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Teachers and the Law EDLD 611.

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1 Teachers and the Law EDLD 611

2 Teacher Dismissal Ever since the “Nation at Risk” (1983) Education has been all about reform, reinvention, renewal and revival. Teacher quality is at the forefront Teachers and Educational Leaders are being held accountable for student achievement

3 Teacher Contracts and Dismissal
Contracts control many of the actions that deal with teacher dismissal. Components of a “legal” contract The parties must have the legal authority to enter into a contract There must be an offer and an acceptance of the contract The contract must contain valid and adequate consideration Start and end date Specific amount of money to be paid The contract must be generally be documented by a signed writing. (Verbal agreements may be enforceable, but are not recommended for anything long term)

4 The contract is not valid unless the teachers holds a legal certificate at the time the contract period begins Contracts should contain specific duties to be performed by the teacher

5 Termination A teaching contract may be terminated by mutual consent to of the Board and the Teacher Teacher’s may also be discharged in three different situations: Dismissal – Termination of contract for cause Non-renewal – Discharge is due to the action of the Board. Procedures will vary if the teacher is “probationary” or “tenured” Suspension – Removal of a teacher for a limited period of time. This is generally done pending due process procedures, a board of education meeting, or resolution of the problem. (Suspensions are done with pay)

6 Legal Status of Dismissal for Tenured and Non-tenured Teachers
Tenured teachers are viewed as having a greater right to due process that non tenured teachers Both tenure and non-tenured teachers must be given notice and hearings if termination is during the period of a contract Violation of a teacher’s constitutional rights whether they are tenured or non-tenured will afford them full due process rights

7 The Tenured Teacher The purpose of “tenure” is to keep teachers from being discharged for “arbitrary and capricious reasons” Stoddard v. School Dist., Nos , , UNITED STATES COURT OF APPEALS, TENTH CIRCUIT, 590 F.2d 829; 1979 U.S. App. LEXIS 17844, September 27, 1978, Argued, January 5, 1979, Decided

8 As a general rule the following procedures must be provided to a “tenured teacher” prior to termination of their contract: Notice of the infraction and the intent to terminate Written statement of specific charges A hearing on the charges Assistance of legal counsel Evidentiary procedures; and The right to judicial review Tenure periods very from state to state. The time period will run between 2 and 5 years

9 Causes for termination of a tenure teacher are the following:
Physical or mental condition unfitting him to instruct or associate with children Immoral conduct; - Erb v. Iowa State Board of Public Instruction, No , Supreme Court of Iowa, 216 N.W.2d 339; 1974 Iowa Sup. LEXIS 1278, March 27, 1974, Filed ☼

10 Incompetency, inefficiency or insubordination in line of duty
Willful or persistent violation of, or failure to obey, the school laws of the state or the published regulations of the board of education of the school district employing him

11 Excessive or unreasonable absence from performance of duties
Conviction of a felony or a crime involving moral turpitude - Gillett v. Unified School Dist., No. 50,126, Supreme Court of Kansas, 227 Kan. 71; 605 P.2d 105; 1980 Kan. LEXIS 204, January 19, 1980, Opinion Filed ☼

12 Reduction in Force (RIF)
(In determining the professional competency of or efficiency of a permanent teacher, consideration should be given to regular and special evaluation reports prepared in accordance with the policy of the employing school district and to any written standards of performance which may have been adopted by the school board.)

13 Reduction-in-force (R.I.F.)
Reduces staff for financial reasons Generally State Law will specify how the RIF will take place Law generally gives teachers that have been RIF the opportunity to come back when the positions are reinstated

14 The Non-tenured Teacher
During the probationary period, the teacher has no property or liberty right in being reemployed The probationary period will generally require the teacher to participate in: Frequent evaluations Development of Professional Development Plans Mentoring

15 Probationary teachers are not generally provided with full due process rights, unless termination is due to a “constitutional issue” or if the contract is terminated prior to the end of the contract period Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, No , SUPREME COURT OF THE UNITED STATES , 429 U.S. 274; 97 S. Ct. 568; 50 L. Ed. 2d 471; 1977 U.S. LEXIS 29; 1 I.E.R. Cas. (BNA) 76, Argued November 3, 1976, January 11, 1977 ☼

16 Accountability in Teacher Dismissal
NCLB will allow teachers to be removed for non-performance (Very few precedents for this issue) Highly Qualified has eliminated some teaching staff for not being certified in the areas in which they teach

17 Teacher Dismissal – Recommendations for Practice
Principals must understand that in most cases of teacher dismissal they are the ones who are providing the evidence for dismissal. Obtaining appropriate documentation and systematically observing teachers is critical. Teacher dismissal can have a negative impact upon a school. Principals, as instructional and school leaders, need to understand and use teacher performance appraisal as a means to improve the quality of education for all students. All state and school policies should be reviewed in light of new federal requirements found in NCLB.

18 The constitutional protections of tenure are diminishing as the constitutional protections of all teachers are expanding. Principals need to stay abreast of case law governing the constitutional rights of teachers. Principals must know federal, state, and local statutes pertaining to teacher qualifications, teacher dismissal, and their relationship to student and school performance. Principals and teachers need to be cognizant of their contract, written and implied, and its relationship to teacher dismissal. Most formal evaluations are conducted in the classroom to identify the instructional abilities of a teacher. Teacher dismissal occurs more often in the implied duties.

19 Principals must know the legal rights of teachers in dismissal cases
Principals must know the legal rights of teachers in dismissal cases. Different degrees of due process are often afforded both tenured and nontenured teachers. Documentation of teacher performance is critical to the evaluation and dismissal of teachers. In all the cases reviewed, it is apparent that the principal must know what is going on in the classroom and have a record of teacher performance. Evaluation, improvement, and teacher development should be systematized to ensure a qualified, effective teaching staff.

20 Current teacher certification statutes may be in conflict with NCLB requirements. This will require teachers. principals and the school district to understand the law as they apply federal statutes to state and local requirements. Principals will need to stay fully abreast of the changes that occur at all levels and become involved in the development of new rulings. In all aspects of dismissal, principals must not engage in any un­reasonable, arbitrary. or capricious actions.

21 Teacher Certification
Teacher certification is largely governed by State Law NCLB has stated that there will be a “qualified teacher” in every classroom – has modified the procedure for certification and revocation of certification Principals need to check certification on all of their staff members each year. Check for expiration of certificate and when a change of assignment is involved, appropriate certification should be confirmed with each staff member

22 State Authority and Interest in Certification
The State Board of Education is statutorily the only agency authorized to set standards for teacher certification “Teaching Certification is an acceptable method of satisfying a state constitutional mandate for the legislature to supply an education for youth”. A certificate is supposed to assure that the teachers is “competent” The certification process must be neutral in respect to race, color, sex, religion and national origin States can required resident aliens to produce evidence of their intention to become naturalized citizens of the U.S. prior to issuing certification Loyalty oaths can be required of teachers prior to teaching certificates being issued

23 Teacher Certification and Employment
Keep in mind that a certificate is not a contract Contracts are not valid if certification is not current Salary and benefits can be tied to the type of certificate a teacher possesses

24 The Revocation of a Teaching Certificate
States can revoke teaching certificates for “just cause” The most frequent reason for revocation is due to immorality As a general rule, revocation of a teaching certificate will required the same grounds as the termination of a tenured teaching contract Due process procedures should be afforded to any teacher before revocation may take place

25 Teacher Certification – Recommendations for Practice
It is clear that any person seeking state teacher certification has the responsibility to see that all requirements are met and that the appropriate paperwork is completed. It also is that person's responsibility to ensure that the certificate is current and that appropriate action is taken to renew the certificate upon its expiration. School principals should monitor carefully the certification status of the staff to ensure that the certificates are current and in order.

26 Principals may find that they are more involved in the initial assign­ment of teachers or in their reassignment because of fiscal problems or changing state curriculum regulations. Whether teachers may be assigned to teach outside of their area of certification is a question to be determined by the individual state. Principals should be aware that states differ in their interpretation of this issue. School principals may be called upon to provide documentation in a certificate revocation case. Such documentation must provide substantial evidence of the alleged wrongdoing.

27 Academic Freedom and Censorship
Academic Freedom was generally thought to be applicable only to the realms of higher education. However, during the 60’s rights of teachers and students were coming to the forefront Censorship – “The suppression of speech or other forms of expression.”

28 Pickering v. Board of Educ. , No
Pickering v. Board of Educ., No. 510, SUPREME COURT OF THE UNITED STATES, 391 U.S. 563; 88 S. Ct. 1731; 20 L. Ed. 2d 811; 1968 U.S. LEXIS 1471; 1 I.E.R. Cas. (BNA) 8, March 27, 1968, Argued, June 3, 1968, Decided ☼

29 Public school teachers have constitutional rights that they can exercise. They must be speaking on matters of public concern. “Pickering” was the preempt to teacher tenure laws throughout the country. Established the terms describing the actions of administrators as “arbitrary and capricious”

30 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, No
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, No , SUPREME COURT OF THE UNITED STATES , 429 U.S. 274; 97 S. Ct. 568; 50 L. Ed. 2d 471; 1977 U.S. LEXIS 29; 1 I.E.R. Cas. (BNA) 76, Argued November 3, 1976, January 11, ☼

31 Employees and boards of education have interests which must be balanced. Boards cannot ride roughshod over the rights of employees and employees cannot exercise speech to the extent that it interferes with the mission of the board of education.

32 Connick v. Myers, No , SUPREME COURT OF THE UNITED STATES , 461 U.S. 138; 103 S. Ct. 1684; 75 L. Ed. 2d 708; 1983 U.S. LEXIS 153; 51 U.S.L.W. 4436; 1 I.E.R. Cas. (BNA) 178, November 8, 1982, Argued, April 20, 1983, Decided ☼

33 Pickering, Mount Healthy, Givhan and this case establish the conditions under which a public employee may exercise the right to freedom of speech in the work setting. (This case was established outside of the academic setting)

34 Boring v. Buncombe County Bd. of Educ. , No
Boring v. Buncombe County Bd. of Educ., No , UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, 136 F.3d 364; 1998 U.S. App. LEXIS 2053; 13 I.E.R. Cas. (BNA) 1189, March 4, 1997, Argued, February 13, 1998, Decided,  Certiorari Denied October 5, 1998, Reported at: 1998 U.S. LEXIS 4802.

35 Lacks v. Ferguson Reorganized Sch. Dist. R-2, No
Lacks v. Ferguson Reorganized Sch. Dist. R-2, No EM, UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, 147 F.3d 718; 1998 U.S. App. LEXIS 13187; 74 Empl. Prac. Dec. (CCH) P45,542; 14 I.E.R. Cas. (BNA) 24, January 12, 1998, Submitted, June 22, 1998, Filed,  Rehearing Denied September 17, 1998, Reported at: 1998 U.S. App. LEXIS Certiorari Denied March 8, 1999, Reported at: 1999 U.S. LEXIS 1850.

36 Erskine v. Bd. of Educ. , Civil Action No
Erskine v. Bd. of Educ., Civil Action No. DKC , UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, 207 F. Supp. 2d 407; 2002 U.S. Dist. LEXIS 12295, July 2, 2002, Decided

37 Cockrel v. Shelby County Sch. Dist. , No
Cockrel v. Shelby County Sch. Dist., No , UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, 270 F.3d 1036; 2001 U.S. App. LEXIS 24189; 2001 FED App. 0396P (6th Cir.); 145 Lab. Cas. (CCH) P59,473; 18 I.E.R. Cas. (BNA) 65, March 9, 2001, Argued, November 9, 2001, Decided, November 9, 2001, Filed,  Writ of certiorari denied: Shelby County Sch. Dist. v. Cockrel, 2002 U.S. LEXIS 5489 (U.S. Oct. 7, 2002).

38 Academic Freedom & Censorship – Recommendations for Practice
Principals of the twenty-first century have the guidance of a line of cases in which the courts, with notable consistency for two decades, have supported the authority of the public schools to control curriculum. Nonetheless, school administrators must realize that censorship of teachers' speech still carries with it the risk of a law suit with the possibility of the assessment of damages should the teacher win. Principals should know and respect teacher's rights. They should approach personnel problems with a spirit of fairness and attempt to resolve them by doing what is in the best interest of the students. Finally, they should recognize potential legal implications and act under the guidance of competent legal counsel before and not wait until after such problems develop. The lessons of the cases reviewed serve as the basis for additional suggestions that follow:

39 Be aware that outside of the classroom teachers have a First Amendment right to express opinions about matters of public concern even though those views may be controversial and unpopular. The only justification for interfering or punishing teachers for such speech is material and substantial disruption of the educational process.

40 Exercise extreme caution when recommending the release of inferior or otherwise undesirable teachers who at the same time may be engaged in protected speech or other constitutional rights. The evidence documenting the legitimate reasons for the action must convince the courts that those reasons alone would have resulted in the dismissal or other disciplinary action.

41 Do not base a recommendation for dismissal or other disciplinary action on what teachers may have said in a private conference because if the statements are about matters of public concern, they are protected speech. If teachers are to be disciplined for what they say in the classroom or for the subject matter or methods they use, make certain that the school has and can show some legitimate pedagogical justification for the actions.

42 The twenty-first century began with public school administrators having broad judicial support for their authority to control the curriculum. IN the near future, there is little indication that this authority will be eroded by elementary and secondary school teachers’ claims of academic freedom. However, few would question the desirability of teacher involvement in curriculum decisions. Communication between principal and teach about what is taught and how it is taught is essential.

43 Sexual Harassment in the Workplace
Sexual harassment is viewed as a form of sexual discrimination and therefore is a civil rights violation Sexual harassment results when someone in a “position of power” uses his/her status to extort sexual favors from a subordinate Damages can range from $50k to $300k depending on the size of the company

44 Sexual harassment is difficult to measure and not easily defined
Sexual harassment is difficult to measure and not easily defined. Generally it takes place between a man and a woman, however, it can also be in the form of “same sex” harassment as well. Louis v. E. Baton Rouge Parish Sch. Bd., CIVIL ACTION NUMBER B-M3 , UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA , 303 F. Supp. 2d 799; 2003 U.S. Dist. LEXIS 23741, December 19, 2003, Decided

45 Title VII Title VII of the Civil Rights Act of 1964 and by the Civil Rights Act of 1991, together, provide for damages in the cases of intentional discrimination Sexual harassment was not addressed until 1980 when the EEOC made regulations prohibiting sexual harassment Title VII states: Unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature constitute harassment when (1) submission to such conduct is made explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

46 Quid Pro Quo and Hostile Environment
Quid pro Quo “I will do this for you if you do will do this for me. Corley v. Detroit Bd. of Educ., No , SUPREME COURT OF MICHIGAN , 470 Mich. 274; 681 N.W.2d 342; 2004 Mich. LEXIS 1184; 95 Fair Empl. Prac. Cas. (BNA) 573, June 17, 2004, Decided, June 17, 2004, Filed

47 Employer Liability Employers do have liability if they have not done a proper job of instituting policy and making sure that all employees and supervisors have knowledge of this policy Investigation of each allegation of harassment should be done immediately

SCRIVNER v. SOCORRO INDEPENDENT SCHOOL DISTRICT 169 F.3d 969; 1999 U.S. App. LEXIS 4171; 79 Fair Empl. Prac. Cas. (BNA) 429; 75 Empl. Prac. Dec. (CCH) 1999

49 Title IX Title IX will also addresses issues of sex discrimination and sexual harassment Title IX is generally used more in student cases than with employees, but the courts have been able to use both in certain situations of harassment. Damages can be collected when there are violations of either Title VII or Title IX AB v. Rhinebeck Cent. Sch. Dist., 03 CIV (SCR) , UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK , 224 F.R.D. 144; 2004 U.S. Dist. LEXIS 17716, August 24, 2004, Decided, Partial summary judgment granted by AB v. Rhinebeck Cent. Sch. Dist., 2005 U.S. Dist. LEXIS 4686 (S.D.N.Y., Mar. 21, 2005)

50 Equal Protection The courts have recognized some sexual harassment claims using the “equal protection clause” of the Fourteenth Amendment. In these cases the plaintiff must show that discrimination was intentional.

51 Sexual Harassment in the Workplace – Recommendations for Practice
Standards for sexual harassment in the workplace are the same for both public and private employers. As evinced in Ellerth and Faragher, the employer may have vicarious liability for severe or pervasive conduct of employees in supervisory positions, but may offer an affirmative defense if the plaintiff employee has suffered no tangible adverse effect on his or her employment. An important component of the affirmative defense is demonstrating the existence and dissemination of an anti-sexual harassment policy. With this in mind, the following recommendations are made. The local school board should:

52 Develop, review, and disseminate a strong workplace policy prohibiting sexual harassment. Preferably there should be a mechanism for the faculty and staff to contribute to and ultimately endorse the policy and to help monitor it. The policy should contain a statement explaining why it is important to prevent sexual harassment.

53 Included in this policy should be a clear description or explanation of the prohibited behaviors. Generally speaking, these behaviors are unwarranted or unwanted sexual attention from peers, subordinates, supervisors, customers, clients, or anyone the employee must interact with in order to fulfill the duties of the job or school where the employee's responses might be restrained by fear of reprisals. The range of behaviors includes (but is not limited to) leering, pinching, unnecessary touching or patting, verbal comments, subtle pressure for sexual activity, rape, and attempted rape.

54 There should be clear assurances in the policy that an employee who files a harassment complaint or who provides information related to such a complaint will be protected from retaliation. There should also be assurances that, to the degree possible, the employer will protect the confidentiality of those who file harassment complaints.

55 The policy should outline procedures for filing a complaint and should describe the employer's process for investigating and responding to a complaint. The process should include: (i) the timeline for the investigation; (ii) suggestions for possible informal resolution of the problem; and (iii) assignment of complaint managers who are respected by the employees, are sensitive to the issue, and able to empathize with the victim.

56 The school board should adopt, publicize, and enforce penalties for violations of the policy.
The board should keep written records; however, it should take precautions to protect confidentiality. The school board should publish results of resolved complaints, but should protect the identity of the individuals involved.

57 Measures should be taken to facilitate employees' awareness of the EEOC sexual harassment guidelines and alertness to the problem. It is advisable that employers conduct periodic training for administrators and others in supervisory positions, teachers, and staff to ensure all employees understand and comply with the policy. Orientation programs for new faculty and staff should include discussion of the sexual harassment policy and EEOC guidelines.

58 The school board should include all policies related to sexual harassment in faculty, staff, and student handbooks.

59 Evaluations School Leaders are almost always teachers themselves who believe that “All Children Can Learn”. They expect for teachers to be responsible for helping children experience success It is the job of the School Leader to help teachers be successful It is the job of the School Leader to evaluate the teachers that are in his/her charge

60 It is the job of the School Leader to provide praise and constructive criticism when necessary during the evaluation process It is true that one of the most difficult jobs of a school leader is the successful implementation of the staff evaluation program

61 Goals and Functions of Evaluation
The purpose of evaluation is to effectively communicate with the employee the expected job performance criteria The effectiveness of the evaluation system generally depends on the communication skills and processes that the School Leader possesses

62 Legal Intervention Documentation is Everything!
Most areas in the evaluation should be able to be corrected and assistance provided to the employee However, there are some “non-remediable” and “non-correctable” behavior that must be addressed: Intentionally harmful conduct Insubordination Intemperance Dishonesty Immorality Fraud Misrepresentation, etc

63 The Importance of Appropriate Evaluation Systems
In most termination cases evaluations of the employee by the School Leader will either win or lose the case The School Leader must be aware that the evaluation procedure must be followed and everything specified in the policy should be followed

64 Implementation of Evaluation Policies
Many states will dictate exactly how the evaluation system should be implemented When disputes are held between the teacher and the school, compliance with the evaluation policy will be examined first Failure to follow the specific components of the evaluation procedure that is specified by the state or the district has led to the reinstatement of teachers whose competencies were in question

65 Elements of Appropriate Evaluation Systems
Evaluation system should be fair Objectives in the evaluation system should be Specific Measurable Attainable Relevant Timely

66 Teachers should know the consequences of a good or bad evaluation
School Leaders should develop an on-going system of feedback for the teachers Frequent visits to the classroom will improve the evaluation process and the accuracy of the feedback to the teacher Pre-evaluation conferences allow the teacher and School Leader to understand the expectations of the School Leader for the Teacher – This should be documented and signed by both parties – It is appropriate for the Teacher to have input into the process at this time

67 Classroom visits can be announced or unannounced
Each visit should be documented, and when possible discussed with the Teacher and signed by both parties When discussing the visits and the School Leaders comments, the Teacher MUST have an opportunity to respond to the comments made in the evaluation document The School Leader must stay on task and not vary from the criteria established in the “instrument”. This does not mean that extreme behavior is not evaluated, but the primary components of the evaluation need to be followed

68 The Teacher should always have an opportunity to respond in writing
The Teacher should always have an opportunity to respond in writing. Special attention must be made to not retaliate against the Teacher for anything said in his/her rebuttal If there are areas of contention between the teacher and the School Leader, do not hesitate in getting a second opinion. This will be a great benefit if litigation is pursued at a later date The evaluation should be kept as a confidential document Great efforts should be made to have an objective instrument that could not be questioned as bias or discriminatory

69 Remediation of Employee Job Performance
Provide a plan of improvement Be Specific about what is expected Build in numerous times for observation and opportunities for feedback Establish a reasonable time line for completion of the tasks or behaviors required Remember that you are there to help the Teacher succeed, not to find ways to terminate Exact precise records should be kept at all times. These will be the primary guiding documents if litigation is pursued by the Teacher

70 Avoiding Legal Claims Do not do any action with an employee that might be viewed as retaliation Be sure to be fair and not discriminate in the evaluation process. Watch for frequency of visits, feedback, and how conversations are held with other teachers

71 Evaluations – Recommendations for Practice
Develop sound evaluation policies and procedures and follow them. Apply specific job related performance criteria that are valid, observable, and related to an employee's job performance. Give advance notice of performance criteria, priorities, and expectations and the procedures that will be used. Give advance notice of potential consequences of good and bad evaluations.

72 Consider employee input into the process.
Develop a pattern of continual feedback regarding job performance. Proofread all documentation before presentation to employee. Timely inform employee of specific evaluation problems orally and in writing. Allow employee to respond to evaluations, either orally, in writing, or through a grievance, appeal, or arbitration process.

73 Evaluate all employees in a uniform manner to avoid the inference of discrimination.
Ensure that evaluations are truthful and accurate. Keep evaluations confidential from all except the employee being evaluated. Do not use an evaluation to retaliate against any employee for any legally protected conduct or to discriminate based on any legally protected status.

74 Develop a remediation plan in cooperation with the employee, if necessary. Followup on the remediation plan with periodic check ups. Provide a reasonable time for the employee to correct deficiencies, with activities actually designed to correct performance problem areas. Allow more than one evaluator to observe an employee if there are concerns regarding objectivity or bias.

75 Make all employment decisions based on job performance as a whole, using all available documents, including evaluations. If making an adverse employment decision, follow all constitutional, statutory, and contractual procedures.

76 Student Injury School Leaders need to be aware of the statutory definitions pertaining to student injuries. Parents, on behalf of their children, bring a negligence claim against the school district under state tort law. Tort law offers civil remedied to individuals who are harmed by the unreasonable conduct of others. Negligence on the part of the teacher or school leader is generally the claim with student injury occurs. There are few tort cases heard beyond the state court, as few of them will deal with constitutional issues

77 In contrast to negligence, in intentional tort cases, liability is imposed due to an individual's conscious decision to cause the particular harm.' Intentional torts include assault and battery, false imprisonment, and intentional infliction of emotional distress. Defamation is also considered a tort. Defamation involves an injury to one's reputation, generally through libel and/or slander. Most tort actions are heard in state court. Generally, punitive damages are not available in tort cases, and a plaintiff must affirmatively prove actual compensatory damages .

78 Elements Needed to Establish Negligence
Duty of Care The duty to supervise students Age of student and situation do make a difference in determination of liability minors under the age of seven years are conclusively presumed incapable of negligence Minors over the age of fourteen years are presumptively capable of negligence Minors between the ages of seven and fourteen are presumed incapable of negligence; however, such presumption is rebuttable and grows weaker as students approach age fourteen

79 Breach of Duty School officials are expected to use ordinary care in controlling and disciplining students Again, the amount of ordinary care depends on the age of the student and the situation surrounding the incident

80 Causation Must be proven that the defendant’s conduct was the “cause in fact” The “but-for” test The plaintiff (student) must show that the injury would not have occurred “but for” the defendant’s (schools) act. Could or should the school have foreseen the potential danger in a certain situation Injury In order for the Plaintiff to prevail in a negligence claim there must be evidence of an “actual injury”

81 Defenses to Negligence
Immunity Many times schools are provided immunity in tort claims und the court rationale that “public schools are funded with tax dollars and as a result private individuals who are suing a school would actually be suing themselves. – Aliffi v. Liberty County Sch. Dist., A02A2408. , COURT OF APPEALS OF GEORGIA, FIRST DIVISION , 259 Ga. App. 713; 578 S.E.2d 146; 2003 Ga. App. LEXIS 159, February 6, 2003, Decided,  Reconsideration Denied February 18, ☼

82 The state court found that the teacher’s action was discretionary and that she was protected by sovereign and official immunity. A suit against an employee in her official capacity is a suit against the state which enjoys sovereign immunity. The court of appeals affirmed. Courts determined that if teachers are performing everyday functions were taken to court on every instance than few people would want to become teachers

83 Wood v. Strickland, No , SUPREME COURT OF THE UNITED STATES, 420 U.S. 308; 95 S. Ct. 992; 43 L. Ed. 2d 214; 1975 U.S. LEXIS 37, October 16, 1974, Argued, February 25, 1975, Decided ☼

84 School officials do not have absolute immunity in dealing with student issues. In addition to not having malice or ill will toward the respondents, school board members must be aware of, and act upon, their constituents’ constitutional rights if they are to be exempt under section If a board member acts from impermissible motives or violates established constitutional rights, then the aggrieved party is entitled to a compensatory award.

85 Contributory Negligence
Did the student contribute to his/her own injury by and action that they took? Assumption of Risk The student knew before beginning a certain activity that there was a chance of injury Comparative Negligence Essentially, it means that both parties are at fault and will share equally in the responsibility for the incident

86 Intentional Torts Assault and Battery
Assault can be words, treats and intimidation Battery is actually a physical action Educators should be extremely cautious about laying hands on students unless the situation absolutely demands it for safety considerations.

87 Intentional Infliction of Emotional Distress
False Imprisonment Restraining a student in a situation where it was unnecessary (This is becoming more of an issue with detention and in-school suspension rooms) Intentional Infliction of Emotional Distress Suffering pain from severe mental anguish Very hard to prove this tort, but it has happened in some court cases

88 Defamation Injury to one’s reputation – this is the intentional or negligent unprivileged communication of a false statement to a third party about the plaintiff Written defamation is libel Verbal defamation is slander

89 New York Times Co. v. Sullivan, No
New York Times Co. v. Sullivan, No. 39, SUPREME COURT OF THE UNITED STATES, 376 U.S. 254; 84 S. Ct. 710; 11 L. Ed. 2d 686; 1964 U.S. LEXIS 1655; 95 A.L.R.2d 1412; 1 Media L. Rep. 1527, January 6, 1964, Argued, March 9, 1964, Decided ** Together with No. 40, Abernathy et al. v. Sullivan, also on certiorari to the same court, argued January 7, ☼

90 Supreme Court decision that held that public officials cannot sue for defamation, absent malice on the part of the other party.

91 Ellerbee v. Mills, Nos. S92A0595, S92A0597, Supreme Court of Georgia, 262 Ga. 516; 422 S.E.2d 539; 1992 Ga. LEXIS 941; 20 Media L. Rep. 2095, November 16, 1992, Decided ☼

92 Principals and teachers in Georgia, and many other jurisdictions, are not public figures. If others make false statements about them, they do not have to prove actual malice. The publication of the false statements, without due care regarding the truth or falsity; can lead to a finding of libel or slander. With the emergence of local school councils, does the principal now become a policy-maker who would be a public figure?

93 Student Injury – Recommendations for Practice
School personnel should be trained on the elements of negligence instead of just being told to "never leave your classroom" for fear of negligence lawsuits. Rules and expectations of students should be reviewed with all students and staff. If an item is in disrepair on the playground or in the school, appropriate school personnel should be immediately notified and the problem should be rectified.

94 School personnel should eliminate potential hazards to students, such as faulty equipment or other protruding objects in and around the school building. When physical restraints are necessary, school authorities need to document the circumstances detailing why such actions were necessary. School personnel should establish supervision responsibilities for events and extracurricular activities. Educators should be aware whether their state has adopted the comparative negligence defense.

95 Parents should be informed of any major change in the school climate that is potentially hazardous. The school should discuss how it will remedy the problem. When physical restraints are necessary, school authorities need to document the circumstances detailing why such actions were neces­sary. School personnel should be reminded that permission slips do not negate negligent supervision. Educators should be aware whether their state has adopted the com­parative negligence defense.

96 Documentation “The primary objective of a school district’s employee evaluation system is to improve employees’ performance so they can become successful and contribute to achieving the district’s goals”

97 Documentation is necessary to accomplish this goal
Documentation is an integral part of due process Allows for identification of problems Allows for feedback and/or rebuttal from the teacher Lays the ground work for improvement of performance or termination of employment

98 If there is too little documentation, there is a contention that the School Leader has not done a sufficient job of helping the teacher improve If there is too much documentation, the teacher claims that they are being harassed In still other situations, teachers will claim that they do not understand what is expected of them and how to improve. A good documentation system is a form of communication that can provide a method of improvement or a substantial motivator for a teacher to consider other job opportunities

99 Many times School Leaders are reluctant to recommend a teacher for non-renewal or discharge because of the scrutiny of their evaluation and documentation system

100 The Documentation System
Memoranda to the file (Notes put in the teachers file) – These are used sparingly and serve as a method for the School Leader to remember instances and events. These are generally notes pertaining to less significant events. (Even though, through the use of these “notes” patterns of inefficiency and insubordination may be established) Specific Incident Memoranda – Used to record conferences with a teacher concerning a more significant event Summary Memoranda – Used to record conferences with a teacher in which several incidents, problems or deficiencies are discussed Visitation Memoranda – Should record observations made of a teachers on-the-job performance Assessment Instrument – The form/instrument used to evaluate the teacher’s overall performance

101 Documentation should be used for:
Allowing the principal to follow a teacher’s actions and performance Inform the teacher of any problems or deficiencies and provide valuable information concerning the necessary corrective steps the teacher must take to improve Serves as concrete evidence to support a recommendation of termination

102 Memoranda to the File – events that are generally minor enough not to require a conference with the teacher Note on a calendar A page in a notebook containing many teachers A note in an electronic format (recommended with back up) Used for Conferences at a later date Assessment of the teacher’s performance Refreshing the memory of the Principal

103 It is a good idea to share this information with the teacher, at least to the level of an informal visit. You do not have to give a copy of the “note” to the teacher unless they ask for a copy


105 Specific Incident Memoranda
Principal observes a specific incident or behavior or is contacted about a situation from a third party Never send the memo before meeting with the teacher and getting their side of the story Summarize the complaint List the Teacher’s response

106 The Principal should state his/her decision regarding the situation (Provide directives, corrective actions or reprimands) Deal with the situation as soon as possible, do not wait to deal with these situations (The longer you wait the more problems it will cause in the future) If there is a discrepancy from what is told by a third party and the teacher, investigate and interview other parties who might serve as witnesses. If the third party will not be willing to testify and there are not reliable witnesses, the issue should be dropped

107 Make sure the teacher has copy of this memo
Assure that it is signed by the teacher; if the teacher refuses to sign, have another adult sign stating that the teacher was given a copy of the memo. Make sure to always include the time and date on the memo Give the teacher an opportunity to respond to the memo. Give them a time and date to respond If the teacher does not respond by the required time and date, document such

108 Visitation Memoranda Classroom visits
Notes and forms used in these visits should always be shared with the teacher Generally all of the visitation notes and forms will be reviewed in the summary memorandum

109 Summary Memoranda Implies just as it says, it summarizes all of the memos taken place to date The teacher should be given a copy, and also given an opportunity to respond

110 The Assessment or Evaluation Document
This document should be completed in strict compliance with school board policy and/or state law There should be a summary document for each negative assessment noted in the evaluation document It is important to show that you have made every attempt to help the teacher succeed. This is not only favored by the court, it is the right thing to do! When evaluating new employees DO NOT rate them in the highest category. Give yourself room to provide them with higher ratings as they become more experienced. It is much easier for you to raise a teachers “ratings” than it is to lower a teachers ratings

111 The Close Out Memorandum
Eventually, the process must come to a close. If the teacher continues to respond, the principal needs to continue to investigate. Emphasis should be on making sure the teacher understands what is expected of him/her In this final document, the opportunity for the teacher to respond will be omitted

112 Documentation – Recommendations for Practice
Any memorandum should be sent only after a conference with the teacher. In preparing any memorandum, reliance should be on the facts. Conclusionary statements not supported by the facts should be avoided. For example, in a classroom visitation memorandum, a statement that the teacher's classroom was disorderly, without any explanation, is not very specific or effective. Rather, the principal should note that three children were observed in the classroom talking during class and one child was playing in the back of the room. The principal should note that these acts were unnoticed by the teacher and were not corrected by the teacher.

113 In preparing a memorandum, inflammatory words should not be used
In preparing a memorandum, inflammatory words should not be used. For example, rather than characterize an action as insubordination, the action should be factually described, and the teacher's action referred to as a failure to comply with specific official directives or school board policy.

114 Directives given in a memorandum should be positive and specific, and educational jargon should be avoided. For example, when directing a sometimes tardy teacher to arrive at school on time, state: "You are required to be at school by (a specific time), and you will be expected to have signed in by that time," rather than, "You are required to be at school on time." Instead of directing, "Your lesson plans are due once a week, " one might state, "Your lesson plans must be ed to me or placed in my box by 4:00 p.m. on each Friday, and I expect you to have them there beginning this Friday." When written in a constructive manner, precise directives like these tend to avoid real or imagined confusion about what is expected.

115 The specific incident memorandum, the summary memorandum, the visitation memorandum and the assessment document should be personalized as much as possible. The use of "we" or "they" should be avoided unless two or more people are involved, in which case each individual should be identified by name. The key to the success of this documentation system is to provide an opportunity for the principal and the teacher to sit down and mutually work out the problem and determine the future actions of the teacher.

116 Care should be taken to treat all teachers alike, especially when dealing with absences and tardiness. It is embarrassing and potentially destructive to have a teacher's attorney present a school's sign in sheet at a hearing to show that other teachers have more tardies and more absences than the teacher who is being proposed for termination for excessive tardiness and absences.

117 An administrator should never write a memorandum to a teacher when the administrator is angry. It is much better to reflect for a day or so or to call in a third party to review a memorandum prior to sending it. By doing so, the principal can avoid writing statements that might be regretted later. This admonition is especially relevant when the method of communication is electronic rather than by paper memorandum.

118 In order to be effective, any memorandum must be prepared and sent to the teacher soon after the incident and the subsequent conference occur. Under no circumstances should a memorandum be prepared after the decision to terminate has been made and backdated to reflect the incident upon which the proposed termination will be based. Warn the teacher verbally and in the memorandum if adverse employment action, such as termination, may occur if corrective action is not taken.

119 Have the teacher sign to acknowledge receipt of the memorandum without requiring agreement with its contents. Invite a written response and set a specific time for the response to be provided. If the teacher refuses to sign for receipt, have an adult witness sign a copy of the memorandum noting that it was provided the teacher, and indicate the person who provided it and the date provided.

120 The evaluator should be careful to ensure that the teacher believes he or she has been treated fairly. One should remember that if the teacher's performance does not improve and a recommendation for termination is made, the fairness of the process will be judged by the members of the board or a hearing officer and, possibly, by the state's commissioner of education, an arbitrator, a judge, or even a jury. In ensuring that a teacher has been treated fairly, one should attempt to conduct an evaluation from the perspective of a reasonable person who, after receiving all the facts, determines that the process was fair. Another helpful standard for judging fairness is for the principal to treat the teacher as the principal would like to be treated if he or she were in the same circumstances.

121 Normally the only documents that would be used as documentary evidence at a termination hearing would be the summary memo­randa and the evaluation or assessment instruments. Occasionally, specific incident and visitation memoranda would be included; however, these specific incident and visitation memoranda should be reviewed and included in a subsequent summary memorandum or evaluation instrument. If the teacher does not receive a copy of a memorandum to the file, it should not be used as evidence at a hearing but should be used only when necessary to refresh the principal's memory while testifying concerning the specific facts of an event.

122 Finally The system that you use will vary depending on state law and local policy It is important that what ever system of documentation that you do use, that it allows for many opportunities for the teacher to respond and that you spend the time to do the process professionally. You must make an effort to help the teacher be successful! The downfall of most principals is the failure to dedicate the necessary time to do the process completely. This will end up making the principal look bad and be highly scrutinized by the court.

123 Educational Curriculum
Introduction – Curriculum is mandated by the state or local boards of education, as well as the content that should be provided. The 10th Amendment gives authority to the states to have jurisdiction over public education. The courts have reinforced that control over the decades as represented in this 1923 case: Meyer v. Nebraska, No. 325., SUPREME COURT OF THE UNITED STATES, 262 U.S. 390; 43 S. Ct. 625; 67 L. Ed. 1042; 1923 U.S. LEXIS 2655; 29 A.L.R. 1446, Argued February 23, 1923., June 4, 1923, Decided ☼

124 The action of legislatures is subject to review by the courts
The action of legislatures is subject to review by the courts. Courts will weigh the state’s interest against the constitutional interests of the citizens who claim their rights have been impinged. Where fundamental interests, such as liberty are involved, courts will apply the strict-scrutiny standard to review the legislative action.

125 School Libraries School Boards have discretionary power to control the schools and to inculcate the fundamental values necessary to maintain a democratic political system Sometimes, even with this authority Boards of Education can infringe on First Amendment Rights when they remove certain books from libraries At the court says in Keyishian v. Bd. Of Regents, “students must always remain free to inquire, to study and to evaluate to gain new maturity and understanding”

126 Boards do represent the communities in which they live and can represent those standards in the selection or deletion of books that contain vulgar, obscene, or sexually explicit language or material Bd. of Educ. v. Pico, No , SUPREME COURT OF THE UNITED STATES , 457 U.S. 853; 102 S. Ct. 2799; 73 L. Ed. 2d 435; 1982 U.S. LEXIS 8; 8 Media L. Rep. 1721, March 2, 1982, Argued, June 25, 1982, Decided ☼

127 Boards of education do not have unlimited discretion to remove books previously placed on library shelves. The issue is differ­ent, within constitutional limits, when it comes to deciding which books to place on library shelves. Common practice is to have system and lo­cal school media committees that decide on which materials to place in libraries. Boards are well advised to have procedures in place for dealing with the selection of curriculum materials as well as complaints about instructional materials and library materials.

128 Community and Parental Challengers to Curriculums
Many time parents of children or the community itself will protest the types of books that are kept in the library. They claim that the material that is provided to their children to read is in conflict with their individual religious beliefs Courts have generally allowed communities to maintain their values by granting control of curriculum

129 Even though parents have some control over these issues, the courts have not given parents the right to have their children opt out of certain curricular activities, such as P.E., Art, Music, etc. Parents have had limited success in removing content from the schools curriculum, however, many states do mandate that if there is “sufficient” community desire, some courses must be offered

130 Teaching Evolution Scopes “monkey trial” of 1927
Epperson v. Arkansas ☼ Edwards v. Aguillard, No , SUPREME COURT OF THE UNITED STATES, 482 U.S. 578; 107 S. Ct. 2573; 96 L. Ed. 2d 510; 1987 U.S. LEXIS 2729; 55 U.S.L.W. 4860, December 10, 1986, Argued, June 19, 1987, Decided ☼

131 Even with the recent changes in First Amendment analysis, it is still unlikely that the courts will allow states to pass laws which further particular religious beliefs in the public schools.

132 TAMMY KITZMILLER, et al. , Plaintiffs v
TAMMY KITZMILLER, et al., Plaintiffs v. DOVER AREA SCHOOL DISTRICT, et al., Defendants. UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, 400 F. Supp. 2d 707; 2005 U.S. Dist. LEXIS 33647, December 20, 2005, Decided, December 20, 2005, Filed

133 Sex Education Most states require schools to have courses in sex education It is important to get permission from parents prior to enrolling students in these classes. Give parents an opportunity to “opt out” on the basis of religious reasons

134 NCLB does prohibit certain areas related to sex education, school are prohibited to use federal money to: Develop materials that are designed to promote or encourage sexual activity Distribute legally obscene materials to minors on school grounds Provide sex education or HIV education unless such education is age appropriate and includes the health benefits of abstinence, and Distribute contraceptives in schools

135 Community Service Learning Requirements
Courts have allowed service learning requirements to be a part of the schools graduation requirements They do not consider them “involuntary servitude” It also does not deprive the parents of their constitutional right to direct the upbringing of their children These service activities were not “akin to slavery” as some parents claimed in the suits against the school

136 Obscenity and the Curriculum
In Miller v. California the courts established a test for determining obscenity: Does the material deal with sex in a manner appealing to the prurient interest Whether the material depicted or described, in an offensive manner, sexual conduct specifically defined by applicable state law Did the material portray sexual conduct in a patently offensive way And when taken as a whole, did the material lack serious literary, artistic, political, or scientific value

137 MILLER v. CALIFORNIA, No SUPREME COURT OF THE UNITED STATES 413 U.S. 15; 93 S. Ct. 2607; 37 L. Ed. 2d 419; 1973 U.S. LEXIS 149; 1 Media L. Rep. 1441

138 Bethel was a major case in determining how schools could handle enforcing school obscenity policies
Age appropriateness is also used by the courts in determining what is obscene in schools The courts have given a good deal of authority to school boards in making these determinations

139 Educational Curriculum - Recommendations for Practice
The American educational system is premised on the basis that individual states are responsible for the education of their citizenry and that local communities also have rights and responsibilities in this area. While the courts continue to uphold the right for local communities to shape educational curriculum, they have placed limits on those rights by mandating that curricular decisions (to include or exclude ideas and materials) must be based on appropriate educational pedagogy and not on the ideological or religious tenets of a particular political or religious group.

140 When making decisions pertinent to educational curriculum, educators are encouraged to remember the following: Boards of education have broad discretion in the management of school affairs. The courts have charged schools to inculcate the fundamental values of manners and civility necessary to maintain a democratic political system. Students must always remain free to inquire, to study, and to evaluate.

141 Boards of education have the discretion to remove books that are considered to be vulgar, obscene, or sexually explicit and to screen future library acquisitions without being guilty of suppressing the First Amendment. Books may not be removed from school libraries simply based on the book's ideological [or religious] content, however, some states or local school boards may require that reasonable accommodations or exemptions be made for students with religious objections.

142 It is legal to ask students to read content and participate in discussions of materials that do not coincide with their religious or political beliefs. Teaching evolution as part of the curriculum is not a violation of the Establishment Clause of the First Amendment.

143 The right to exempt one's child from a health education course or family life course is not absolute and the exemption may be limited to those areas of the curriculum that have the potential to directly impinge on parental rights. Community service programs required by school districts as partial requirements for graduation do not constitute involuntary servitude. The courts have provided guidelines as to what constitutes obscenity but schools are given considerable leeway in regulating what constitutes vulgar, indecent, and offensive behavior.

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