Teacher and School Staff Rights


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Teachers and school staff including food services, maintenance and operations, office and clerical, paraeducators, special services and administration enjoy a number of rights pertaining to their employment, including recognition of certain freedoms, prohibition against certain forms of disrimination, and significant protections against dismissal from their position. These rights are derived from state and federal constitutional provisions, state and federal statutes, and state and federal regulations.

Constitutional provisions provide protection to teachers and school staff at public schools that are generally not available to teachers at private schools. Since public schools are state entities, constitutional restrictions on state action limit some actions that public schools may take with respect to teachers or other employees. Rights that are constitutional in nature include the following:

•Substantive and procedural due process rights, including the teacher right to receive notice of termination and right to hearing
•Freedom of expression and association provided by the First Amendment
•Academic freedom, a limited concept recognized by courts based on principles of the First Amendment
•Protection against unreasonable searches and seizures by school officials of a teacher's personal property

Though private school teachers do not generally enjoy as much of the constitutional protection as public school teachers, statutes may provide protection against discrimination. The CIVIL RIGHTS Act of 1964, for example, protects teachers at both public and private schools from racial, sexual, or religious discrimination. Private school teachers may also enjoy rights in their contracts that are similar to due process rights, including the inability of a private school to dismiss the teacher without cause, notice, or a hearing.


Denial or Revocation of Teaching Certificate

Courts have held consistently that teaching certificates are not contracts. Thus, requirements to attain or maintain a certificate may be changed and applied to all teachers and prospective teachers. The certification process is administered by state certifying agencies in each state, and most of these agencies have been delegated significant authority with respect to the administration of these rules. Despite this broad delegation, however, the state agencies may not act arbitrarily, nor may these agencies deny or revoke certification on an arbitrary basis. Some state statutes provide that a certificate may be revoked for "just cause." Other common statutory grounds include the following:

•Immoral conduct or indecent behavior
•Incompetency
•Violations of ethical standards
•Unprofessional conduct
•Misrepresentation or fraud
•Willful neglect of duty


Teacher Tenure

Most states protect teachers in public schools from arbitrary dismissal through tenure statutes. Under these tenure statutes, once a teacher has attained tenure, his or her contract renews automatically each year. School districts may dismiss tenured teachers only by a showing of cause, after following such procedural requirements as providing notice to the teacher, specifying the charges against the teacher, and providing the teacher with a meaningful hearing. Most tenure statutes require teachers to remain employed during a probationary period for a certain number of years. Once this probationary period has ended, teachers in some states will earn tenure automatically. In other states, the local school board must take some action to grant tenure to the teacher, often at the conclusion of a review of the teacher's performance. Tenure also provides some protection for teachers against demotion, salary reductions, and other discipline. However, tenure does not guarantee that a teacher may retain a particular position, such as a coaching position, nor does it provide indefinite employment.

Prior to attaining tenure, a probationary teacher may be dismissed at the discretion of the school district, subject to contractual and constitutional restrictions. Laws other than those governing tenure will apply to determine whether a discharge of a teacher is wrongful. If a probationary teacher's dismissal does not involve discrimination or does not violate terms of the teacher's contract, the school district most likely does not need to provide notice, summary of charges, or a hearing to the teacher.

In the absence of a state tenure STATUTE, a teacher may still attain de facto tenure rights if the customs or circumstances of employment demonstrate that a teacher has a "legitimate claim of entitlement for job tenure." The United States Supreme Court recognized this right in the case of Perry v. Sindermann, which also held that where a teacher has attained de facto tenure, the teacher is entitled to due process prior to dismissal by the school district.

State laws do not govern the tenure process at private schools. However, a contract between a private school district and a teacher may provide tenure rights, though enforcement of these rights is related to the contract rights rather than rights granted through the state tenure statute.


Teacher Dismissal

A school must show cause in order to dismiss a teacher who has attained tenure status. Some state statutes provide a list of circumstances where a school may dismiss a teacher. These circumstances are similar to those in which a state agency may revoke a teacher's certification. Some causes for dismissal include the following:

•Immoral conduct
•Incompetence
•Neglect of duty
•Substantial noncompliance with school laws
•Conviction of a crime
•Insubordination
•Fraud or misrepresentation


Due Process Rights of Teachers and School Staff

The Due Process Clause of the Fourteenth Amendment, like its counterpart in the Fifth Amendment, provides that no state may "deprive any person of life, liberty, or property, without due process of law." This clause applies to public school districts and provides the minimum procedural requirements that each public school district must satisfy when dismissing a teacher who has attained tenure. Note that in this context, due process does not prescribe the reasons why a teacher may be dismissed, but rather it prescribes the procedures a school must follow to dismiss a teacher. Note also that many state statutory provisions for dismissing a teacher actually exceed the minimum requirements under the Due Process Clause.

The United States Supreme Court case of Cleveland Board of Education v. Loudermill is the leading case involving the question of what process is due under the Constitution. This case provides that a tenured teacher must be given oral or written notice of the dismissal and the charges against him or her, an explanation of the EVIDENCE obtained by the employer, and an opportunity for a fair and meaningful hearing.


Teacher Contracts

The law of contracts applies to contracts between teachers and school districts. This law includes the concepts of offer, acceptance, mutual ASSENT, and consideration. For a teacher to determine whether a contract exists, he or she should consult authority on the general law of contracts. This section focuses on contract laws specific to teaching and education.


Ratification of Contracts by School Districts

Even if a school official offers a teacher a job and the teacher accepts this offer, many state laws require that the school board ratify the contract before it becomes binding. Thus, even if a principal of a school district informs a prospective teacher that the teacher has been hired, the contract is not final until the school district accepts or ratifies the contract. The same is true if a school district fails to follow proper procedures when determining whether to ratify a contract.


Teacher's Handbook as a Contract

Some teachers have argued successfully that provisions in a teacher's handbook granted the teacher certain contractual rights. However, this is not common, as many employee handbooks include clauses stating that the handbook is not a contract. For a provision in a handbook to be legally binding, the teacher must demonstrate that the actions of the teacher and the school district were such that the elements for creating a contract were met.


Breach of Teacher Contract

Either a teacher or a school district can breach a contract. Whether a breach has occurred depends on the facts of the case and the terms of the contract. Breach of contract cases between teachers and school districts arise because a school district has terminated the employment of a teacher, even though the teacher has not violated any of the terms of the employment agreement. In several of these cases, a teacher has taken a leave of absence, which did not violate the employment agreement, and the school district terminated the teacher due to the leave of absence. Similarly, a teacher may breach a contract by resigning from the district before the end of the contract term (usually the end of the school year).


Remedies for Breach of Contract

The usual remedy for breach of contract between a school district and a teacher is monetary damages. If a school district has breached a contract, the teacher will usually receive the amount the teacher would have received under the contract, less the amount the teacher receives (or could receive) by attaining alternative employment. Other damages, such as the cost to the teacher in finding other employment, may also be available. Non-monetary remedies, such as a court requiring a school district to rehire a teacher or to comply with contract terms, are available in some circumstances, though courts are usually hesitant to order such remedies. If a teacher breaches a contract, damages may be the cost to the school district for finding a replacement. Many contracts contain provisions prescribing the amount of damages a teacher must pay if he or she terminates employment before the end of the contract.


Teacher Freedom from Discrimination

The EQUAL PROTECTION Clause of the Fourteenth Amendment of the Constitution protects teachers at public schools from discrimination based on race, sex, and national origin. These forms of discrimination are also barred through the enactment of Title VII of the Civil Rights Act of 1964, which was amended in 1972 to include educational institutions. This law provides that it is an unlawful employment practice for any employer to discriminate against an individual based on the race, color, religion, sex, or national origin of the individual. Title IX of the Education Amendments of 1972 provides protection against discrimination based on sex at educational institutions that receive federal financial assistance. Title VII and IX also prohibit SEXUAL HARASSMENT in the workplace.

A teacher who has been subjected to discrimination has several causes of action, though proof in some of these cases may be difficult. A teacher may bring a cause of action under section 1983 of Title 42 of the United States Code for deprivation of rights under the Equal Protection Clause (or other constitutional provision). However, to succeed under this cause of action, the teacher would need to prove that the school had the deliberate intent to discriminate. Similarly, a teacher bringing a claim under Title VII must demonstrate that the reasons given by a school for an employment decision were false and that the actual reason for the decision was discrimination.


Teacher Academic Freedom

Teachers in public schools have limited freedoms in the classroom to teach without undue restrictions on the content or subjects for discussion. These freedoms are based on rights to freedom of expression under the First Amendment of the Bill of Rights. However, the concept of academic freedom is quite limited. The content taught by a teacher must be relevant to and consistent with the teacher's responsibilities, and a teacher cannot promote a personal or political agenda in the classroom. Factors such as the age, experience, and grade level of students affect the latitude in which a court will recognize the academic freedom of a teacher.


Teacher Freedom of Expression

A leading case in First Amendment JURISPRUDENCE regarding protected forms of expression is Pickering v. Board of Education. This case involved a teacher whose job was terminated when he wrote to a local newspaper an editorial critical of the teacher's employer. The Supreme Court held that the school had unconstitutionally restricted the First Amendment rights of the teacher to speak on issues of public importance. Based on Pickering and similar cases, teachers generally enjoy rights to freedom of expression, though there are some restrictions. Teachers may not materially disrupt the educational interest of the school district, nor may teachers undermine authority or adversely affect working relationships at the school.


Teacher Freedom of Association

Similar to rights to freedom of expression, public school teachers enjoy rights to freedom of association, based on the First Amendment's provision that grants citizens the right to peaceful assembly. These rights generally permit public school teachers to join professional, labor, or similar organizations; run for public office; and similar forms of association. However, teachers may be required to ensure that participation in these activities is completely independent from their responsibilities to the school.


Teacher Freedom of Religion

The First Amendment and Title VII of the Civil Rights Act of 1964 provide protection against religious discrimination by school districts against teachers. Teaches may exercise their religious rights, though there are certain restrictions to such rights. This existence of restrictions is particularly relevant to the public schools, since public schools are restricted from teaching religion through the Establishment Clause of the First Amendment. Thus, for example, a teacher is free to be a practicing Christian, yet the teacher cannot preach Christianity in the classroom.


Teacher Privacy Rights

Teachers enjoy limited rights to personal privacy, though courts will often support disciplinary action taken by a school district when a teacher's private life affects the integrity of the school district or the effectiveness by which a teacher can teach. Thus, for example, a teacher may be terminated from his or her position for such acts as ADULTERY or other sexual conduct outside marriage, and courts will be hesitant to overrule the decisions of the school board.


Teacher Age

The Age Discrimination in Employment Act of 1967, with its subsequent amendments, provides protection for teachers over the age of 40 against age discrimination. Under this act, age may not be the sole factor when a school district terminates the employment of a teacher. If a teacher charges a school district with age discrimination, the school district has the burden to show that some factor other than age influenced its decision.


Teacher Pregnancy

The Pregnancy Discrimination Act of 1978 provides protection for teachers who are pregnant. Under this act, a school district may not dismiss or demote a pregnant teacher on the basis of her pregnancy, nor may a district deny a job or deny a promotion to a pregnant teacher on the basis of her pregnancy.


Illinois Laws Regarding Teachers' Rights

Each state provides laws governing education agencies, hiring and termination of teachers, tenure of teachers, and similar laws. Teachers should consult with statutes and education regulations in their respective states, as well as the education agencies that enforce these rules, for additional information regarding teachers' rights. Moreover, teachers should review their contracts, COLLECTIVE BARGAINING AGREEMENT, and/or employee handbook for specific provisions that may have been included in an agreement. In Illinois, th Teacher's certificate may be revoked or suspended for immorality, health condition detrimental to students, incompetence, unprofessional conduct, neglect of duty, willful failure to report CHILD ABUSE, conviction of certain sex or narcotics offenses, or other just cause. Teachers may be dismissed on similar grounds.


Additional Teacher Rights Resources

- Deskbook Encyclopedia of American School Law. Oakstone Legal Publishing, 2001.
- Education Law. Rapp, James A., Lexis Publishing, 2001.
- Education Law, Second Edition. Imber, Michael, and Tyll Van Geel, 2000.
- The Law of Public Education, 4th Ed. Reutter, E. Edmund, Jr., Foundation Press, 1994.
- Private School Law in America, 12th Ed. Oakstone Legal and Business Publishing, 2000.
- School Law and the Public Schools: A Practical Guide for Educational Leaders. Essex, Nathan, Allyn and Bacon, 1999.
- Teachers and the Law. Fischer, Louis, David Schimmel, and Cynthia Kelly, Addison Wesley Longman, 1999.
- U. S. Code, Title 42: Public Health and Welfare, chapter 21: Civil Rights. U.S. House of Representatives


Teacher Rights Organizations

- American Association of School Administrators
- American Federation of Teachers
- Education Law Association
- Education Policy Institute
- National Education Association

If you feel that one of your teacher rights has been violated, please contact us for a Free Teacher Rights Consultation.