TEACHER RIGHTS AND
FREEDOMS
• The legal relationship between the teacher
and the school board is dependent on
essentially three sources of law: (1) the
constitutional rights and freedoms of the
teacher as a citizen; (2) the statutory
relationships that govern the conduct of
the public schools; and (c) the contractual
conditions of employment.
The Source of Rights
•
First Amendment: Primary Repository
The First Amendment includes the freedoms of speech, expression,
association, and religion, and each has been litigated and applied to the
public schools.
•
Speech Rights of Public Employees
The fundamental maxim of free speech says that “government must tolerate
and cannot restrain the exercise of free speech in open debate by the public
regardless of whether it is offensive, tumultuous or discordant.” (Cohen v.
California, 403 U.S. 15, 91 S.Ct. 1780 (1971). Such a right, however, is not
absolute and there are exceptions where freedom of speech has limitations.
In particular, freedom of speech of a government employee may not be as
open and unrestrained as other persons not in public employment. For
example, where a private person may without inhibition criticize the
governor or legislators of a state with full free speech protection, a school
superintendent who exercises similar unrestrained criticism of government
officials may possibly suffer consequences at the hand of his or her own
local school board. If speech of an employee interferes with the conduct of
the school system, then the speech may possibly be curtailed.
•
In Waters v. Churchill (1994), the U.S. Supreme Court said: The
government cannot restrict the speech of the public at large just in the name
of efficiency. But where the government is employing someone for the very
purpose of effectively achieving its goals, such restrictions may well be
appropriate. This general rule, however, is subject to the particular
circumstances of each case and the rule is enlightened by reference to the
Supreme Court cases Pickering (1968), Mt. Healthy (1977) and Connick
(1983).
•
In Pickering the Court said: 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 interests of the state, as an
employer, in promoting the efficiency of the public services it performs
through its employees. Pickering, therefore, while assuring political rights
and free speech of teachers defines the freedom in terms of a “balance of
interests.” Mt. Healthy followed Pickering with further clarification, laying
down the general rule that a teacher dismissed by a board has the burden
of showing that the teacher’s exercise of speech was the “motivating factor”
for the board’s action. And then Connick further explains that matters of
purely private concern are not protected by the First Amendment, but rather
the protection protects employees who exercise their speech rights
concerning matters of “public concern.”
Privacy
• The word "privacy" is not mentioned in the
Constitution or the Bill of Rights. However,
it is assumed that the right of privacy is so
basic that it is implicitly included in the Bill
of Rights.
• The Supreme Court has determined that
privacy is found in the First, Third, Fourth
and Ninth Amendments.
Teacher Workplace Searches
• As a general trend, the present U.S. Supreme Court has gradually
whittled away at Fourth Amendment protections against unlawful
government searches. A greater conservatism by voters, coupled
with concerns principally over the spread of drugs, the general
increase of violence in society, and of late, the hatred that has been
generated by economic, cultural and religious conflict producing a
growth in terrorism, have all led to new government restraints on
individual rights and freedoms.
• More directly, with regard to teacher privacy, and the search of
teacher workplaces, the Supreme Court has said that a public
employer, such as a school district, should not be required to justify
searches with a showing of probable cause because, according to
the Court, to do so would “impose intolerable” burdens on the public
employers.
Mental and Physical
Examinations of Teachers
• Although teachers have claimed a right of
privacy precluding school boards from
requiring mental or physical examinations,
the courts have generally upheld such
examinations, within reasonable limits.
The general rule is that the need for the
examination must have a rational nexus
with the teacher's job responsibilities.
Drug Testing of Teachers
• Drug testing for individuals has been challenged under the Fourth
Amendment of the U.S. Constitution.
• The Supreme Court has allowed drug testing where the health and
safety of the public is involved and if the behavior of the teacher is
erratic or unusual, thereby establishing appropriate suspicion. Knox
County Education Association v. Knox County Board of Education
reflects the tendency of the courts to allow greater search powers to
be vested in school boards.
• While it is uncertain whether the Knox County rationale is the
prevailing view of the courts today, it is nevertheless an important
precedent to consider. In this case, a school board’s policy of
suspicionless drug testing was upheld; the rationale being found in
the fact that school teaching could be viewed by the courts as a
“safety sensitivity” job.
Freedom of Religion
• The First Amendment guarantees freedom
of religion, and like other freedoms, is
subject to certain limits. Protection is also
extended through Title VII of the Civil
Rights Act.
Title VII
• In 1972, Congress amended the 1964 Civil
Rights Act to include religion. This addition
prohibits discrimination against an
employee on the basis of religion. It also
requires reasonable accommodation of an
individual's religious preference as long as
there is no undue hardship is placed on
the employer.
Promoting Religion
• The difference between the tripartite
Lemon test, which applies to the
Establishment Clause, and the test used
for determining whether the Free Exercise
Clause has been violated as discussed in
Mozert v. Hawkins County Board of
Education
Religious Garb
• The legal question of whether a teacher may
wear religious garb in the classroom has
reappeared after lying dormant for decades.
Cases touching upon this question have been
litigated under the Free Exercise and
Establishment Clauses of the First Amendment
and under Title VII of the 1964 Civil Rights Act.
The courts have generally held that if the state
has a statute that prohibits such attire, then the
courts will sustain the statute.
Privilege Against SelfIncrimination
• The Fifth Amendment's Self-Incrimination
Clause states that a person shall not "be
compelled in any criminal case to be a
witness against himself." However, this
restriction does not apply to administrative
hearings.