Tort of NegligenceTeacher negligence is a risk that needs to be taken seriously by all adults in the educational setting. It is critical that educational leaders are consistently and correctly educati

Chapter 11 Teacher Employment, Supervision, and Collective Bargaining

Introduction

Schools are a people-intensive business, and school districts regardless of size allocate the majority of available funding (sometimes as much as 85–90%) to salaries and benefits for employees. Parents and other stakeholders expect the best teachers for their children. They also demand sound stewardship of this public trust. Consequently, recruiting, selecting, and supervising employees is an important, some might say the most important, role for school leaders. At the same time, teachers and other school employees are protected by a variety of employment laws. Sound stewardship requires an awareness, understanding, and acceptance of these laws and policies. Effective school leadership also requires that they be fairly applied in order to create cooperative environments.

The basic ethical and legal principles concerning employment, teacher supervision, and collective bargaining that apply to most states are emphasized in this chapter. These laws vary, sometimes substantially, from state to state. Therefore, leadership candidates and instructors are encouraged to obtain and use state law to guide discussions in this chapter.

Focus Questions

1. How can employment policy and practice be evaluated to determine its impact on school culture?

2. What protections from capricious or arbitrary employment decisions should public school teachers enjoy? Are these protections too little or too much?

3. How and when should the performance and behaviors of teachers be documented?

4. Should teachers be allowed to bargain collectively with a school district? What should they bargain for?

Key Terms

1. Adverse employment decision

2. Affirmative action

3. Bona fide occupational qualification (BFOQ)

4. Collective bargaining

5. Continuing contracts

6. Disparate impact

7. Disparate treatment

8. Equal Employment Opportunity Commission (EEOC)

9. Immorality

10. Incompetence

11. Insubordination

12. Just cause

13. Nexus principle

14. Performance appraisals

15. Probationary contract

16. Remediation plan

17. Title VII

18. Union

Case Study Discrimination?

Jason Whitehead glanced across the table at the face of Corinne Lodge, the board chairperson. Corinne was obviously unhappy. He looked around the table. The other six board members seemed in varying degrees to share Corinne’s displeasure. This was Jason’s first year as superintendent of Pine Valley School District (PVSD), a relatively small school district in Johnson County. Easy access to interstate highways and a major metropolitan complex made Pine Valley a thriving community. Pine Valley, unlike many neighboring districts, faced continuing increases in enrollment. Over the years, the population had grown, and in that time the teaching staff had almost doubled. Corinne said, “I’m concerned about some of the allegations in this letter. Mr. Whitehead, I would like to see this investigated.” Several other board members nodded in agreement with Corinne’s statement.

Two days before the regular October school board meeting, Jason, the board president, and each of the board members had received identical letters signed by a majority of the members of the Pine Valley Teachers Organization. The letter read, in part, “For the past several years the PVTO has remained silent as the superintendent and his administrative team consistently demonstrated favoritism and discrimination in employment decisions. Administrators routinely ignored the recommendations of faculty search committees and hired friends, friends of friends, and relatives to teaching positions in the district. Teachers and others who were considered friends of the administration were given preferential treatment, greater access to the more desirable teaching assignments, and access to steps on the career ladder. Administrators routinely ignored reports of misconduct, including at least three reports of sexual misconduct and several reports of teachers using school property for personal use when the reports involved their friends. At the same time teachers who were critical of administrative decisions, reported suspected misconduct, or protested student disciplinary decisions were routinely placed in undesirable teaching assignments, received low performance reviews, and suffered adverse employment decisions including termination. While PVTO will remain dedicated to the children in our classrooms and schools, we will no longer stand quietly by while unfair labor practices, questionable decisions regarding hiring/firing/demoting teachers, and favoritism are common practice.”

Jason was fairly sure that board policy was in compliance with state and federal law. But, he had to admit to himself that he had heard many of the same concerns from community members and a couple of area superintendents he had met. Jason agreed with the board. A good review of employment practices was required.

Leadership Perspectives

Education is a people-intensive business. Consequently, considerable portions of public funds generated for public education are allocated to teacher, staff, and administrator salary and benefits. In fact, it is difficult to imagine a school district where a majority of the total expenditures of the district are not encumbered by salaries and benefits. ISLLC Standard 3B requires school leaders to obtain, allocate, align, and efficiently utilize human, fiscal, and technological resources. In the case study “Discrimination?” it is this standard about which the teachers’ organization is expressing their concern. In addition, Jason is legally required to ensure that Pine Valley employment policy is in compliance with federal and state law. Consequently, Jason Whitehead’s concerns about past employment practices at Pine Valley may be well founded.

ISLLC Standard 3B

ISLLC Standard 6

Human resources managers and those responsible for recruiting, selecting, and supervising employees have a particular duty to treat all current and potential employees fairly, in an ethical manner, and without bias (Rebore, 2011). The responsibility to treat employees fairly is embedded in ISLLC Standards 2A, 3A, 3B, 3E, 5A, and 5C. In the case study “Discrimination?” it is the part of school district practices concerned with acting with integrity, with fairness, and in an ethical manner that the PVTO is apparently challenging. In other words, a significant portion of the teacher organization, or at least the most influential members, do not believe that teachers are being treated fairly at Pine Valley School District. Jason Whitehead has been challenged by the PVTO and the board of education to evaluate these practices to ensure that the employment practices at PVSD meet the legal requirements outlined in ISLLC Standard 5. In addition, Jason is being challenged to evaluate district policy and practice to ensure these policies meet the ethical requirements outlined in ISLLC Standard 5B.

ISLLC Standards 2A, 3A, 3B, 3E, 5A, and 5C

ISLLC Standard 5

ISLLC Standard 5

ISLLC Standard 5B

Ethical considerations are particularly important in human resources management (Rebore, 2011). People, regardless of job description, often face difficult decisions where the lines between right and wrong, ethical and unethical are blurred. Individuals with supervisory roles in public schools are particularly vulnerable because their decisions (or failure to decide) affect everyone, including students, parents, and employees. This is the essence of ISLLC Standard 5B, which calls for school leaders to model self-awareness, reflective practice, transparency, and ethical behavior. To meet this standard, Ronald Rebore (2011) provides three foundations for the importance of ethical considerations in human resource management:

ISLLC Standard 5B

1. People are in a constant state of becoming either a better person and professional or a person who gradually loses his or her integrity. Rebore believes that it is often the culmination of small judgments and decisions over time that determines the sort of person and human resources manager one becomes.

2. Those responsible for human resource management (including principals and associate or assistant principals) have a definitive and lasting impact on the school district as an institution.

3. Any action that shows preferential (or prejudicial) treatment to certain people is contrary to the development of personal integrity and to the proper operation of the school district.

If the allegations made by the Pine Valley Teachers Organization are true, past and possibly current administrators have violated all of Rebore’s ethical foundations of human resource management. They may have also violated several federal laws as well as the basic concept that teachers should be treated fairly simply because they are human beings. Jason Whitehead may be faced with a difficult task. Past practice can at times be difficult to challenge, especially if this practice is deeply ingrained in the school culture. The utilitarian principles of John Stuart Mill, however, may provide guidance in such an undertaking.

Utilitarianism and Employment Practices

J. S. Mill, a student of Jeremy Bentham, first published his concepts of utilitarian ethics in 1861 as a series of three essays. In Mill’s view, all action should be taken for the sake of some end (Mill, 1998). More importantly, this action should be taken with a clear and precise concept of the purpose of the action. In other words, policy and the reasons for the policy should be designed with a specific purpose in mind before implementation. The question is, of course, what should this purpose be? According to Mill, the purpose of actions should be to diminish pain and create the most happiness. Mill adopted the word utility from his mentor Jeremy Bentham to describe this concept. Mill defines utilitarianism (or the greatest happiness principle) as follows: “Actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness” (p. 55). In Mill’s view of utilitarianism, the rightness or wrongness of actions should depend on the foreseeable, or expected, outcomes of the action. In short, all action should be taken with the expected intent to promote happiness. For this discussion of J. S. Mill’s utilitarian ethics, the greatest happiness principle can also be viewed as “the greater good.” In other words, the purpose of action should be to promote the greater good.

It is important to point out that in this view of utilitarianism, the standard for greatest happiness is not the policy maker’s own happiness, but rather the greatest amount of overall happiness. This is the directive rule of Mill’s utilitarian ethics. In this view, employment policies (all policy that affects employees, including leave policy, work rules, salaries and benefits, supervision models, and investigations of misconduct) should not be designed to produce happiness for a board member, an administrator, a search committee, or the teachers’ union. Rather, the policy should be designed to promote the greater good among all concerned. This is an important point. Utility is not about what continually makes some group of people happy. Rather, it is about policy and practice that is designed to find a balance between the needs of the organization for efficiency and order and the needs of the employees for satisfaction in their work (a sense of community and individual importance). Thus, utilitarian ethics does not require that actions produce happiness for everyone, but rather the greatest happiness for all concerned. In fact, Mill recognized and articulated the need for negative consequences in his writing as an important factor in the utility of a society. For example, the use of a professional growth plan to improve a teacher’s deficiency or the proper investigation of allegations of employee misconduct may be viewed as negative by the affected individual, but promote the greater good of the school community. Part of the utilitarian concept, however, is how these negative consequences should be applied (see Bentham’s views of the role of government outlined in Chapter 6).

ISLLC Standard 2D

ISLLC Standard 3C

ISLLC Standard 2A

School cultures that encourage collaborative efforts as outlined in ISLLC Standard 2A require that all involved view the school, or school district, as a society of equals. A society of equals may “only exist on the understanding that the interests of all are to be regarded equally” (Mill, 1998, p. 78). In fact, cooperative school cultures are characterized by feelings that the best interests of others are also in one’s own best interest. These feelings not only improve social ties; they also serve as a catalyst for continued healthy growth in school culture. In other words, cooperative school cultures cannot exist where the interests of all concerned are not the primary foreseeable outcome of all action.

ISLLC Standard 2A

ISLLC Standard 2C

For example, in the case study “Discrimination?” Jason Whitehead and the board of education would ideally view employment policy and practice as contributing to the greater good of students and teachers in PVSD. Jason Whitehead has been charged by the board of education and challenged by the teachers’ organization to fairly evaluate employment policy and practice. It is easy to argue that the purpose of employment policy should be to promote the greater good. How, though, can the greater good be determined?

ISLLC Standard 2A

Mill identifies legal rights, moral rights, desert (what is deserved), contracts, impartiality, and equality as six concepts of justice congruent with utilitarianism or the greater good. A short description of each of these concepts and an evaluation model follows:

• Legal rights: It is thought unjust to deprive anyone of any legal right that they possess.

• Moral rights: It is possible for some law or policy to violate the moral rights of individuals. These laws or policies are unjust.

• Desert: It is thought unjust for someone to receive something that they do not deserve. This concept works for both good (receiving an award or acknowledgment, for example) and a bad (a reprimand, for example) that are not deserved.

• Contracts: It is unjust to break voluntary agreements with others.

• Impartiality: It is thought unjust to be inappropriately partial.

• Equality: Justice requires equality, except when inequality is more beneficial overall.

These concepts of justice can be organized into a table to assess the relative utility of school district or campus culture (Table 11-1).

For example, in the case study “Discrimination?” Jason Whitehead has been challenged to objectively evaluate the employment policy and practices at PVSD. Part of this evaluation and non-judgmental data collection could include an analysis of the relative utility of employment policy and practice. In this example, each of the six concepts of justice consistent with utility could be given a score. This rough total

Table 11-1 An Assessment of School Utility

could then be used to rate the relative overall utility of the district. If problem areas exist, then the data can be used as justification for changes in policy and practice. The matrix and the data collected could also be used to justify current practices. If this is the case, other deeper issues—ones that are not really related to employment policy—may exist between the union membership and the board of education. Consequently, Jason could use a communication model such as “Resolving Issues of Conflicting Interest,” outlined in Chapter 3 and Chapter 12, to develop a better understanding of the apparent underlying issues.

It is important to note that a similar utility model could be adapted to a variety of policy analysis questions. Examples could include student discipline practices, the allocation of funding for instructional supplies, or equal access to extracurricular activities for boys and girls.

Legal Issues in Employment

In decidedly different language, Mill’s six concepts of justice congruent with utilitarianism guide much of the employment law in the United States. To this end, the U.S. Congress has passed a variety of laws to address discrimination in employment practices. The most significant of these laws is Civil Rights Act of 1964, particularly Title VII, 42 U.S.C. § 2000e (P.L. 88-352). Title VII prohibits discrimination in employment practices on the basis of race, color, religion, gender, or national origin under any federally assisted educational program. The act places an affirmative duty on school districts to discover and eliminate discriminatory practices. The Equal Employment Opportunity Commission (EEOC) was created by this act. The EEOC enforces most employment discrimination laws. Teachers and other school district employees must first pursue EEOC remedies before they may file suit under Title VII. The EEOC has an excellent website at www.eeoc.gov. The Office for Civil Rights (OCR) also enforces employment discrimination laws, including all civil rights laws and the Americans with Disabilities Act. OCR also has an excellent website at www.ocr.gov.

Basically, two types of discrimination are defined by Title VII: disparate treatment and disparate impact. Disparate treatment applies when an individual claims that he or she was demoted, fired, passed over for a promotion, or not hired because of race, color, sex, religion, or national origin. In order to prevail under Title VII, the teacher would need to demonstrate (1) that she is a member of a protected class and (2) that she was terminated from her employment because of her protected class. If the teacher is a member of a protected class, the burden of proof shifts to the school board to demonstrate a valid reason for their decision. For example, a black, female Missouri teacher with 10 years of experience was dismissed by her school board (Shanklin v. Fitzgerald, 2005). In this case, the board was able to demonstrate that the teacher was dismissed for legitimate reasons (failure to improve in specific areas) and not because of her race. In another example, an experienced female high school basketball coach applied for the head boys’ basketball coaching position when the head coach resigned (Fuhr v. School District, 2001). A selection committee recommended a less qualified male applicant. The case involved the denial of a promotion (assuming of course that moving from head girls’ coach to head boys’ coach is a promotion, which may or may not be true) to a member of a protected class. The burden of proof shifts to the board to demonstrate that the female coach was denied the promotion because of a valid reason, not because of her sex. Do you see why?

Disparate impact occurs when a facially neutral policy has an unequal effect on minority groups. The parameters of disparate impact as the term relates to employment practices were defined by the U.S. Supreme Court in Griggs v. Duke Power Co. (1971). In this case, an employer required a high school diploma or passing an IQ test as a precondition of employment. However, the company could not show that the requirement was reasonably related to job performance. The Court held that Title VII does not prohibit an employer (a school district, for example) from using objective criteria. In fact, objective criteria may well be the best defense against discrimination. Please see Ricci v. DeStefano (2009) and Lewis v. City of Chicago (2010) for examples of disparate treatment and disparate impact in employment.

Key Federal Discrimination Legislation

In addition to Title VII, the U.S. Congress has passed a variety of laws designed to specifically address different kinds of discrimination. These laws protect a wider group of individuals (protected class) and make it easier for these individuals to demonstrate discrimination. Table 11-2 includes a summary of the key federal legislation that affects educator employment.

Several issues germane to educational leadership, which include sexual harassment, hostile work environment, ethnic or religious discrimination, drug/alcohol use, and the Americans with Disabilities Act Amendments, are discussed in more detail.

Sexual Harassment

Harassment on the basis of sex in the workplace is a violation of § 703 of Title VII. Sexual harassment is defined under two legal theories: quid pro quo and hostile environment.

Quid pro quo occurs when submission to sexual conduct is used as a basis for employment or refusal to submit to sexual conduct results in an adverse employment decision (EEOC, 1999, 2002). The acquiescence to the request or refusing the request is not the point. The fact that the demand was made rises to the level of sexual harassment.

A hostile environment occurs when unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature have the purpose or effect of unreasonably interfering with work performance or create an intimidating, hostile, or offensive working environment (EEOC, 1999, 2002).

Title VII does not prohibit all conduct of a sexual nature in the workplace, which of course would be impossible; only unwelcome sexual conduct that rises to the level of a hostile environment or quid pro quo harassment is illegal (EEOC, 1999). The law also prohibits retaliatory actions for reporting or refusing to submit further to the harassment. For example, a retaliatory claim could include discharge, demotion, transfer to a less desirable position or location, or denial of a promotion that could be traced to the reporting of unwelcome sexual conduct or a refusal to submit to sexual conduct (EEOC, 2002).

An employer is responsible for acts of sexual harassment between employees where the employer (or supervisory personnel) knows or should have known of the conduct unless immediate and corrective action was taken (EEOC, 2002). The unwelcome component of sexual harassment is defined by the recipient. What may start as welcome sexual attention may quickly become unwelcome. To overcome the difficulty sometimes inherent in defining unwelcome (or when actions become unwelcome), courts use the “reasonable person” standard. In other words, if sexual conduct looks unwelcome, sounds unwelcome, and the reaction of the recipient appears to mean that it is unwelcome, then it is unwelcome. Isolated incidents of offensive sexual

conduct or remarks generally do not create an abusive or hostile environment. However, a single incident that is especially egregious or shocks the conscience (i.e., a sexual assault or fondling) may rise to the level of sexual harassment (EEOC, 1999).

Same-Sex Sexual Harassment

Sexual orientation harassment in the workplace was not the “principal evil” Congress intended to address in Title VII. Nevertheless, in Oncale v. Sundowner (1998), the U.S. Supreme Court extended Title VII to include same-sex sexual harassment by stating, “Sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.” Oncale has been applied by several courts to same-sex harassment (see Mota v. University of Texas, 2001, as an example). Sexual stereotyping has also been found to be illegal (Price Waterhouse v. Hopkins, 1998). Price Waterhouse would, for example, prevent the discharge of a male teacher for effeminate characteristics or of a female employee for being overly masculine. In mixed-motive cases with both good and bad reasons (gender stereotyping, for example) intertwined, the burden of proof shifts to the school board. The board must demonstrate that it would have made the decision anyway, based on the good reason, even if it had not allowed the bad reason (sexual stereotyping) to play a role—and so no violation has occurred (Desert Palace v. Costa, 2003).

Hostile Work Environment

In addition to sexual harassment that results in a hostile work environment, Title VII prohibits verbal and written conduct based on race, ethnic origin, or religion that creates a hostile work environment. The U.S. Supreme Court in Burlington Industries v. Ellerth (1998) makes it clear that supervisors are legally responsible for a failure to prevent and remediate a hostile work environment if the supervisor had reasonable notice of the harassment and failed to take adequate corrective measures (see Henderson v. Walled Lake, 2006, as an example). As Rebore (2011) points out, the harassing conduct does not have to occur in person. Technology such as text messaging, e-mail, Twitter, and social media make it possible for harassing conduct to occur at anytime or anyplace. Thus, abusive e-mails, text messages, Twitter posts, or social media messages that create a hostile work environment are a violation of Title VII. School officials should be aware of their responsibility to prevent abusive or hostile language or messages in any medium. A well-written employee policy that clearly states that the district will not tolerate abusive or hostile language or messages at school or in electronic formats at anytime may be the better part of valor.

Ethnic or Religious Discrimination or Harassment

Title VII prohibits workplace discrimination based on the real or perceived religious or ethnic background of employees (EEOC, 2005b). Employers (school boards) may be liable for harassment or discrimination by supervisors, teachers, other school personnel, or non-employees. School districts are required to make reasonable accommodations for religious practices unless doing so would create an undue hardship for the district. Reasonable accommodations may include leave for religious observances, time or place to pray, and ability to wear religious garb (a hijab, for example).

Drug-Free Workplace

The federal Drug-Free Workplace Act of 1990 (41 USC Chapter 10) requires public school districts to certify that the district will provide a drug-free workplace by establishing a drug-free awareness program to inform employees about (1) the dangers of drug abuse in the workplace; (2) the district’s policy of maintaining a drug-free workplace; (3) any available drug counseling, rehabilitation, and employee assistance programs; and (4) the penalties that may be imposed on employees for drug abuse violations. It is important to note that the Drug-Free Workplace Act does not require termination for an employee who tests positive for drugs or alcohol at school. In fact, the act specifically mentions drug and/or alcohol counseling as an option. But, the act does support a school board decision to terminate an employee who does test positive.

Americans with Disabilities Act

It is illegal to discriminate against a qualified individual on the basis of disability. School districts are required to make reasonable accommodations for individuals with disabilities. The Americans with Disabilities Act is enforced by the federal Office for Civil Rights.

The Americans with Disabilities Amendments of 2008 (42 U. S. C. 12102, Section 3, effective January 1, 2009) significantly expanded the definition of disability to mean “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

An individual meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited under the act because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. The burden of proof shifts to school districts in cases where an employee faces an adverse employment decision and claims a disability. The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures such as (1) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (2) use of assistive technology; (3) reasonable accommodations or auxiliary aids or services; or (4) learned behavioral or adaptive neurological modifications.

Affirmative Action and Occupational Qualifications

Affirmative Action

Title VII, along with other employment laws, attempts to make hiring practices neutral and does not require that school districts favor one person over another. However, a voluntary affirmative action plan to remediate past discrimination in employment may not be unlawful reverse discrimination if a district can demonstrate that (1) a statistical disparity exists between race or sex for a particular job category, (2) the district was (or is) guilty of past discrimination, (3) efforts do not unnecessarily penalize the rights of non-minority applicants, and (4) efforts are designed to terminate when the goals of the plan have been achieved (Alexander & Alexander, 2012). Because affirmative action is based on race or sex, courts apply a strict scrutiny standard. Strict scrutiny requires that the district would need to show that the affirmative action plan is necessary to achieve a compelling state interest. The plan would also need to be narrowly tailored to achieve this goal. These standards have become very difficult to meet.

Bfoq

Compliance with federal non-discrimination laws requires an understanding of the term bona fide occupational qualification (BFOQ). A BFOQ is a requirement essential or necessary for performing a particular job. Whether a bona fide occupational qualification is allowed depends on whether the job qualification is reasonably necessary and narrowly fashioned in the job description. For example, a job qualification for a bilingual English-/Spanish-speaking third-grade teacher in an elementary school with a population of English language learners may be reasonable and narrowly fashioned. However, a job description calling for only teachers of Hispanic origin may not be reasonable. Similarly, it seems reasonable to specify a female for a position that requires the supervision of a girls’ locker room (Rebore, 2011). Race, marital status, religious affiliation, and family plans are never BFOQs. The only exception is that a private religious school may require that applicants profess a particular faith. Requesting preemployment information that discloses or tends to disclose an applicant’s sex, race, ethnic origin, or religion likely constitutes evidence of discrimination (EEOC, 2005a).

Licensure and Contracts

The criteria for teacher and administrator certification and licensure are set by state law and regulations. Currently all states have enacted laws establishing the certification or licensure requirements of professional public school employees, including the approval of the content of teacher education programs. Each state may establish any number of requirements for teacher and administrator licensure that presumptively qualifies a person to teach, including educational requirements, test scores, United States citizenship, good moral character, or any other conditions considered important. Courts are supportive of these requirements as long as the requirements for licensure are not arbitrary. State certification test have been upheld by the courts when the state can demonstrate a reasonable connection between the knowledge and skills measured on the test and the duties of the teacher (see, for example, Association of Mexican-American Educators v. State of California, 2000). All states empower the licensure issuing agency (usually the state board of education) to revoke teaching license for a variety of reasons. Courts are reluctant to overrule state mechanisms for the revocation of teaching licenses. For example, a Florida appellate court refused to substitute its judgment for a decision by the Florida Practice Commissions to revoke the certificate of a teacher for sending sexually oriented e-mail to seventh-grade students (Wax v. Horne, 2003).

The terms and conditions of teacher and administrator contracts are established by state law and regulation. Public school employees must agree to the legal conditions and abide by whatever requirements and stipulations are set forth by the state legislature or state board of education. In general, the legal authority to issue contracts to individuals to serve the needs of the school district is delegated to local boards of education. This is an important point. In most cases only boards of education have the authority to enter into valid employment contracts, discipline employees, or terminate contracts.

A contract is binding on both parties. Contracts can be changed or voided with the agreement of both parties. A breach occurs when one party fails to meet the terms of the contract. When one party breaches a contract, the other party is entitled to damages (money) in proportion to the damage done by the breach. Most, if not all, states allow boards to legally breach teaching contracts because of declining enrollment or financial needs. This type of breach, usually called reduction in force, is designed to allow boards of education to meet changing financial or enrollment situations. Reduction in force requires a Non-discriminatory policy. Courts usually do not second-guess these decisions as long as the board does not discriminate, uses some objective criteria, and follows state law, any negotiated agreements, and board policy. For example, a school district would be hard pressed to justify a policy that allowed for the layoff of veteran or tenured non-minority teachers before non-tenured minority teachers (Wygant v. Jackson Board of Education, 1986).

Types of Contracts

There are four general types of public school employment contracts: (1) at-will, (2) probationary, (3) term, and (4) continuing. At-will employment is usually reserved for non-certified personnel such as custodians, maintenance workers, cafeteria workers, clerks, or secretaries. Teachers are sometimes employed on an at-will basis for supplemental duty assignments such as junior class sponsor. At-will employees generally have an expectation of continued employment for the duration of the pay period. Termination during the pay period (e.g., monthly for custodians, or for the school year for a chess club sponsor) may require sufficient evidence to support the decision. However, if the district waits until the end of the pay period, few if any due process requirements are necessary (Kemerer & Crain, 2010). It would seem that little if any documentation would be necessary to terminate a term contract. This may not be the case. As Kemerer and Crain (2010) point out, a term employee who is terminated may elect to challenge the non-renewal and could, for example, file a complaint with the EEOC claiming that refusals of sexual favors factored into the decision. In these cases, the supervisor should have documentation related to poor job performance or some other reason unrelated to the allegation of quid pro quo sexual harassment.

A probationary contract is normally issued to inexperienced teachers or teachers new to a school district. Probationary contracts are for 1 year. A probationary contract can be terminated at the end of the contract year if the district believes it is in the best interest of the district. According to Kemerer and Crain (2010), the non-renewal of a probationary teaching contract is generally the easiest negative employment decision to defend. Again, probationary contracts can be terminated at the end of the term for any good reason (but never for a bad reason). The district only has to comply with state statutes regarding notice that the contract will be terminated at the end of the contract period. For example, in Texas probationary teachers must be notified no later than 45 days before the last day of instruction under the contract (TEA 21.103). In Missouri, probationary teachers must be notified of non-renewal on or before April 15 (RSMo 168.126). If challenged, administrators should be prepared to defend their non-renewal recommendations. However, the burden is clearly on the teacher to establish that the district had an impermissible motive (bad reason), not on the district to demonstrate a valid (good) reason (Kemerer & Crain, 2010).

Termination of probationary contracts during the term of the contract requires formal due process requirements. Districts must generally give the probationary employee an explicit directive to improve or change his or her conduct and an opportunity to comply with the directive (Kemerer & Crain, 2010). For example, Missouri state law outlines the following due process requirements for probationary teachers during the term of the contract: The board of education through its authorized administrative representative, must (1) provide the teacher with a written statement clearly identifying areas of deficiency or incompetence, (2) furnish the teacher an opportunity to correct the problem and (3) give the teacher 90 days to demonstrate improvement. If improvement satisfactory to the board of education has not been made within 90 days of the receipt of the notification, the board of education may terminate the employment of the probationary teacher immediately or at the end of the school year (RSMo 168.126).

Term contracts are for specified lengths of time. Term contracts are usually reserved for superintendents and experienced principals. Some states, such as Texas, allow term contracts for up to 5 years; other states, such as Missouri, allow term contracts for up to 3 years. Like probationary contracts, term contracts can be non-renewed with sufficient notice at the end of the term of the contract. Termination during the term of the contract naturally requires more careful attention (Kemerer & Crain, 2010).

Continuing contracts (called tenure contracts in some states) were initially created by state legislatures as a job security device to protecting against arbitrary termination by local school boards. Currently 19 states continue to use the term tenure, whereas a number of states use continuing contract terminology (Frey, 2010). A continuing contract bestows a property right to continual employment in the district until the employee retires, resigns, dies, is terminated, or agrees to a change in contract status (Kemerer & Crain, 2010). Most states require a probationary period of 2 to 5 years’ continuous service in a district. School boards have wide latitude in deciding whether to grant initial tenure as long as decisions are not discriminatory (Frey, 2010). Employees must meet all the requirements of the job to maintain the position. For example, failure to complete certification requirements, failure to renew a certificate, or failure to obtain an adequate number of continuing education credits would be reason to terminate the employment of a teacher in a district. The U.S. Supreme Court has upheld the termination of a continuing contract teacher because of a willful failure to earn continuing education credits as required by board policy (Harrah Independent School District v. Martin, 1979).

Teachers who have earned a continuing contract cannot be dismissed except by good cause as set forth by state law. It is a common misunderstanding that continuing contract teachers cannot be terminated for instructional inadequacies. This is not necessarily true. But, the burden of proof shifts from the teacher to the board of education to demonstrate a valid reason, rather than the teacher being required to demonstrate that the board used a “bad” or discriminatory reason for the decision. Consequently, extensive documentation is often required in defending decisions to terminate (or recommend termination of) a continuing contract teacher (Kemerer & Crain, 2010). Tenured or continuing contract teachers do not have a right to a particular teaching assignment, to a choice of schools within a district, or to indefinite employment.

Teacher tenure has long been a hot-button issue, and it should not be surprising that the concept of continuing contracts is being reexamined in several state legislatures around the county. In 2010, for example, 11 states modified at least some part of their tenure laws (Frey, 2010). The use of 1- to 3-year term contracts for teachers in the place of continuing contracts is an emerging trend in some states, including Texas. In general, it is most likely safe to assume that the decision of non-renewal of a term contract should be supported by documentation of deficiency or incompetency on the part of the teacher in question (Kemerer & Crain, 2010). The importance of documentation is considered in the next section.

Teacher Supervision

State law (and school board policy) requires the evaluation of teaching performance. ISLLC Standards 2D, 2F, and 2I reflect this requirement by calling for school leaders to supervise instruction, develop the instructional capacity of staff, and monitor and evaluate the impact of the instructional program. Teacher evaluation instruments typically contain job-related criteria such as instructional methodology, lesson planning, meeting the needs of varied learners, alignment of instruction and student assessments with state tests, and positive classroom management skills. Areas other than teaching may also be included. These areas, called interpersonal and organizational relationships, may include criteria such as relationships with fellow teachers and administrators, following board policy and campus rules, and cooperative relationships with parents. However, criteria used in the evaluation of teaching performance should be rationally related to the job of teaching. What is important is that the behavior be validly related to the requirements of the job and that it can be observed. In short, only observable behaviors related to the job are fair game for evaluation (Rossow & Tate, 2003).

ISLLC Standards 2D, 2F, and 2I

Documentation of Performance

Proper documentation is essential in the justification of employment decisions. Kemerer and Crain (2010) list several types of documentation: (1) oral directives, (2) notes to file, (3) performance appraisals, (4) specific incident memoranda, and (5) summary memoranda. Oral directives are simple verbal directions. Oral directives may be appropriate for minor transgressions and for first-time offenders. The downside is that the lack of documentation limits their usefulness later in a non-renewal or termination defense. Notes to file, the second form of documentation, can help alleviate this drawback. Notes to file that accompany oral directives can assist in recalling specific times, dates, and conversations regarding certain behaviors. These notes can help establish a pattern of non-compliance or misbehavior that can later be used in a more formal memorandum or reprimand. Notes to file, however, should stick to the facts and nothing but the facts.

ISLLC Standard 3E

Performance appraisals include the documentation required by state law and school board policy. There are generally two forms of teacher performance appraisal: formative and summative. Formative evaluations usually consist of classroom observations, analysis of lesson plans, and observations of teacher interactions with students, parents, colleagues, and others. Summative evaluations consist of the summaries and conclusions from formative evaluations and are used to justify continued employment or termination/non-renewal of employment. Performance appraisals are often standardized formats mandated by state law or school board policy by which the performance of all teachers is periodically evaluated. The frequency is determined by the type of contract and school board policy or state law.

A specific incident memorandum applies to a specific incident or a pattern of incidents that is sufficiently serious that a written record should be made. Regardless of the circumstances, these memoranda should contain several essential elements. Kemerer and Crain (2010, pp. 2-4) explain these elements as follows:

1. Use district or campus letterhead to emphasize the importance of the correspondence.

2. Do not forget the date.

3. Describe the nature of the allegation, the nature of the administrator’s investigation if one was required, dates and times of specific incidents, and the dates on which the supervisor has spoken with the employee regarding the allegations.

4. Set forth a findings of fact.

5. State conclusions regarding what happened and which laws, policies, administrative directives, or ethical provisions were violated by the actions of the employee.

6. Issue specific directives regarding future conduct.

7. Offer the employee an opportunity to respond within a specified time period.

8. Require the dated signature of the employee. If the employee refuses to sign, have a third party witness that the employee has received the document.

The final type of document outlined by Kemerer and Crain (2010) is the summary memorandum or last chance memorandum. This document pulls together and summarizes the record of observations, notes, and conversations from a particular period of time. The summary or last chance memorandum may include data from prior years if relevant to establishing a continuing pattern of deficiency. However, some caution is required when using prior year data. Regardless of the type, a careful documentation system is essential to effective personnel decisions.

Linking to Practice

Do:

• At the district level, train campus principals to develop an organized documentation process. Principals should train assistant principals and other supervisory personnel (department heads, mentor teachers, or instructional specialists, for example, if these individuals serve as evaluators) in proper documentation of teaching and interpersonal skills of teachers. Kemerer and Crain (2010) provide excellent examples of documentation that can be adapted to any state or local requirements.

• Clarify the types of behaviors that may result in some form of written record. Insist that all supervisory personal comply.

• Use evidence generated from the teacher’s formative and summative performance assessments to justify renewal or non-renewal of a probationary contract teacher. There is no excuse for personal bias or unprofessional conduct when making these kinds of recommendations.

Do Not:

• Document every incident of non-compliance. For example, a single incident of being a few minutes late to lunch duty may not rate a specific incident memorandum or a remediation plan.

• Show up at a school board meeting with plans to recommend the termination of a continuing contract without good documentation that demonstrates a pattern of failure to meet the criteria established for teachers in the district and documentation of efforts to remediate the behavior (if applicable). Remember, the burden of proof is on the administrator in non-renewal of continuing contract teachers. Never try to bluff your way through a termination hearing before your local board of education.

• Use a documentation system as a method to bully employees or make life miserable in an effort to force a resignation or transfer.

• Use e-mail as a documentation system.

Grounds for Dismissal of Continuing Contract Teachers

There are basically two types of teacher behavior that are grounds for termination: remediable and non-remediable (Kemerer & Crain, 2010). Non-Remediable behaviors are grounds for non-renewal or immediate termination. Examples of non-remediable behavior may include violent behavior that puts students at risk of harm or injury, felony conviction, or inappropriate sexual or interpersonal relationships with students. Remediable behaviors require a chance for the teacher to improve or remediate the behavior. Examples may include a lack of lesson planning, failure to follow directed changes in teaching methodology, incidents of insubordination, or difficulties in classroom management. The remediation plan (professional growth plan) is a document that advises an employee of deficiencies, outlines a plan to improve, assists the employee in meeting the plan, and gives a reasonable time to comply (usually 30 to 90 days as defined by state law). Opportunities for remediation (changes in teacher behavior) are generally required before midyear termination of probationary teachers and almost always for continuing contract teachers for these types of deficiencies. It is not always required, but sound practice, to provide remediation opportunities for probationary teachers before a decision to terminate at the end of the contract period is made (Kemerer & Crain, 2010).

Almost every state (Kansas is the only exception) has statutes that outline reasons for the termination of a teacher’s contract (Frey, 2010). Terms such as insubordination, neglect of duty, immorality, incompetence, and just cause are common threads in many state statutes (Frey, 2010). For example, Missouri state law empowers local boards of education to terminate the employment of continuing contract teachers for incompetence, inefficiency, insubordination, excessive absence, or conviction of a felony (RSMo 168.144). This section discusses these criteria in more detail.

Insubordination

Insubordination can be defined as the willful and deliberate defiance of reasonable school rules or the reasonable directions of a person in a supervisory capacity. Insubordination may be the easiest of the grounds for dismissal to define and document. The teacher or subordinate either obeyed a rule or order or disobeyed it (Rossow & Tate, 2003). However, employees can be insubordinate if they refuse to comply with a directive that relates to their job description. For example, a third-grade teacher who refused to supervise recess would be insubordinate, whereas a custodian who refused the same directive would not be refusing a directive related to her job description (Rebore, 2011). Naturally, employees would not be expected to follow a directive that may be illegal, is discriminatory, puts students in danger, or violates the constitutional or statutory rights of others.

Neglect of duty

Excessive or unreasonable absence from work can be substantiated only by a board policy that defines what is meant by excessive absence. A documented pattern of absences from work over a period of time will most likely suffice as long as the employee does not suffer from a disability covered by the Americans with Disabilities Act as Amended (Rebore, 2011).

Incompetence

Incompetence requires that the teacher demonstrate an inability to perform the duties required by the teaching contract. This may be the most difficult cause to document (Rebore, 2011). A charge of incompetence usually requires more than one incident of ineffective or substandard performance. However, a properly documented number of bad days or lessons can serve as the basis of a charge of incompetence. In other words, repeated documentation of incidents that clearly show deficiencies in the teacher’s job-related performance is usually necessary to justify incompetence. In addition, incompetence is usually considered a remediable offense. Consequently, many (if not all) states require that a remediation plan and an opportunity for the teacher to rectify any deficiencies be implemented before the recommendation for termination. One area that is frequently included in a charge of incompetence is failure to properly maintain classroom discipline (Rossow & Tate, 2003). A deficiency in classroom management may be the easiest to document. However, it is important to note that having an occasionally disruptive class may not qualify as incompetence.

In a review of recent litigation involving challenges to incompetence, Rossow and Tate (2003, p. 26) conclude that (1) incompetence is whatever the board of education says it is, as long as an objective measurement can be demonstrated; (2) a period of remediation with the administration providing resources to help the teacher is necessary; (3) once a teacher has established himself or herself as an effective teacher with a record of positive evaluations, it may be more difficult to demonstrate incompetence; and (4) a pattern and reasonable forecast that the teacher will not improve is often necessary when teachers have established a positive evaluation record. In short, the dismissal of a continuing contract teacher for incompetence can be difficult.

Immoral Conduct

It is difficult to dispute the right of a public school district to regulate the job performance of public school teachers. It is also difficult to argue that teachers are not role models. In fact, teachers have great potential to influence, either positively or negatively, the lives of the students entrusted to their care. Typically, moral fitness or immorality is a judgment call by the board of education (Rossow & Tate, 2003). A Missouri Court of Appeals advanced a good working definition of immorality as follows:

Immoral conduct (is) contemplated behavior sufficiently contrary to justice, honesty, modesty or good morals, or involving baseness, vileness or depravity so as to support the inference that the teacher understands the conduct to be wrong.

(Youngman v. Doerhoff, 1994)

Certainly, some forms of behavior, such as the commitment of felonious acts, sexual relationships with students, or possession of child pornography, should justify termination from public school employment. The problem, of course, is in defining immoral conduct in less clear-cut situations. However, the nexus principle provides some legal guidelines. The nexus principle can be defined as demonstrating a relationship between the behavior in question and the teacher’s professional responsibilities and teaching effectiveness. The nexus principle was first outlined by the California Supreme Court (Morrison v. Board of Education, 1969). A California public school teacher was terminated because of an alleged single homosexual incident. As part of this decision, the court pointed out that no evidence had been presented that the single incident in question had negatively affected the teacher’s ability to teach or interfered with the efficient operation of the school. Although not every jurisdiction requires a nexus as outlined in Morrison, the concept of a relationship between the behavior and fitness to teach has gained considerable support among most courts attempting to find the balance between the rights of teachers and boards of education. The term fitness to teach, although broad, generally refers to a teacher’s ability to maintain classroom discipline, the potential impact on students, and the impact on parental attitudes (Fulmer, 2002).

In an analysis of court decisions related to teacher termination for immorality or similar reason, Fischer (1999) found that many courts consider intent, foreseeability, and knowledge in determining a nexus between the behavior and fitness to teach. Intent refers to whether or not the act in question was deliberate. Foreseeability considers whether or not harm to students was a predictable result of the conduct in question. Knowledge refers to whether or not the teacher knew or should have known that the conduct would negatively affect his or her fitness to teach. In cases where the conduct meets all or some of these criteria, courts are more likely to support termination (see Lehto v. Board, 2008, and Youngman v. Doerhoff, 1994, as examples).

For example, providing alcoholic beverages to students would certainly qualify as an intentional act. Most school district policies may not have a specific rule that states, “Providing alcoholic beverages to students may result in termination of employment.” However, the act of providing the beverages would have a foreseeable impact on a teacher’s ability to maintain good order and discipline and would affect parental perceptions of the teacher. In addition, it should not take a legal scholar to understand that providing alcoholic beverages to underage students is against the law and could negatively affect almost anyone’s definition of fitness to teach. Other behaviors, such as possession of illegal drugs or inappropriate sexual contact with a student, would clearly establish a nexus between the behavior and fitness to teach.

A misdemeanor arrest for prostitution or the solicitation of prostitution can be considered so morally offensive that it may be reasonable to terminate a continuing contract teacher. However, private gay, lesbian, bisexual or transsexual lifestyles are not cause for employee dismissal (Rebore, 2011). Rebore argues that although this lifestyle may be unacceptable to many in the community, these practices are displayed publicly on television and other media to such an extent that the impact on students has been nullified. However, advocating non-conventional lifestyles at school may put the employee at risk of termination.

Just Cause, or Conduct Unbecoming a Teacher

These terms are catchall phrases in some state statutes. For example, some states (such as Arizona, Hawaii, Indiana, Maine, Massachusetts, New Jersey, New Mexico, and Virginia) use terms such as good cause or good and just cause as reasons for terminating teaching contracts. A few states (such as Iowa, Michigan, Montana, Ohio, Rhode Island, and Texas) have distilled reasons for termination of continuing contracts to such terms as reasonable and just cause, good cause, or good and just cause (selected from Frey, 2010). These terms are not without ambiguity. Texas, for example, defines good cause as follows: “For good cause as determined by the local school board, good cause being the failure of a teacher to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts throughout Texas.” Other, less common reasons, such as cruelty (Illinois), dishonesty (Louisiana and Nevada), and brutal treatment of a pupil (Mississippi), are included in some state statutes (selected from Frey, 2010).

Appeals Process

Every state provides continuing contract teachers alleging wrongful termination with the right to request a hearing before an impartial tribunal. In some states (Arizona, Connecticut, Idaho, Iowa, Louisiana, Maryland, Mississippi, Missouri, Nebraska, and New Mexico, for example) the hearing is conducted by the local school board. In a few states the appeal may be presented to a hearing officer (Alabama, Colorado, Illinois, Kansas, New York, Oregon, and Washington, for example). Some states allow for the initial appeal to be determined by collective bargaining negotiations (selected from Frey, 2010). All states allow teachers to appeal a termination decision from the impartial tribunal or hearing officer to a state court with jurisdiction to hear their case.

Linking to Practice

Do:

• Follow state law and school board policy.

• Know the difference between a remediable and a non-remediable behavior.

• Document, document, document.

• Consider failure to follow or meet the behavioral changes outlined in a remediation plan as the primary reason for termination recommendations (Kemerer & Crain, 2005). For example, the Eighth Circuit Court recently upheld the termination of a continuing contract teacher because of her failure to improve in certain areas in which she was repeatedly provided assistance by the district. In other words, she repeatedly did not meet the requirements of the remediation plan (Shanklin v. Fitzgerald, 2005).

Do Not:

• Undertake the dismissal of a continuing contract teacher lightly or for personal reasons.

• Jump to conclusions. There is a difference between poor judgment and immoral behavior.

Investigations of Employee Misconduct

Respondeat superior is the doctrine that holds employers liable for employees’ wrongful acts committed within the scope of employment (Garner, 2006). In the context of school leadership, this concept means that the failure to adequately supervise employees and investigate alleged misconduct can result in a charge of negligent supervision or retention. Consequently, allegations of employee misconduct should be thoroughly investigated. Investigating allegations of employee misconduct is not easy. But, a careful investigation serves as the foundation for effective documentation and justification for any action taken. It also demonstrates that the administrator has not been careless, negligent, or deliberately indifferent to potential employee misconduct.

The procedural due process rights (and other Constitutional rights) of the teacher or other school employee being investigated should always be honored. The U.S. Supreme Court has established that public school employees facing disciplinary action have the following due process rights: (1) oral or written notice of the charges, (2) an explanation of the evidence on which the charge is based, and (3) an opportunity for the employee to present his or her side of the story (Loudermill v. Cleveland Board of Education, 1985). In addition, some school boards may have a negotiated working conditions agreement. This agreement becomes board policy when accepted by the board. Consequently, a careful examination of the agreement further ensures that the investigator does not violate board policy. Further procedural due process varies somewhat from state to state and is generally outlined in state law and school board policy.

Some fundamental guidelines do exist regardless of state law or negotiated agreements. First and foremost is the importance of not delaying beginning an investigation. Do not assume guilt. However, failing to investigate after becoming aware of allegations or rumors of sexual misconduct, teacher-on-student sexual harassment, or other serious allegations may place the administrator and district at risk of liability for a failure to adequately supervise employees (Kemerer & Crain, 2010).

The importance of a fact-based approach that protects the due process and privacy rights of the possible student–victim and the employee cannot be underestimated. A failure to protect both the student and the employee may also place the administrator and the school district at risk of liability. Kemerer and Crain (2010, pp. 2-7) recommend involving the parents or guardians of potential student victims as much as possible in the investigation of employee misconduct. This may seem somewhat risky, but it is probably better to have parents as partners than to have them find out later that their child was the victim of employee misconduct.

Most states allow for the suspension with pay of employees accused of serious misconduct pending the outcome of an investigation. Evidence of employee sexual misconduct is almost always grounds for immediate termination of employment. Less severe misconduct may result in suspension with or without pay, a reprimand, and/or a remediation plan. Once the investigation has been concluded warn the employee of retaliation. Retain all documentation. These documents should not be inserted in the employee’s file because (1) there is a possibility of reprisal by the employee, (2) it is difficult to excise personally identifiable information under FERPA, and (3) some of the information gathered may be misleading or false (Kemerer & Crain, 2010).

Resignation, Non-Disclosure Agreements, and Defamation

“The answer to every school administrator’s prayer in making difficult personnel decisions is a voluntary resignation” (Kemerer & Crain, 2010, p. 1–22). The authors may be correct. Resignations work to everyone’s benefit. However, it is important to avoid bullying, coercion, or duress in an attempt to force a resignation. Do not attempt to make an employee’s time at school so unpleasant that she or he will have no choice but to resign. Although anyone may file a grievance, these actions may spell trouble for the administrator. For example, an employee could claim that the supervisor’s behavior created a hostile work environment and seek redress from EEOC. If the employee is a member of a protected class, than an appeal to OCR is possible. It is also possible for a court to find bullying, coercion, or duress in an effort to force a resignation or more seriously the fabrication of a reason or animus toward the employee a form of intentional tort. An intentional tort generally requires that the supervisor intends the consequences of the act (Staub v. Proctor Hospital, 2010). In other words, intentionally bullying or making life miserable for an employee may be a form of intentional tort.

Some simple recommendations from Kemerer and Crain (2010) include:

1. Consider having a witness present when discussing the option of resigning with an employee.

2. Allow the employee to have an attorney or union representative with her or him. However, make it clear that the representative is there only to advise and represent the employee. The representative should not be allowed to question the administrator’s findings or take over the meeting.

3. Advise the employee of applicable school district grievance and due-process procedures.

4. If the evidence indicates that the employee has been involved in sexual misconduct, committed a felony, or other serious misconduct defined by state law, inform the employee that action against her or his teaching certificate may be undertaken.

5. Require the employee to submit the resignation to a person authorized to receive it and to acknowledge its receipt.

In an effort to expedite the exit of an employee accused of serious misconduct with as little negative publicity and political fallout as possible, some districts may be tempted to enter into a non-disclosure agreement in exchange for the resignation of the accused (or guilty) employee (Mawdsley & Permuth, 2003). A non-disclosure agreement generally includes a neutral letter of recommendation and a restriction on the part of the district on the disclosure of the charges that led to the resignation in the first place. However, non-disclosure agreements create several problems including potential liability on the part of the district for violating the non-disclosure agreement (see Pierce v. St. Urain Valley School District, 1999). More importantly, school districts where the employee is applying for job may face a difficult task obtaining accurate data when another school district enters into a non-disclosure agreement with an employee (see Shrum v. Kluck, 2001).

In a recent study of 15 cases in 11 states of individuals with present or past histories of sexual misconduct, the U.S. Government Accounting Office (GAO) (2010) found that several factors contributed to the hiring or retention of individuals with histories of sexual misconduct:

1. Resignation: In four of the cases investigated by the GAO, school officials allowed teachers who would have been subjected to disciplinary action for sexual misconduct to resign. These teachers were able to truthfully inform other school districts that they had never been fired from a teaching position. In three of these cases, the district provided positive recommendations for the individuals.

2. Non-Existent preemployment criminal history checks: In 10 of the 15 cases, school officials did not perform preemployment criminal history checks.

3. Inadequate criminal history checks: Many criminal history checks may not be adequate because they are not national fingerprint-based checks.

4. Ignoring red flags on employment applications: Several districts failed to follow up on missing or troubling responses to questions on the employment application.

Employees who engage in sexual misconduct are likely to engage in similar conduct in the future. School districts should take care not to enter into non-disclosure agreements, provide false positive letters of recommendation, fail to check references, fail to adequately complete background checks, or ignore missing information on employment applications.

Virtually every state has laws requiring school district employees to report signs of sexual abuse to state child protective services. Several state legislatures have attempted to outlaw non-disclosure agreements. The Missouri state legislature was the first to pass legislation with the intent of breaking the code of silence on non-disclosure agreements. A recently passed law requires school districts to disclose allegations of sexual misconduct to other school districts when responding to a potential employer’s request for information regarding the employee (RSMo 162.068). The law requires the disclosure of whether or not the employee was terminated or chose to resign. A failure to disclose allegations of sexual misconduct may result in liability for damages caused by that failure. This type of law effectively bans non-disclosure agreements.

Defamation

Administrators are often concerned that a frank reply to inquiries about former employees from other school districts might subject them to a defamation lawsuit. In this context, defamation is defined as the “act of harming the reputation of another by making a false statement to a third person” (Garner, 2006, p. 188). The terms libel and slander are different forms of defamation that are often used interchangeably. Libel is commonly used to describe written defamation. Defamation that is spoken is slander. For some reason, defamation that is broadcast through the media is referred to as libel rather than slander. According to Taylor (2002), in order to meet the definition of defamation (either libel or slander), the action or words must be demonstrated to (1) be false, (2) be published, and (3) damage or injure a person’s reputation, business, or profession.

In a legal sense, any statement that is true is not defamatory. Therefore, courts have granted qualified immunity to school leaders when these individuals are acting in good faith. Good faith requires that the communication be done without malice, with reasonable grounds, in answer to inquiry, and with regard to assisting or protecting the interests of either party or as a duty to society (Alexander & Alexander, 2012). A supervisor’s negative comments about a teacher’s job performance as part of a board of education consideration of employment would be protected as long as the statements are objective, within the scope of employment, tied to performance standards, communicated without malice, and made in response to inquiries by board members. This speech may not be protected, however, if negative comments about a teacher are shared gratuitously and indiscriminately among anyone who will listen. The same criteria can be applied to reference letters or telephone inquiries from other school districts. The best protection, however, is to stick to the truth and obtain the employee’s permission to release information to potential employers before the employee leaves the district (Kemerer & Crain, 2010).

Linking to Practice

Do:

• Always base comments regarding the professional competency of teachers and other staff members on factual information.

• Use data and written reports such as formative and summative evaluations and remediation plans to document information shared with superiors regarding the professional competency of teachers and other professional staff.

• Consult a school attorney before entering into a non-disclosure agreement.

• Properly investigate and document alleged misconduct to eliminate the need for non-disclosure agreements by providing justification for contract termination or other adverse employee actions.

• When entering into a non-disclosure agreement, take measures to ensure that individuals with a need to know understand and abide by the agreement. Insist that all inquiries from the media or local citizenry be referred to school district legal counsel.

• Always check references before making a final decision on potential employees. Short cuts in reference checking of potential employees are a recipe for disaster.

Do Not:

• Indiscriminately share negative personal feelings or evaluations of teachers and other professional staff.

• Allow personal feelings (either positive or negative) to interfere with professional judgment regarding teachers and other professional staff.

• Ignore warning signs such as unwillingness to elaborate, a similar non-descript reference from multiple contacts in the same district, or general letters of reference when checking references. Warning signs of past misconduct are usually present. Ignore these signs at your own risk!

Collective Bargaining and Negotiations

A 1960 New York City teacher strike led to the first collective bargaining agreement between a teacher association and a school board. Many states eventually passed public sector collective bargaining legislation that outlined the negotiation requirements and, in most cases, the impasse procedures to regulate negotiations between school boards and teacher groups. Currently, 35 states have collective bargaining laws (Colasanti, 2008b). Collective bargaining (or collective negotiations) occurs when employee representatives and employers (representatives of boards of education) formally discuss (and in some cases negotiate) terms of employment such as working conditions, salaries, and fringe benefits. The terms collective negotiations and collective bargaining are often used interchangeably. For clarity, this text will use collective bargaining. Regardless of terminology, whenever employees negotiate collectively with the school district, the employee group is essentially functioning as a labor union (Rebore, 2011).

Public school employee collective bargaining rights are controlled by state law and conducted at the school district level (Colasanti, 2008b). Some states, particularly in the South, have “right to work” laws. Right to work laws prevent collective bargaining agreements from requiring workers to join the union, pay dues, and otherwise support the union. These laws do not prohibit collective bargaining. For example, Florida, Idaho, Indiana, and Iowa have both a right-to-work law and a collective bargaining law for all public employees, including teachers. However, most states (Alabama, Texas, Georgia, Louisiana, and Mississippi are examples) that have right-to-work laws do not have public school collective bargaining laws. Most states (California, Idaho, Indiana, Kansas, and Maryland are examples) exclude superintendents and other managerial or supervisory employees from collective bargaining laws. In addition to the types of public school employees covered or excluded, all state collective bargaining laws detail scope of bargaining, impasse procedures, and the legality of strikes (Colasanti, 2008b).

Scope of Bargaining

Scope of bargaining (scope of negotiations) details which issues are negotiable under state law. The majority of state collective bargaining laws limit the scope of bargaining to wages, salaries, and working conditions. However, some collective bargaining laws allow teachers to bargain over curriculum development, teaching methods, textbook selection, class size, student discipline and budget appropriations (Indiana), grievance and disciplinary procedures (Kansas), fringe benefits (Minnesota), teacher preparation time and materials and supplies for classrooms (Nevada), and labor-management relations (North Dakota) (Colasanti, 2008b).

Impasse Procedures

Impasse procedures outline the steps to be taken when a teacher union and a school district cannot agree on a resolution (Colasanti, 2008b). There are four basic types of impasse procedures: mediation, fact finding, arbitration, and strikes. Mediation is similar to the discourse ethics model presented in this text. A trained mediator meets with district and union representatives, seeks to understand the perspectives of both groups, and attempts to broker an agreement acceptable to both sides. Currently, 34 states make mediation available to districts and unions (Colasanti, 2008b). The only difference between mediation and fact finding is that in fact finding, an impartial panel attempts to broker an agreement between the district and the union. Fact finding is available in 29 states (Colasanti, 2008b). Mediation and fact finding are also similar in that a brokered agreement is not necessarily binding on the parties. Arbitration is a more formal process. A trained arbitrator meets with the two sides, collects information, and makes a decision. The arbitrator’s decision is usually considered final. Arbitration is available in 21 states (Colasanti, 2008b). Strikes are the least common method of resolution and are prohibited in 22 states. Thirteen states (Alaska, Hawaii, Illinois, Minnesota, Montana, Nebraska, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, Utah, and Wisconsin) allow strikes (Colasanti, 2008b).

The Negotiation Process

A complete overview of the negotiation process is beyond the scope of this text. Interested readers or those preparing for district leadership are urged to contact their state school boards association (an affiliate of the National School Boards Association, www.nsba.org), their state administrator association (an affiliate of the American Association of School Administrators, www.aasa.org), and the state department of education for complete information. However, this section presents a general overview applicable to most negotiations between teacher unions and school districts.

The essential question in the negotiation process is, who bargains with whom, and for what? The first part of this question (who bargains with whom) concerns recognition. Rebore (2011, p. 1) defines recognition as “the acceptance by an employer (board of education) of some group or organization as the authorized representative (of teachers).” Exclusive recognition is the most common form of recognition in education and occurs when a single union represents all teachers. When two or more groups (AFT and NEA, for example) have members in the same school district, then the union that can demonstrate a majority of members becomes the bargaining unit (Rebore, 2011). The bargaining unit assumes the responsibility to represent all teachers regardless of union affiliation. The teacher union negotiation team is composed, of course, of teachers. The bargaining unit normally has bylaws or past practice that determines how the representatives are selected to bargain with the school district. In some cases, the state affiliate provides expert advice to the teacher team.

The board of education determines membership for the district team. Experience finds that in smaller school districts, the board of education usually selects two or three board members and the superintendent to represent the district. Larger districts may employ an assistant superintendent or director of personnel who leads the district bargaining team. Rebore (2011) recommends that the district team have at least one building principal elected by the other principals in the district to represent first-line administrators. It is Rebore’s contention (and the author’s experience) that many principals are critical of school boards (or their bargaining representatives) for “negotiating away” their authority. This is particularly true in today’s environment where principals are held accountable for school performance scores.

The answer to the second part of the question, for what do people bargain, is the most difficult. All collective bargaining laws list the scope of negotiations. Salaries and fringe benefits (insurance, personal or sick leave policy, etc.) are relatively simple to define. The union naturally (and legitimately) attempts to bargain for the highest pay and greatest benefits. The school district attempts to maintain fiscal sanity and a balanced budget. At least, one would hope. However, there is little doubt that these divergent views can create considerable disagreement and sometimes long-simmering anger among the parties.

Some states use the term working conditions as part of the scope of negotiations. Working conditions are generally defined as “conditions that pertain to the quality of employment” (Rebore, 2011, p.). Examples listed by Rebore (2011) include class size and duty-free lunch. Working conditions may also create considerable animosity among the participants. For example, it is difficult to argue against a duty-free lunch for teachers. However, someone has to supervise the cafeteria and playground areas. The question then becomes, “Who should this person be?” The answer to this question is not the union’s problem. There is little doubt that board members or members of the district negotiating team are not going to supervise playgrounds. Consequently, building administrators are the ones most likely required to develop a solution. It is at this point that principals in the district need representation on the district negotiation team. In short, even working conditions that seem on the surface to elicit general agreement are subject to considerable divergence of views.

A major concern of both teacher unions and boards of education centers around educational policy. Make no mistake, educational policy is about power. For the vast majority of states it is understood that educational policy is not subject to negotiations (Rebore, 2011). In fact, for all practical purposes, only boards of education are empowered to enact and enforce policy. However, it is virtually impossible to separate policy from working conditions. For example, assume a teacher union negotiates for reduced class size in middle school language arts, math, and science classes. On the surface this is a reasonable request. However, reducing class sizes requires sometimes considerable reallocation of resources, which of course is a policy function (Rebore, 2011).

Linking to Practice

Do:

• The homework necessary for understanding the current contract, needed changes, and, if possible, the rationale behind the union’s proposals. Seeking to understand the perspectives of the union can never be underestimated.

• Think long term. Similar to buying a house today with an interest-only loan, depleting the district reserve fund to reduce class sizes for this year with hopes of increased state funding or property taxes next year may not be a good idea.

• Explain your economic situation and bargaining goals simply and directly.

• Support your positions with research and facts.

• Remain positive. Never attack union representatives personally, engage in negative campaigning, or become discouraged. Focus on the solution, not the personalities.

• Think utilitarian ethics. The teacher union represents teachers and should legitimately attempt to obtain the best agreement for teachers. The district team, however, should pursue the greater good of all stakeholders in the district.

Summary

Selecting, supervising, and collectively negotiating with teachers and other employees are difficult but essential tasks. Knowledge of the legal rights of the school district, current employees, and potential employees is paramount in protecting all concerned. There are no excuses for short cuts, personal expediency, or personal biases in this important role of school leadership. In fact, it can be argued that proper employment procedures, supervision, and fair treatment of employees may be the most important undertaking of school leadership. This chapter has outlined basic principles of utilitarian ethics relative to employment practices, contract law, supervision and documentation, employment practices, and collective negotiations applicable to most situations. However, readers are urged to consult state law and local school board policy for a complete understanding of employment responsibilities in a particular state or district.

Connecting Standards to Practice

Sealed with a Kiss

Assistant superintendent Sharon Grey, Riverboat High School principal Tara Hills, and state school board member Patricia Wu were meeting to discuss the case of Michael Washington. Michael Washington, 22 and a graduate of RHS, was in his first year of teaching social studies at Riverboat High School. Sharon remembered Michael. He had not been a model student at Riverboat, but he had earned an academic scholarship to State University, where he was an excellent student. Tara found Michael to be a natural teacher and to have a friendly relationship with many students. Several veteran teachers had complained that Michael was a little too friendly and seemed more like a student than a teacher. Tara believed that some of the veteran teachers had a difficult time viewing Michael as a young adult and not as the sometimes recalcitrant high school student.

From what Tara and Sharon had gathered, Michael had met 18-year-old North High School senior Shelia Armstrong at a local gym where they shared a personal trainer. Michael and Shelia had immediately connected and had started to casually meet at the gym. They sometimes went together to the city mall. In late October, the relationship between Michael and Shelia escalated and resulted in consensual sex. Michael and Shelia did not make an effort to hide their relationship, but spent most of their time together in Capital City or at Michael’s apartment. All was well until the day before the winter break. It was tradition in Riverboat School District for all schools to close at 1 p.m. on this day. Michael usually stayed in his classroom and worked, but today he had a special date with Shelia, and he left immediately. As Michael walked to his car in the school parking lot that afternoon, Shelia was waiting with a large package. Shelia and Michael shared a kiss in the parking lot. Several veteran teachers and a number of students witnessed the parking-lot kiss.

Soon after the second semester started, the story of Michael and Shelia had taken on a life of its own. The relationship became the topic of conversation in the teachers’ lounge, and several of Michael’s students asked him about the relationship. One of the teachers in the district contacted the state education department. The state department turned the investigation over to a hearing officer. On May 1st, the hearing officer recommended the revocation of Michael’s teaching certificate in spite of the facts that Shelia attended school in a different district, was an adult, and acknowledged instigating the initial sexual encounters. State school board member Wu was conflicted about the recommendation. She came to ask Sharon and Tara their opinion.

Question

1. Argue for or against the revocation of Michael’s teaching certificate. Use the ISLLC standards, legal principles (the nexus principle, for example), and J. S. Mill’s ethical principles of the greater good to justify your answer. Write a letter to state board member Patricia Wu explaining your viewpoint.