Mock Scenario Gwen, a Special Education teacher at Peach Middle School, has been seeking a promotion to Special Education Lead Teacher for three years.  Each time she has applied, she has

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

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

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

According to a United States Supreme Court decision, Board of Regents of State Colleges v. Roth, a nontenured teacher need not be given reasons for nonrenewal unless the nonrenewal deprived the teacher of a “liberty” interest or if there was a “property” interest in continued employment. Any statement regarding the reason for the nonrenewal could result in the teacher’s requesting a due process hearing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is so ordered.

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

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

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

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

A nontenured teacher’s nonrenewal was not upheld in Stoddard v. School District No. 1, 590 F.2d 829 (10th Cir. 1979). The teacher in this case was advised in a letter from her principal that her contract would not be renewed because of failure to maintain order in the classroom and lack of dynamics in motivating students. The teacher alleged that in a private conversation the principal informed her that the “real” reasons for nonrenewal were (1) rumors regarding an affair with another resident of her trailer park, (2) her propensity for playing cards and not attending church regularly, and (3) her obesity, which was the “lack of dynamics” referred to in the letter.

A school district’s refusal to renew a teacher’s contract for violating a policy against outside employment was not upheld because the policy was not uniformly applied. See Gosney v. Sonora Independent School District, 603 F.2d 522 (5th Cir. 1979). The court declared that the district’s no-outside-employment policy was not itself unconstitutional.

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

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

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

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

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

II. FREEDOM OF EXPRESSION

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

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

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

Another Supreme Court decision, Mt. Healthy City School District Board of Education v. Doyle, involved an untenured teacher who had been in an altercation with a colleague, argued with school cafeteria employees, swore at students, and made obscene gestures to female pupils. He also called a radio station and provided them with a memorandum from the principal relating to teacher dress and appearance. Doyle alleged that his not being rehired was due to his exercising his First Amendment rights in calling the radio station. The Court, in vacating and remanding the lower court’s decision in upholding Doyle, reasoned that the proper test in such a case is whether the school board would have rehired the teacher even in “the absence of the protected conduct.”

A. Tenured Teacher’s Public Expression

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

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

Illinois, was dismissed from his position by the appellee Board of Education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. Appellant’s dismissal resulted from a determination by the Board, after a full hearing, that the publication of the letter was “detrimental to the efficient operation and administration of the schools of the district” and hence, under the relevant Illinois statute, * * * that “interests of the school require[d] [his dismissal].”

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

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

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

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

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

* * *

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

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

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

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

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

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

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