to strike. In these states, the right is often limited by statutory provisions, which include narrow circumstances under which teachers may strike or after impasse resolution procedures have been exhausted. Statutes in approximately half of the states specifically prohibit strikes by teachers, and in some instances penalties for striking are specified. An important and often-litigated issue for teachers who do not wish to join a union has to do with the collection of and uses of compulsory union dues. This issue is addressed in Lehnert v. Ferris Faculty Association.

LEHNERT v. FERRIS FACULTY ASSOCIATION

Supreme Court of the United States, 1991 500 U. S. 507

JUSTICE BLACKMUN announced the judgment of the Court and delivered the opinion of the Court * * *

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.

_________________ *Alabama, Arizona, Arkansas, Colorado, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, South Carolina, Texas, Virginia, West Virginia, and Wyoming

Michigan’s Public Employment Relations Act (Act), Mich. Comp. Laws §§ 423.201 et seq. (1978), provides that a duly selected union shall serve as the exclusive collective-bargaining representative of public employees in a particular bargaining unit. The Act, which applies to faculty members of a public educational institution in Michigan, permits a union and a government employer to enter into an “agency shop” arrangement under which employees within the bargaining unit who decline to become members of the union are compelled to pay a “service fee” to the union.

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Respondent Ferris Faculty Association (FFA), an affiliate of the Michigan Education Association (MEA) and the National Education Association (NEA), serves, pursuant to this provision, as the exclusive bargaining representative of the faculty of Ferris State College in Big Rapids, Mich. Ferris is a public institution established under the Michigan Constitution and is funded by the State. * * * Since 1975, the FFA and Ferris have entered into successive collective-bargaining agreements containing agency shop provisions. Those agreements were the fruit of negotiations between the FFA and respondent Board of Control, the governing body of Ferris. * * *

Subsequent to this Court’s decision in Abood v. Detroit Board of Education, in which the Court upheld the constitutionality of the Michigan agency-shop provision and outlined permissible uses of the compelled fee by public-employee unions, Ferris proposed, and the FFA agreed to, the agency-shop arrangement at issue here. That agreement forced all employees in the bargaining unit who did not belong to the FFA to pay a service fee equivalent to the amount of dues required of a union member. Of the $284.00 service fee for 1981–1982, the period at issue, $24.80 went to the FFA, $211.20 to the MEA, and $48.00 to the NEA.

* * * Following a partial settlement, petitioners took an appeal limited to the claim that the District

Court erred in holding that the costs of certain disputed union activities were constitutionally chargeable to the plaintiff faculty members. Specifically, petitioners objected to the District Court’s conclusion that the union constitutionally could charge them for the costs of (1) lobbying and electoral politics; (2) bargaining, litigation, and other activities on behalf of persons not in petitioners’ bargaining unit; (3) public relations efforts; (4) miscellaneous professional activities; (5) meetings and conventions of the parent unions; and (6) preparation for a strike which, had it materialized, would have violated Michigan law.

* * * It was not until the decision in Abood that this Court addressed the constitutionality of

union-security provisions in the public-employment context. There, the Court upheld the same Michigan statute which is before us today against a facial First Amendment challenge. At the same time, it determined that the claim that a union has utilized an individual agency-shop agreement to force dissenting employees to subsidize ideological activities could establish, upon a proper showing, a First Amendment violation. In so doing, the Court set out several important propositions:

First, it recognized that “[t]o compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests.” * * * Unions traditionally have aligned themselves with a wide range of social, political, and ideological viewpoints, any number of which might bring vigorous disapproval from individual employees. To force employees to contribute, albeit indirectly, to the promotion of such positions implicates core First Amendment concerns. * * * Second, the Court in Abood determined that, as in the private sector, compulsory affiliation with, or monetary support of, a public-employment union does not, without more,

violate the First Amendment rights of public employees. Similarly, an employee’s free speech rights are not unconstitutionally burdened because the employee opposes positions taken by a union in its capacity as collective-bargaining representative. * * *

In this connection, the Court indicated that the considerations that justify the union shop in the private context—the desirability of labor peace and eliminating “free riders”—are equally important in the public-sector workplace. Consequently, the use of dissenters’ assessments “for the purposes of

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collective bargaining, contract administration, and grievance adjustment,” * * * approved under the Railway Labor Act (RLA) is equally permissible when authorized by a State vis-á-vis its own workers.

Third, the Court established that the constitutional principles that prevent a State from conditioning public employment upon association with a political party, see Elrod v. Burns, * * * or upon professed religious allegiance, see Torcaso v. Watkins, * * * similarly prohibit a public employer “from requiring [an employee] to contribute to the support of an ideological cause he may oppose as a condition of holding a job” as a public educator. * * *

* * * Thus, although the Court’s decisions in this area prescribe a case-by-case analysis in determining

which activities a union constitutionally may charge to dissenting employees, they also set forth several guidelines to be followed in making such determinations. Hanson and Street and their progeny teach that chargeable activities must (1) be “germane” to collective-bargaining activity; (2) be justified by the government’s vital policy interest in labor peace and avoiding “free riders”; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop.

* * * The Court of Appeals determined that unions constitutionally may subsidize lobbying and other

political activities with dissenters’ fees so long as those activities are “pertinent to the duties of the union as a bargaining representative.” * * * In reaching this conclusion, the court relied upon the inherently political nature of salary and other workplace decisions in public employment. “To represent their members effectively,” the court concluded, “public sector unions must necessarily concern themselves not only with negotiations at the bargaining table but also with advancing their members’ interests in legislative and other ‘political’ arenas.” * * *

This observation is clearly correct. Public-sector unions often expend considerable resources in securing ratification of negotiated agreements by the proper state or local legislative body. * * * Similarly, union efforts to acquire appropriations for approved collective-bargaining agreements often serve as an indispensable prerequisite to their implementation. * * * It was in reference to these characteristics of public employment that the Court in Abood discussed the “somewhat hazier” line between bargaining-related and purely ideological activities in the public sector. * * * The dual roles of government as employer and policymaker in such cases make the analogy between lobbying and collective bargaining in the public sector a close one.

This, however, is not such a case. Where, as here, the challenged lobbying activities relate not to the ratification or implementation of a dissenter’s collective bargaining agreement, but to financial support of the employee’s profession or of public employees generally, the connection to the union’s function as bargaining representative is too attenuated to justify compelled support by objecting employees.

* * * Labor peace is not especially served by allowing such charges because, unlike

collective-bargaining negotiations between union and management, our national and state legislatures,

the media, and the platform of public discourse are public fora open to all. Individual employees are free to petition their neighbors and government in opposition to the union which represents them in the workplace. Because worker and union cannot be said to speak with one voice, it would not further the cause of harmonious industrial relations to compel objecting employees to finance union political activities as well as their own.

Similarly, while we have endorsed the notion that nonunion workers ought not be allowed to benefit from the terms of employment secured by union efforts without paying for those services, the so-called “free-rider” concern is inapplicable where lobbying extends beyond the effectuation of a

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collective-bargaining agreement. The balancing of monetary and other policy choices performed by legislatures is not limited to the workplace but typically has ramifications that extend into diverse aspects of an employee’s life.

* * * Accordingly, we hold that the State constitutionally may not compel its employees to subsidize

legislative lobbying or other political union activities outside the limited context of contract ratification or implementation.

* * * The essence of the affiliation relationship is the notion that the parent will bring to bear its often

considerable economic, political, and informational resources when the local is in need of them. Consequently, that part of a local’s affiliation fee which contributes to the pool of resources potentially available to the local is assessed for the bargaining unit’s protection, even if it is not actually expended on that unit in any particular membership year.

* * * We therefore conclude that a local bargaining representative may charge objecting employees for

their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates, even if those activities were not performed for the direct benefit of the objecting employees’ bargaining unit. This conclusion, however, does not serve to grant a local union carte blanche to expend dissenters’ dollars for bargaining activities wholly unrelated to the employees in their unit. The union surely may not, for example, charge objecting employees for a direct donation or interest-free loan to an unrelated bargaining unit for the purpose of promoting employee rights or unionism generally. Further, a contribution by a local union to its parent that is not part of the local’s responsibilities as an affiliate but is in the nature of a charitable donation would not be chargeable to dissenters. There must be some indication that the payment is for services that may ultimately enure to the benefit of the members of the local union by virtue of their membership in the parent organization. And, as always, the union bears the burden of proving the proportion of chargeable expenses to total expenses. * * * We conclude merely that the union need not demonstrate a direct and tangible impact upon the dissenting employee’s unit.

* * * The Court of Appeals found that the union could constitutionally charge petitioners for the costs

of a Preserve Public Education (PPE) program designed to secure funds for public education in Michigan, and that portion of the MEA publication, the Teacher’s Voice, which reported these activities. Petitioners argue that, contrary to the findings of the courts below, the PPE program went beyond lobbying activity and sought to affect the outcome of ballot issues and “millages” or local taxes for the support of public schools. Given our conclusion as to lobbying and electoral politics generally, this factual dispute is of little conse-

quence. None of these activities was shown to be oriented toward the ratification or implementation of petitioner’s collective-bargaining agreement. We hold that none may be supported through the funds of objecting employees.

Petitioners next challenge the Court of Appeals’ allowance of several activities that the union did not undertake directly on behalf of persons within petitioners’ bargaining unit. This objection principally concerns NEA “program expenditures” destined for States other than Michigan, and the expenses of the Teacher’s Voice listed as “Collective Bargaining” and “Litigation.” Our conclusion that unions may bill dissenting employees for their share of general collective-bargaining costs of the state or national parent union is dispositive as to the bulk of the NEA expenditures. The District Court found these costs to be

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germane to collective bargaining and similar support services and we decline to disturb that finding. No greater relationship is necessary in the collective-bargaining context.

This rationale does not extend, however, to the expenses of litigation that do not concern the dissenting employees’ bargaining unit or, by extension, to union literature report-ing on such activities. * * *

The Court of Appeals determined that the union constitutionally could charge petitioners for certain public-relations expenditures. In this connection, the court said: “Public relations expenditures designed to enhance the reputation of the teaching profession . . . are, in our opinion, sufficiently related to the unions’ duty to represent bargaining unit employees effectively so as to be chargeable to dissenters.” * * * We disagree. * * *

* * * The District Court and the Court of Appeals allowed charges for those portions of the Teachers’

Voice that concern teaching and education generally, professional development, unemployment, job opportunities, award programs of the MEA, and other miscellaneous matters. Informational support services such as these are neither political nor public in nature. Although they do not directly concern the members of petitioners’ bargaining unit, these expenditures are for the benefit of all and we discern no additional infringement of First Amendment rights that they might occasion. In short, we agree with the Court of Appeals that these expenses are comparable to the de minimis social activity charges approved in Ellis. * * *

The Court of Appeals ruled that the union could use the fees of objecting employees to send FFA delegates to the MEA and the NEA conventions and to participate in the 13E Coordinating Council, another union structure. Petitioners challenge that determination and argue that, unlike the national convention expenses found to be chargeable to dissenters in Ellis, the meetings at issue here were those of affiliated parent unions rather than the local, and therefore do not relate exclusively to petitioners’ unit.

We need not determine whether petitioners could be commanded to support all the expenses of these conventions. The question before the Court is simply whether the unions may constitutionally require petitioners to subsidize the participation in these events of delegates from the local. We hold that they may. That the conventions were not solely devoted to the activities of the FFA does not prevent the unions from requiring petitioners’ support. We conclude above that the First Amendment does not require so close a connection. Moreover, participation by members of the local in the formal activities of the parent is likely to be an important benefit of affiliation. * * *

The chargeability of expenses incident to preparation for a strike which all concede would have been illegal under Michigan law, * * * is a provocative question. At the beginning of the 1981–1982 fiscal year, the FFA and Ferris were engaged in negotiating a new collective-bargaining agreement. The union perceived these efforts to be ineffective, and began to prepare a “job action” or, in more familiar terms, to go out on strike. These preparations entailed the creation by the FFA and the MEA of a “crisis center” or “strike headquarters.” * * *

* * * Petitioners can identify no determination by the State of Michigan that mere preparation for an

illegal strike is itself illegal or against public policy, and we are aware of none. Further, we accept the rationale provided by the Court of Appeals in upholding these charges that such expenditures fall “within the range of reasonable bargaining tools available to a public sector union during contract negotiations.” * * *

In sum, these expenses are substantively indistinguishable from those appurtenant to collective-bargaining negotiations. The District Court and the Court of Appeals concluded, and we agree, that they aid in those negotiations and enure to the direct benefit of members of the dissenters’ unit. Further, they impose no additional burden upon First Amendment rights. The union may properly charge

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petitioners for those costs. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

* * *

Notes

As seen in this decision, Michigan employs an agency-shop arrangement under which union membership is not mandatory; however, nonunion members must pay a “service fee” to the union. Although under state law there may be differences between the public and private sectors, generally under a “closed shop,” union membership is a condition of employment, and under an “open shop” union membership and related activities may be restricted or not allowed. Abood v. Detroit Board of Education, 431 U.S. 209 (1977) mentioned in Lehnert, held that nonunion teachers could be required to pay fees equivalent to the portion of the union member dues necessary to maintain the collective bargaining agreement. Another Court decision, Chicago Teachers Union Local No. 1 v. Hudson, 475 U.S. 292 (1986), addressed fair procedures governing a union’s collection of agency fees from nonmembers. In its decision, the Court held that the Constitution requires (1) an adequate explanation of the basis for the fee; (2) a reasonably prompt opportunity to challenge, before an impartial decision maker, the amount of the fee; and (3) an es-crow for the amounts reasonably in dispute while such a challenge is pending. The issue of whether a union had to obtain affirmative consent before spending a nonmember’s agency fees for nonallowed purposes was addressed in Davenport v. Washington Education Association, 551 U. S. 177 (2007). Here the Court held that affirmative approval was required from the nonmember rather than allowing the collection of fees until the nonmember raised an objection. Educators in states without collective bargaining, negotiation, or even “meet and confer” legislation usually find the Lehnert decision startling in its description of union activity. For in-stance, such educators often have no notion of the “free-rider” problem discussed in the decision.

IX. POLITICAL ACTIVITIES

Not many states have addressed the issue of whether restrictions should be placed on the political activities of public-school teachers. Although several states have statutes covering the political candidacy of public-school employees, most of the statutory provisions are far from comprehensive.

Four significant legal issues are involved when a public-school employee becomes a candidate for public office or campaigns for other political candidates and issues. These issues are (1) the school employee’s First Amendment rights of freedom of expression and association, (2) incompatibility of office provisions, (3) conflict-of-interest provisions, and (4) nepotism provisions.

Although a public-school employee has the First Amendment right to run for public office, a distinction must be made between the employee’s right to run for public office and the right to continue school employment while holding public office. 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 this is against (1) incompatibility-of-office provisions, (2) conflict-of-interest provisions, and (3) provisions providing for the tripartite separation of the divisions of govern-ment. Courts have consistently held that these provisions represent a compelling state need that justifies infringements on the school employee’s political rights. Under state incompatibility-of-office and conflict-of-interest provisions, courts have estab-lished 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

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supervisory powers over their employing school district. However, in the absence of statutory prohibitions, public-school employees may serve on a board of education that is not their employing board.

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. In those states that prohibit legislators from having a direct or indirect interest in any contract dependent on funds appropriated while they serve in the legislature, school employees may not be able to continue school employment. However, in states that do not have this type of statutory provision, courts have held that the school employee may serve in the legislature but that it is reasonable for the board of education to require the employee to take an unpaid leave of absence while so serving. Under incompatibility-of-office provisions, courts have held that there is no incompatibility between local school employment and serving in 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. Or, the board member’s continuation in office may be in jeopardy if he or she has relatives who are employed by the school board. Some state courts, under general nepotism statutes, do not strictly apply nepotism provisions to certificated school personnel. These courts have applied the rationale that state certification requirements and teacher tenure acts prevent nepotism practices in the hiring of school employees. On the other hand, where an education statute addresses nepotism issues on the part of members of a board of education, the courts strictly apply the language of such a statute.

A public vocational school district’s antinepotism policy that prevented a married couple from working together at the same school was challenged in Montgomery v. Carr, 101 F.3d 117 (6th Cir. 1996). 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, including avoiding friction if the marriage broke down, promoting collegiality among teachers, minimizing the friction caused by married teachers who have a “you and I against the world” mentality, and easing the task of managers. Interestingly enough, the anti-nepotism policy did not apply to couples who were simply living together.

Public-school employees have the First Amendment right to campaign for other political candidates and issues; however, this right is not absolute. Courts have held that these types of activities (1) may not take place during working hours, (2) may not take place in the classroom, (3) may not interfere with the school employee’s job performance, and (4) are not permissible if the employee uses his or her position of employment to influence the outcome of a political

election. Further, courts have held that these activities can be restricted if they result in material disruption of the normal administrative operations of the school system.

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 rights. The court, in Castle v. Colonial School District, 939 F. Supp. 458 (Pa. 1996), held that the views of the employees on the merits of candidates for the school board involved matters of “public concern.” The court asserted that the school district’s alleged interests, such as disruption of the educational process, protecting voters from undue influence, and avoiding the appearance of official endorsement of candidates, did not outweigh the teachers’ freedom of speech interests.

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Although school employees become actively involved in school board elections in some states, the Kentucky Supreme Court upheld legislation that prohibited employees of local school districts 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. The legislation had been enacted to cleanse public education of political patronage and influence. See State Board for Elementary and Secondary Education v. Howard, 834 S.W. 2d 657 (Ky. 1992).

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