Melzer v board of education

Chapter 12 Teacher Constitutional Law

Introduction

Once inside the schoolhouse door, public school teachers, like students, do not have the same rights they enjoy as citizens outside the school. At the same time, teachers are often expected to effectively communicate with a wide variety of publics. Finding the balance among encouraging teacher communication and interaction within the school and community, protecting the rights of teachers, and the legal obligation to provide an orderly and efficient school can be difficult. This chapter considers the ethical foundations for effective and efficient communication called for in the ISLLC standards and provides an overview of the legal rights and responsibilities of both teachers and school leaders.

Focus Questions

1. How can cooperative school cultures be developed?

2. Should school boards control the First Amendment rights of employees?

3. How much control over curriculum, instructional methodology, and classroom assessments should school boards have?

4. Should teachers and other professional school employees be required to submit to mandatory drug testing? To the search of their school district–issued cell phones?

5. Should school boards have the right to regulate or discipline teachers for their private associations?

Key Terms

1. Academic freedom

2. Matters of public concern

3. Mt. Healthy retaliation test

4. Safety-sensitive position

Case Study Good Teacher or Royal Pain?

Assistant Superintendent Danni Skyy was not looking forward to giving testimony in the case of former Rivendell elementary teacher Johnna Long. Two years ago, Rivendell Elementary principal Bill Sears had requested an additional special education teacher to accommodate the increased number of IEP students in his school. Johnna Long had applied for the position and seemed to be a perfect fit for Bill and the Rivendell staff. Johnna quickly gained the reputation of being a real advocate of special needs students at Rivendell. Unfortunately, she also chose to voice her complaints about Bill’s leadership, the lack of clear objectives on IEPs, safety concerns for IEP students, and the lack of adequate facilities for IEP students to anyone who would listen, including parents.

Bill Sears had worked several years modeling a culture of cooperation and collaborative decision making at Rivendell. Consequently, he listened to Johnna’s concerns. He had personally assessed the facility for safety concerns, reviewed the campus safety plan, and assessed the particular safety needs of special needs students. He asked the district special education coordinator to evaluate several IEPs and implemented her suggestions. Bill had dutifully communicated his review and conclusions to the faculty and had written a letter home to parents explaining the reason for the changes he was making. These efforts did not seem to placate Johnna, and during the last week of school she presented Bill Sears with a revised facilities plan complete with room changes to accommodate special needs children at Rivendell, the moving of several teachers’ room assignments, and a revised lunch schedule. Johnna told Bill that several teachers had been involved in the revision and that she had the support of most of the staff. Bill had no knowledge of these discussions, and he told Johnna that he was not going to make changes this late in the school year.

Bill’s response did not meet with Johnna’s approval. At the end of her first year at Rivendell Elementary, she sent a 10-page letter to Assistant Superintendent Danni Skyy outlining her concerns and criticizing Bill Sears. Johnna’s performance-based teaching evaluation during her first year was satisfactory. However, during the second year, Bill Sears begin describing Johnna Long as a “real pain.” He also became more critical of her teaching performance. At the April school board meeting, Bill Sears and Danni Skyy recommended that Johnna’s probationary contract not be renewed for the next school year. Johnna immediately contacted her union representative and the union attorney. Johnna complained that she had been retaliated against by Principal Sears and Assistant Superintendent Skyy for her efforts to protect and advocate for special needs students at Rivendell. The union attorney claimed that the district had violated Johnna’s First Amendment rights and had unlawfully retaliated against her for her protected speech. Danni wondered how much of this was true.

Leadership Perspectives

The importance of understanding and creating cooperative environments cannot be underestimated, as illustrated by ISLLC Standards 2A, 3D, 4B, 4C, and 4D. These standards stress the importance of nurturing and sustaining a culture of collaboration and trust, promoting an understanding and appreciation of the community’s diverse cultural resources, and effectively communicating with families and caregivers. Consequently, efforts to include teachers and parents in the decision-making and school improvement processes at the campus and sometimes the district levels are becoming more common. ISLLC Standard 3 stresses the importance of the efficient and effective management of school operations and facilities. As illustrated by the case study “Good Teacher or Royal Pain?” the question, of course, is at what point efforts to engage teachers and others in productive conversations become counterproductive to good order and efficiency.

ISLLC Standards 2A, 3D, 4B, 4C, and 4D

ISLLC Standard 3

The problem Bill Sears is facing in the case study is that not all communication from Rivendell teachers is positive. Bill Sears believes he is making a legitimate attempt to create a cooperative school environment by giving teachers more voice in the decision-making process. Most certainly, concerns about safety and problems with IEPs are to be taken seriously. ISLLC Standards 2B, 2C, and 3C require that he recognize that some of Johnna Long’s concerns may be legitimate. Bill Sears has an obligation to “monitor and evaluate the management of operational systems.” He has, at least on the surface, met these standards by investigating safety planning for special needs students and seeking help from the district special education director in evaluating the IEP process. As noted in Chapter 11 , school boards may elect not to renew a probationary teaching contract for any reason as long as it does not violate the legal rights of the employee. At the same time, one of the basic tenets of ethical behavior (as well as due process) is fundamental fairness. The U.S. Supreme Court has recognized that teachers have a special insight into the problems facing schools and that the legitimate expression of these concerns should be protected speech ( Pickering v. Board of Education, 1968 ). The Court has also found that an interest in maintaining good order and discipline outweighs some teacher rights ( Connick v. Myers, 1983 ; Garcetti v. Ceballos, 2006 ).

ISLLC Standards 2B, 2C, and 3C

ISLLC Standard 3A

The problem is, as the case study illustrates, at what point does the speech or behavior cross the line from protected speech to speech that is not protected? How can school leaders facilitate the positive internal and external communication necessary to promote the development of positive family and community relationships while maintaining good order and efficiency? How can school leaders consider and evaluate the potential moral and legal consequences of their decision-making? The discourse ethics of Jürgen Habermas (1990) provides guidance in balancing these responsibilities.

ISLLC Standard 5D

Discourse Ethics: Promoting a Cooperative School Culture

Common sense suggests that school leaders are required to understand, address, and solve problems they will encounter on the job. A significant part of the context of problem solving is the fact that the way problems are presented to school leaders frequently reflects a predefined solution from the frame of reference of the problem presenter ( Copland, 2000 ). For example, in the case study “Good Teacher or Royal Pain?” Johnna Long has presented Principal Bill Sears with a predefined solution to what she considers a problem with the particular safety needs of special needs students. As Copland (2000) points out, the problem framing of Johnna Long in the preceding example may be absolutely correct. The fatal mistake occurs in rejecting or embracing the predefined solution before the problem has been clearly defined. ISLLC Standard 2 calls for school leaders to recognize the conflict inherent in these types of problems and, rather than rejecting or embracing a predefined solution, to reframe the problem in solution-free terms.

ISLLC Standard 2

In his book Moral Consciousness and Communicative Action (1990), the contemporary philosopher Jurgen Habermas proposes several rules of discourse as a procedure for reframing problems in solution-free terms and testing the soundness of actions or decisions that are being proposed for adoption. These rules are not rules in the traditional sense. Rather, they are designed to provide a framework or set of guidelines for the negotiation of conflicts in a fair and non-defensive manner (Rebore, 2001 , 2003 ). Rebore (2001, 2003) makes a distinction between mediation and arbitration that provides guidance in the development of a conceptual framework that promotes the types of communicative action necessary for the reframing required of ill-structured problems.

The practical use of discourse ethics considers the difference between mediation and arbitration ( Figure 12-1 ).

FIGURE 12-1 Discourse ethics: Resolving questions of conflicting interests.

In this model, the concepts of mediation and arbitration are combined to outline a communication model. Mediation is the process of seeking to understand the perspectives of others (Rebore, 2001). Understanding the perspectives of others requires an element of unconditional acceptance, meaning that all views presented as part of the discursive efforts must be accepted as valid. Acceptance in this sense does not necessarily mean agreement (even though agreement is entirely possible), but rather the unconditional acceptance of these views as valid interpretations of the values, needs, and wants of the speaker. Thus, mediation is particularly important because it is by nature designed to facilitate the introduction of empathy into the process of coming to a decision ( Habermas, 1990 ). The value of seeking to understand the perspectives of others as a leadership skill cannot be underestimated. These efforts are particularly important in conversations involving teachers, school leaders, and parents.

Arbitration is the process of selecting from alternatives to reach an acceptable compromise (Rebore, 2001). Whereas mediation is designed to lead participants to clarify a common interest, arbitration may be viewed as negotiating a compromise by striking a balance between competing interests. Of course, if all participants in the conversation are in agreement, the process of forging a compromise may not be necessary. However, this may not always be the case, and several ISLLC standards, most notably 2A, call for school leaders who are skilled at creating collaborative environments.

ISLLC standards, most notably 2A

School Cultures and Levels of Cooperation

In schools where cooperation among school leaders, teachers, parents, and others is the norm, participants generally accept the perspectives of others and work collaboratively to solve common problems. Conversely, in schools where collaboration is not the norm, individuals often seek to exert their influence through force or manipulation ( Habermas, 1990 ). The case study “Good Teacher or Royal Pain?” is an example. Rather than continuing to work collaboratively with Bill Sears, Johnna Long is using her community connections and critical letter to the assistant superintendent to influence and possibly force Bill Sears into a decision he may not wish to make. Table 12-1 describes these dimensions of cooperation and serves as a method of analysis of levels of cooperation in the school culture.

Table 12-1 can be used to assess current levels of cooperation in a school or district. For example, a Quadrant 1 school or district is characterized by a strong administrative hierarchy. In these schools and districts, policy decisions are made at the appropriate bureaucratic level and passed down, usually in written form, to subordinates with little explanation. With little stakeholder input or understanding of the rationale behind the decision, compliance by coercion is often necessary. A Quadrant 4 school or district is characterized by continuous efforts to reach understanding and consensus before a final decision is made at the appropriate level. In contrast to a Quadrant 1 school, policies developed in this manner are characterized by general understanding of the rationale, and little if any coercion is required for compliance.

Rivendell Elementary in the case study “Good Teacher or Royal Pain?” may represent a Quadrant 3 school. It is apparent that as principal, Bill Sears is making an effort to improve communication. However, at least in this particular incident, Bill’s efforts at open communication have failed to satisfy Johnna Long. Consequently,

Table 12-1 School culture and levels of cooperation

Low Cooperation

High Cooperation

Culture of authoritarian leadership

QUADRANT 1

· System design with little thought to lifeworlds

· Decisions made from administrative hierarchy

· Little or no effort to create consensus for decisions

· Imbalance of power particularly evident

· Little understanding built into the decision-making process

· Parents and others viewed as adversaries

QUADRANT 3

· Fragmented lifeworlds evident

· Occasional attempts at forging consensus

· Sense of “going through the motions” to validate administrative initiatives common among stakeholders

· Imbalance of power evident. Expectations that subordinates “toe the party line” common

· Parents and others not usually considered

Culture of cooperative leadership

QUADRANT 2

· Systems fragment school lifeworlds

· Various subgroups or cliques evident (may include administrative subgroups)

· Cooperation within subgroups high; low between subgroups

· Efforts to forge consensus ineffectual

· Subgroups often work at cross purposes or strategically to influence decisions

QUADRANT 4

· Systems designed to facilitate meaningful lifeworlds

· Collective efforts to build understanding and empathy as precursor to consensus common

· High level of teacher/parent and leader/parent conversations

· Teachers, parents, and others viewed as full partners

Table 12-1 School culture and levels of cooperation

Johnna is working strategically with other school and community subgroups to undermine Bill’s authority.

Linking to Practice

Do:

· Train faculty and staff in the use of a cooperative school culture development model such as the one presented in this chapter.

· Start each meeting with a quick review and clarify what stage of the process will serve as the focus for the meeting ( Compton & Nance, 2002 ).

· Clearly define the roles, parameters of decision making, and any restriction on communication with others outside the committee meeting.

The Constitutional Rights of Teachers

School leaders are required by law and ISLLC Standard 2 to promote efficient practices in the management of students and teachers to maintain a facility conducive to teaching and learning. The ISLLC standards also call for school leaders to model and promote effective communication. The problem is that meeting one standard may at times seem to violate the other. Regardless of this difficulty, understanding of personal managerial and leadership responsibilities is part of being an effective school leader.

ISLLC Standard 2

There is little question that to maintain good order and efficiency, school districts need some leeway to regulate the conduct of employees. Consequently, boards of education have traditionally been given wide latitude to regulate teacher speech, choices of curriculum, and behavior while at school. There is also little debate that teachers serve as role models and, fairly or not, are often held to a higher standard in their personal lives than members of some occupations. Consequently, balancing the rights of teachers with the interests of the larger society, usually represented by parents, boards of education, and state legislative bodies, is a difficult but necessary responsibility. This chapter considers the responsibility to maintain good order and efficiency and employee First and Fourth Amendment rights.

First Amendment Rights

Three general categories of public employee First Amendment rights are discussed here, including academic freedom, freedom of expression, and freedom of association.

Academic Freedom

The concept of academic freedom as a First Amendment right was established by the U.S. Supreme Court in Keyishian v. Board of Regents (1967). This case involved a New York state loyalty oath with a genesis in the McCarthy Red Scare era that limited teachers’ freedom of association. The law allowed the dismissal of state public school employees who spoke “treasonable” or “seditious” words. In overturning this law, the Supreme Court spoke eloquently of the classroom as a “marketplace of ideas,” of not “casting a pall of orthodoxy over the classroom,” and of the importance of the vigilant protection of constitutional freedoms in America’s classrooms. During the 1960s and ’70s, courts continued the Keyishian trend toward protecting teachers from many restrictions and requirements imposed by school board authority. For example, the First Circuit Court recognized and supported a teacher’s right to assign an article from the Atlantic Monthly magazine that discussed protest and radical thinking of the day ( Keefe v. Geankos, 1969 ).

Since the 1980s, however, this trend has changed, and the elegant rhetoric of Keyishian does not reflect reality. In fact, since Keyishian, the U.S. Supreme Court has been relatively silent on what level of protection, if any, should be accorded teachers’ expression in the classroom ( Daly, 2001 ). Two student cases, Bethel School District v. Fraser (1986) and Hazelwood v. Kuhlmeier (1988) , however, have been regularly applied to teacher classroom speech. The application of these two cases to teacher instructional decisions balances toward school district control. For example, academic freedom does not protect teachers from discipline or termination for showing R-rated films (see, for example, Fowler v. Board of Education of Lincoln County Kentucky, 1987 ; Krizek v. Cicero-Stickley Tp. High School, 1989; and Borger v. Bisciglia, 1995 ). Similarly, the selection of plays or choice of music for student performances is not protected by the First Amendment. For example, the U.S. Fourth Circuit Court of Appeals, citing Hazelwood v. Kuhlmeier (1988) , found that school administrators, not individual teachers, may decide curricular matters, including the selection of a school play ( Boring v. Buncombe County Board of Education, 1998 ). The Eighth Circuit Court, citing Bethel v. Fraser (1986) , overturned a jury verdict and held that a “school district does not violate the First Amendment when it disciplines a teacher for allowing students to use profanity repetitiously and egregiously in their written work” ( Lacks v. Ferguson Reorganized School District R-2, 1998 , cert. denied).

District control may extend beyond the classroom and into the hallway. For example, the Western District Court of West Virginia upheld an administrator’s directive to remove a list of banned books from a high school English teacher’s classroom door ( Newton v. Slye, 2000 ). For several years the teacher posted without incident a list of banned books on the outside of his classroom door. The teacher was informed that at least one of the books (The Joy of Gay Sex) on the 1997–1998 list of banned books was objectionable, and Newton was directed to remove the list from his door. Newton would be allowed to post the list in his classroom and continue his habit of discussing the list with his students. The district court, citing Hazelwood (1998), rationalized that the posting of the list was part of the curriculum and under the control of the school district. Teacher speech that runs counter to the educational mission of the school or curricular directives may also be subject to censorship. For example, a Los Angeles high school teacher, objecting to a district policy recognizing Gay and Lesbian Awareness Month, created a competing hallway bulletin board containing several antigay statements. The Ninth Circuit Court of Appeals reasoned that school bulletin boards are vehicles for conveying a message from the school district ( Downs v. Los Angeles Unified School District, 2000 ).

The cases presented here are similar in that the selection of a curricular topic, instructional technique, or choice of words resulted in controversy and, in most cases, parental complaints. Current court decisions generally make it clear that curriculum and instruction decisions belong to the school district, not to individual teachers. This is particularly the case in those circuits that consistently apply Hazelwood School District v. Kuhlmeier (1988) to these questions and illustrates that teachers can be disciplined or terminated for violating district curriculum and instructional guidelines in the classroom and the hallway (Stader & Francis, 2003).

Freedom of Expression

The First Amendment comes into play when an employee contends that she or he has suffered adverse employment action (non-renewal, firing, suspension, demotion, etc.) because of speech or expressive conduct that the school district claims to be disruptive to the workplace or has suffered retaliation for protected speech ( Hudson, 2002 ). Respect for the rights of teachers to freely express their opinions about a large range of topics is inherent in the effective implementation of ISLLC Standard 2A. At the same time, authority to regulate teacher or employee speech that is disruptive to the learning environment or takes away from quality instruction and student learning must be in place. The balance between the rights of a teacher to express her or his opinion and the interest of the board of education in promoting harmony and efficiency to support quality instruction and student learning is often a matter of perspective. The U.S. Supreme Court has attempted to provide guidance in achieving this balance with the following cases: Pickering v. Board of Education (1968) , Mt. Healthy City School District Board of Education v. Doyle (1977) , Connick v. Myers (1983) , and most recently, Garcetti v. Ceballos (2006) .

ISLLC Standard 2A

ISLLC Standard 3E

Pickering v. Board of Education (1968)

In 1961, Marvin Pickering was dismissed by the Board of Education of the Township High School District 205 (Illinois) for sending a letter to a local newspaper regarding a recent tax increase initiative. In the letter, Pickering was critical of the manner in which the superintendent and board had handled past tax proposals. The Court held that matters of public concern are protected speech. The court reasoned that teachers as a class are the members of the community most likely to have information and opinions as to how funds are allocated and spent. Accordingly, it is essential that teachers be empowered to speak as citizens on matters of public concern without fear of retaliation. In a later case, protected speech was extended to include speech of public concern that is communicated privately to supervisors rather than spread publicly ( Givhan v. Western Line Consolidated School District, 1979).

In Pickering, the Court also recognized the necessity of maintaining workplace efficiency and harmony. In an attempt to balance the protected interest as a citizen in making public comments and a school district’s interest in promoting harmonious working relationships and efficiency in operation, the Court established the following three-pronged test, known as the Pickering balance:

1. Protected speech cannot interfere with maintaining either discipline by immediate superiors or harmony among coworkers.

2. Protected speech cannot interfere with the personal loyalty and confidence necessary to proper school functioning.

3. Protected speech cannot damage professional reputations.

Mt. Healthy City School District Board of Education v. Doyle (1977)

Doyle was a probationary teacher first employed by the Mt. Healthy district in 1966. In 1969, Doyle was elected president of the Teachers’ Association. During his tenure as president, tensions between the association and the board escalated. Doyle also had several questionable incidents during his teaching career at Mt. Healthy, including making an obscene gesture at two girls who refused to follow his instructions in his capacity as cafeteria supervisor and the release of a school memo on teacher dress to a local radio station. Doyle was terminated by the board for “a notable lack of tact in handling professional matters.” The statement was followed by references to the obscene-gesture incident and to the memo released to the radio station. After being terminated by the board, Doyle claimed that the release of the memo to the radio station was protected speech and his termination was a violation of his constitutional rights. The U.S. Supreme Court agreed with Doyle that the release of the memo was protected speech. The Court held, however, that if the district can demonstrate that a teacher would have been terminated for reasons other than protected speech, no violation of constitutional rights has occurred.

The Mt. Healthy retaliation test considers whether the protected speech was a motivating factor in an adverse employment decision or if the decision would (or could) have been reached for other legitimate reasons. For example, in Mt. Healthy, the school board cited both Doyle’s protected speech and his questionable professional decisions as reasons for his termination. It is interesting to note that Doyle prevailed at the trial and circuit court. The U.S. Supreme Court reversed primarily because the circuit court failed to determine by a preponderance of the evidence that the board would, or could, have reached the same conclusions without considering the protected speech. This ruling not only has been beneficial to employees, but also has allowed school districts to claim the “Mt. Healthy defense.” In short, the board of education claims they would have reached the same conclusion regardless of the fact that the protected speech may have pushed them over the edge. For examples of the Mt. Healthy retaliation test, see Cockrel v. Shelby County School District, 2001, and Settlegoode v. Portland Public Schools, 2004.

Connick v. Myers (1983)

The U.S. Supreme Court further defined protected speech by holding that matters of personal interest are not protected speech. New Orleans assistant district attorney Sheila Myers was informed that she would be transferred to another area of responsibility. Myers refused to be transferred and she distributed a survey to coworkers addressing office policies. When Myers’s boss found out about the survey, he fired her. The Court held that when an employee speaks on matters of personal interest rather than matters of public interest, a federal court is not the proper forum in which to review the wisdom of a personnel decision. In addition, it is not necessary for a state agency, such as a school district, to “clearly demonstrate” that the speech in question “substantially interfered” with efficiency and good order. Rather, the limited First Amendment interests of employees to address matters of personal concern do not require state agencies to tolerate action that can reasonably be related to disruption, undermining of authority, and/or destruction of close personal relationships necessary for the efficient operation of the campus or district. The Court held that state agencies (schools included) do not necessarily have to tolerate insubordinate or disruptive behavior, or behavior that undermines authority.

When considering an adverse employment decision for protected speech, courts often consider the Pickering-Connick balance. The Pickering-Connick balance requires a two-pronged test. The first prong considers two questions:

1. Does the speech address matters of public concern?

2. Can the teacher demonstrate that his or her free-speech interests outweigh the efficiency and harmony needs of the campus or district leadership?

The second prong of the Pickering-Connick test also considers two questions:

1. Does the speech impair discipline or harmony among coworkers?

2. Has the speech impaired close working relationships where personal loyalty and confidence are necessary?

Part of the problem is defining matters of public concern. Curriculum, school safety, negotiated contractual issues, and alleged malfeasance are usually considered matters of public concern (Stader & Francis, 2003). School districts can argue, however, that the employee is speaking about matters of personal concern rather than as a citizen on matters of public concern ( Hudson, 2002 ). The questions facing school leaders and courts are, of course, (1) the definition of matters of public concern, (2) how much disruption is necessary before an employee’s protected right to speak out on matters of public concern, either privately or publicly, impairs discipline or harmony among coworkers, and (3) at what point protected speech affects personal loyalty to the extent that it interferes with close working relationships between teachers and school leaders. For example, in Pickering the Court pointed out that Pickering’s letter was received with a certain amount of boredom by almost everyone except the members of the board of education. In addition, the board was too far removed to assume any working relationship with Pickering, and his relationship with his immediate supervisors did not suffer. The case before the Court in Connick presented another situation. Myers’s survey and her refusal to be transferred affected her working relationship with her immediate supervisors. Fales v. Garst (2001) and Thompson v. Mt. Diablo Unified School District (2003) are two examples of the application of the Pickering- Connick test to public school employees.

Personal loyalty and harmony between campus principals and district leadership has received special consideration by the courts when considering the Pickering-Connick balance. Consequently, courts generally side with the school district when disagreements between campus and district leaders result in an adverse employment decision, even when the speech can be viewed as protected speech. For example, the Seventh Circuit Court, in applying the Pickering-Connick test, found that as “a policy maker in the School District, [an elementary principal] owed her superiors a duty of loyalty” ( Vargas-Harrison v. Racine Unified School District, 2001 ). The Sixth Circuit Court responded similarly by concluding that the interest of a “tension-free superintendent/principal relationship outweighed [principal]’s interest in trying to make himself look good at the expense of [superintendent]” ( Sharp v. Lindsey, 2002 ).

Garcetti v. Ceballos (2006)

As part of his job as a deputy district attorney, Richard Ceballos was asked by a defense attorney to review a search warrant affidavit. After visiting the site and examining the affidavit, Ceballos expressed concerns about the affidavit to his superiors as well as members of the sheriff’s department responsible for the warrant. Ceballos’s concerns resulted in a heated meeting between members of the district attorney’s office and sheriff’s deputies. At trial, the defense attorney challenged the warrant affidavit. Ceballos testified about his concerns regarding the affidavit. In the aftermath of the trial, Ceballos claimed he was subjected to a series of retaliatory employment actions. Using the Pickering balance, the Ninth Circuit Court held that Ceballos’s speech was protect. The U.S. Supreme Court chose to address the question of “whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties.” In a fractured 5–4 decision, the court held that speech made pursuant to the employee’s duties is not protected by the First Amendment. The court stated, “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do.” The court reasoned that if Ceballos’s supervisors thought his memo and testimony to be inflammatory or misguided, they had the authority to take corrective action.

The majority did recognize that “exposing governmental inefficiency and misconduct is a matter of considerable significance” and that public employers should “as a matter of good judgment be receptive to constructive criticism offered by their employees.” The court went on to hold that this concept is reinforced by the powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing. Garner (2006 , p. 1) defines a whistle-blower act as “a federal or state law protecting employees from retaliation for properly reporting employer wrongdoing such as violation a law or board policy, malfeasance, or endangering public health or safety.”

Pickering, Mt. Healthy, Connick, and Garcetti Applied

In the introductory case study “Good Teacher or Royal Pain?” special education teacher Johnna Long has expressed concerns about a lack of clear objectives on IEPs, safety concerns for several special needs students, and the lack of adequate facilities for special needs students. Applying the Pickering balance, we can assume that the concerns expressed by Johnna Long are matters of public concern. A reading of the case study also does not indicate that her public expression of protected speech significantly interfered with Bill Sears’s ability to manage the school or with good order or efficiency. The district could claim the Mt. Healthy defense and argue that Johnna Long was not a very good teacher. Because her deficiencies were documented by the school principal’s formative and summative performance-based teacher evaluation, her contract would not have been renewed anyway. At this time, however, it seems that discussion of Pickering and Mt. Healthy may be moot.

Although Garcetti did not involve K–12 schools, an analysis of 11 recent court cases by Kallio and Geisel (2010) found overwhelming evidence that courts around the nation are applying Garcetti to teacher and administrator retaliation cases. Applying the Garcetti rationale to Johnna Long’s speech would significantly shift the balance in favor of the school district. It would be reasonable to assume that her concerns about safety and a lack of adequate facilities were part of her job as a special education teacher. When teachers or administrators are speaking as a part of their job and not as private citizens, there seems to be little if any protection from retaliation by supervisors. Several examples of this logic include Casey v. West Las Vegas Independent School District (2007) , Almontaser v. New York City Department of Education (2008), and Williams v. Dallas Independent School District (2010) .

Social Media

Employee use of social media such as Facebook, MySpace, Xanga, Friendster, and so forth has become commonplace. It is clear that employees have some freedom to express themselves in social media. However, because the Internet provides a communication medium for content to travel inside the schoolhouse gate as well as into the homes of parents and students, the use of social media by school employees has created significant ambiguity and controversy (Nidiffer, 2010). Problems arise when postings affect the district. Public school employees are protected by the U.S. Constitution and do not lose all of their rights to freedom of expression. Consequently, balancing the First Amendment rights of employees to express themselves in social networking sites and the needs of the school district for efficiency, harmony, and good working relationships can be difficult. Generally, questionable use of social media by school employees may be analyzed along four lines of reasoning: (1) First Amendment, (2) the nature of the offending conduct, (3) the nexus between the conduct and job performance, and (4) school board policy and any collective bargaining agreements ( Todd, DiJohn, & Aldridge, 2008 ).

First Amendment considerations

Courts generally apply the Garcetti-Connick-Pickering test to determine whether or not a teacher’s speech posted on the Internet is protected by the First Amendment (Todd et al., 2008 ). If the speech is made pursuant to the employee’s job description, it is most likely not protected under Garcetti, and the district may be free to discipline the employee without much problem. If the speech is not related to the employee’s job description and is of personal concern, the speech falls under Connick and is not protected. If it can be established that the speech is not pursuant to the employee’s job description and is a matter of public concern, courts should apply the Pickering balance. If the speech has no impact on good working conditions or personal loyalty or if the speech is of such importance that the need for good working conditions becomes secondary, it may be protected.

The nature of the offending conduct

Postings that portray illegal activity or inappropriate conduct, such as communication of a sexual nature with a student, are not protected. These behaviors are not remediable (see Chapter 11 ), and immediate suspension while investigating the conduct and eventual termination are possible.

The nexus between the postings and job performance

Most controversial postings do not portray illegal activity or inappropriate contact with students or others. In these cases, most courts would apply the nexus principle, usually defined as fitness to teach (see Chapter 11 ). It is possible that some controversial postings are remediable behaviors in that the employee may not realize that other employees, parents, and possibly students are reading the post. A simple directive to remove the postings and to refrain from similar activity may be in the best interest of the employee and the school district. However, other controversial posting may create such disruption to good order and discipline, harmony among the faculty, and personal loyalty and confidence that the behaviors are not remediable and termination is the only option.

For example, Jeffery Spanierman’s employment was terminated for his MySpace conduct that was disruptive to the school environment ( Spanierman v. Hughes, 2008). Specifically, his communication with students was similar to that of a peer rather than his position as a teacher and demonstrated an unprofessional rapport with students. In another example, Stacey Snyder was removed from her student teaching assignment for her unprofessional postings on MySpace ( Snyder v. Millersville University, 2008 ). These two cases illustrate that teachers or other school employees can be terminated or disciplined for disruptive or inappropriate social networking speech even if the postings are created off-campus with personally owned computers.

School board policy, negotiated agreements

Postings that violate school board policy are grounds for termination. In addition, it is important to follow all due process rights and negotiated agreements while investigating employee misconduct.

Private Association

The U.S. Supreme Court has held that teachers’ rights to association are protected ( Keyishian v. Board of Regents, 1967). But what if the association might be at odds with the educational mission of the school or interferes with good order and efficiency in the school? A case involving a New York City science teacher illustrates this balance ( Melzer v. Board of Education, 2003 ). Melzer had been a long-standing and active member of the North American Man/Boy Love Association (NAMBLA). Melzer’s NAMBLA membership became an issue when a local television station aired a news story naming him as an association member. The school parents’ association expressed outrage, and many parents threatened to remove their children from school and mount a protest if Melzer was allowed to return to work. In addition, a majority of the students in school spoke in opposition to Melzer’s return. The board of education proceeded to terminate Melzer’s employment. On appeal, the Second Circuit Court found that Melzer’s right to associate with NAMBLA may be protected. The disruption to the mission of the school caused by his association, however, justified his termination.

Employees have private association rights. These rights are controversial only when students, parents, or community groups object. The problem is deciding when the association rights of the teacher outweigh the need to maintain good order and efficiency. Some decisions are easy. For example, it should not take a legal scholar to understand that membership in NAMBLA would interfere with good order and discipline. Not all decisions, however, are this simple. School leaders are often faced with substantive questions such as how much control they (or the school district) want in teachers’ choices of private associations, who should decide, and how much disruption they (or the school district) can tolerate. For example, sexual minority teachers do not qualify as either a suspect or quasisuspect class, but are generally entitled to the same protections as any other identifiable group ( Romer v. Evans, 1996 ; Beall v. London City School District, 2006 ; Glover v. Williamsburg, 1998 , as examples).

Fourth Amendment Rights

The Fourth Amendment (“The right of the people to be secure in their persons . . . papers, and effects, against unreasonable searches and seizures, shall not be violated . . . but upon probable cause”) protects citizens from unreasonable search and seizure. Employees do not forfeit all of their Fourth Amendment rights when entering the schoolhouse gate. As in all other aspects of public schools and constitutional law, however, the courts have been asked to balance the rights of teachers and others in school with the needs of the school district to maintain order, safety, and efficiency. Consequently, courts have again carved out a compromise between the strict probable cause standard of the Fourth Amendment and the perceived needs of school officials to be held to a lesser standard to conduct reasonable searches of teachers and other school employees. The definition of reasonable, however, is open to debate.

The U.S. Supreme Court has not ruled on school employees’ Fourth Amendment rights, and there are surprisingly few court cases involving a search by public employers of employees’ offices, desks, computers, and so forth. As Nathan Roberts (2003) suggests, public school employees’ Fourth Amendment rights may have best been outlined in O’Connor v. Ortega (1987) . In Ortega, the U.S. Supreme Court established that the legality of public employee workplace searches would depend on the reasonableness of the search both at inception and in scope. In Ortega, the court held that

ordinarily, a search of an employee’s office by a supervisor will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a non-investigatory work-related purpose such as to retrieve a needed file.

In other words, school officials should have at least a moderate chance that a search will reveal violations of school policy or criminal conduct before undertaking a search of employee property.

A Court of Appeals of Georgia decision concerning a principal’s search of an employee’s computer illustrates this point ( Joines v. State, 2003). While a teacher at Fort Valley (Georgia) Middle School, Joines was convicted of three counts of child molestation. On appeal after his conviction, Joines claimed that the evidence found on his school computer by school personnel should not have been admissible in court. The court upheld the use of the evidence, reasoning that (1) the school principal received information from another teacher that prompted her to examine Joines’s computer, (2) this information served as justification for her search in the first place, (3) after accessing Joines’s computer, she found what she described as a Playboy-type Internet site, (4) this discovery justified contacting the school technology expert to investigate what was on the computer’s hard drive, and (5) this investigation led to more incriminating evidence. Consequently, the search was justified at inception, it was reasonable in scope, and the principal was acting in her proper capacity. It would also seem logical to assume that evidence gathered in this manner could be used in school district discharge or disciplinary proceedings.

The U.S. Supreme Court recently applied similar logic to a SWAT police officer’s pager owned by the city police department ( City of Ontario v. Quon, 2010 ). The Court held that the search of the officer’s text messages was reasonable at inception and in scope. The officer habitually went over the prescribed text message limit. A review of the text messages revealed several inappropriate text messages. The officer was terminated from his job.

Roberts (2003) concluded from his review of workplace searches that teachers and others should be put on notice that desks, computers, educational materials, school district-owned cell phones, and so forth are the property of the school district. This declaration creates a diminished expectation of privacy in those areas. Many, if not most, school districts require that employees (and students) sign an acceptable use policy (AUP) form before given access to district owned computers and networking. An AUP creates a diminished expectation of privacy, and searches of district-owned computers and cell phones would normally require only reasonable suspicion. Roberts concludes, however, that searches involving potential criminal activity or personal items such as wallets, purses, or briefcases should be held to the higher “probable cause” standard.

Linking to Practice

Do:

· Include in school district policy and in AUP agreements information regarding district ownership of school computers and cell phones if applicable and the fact that these devices are subject to search.

· When making a decision to search a district computer or cell phone, follow the guidelines established in O’Connor v. Ortega (1987) or City of Ontario v. Quon (2010) .

· Be sure that the scope of the search does not exceed the parameters established by the reason for the search in the first place.

Drug Testing

Courts have consistently recognized a board’s authority to order drug testing of employees when reasonable suspicion of drug or alcohol use is present. Hearn v. Board of Public Education (1999) illustrates judicial support for reasonable-suspicion drug testing. Sherry Hearn was a veteran teacher. She was also very vocal in her opposition to the school’s “zero-tolerance” drug, alcohol, and weapons policy. In April 1996, school administrators ordered a lockdown, and the campus security officer escorted the county law enforcement officer and a drug dog on a sweep of school property. During the search, the dog alerted on Hearn’s unlocked car in the school parking lot. A search turned up a small amount of marijuana in her ashtray. Under school policy, Hearn had 2 hours to take a urinalysis test for drug use. She declined to do so without first consulting her attorney and was subsequently terminated for insubordination. A urinalysis test conducted the next day was negative, but the board refused to alter their position. The 11th Circuit Court was not impressed with Hearn’s arguments for reinstatement. The court found that Hearn’s car search was reasonable based on the probable cause generated by the dog sniff. Consequently, her refusal to submit to a drug test within the 2-hour time frame violated board policy and put her at risk of termination (Stader & Francis, 2003). Other courts have also supported reasonable-suspicion drug testing (see Knox County Education Association v. Knox County Board of Education, 1998 , and Young v. Board of Education, 2003 , as examples).

Random Drug Testing

The U.S. Supreme Court has established that random drug or alcohol testing by urinalysis may pass constitutional muster when an overriding state interest outweighs individual privacy rights. The catalyst for upholding suspicionless drug testing is typically a history or evidence of drug or alcohol use by the target population. Employment in a safety-sensitive position , however, substantially lowers the bar for determining the legality of suspicionless testing. Safety-sensitive basically means that the potential for harm caused by illicit drug or alcohol use is of such magnitude as to justify a compelling state interest in suspicionless testing. The test for safety-sensitive involves two questions: (1) Are the duties performed by the employee so fraught with risks of injury to others that even a momentary lapse of attention may have disastrous consequences, and (2) does a clear nexus between the nature of the employee’s duty and the risk of injury exist ( Skinner v. Railway Labor Executives Assn., 1989 )?

In 1989, the Knox County (Tennessee) Board of Education (KCBE) established a drug-free workplace policy that provided for the suspicionless drug testing of all individuals applying for a position in the district and all current employees transferred or promoted within the district. In 1991, the Knox County Education Association (KCEA) challenged the policy in district court. The United States District Court for the Eastern District of Tennessee struck down the policy, primarily on privacy and methodology issues.

The court, however, chose to answer the question of whether or not teaching qualifies as a safety-sensitive position. Considering the nature of teaching and the obligation to maintain a safe environment for students, the court answered the safety-sensitive question in the affirmative and included principals, teachers, traveling teachers, teacher aides, and school secretaries in its ruling. In addition, teachers were found to have diminished expectations of privacy because educators work in a highly regulated industry (state licensure requirements, mandated curriculums, etc.) and the care and safety of students is an inherent part of the job requirements. Consequently, the interest of the state in random or suspicionless drug or alcohol testing outweighs the privacy interest of the individual educator.

In 1994, because of the ruling establishing teaching as a safety-sensitive employment position, the Knox County Board of Education adopted a revised policy. The KCEA once again challenged the policy. The Sixth Circuit Court let the policy stand in its entirety. This finding was made in spite of the fact that there was no evidence of a history of substance abuse among teachers and other employees in the Knox County School District. In addition, the district could not produce any evidence that inattentiveness or negligence had contributed to safety concerns. It is difficult to argue, however, that teachers do not hold safety-sensitive positions, and the court had little problem justifying the constitutionality of the revised Knox County testing policies.

There would seem to be little if any societal and legal ambiguity regarding the rights of a school district to require the drug testing of any employee who demonstrates symptoms or characteristics of alcohol or illegal drug use that affect teaching performance or student safety. Random testing policies, however, may be more debatable. Courts for the most part seem to agree that the special needs test is satisfied in a school setting. This finding substantially lowers the bar for random testing. Therefore, if a random drug testing policy is well written, is minimally intrusive, and is handled with discretion, the policy may well stand in most circuit courts.

Linking to Practice

Do:

· Have clear policies and procedures for reasonable-suspicion drug testing of teachers and other professional staff. The policy can be part of a negotiated agreement or adopted by the board of education.

· Use evidence to support random drug testing of school employees.

· Consider the impact on employee morale or general “utility” (see Chapter 6 ) before enacting random drug testing policies.

Summary

Finding the balance between the constitutional rights of public school teachers and the need for order, efficiency, and harmonious working relationships is sometimes difficult. Finding this balance requires an understanding of fundamental legal principles established by the various courts and the ethical obligations of fairness embedded in the ISLLC standards addressed in this text. The courts have granted a wide range of authority to school leaders to regulate the speech, instructional options, and associations of public school teachers. The ISLLC standards, however, call for school leaders who are proficient at creating the types of cooperative school cultures where the voices of all stakeholders are heard.

Connecting Standards to Practice

Good Sport?

Sharon Grey looked at the superintendent as the board chairperson said, “I would like to hear what Ms. Grey thinks.” Sharon paused to gather her thoughts. The April special session of the Riverboat School District Board of Education had only one agenda item, the case of Athletic Director Barnhart. As principal of Riverboat High School, Tara Hills had recommended that girls’ volleyball coach Blanche Barnhart be promoted to the position of athletic director on the retirement of long-time AD Franklyn Smith. Coach Barnhart’s appointment as athletic director was not without controversy among central office personnel. Business manager Fred Jones was the most vocal critic. In addition to the district budget, Fred was in charge of transportation, facilities management, and purchase orders. With the reluctant support of the superintendent, by a vote of 5–2 the board had approved Coach Barnhart as athletic director the previous May.

During the summer, Coach Barnhart revised the athletic budget to more equally distribute funds among the major boys’ and girls’ sports and had insisted that the boys’ and girls’ basketball teams equally share the varsity gym for practice times. There was some grumbling, but most coaches understood Coach Barnhart’s reasons for the change. It had been traditional at Riverboat that the football team was allowed to leave far away Friday night games at 1 p.m. and travel by charter bus. Players were fed before the game at local restaurants at district expense. This practice created considerable animosity among the coaches of other sports and many teachers.

Starting in the fall, Coach Barnhart directed that the football team would now leave far away games at 3:00 p.m. in regular district-sponsored buses. The booster club would be responsible for feeding players at restaurants if that was their wish. It was at this point that Fred Jones began to routinely reject purchase requests for girls’ athletics. As facility manager, he also arranged the basketball practice schedule so that the boys’ teams had access to the varsity gym immediately after school. Coach Barnhart arranged a meeting with Fred Jones, the superintendent, and Sharon Grey in early October. The meeting did not go well and ended in an argument.

In December, a local newspaper reporter presented to the superintendent and Fred Jones an open records request for all budget information broken down by sport that included anticipated revenue from the district, anticipated expenditures, purchase requests, actual expenditures, and projected balances at the end of the fiscal year. The reporter also requested documentation of practice schedules for all sports, transportation expenditures by sport, and other expenditures by sport. She had specifically asked for expenditures by sport for food and other “benefits.”

Fred Jones and the superintendent were not happy. They believed that Coach Barnhart had contacted the reporter and told her exactly what documents to request. The superintendent had requested the special board meeting to discipline Coach Barnhart by removing her as athletic director and head volleyball coach at the high school and assigning her to teach middle school social studies. Coach Barnhart claimed (without acknowledging that she had contacted the reporter) retaliation for her protected speech.

Question

1. First, argue for or against the legality of the adverse employment decision affecting Coach Barnhart. Clarify the legal question. Cite ISLLC standards and legal principles of teacher First Amendment rights to support your argument. Second, argue for or against the recommendation based on ethical principles presented in this text. Write a memo to Assistant Superintendent Sharon Grey outlining your position.