Jeremy Hurd

School Law

Chapter 9-Constitutional and Statutory Rights of Employees

4-7-04

The following statements may be either true or false or to some extent both.  Choose five (5) of them and discuss the validity of each using one or two examples from the text.  This assignment is worth 25 points and will probably require a paragraph for each response.

1.     Choices in lifestyle and morality can cost some teachers their jobs even though they have a “Right to Privacy.”

This statement is very true.  The constitution does protect an individual's right to privacy to an extent.  If the right to privacy is implicated, then the school must have sufficient ground for dismissal.  Each individual case is very different and schools must justify the restrictions of these rights by enforcing them when there is a need to achieve a very important educational purpose.  For example, schools can’t regulate a person’s choice to use contraception, have an abortion, or even on the grounds that they are gay (in some states).  However, a teacher may be dismissed if the grounds are a disruption to the educational process.  In one such case, a teacher was not rehired because his wife had assaulted him violently and burst into his classroom to threaten his life.  Because of the dangerous implications of this violence affecting students, the school district had sufficient grounds to not rehire the teacher for the personal safety of the students.  To some extent, certain issues are protected in regards to privacy rights, while others may not be when it concerns the overall interest of the school, its teachers, and students.  This is a very broad topic and many new cases are changing the way we look at these rights, especially regarding issues of sexual orientation and gay marriage.  Schools have the right to set guidelines regarding certain issues that they wish their colleagues to have as long as the ground are reasonable under the constitution and that those rights are not violated.

2.     School districts may impose mandatory drug testing for their employees.

Yes and No.  School districts requiring school employees who occupy “safety sensitive positions” such as school bus drivers who, custodians, and possibly shop or drivers education teachers could be tested for drugs.  Many argue that this is a violation of a persons Fourth Amendment rights.  However, courts concluded that because of a school districts safety interest of the students that these drug tests where not illegal and were justified for the personal safety of the individuals in contact with students and others.  Most teachers are not in “safety sensitive positions” and more than likely are not tested for drugs.  When an issue of safety is involved regarding the driving of a bus full of kids, the working with chemicals and maintenance of custodial workers, the work around dangerous tools and equipment for shop teachers, and the safety for drivers education instructors is looked at as being an issue of safety if drug use was an issue.  However, if a teacher were to be required to take a mandatory drug test, the teacher could claim that the requirement was an infringement upon the teachers Fourth Amendment rights.  In addition, thought schools may not do testing, they can enforce sanctions against teachers who violate drug and alcohol rules in relation to the Drug-Free Schools and Community Act amendments from 1989.

3.     Free exercise of religion allows teacher to wear religious garb, modify their curriculum, and recite prayers in the classroom.

This statement if false.  In fact, schools have a right to restrict religious clothing, curriculum, and prayers from being allowed so as to maintain religious neutrality.  The main case that outlined this matter was Cooper v Eugene School District No. 4J, which upheld the constitutionality of a state law prohibiting public school teachers from wearing “religious dress while engaged in the performance of duties as a teacher”.  However, the court also pointed out that it would not be permissible to fire at teacher for wearing an unobtrusive religious symbol such as a cross on a necklace or for occasionally wearing religious clothes, but only when a teacher’s overt and repeated display of religious garb or symbols might convey the message of school approval or endorsement.  Also, a teacher must also follow ALL curriculum and school rules, even if the teacher would feel it was a violation of the teacher’s free exercise based challenge to a school’s rules or curriculum.  A challenge would most likely not succeed.  When it comes to the issue of the separation of church and state, the schools can hold firm regarding they requirements that do not allow them to endorse a particular religion.  However, it is permissible for parochial schools to hire teachers of same religion, require particular garb, develop religious curriculum and recite prayers based on the schools religious affiliation and overall ideals of the school and its religion.

4.     Disparate treatment is not the same as disparate impact.

This statement is True.  A disparate treatment case, the plaintiff’s prima facie case, is usually based on statistics.  An example of this would be that a plaintiff who alleged discrimination would have to provide a “statistically significant discrepancy” within the hiring and racial composition of a school relative to equal qualifications.  Disparate impact cases involve employment practices that are facially neutral in their treatment of different groups but that fall more harshly on one group than another and that can’t be justified by business necessity.  An example of this would be a racial or ethnic group challenging tests for hiring teachers that excluded a significant amount of minority candidates.  In addition, disparate impact cases, an intent to discriminate does not need to be proved and they also may not be brought under the Equal Protection Clause because the Supreme Court has said that disparate impact is not per se unconstitutional.

5.     The McDonnell Douglas case provides the framework for dealing with cases involving race, ethnicity, and gender discrimination.

This statement is true.  Title VII of the Civil Rights Act of 1964 provides the framework forbidding discrimination in public and private employment on the basis of race, gender, color, religion, or national origin.  In addition, the McDonnell Douglas Corp v Green case fashioned a three-step framework for dealing with cases brought under Title VII.  It states that the complainant carries the initial burden establishing proof of evidence of racial discrimination by showing that the individual belongs to a racial minority, that the person applied and was qualified for the job, that despite the qualifications was rejected, and that the position remained open and the employer sought out applications from individuals in discrimination of the person based on race.  It also stated that at that point, the burden shifted to the employer to prove that legitimate and non-discriminatory reasons where used to reject the employee being hired.  Finally, once this has been complete, the employee must show that the defense was wrongful and did intentionally discriminate.  Many refer to this as an Affirmative Action plan.