Teachers and the Law, 9/e by Schimmel, Stellman, Conlon & Fischer Instructor’s Manual with Test Bank
Instructor’s Manual with Test Bank
to accompany
Teachers and the Law
Ninth Edition
David Schimmel/Leslie R. Stellman/Cynthia K. Conlon/Louis Fischer
University of Massachusetts, Pessin Katz Law, P.A., Northwestern University, University of Massachusetts
Prepared by
Indiana University
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Instructors of classes using Schimmel/Stellman/Fischer/Conlon’s Teachers and the Law, 8e, may reproduce material from the instructor’s manual for classroom use.
10 9 8 7 6 5 4 3 2 1 ISBN-10: 0133569675
ISBN-13: 9780133569674
TABLE OF CONTENTS
Introduction.................................................................................................................................................................. 3
PART I
Chapter 1 Teachers and the Legal System ........................................................................................................... 4
Chapter 2 Do I Have a Contract? ........................................................................................................................... 9
Chapter 3 How Secure Is My Employment? ...................................................................................................... 14
Chapter 4 How Does Collective Bargaining Affect Me? ................................................................................. 20
Chapter 5 When Am I Liable? ............................................................................................................................. 27
Chapter 6 What Constitutes Slander and Libel? ............................................................................................... 34
Chapter 7 How Should I Deal with Child Abuse and Neglect? ...................................................................... 39
Chapter 8 How Does Copyright Law Affect Me? ............................................................................................. 44
Chapter 9 When Can Schools Restrict Teachers’ Freedom of Expression?................................................... 49
Chapter 10 When Can Schools Restrict Students’ Freedom of Expression? ................................................. 54
Chapter 11 When Can Schools Limit Religious Freedom? ............................................................................... 61
Chapter 12 When Can Schools Limit Freedom of Association? ...................................................................... 68
Chapter 13 What Are My Rights under Due Process? ....................................................................................... 74
Chapter 14 How Free Is My Personal Life? ......................................................................................................... 81
Chapter 15 Are Teachers and Students Protected Against Racial Discrimination? ...................................... 87
Chapter 16 Are Teachers and Students Protected Against Sex Discrimination? ........................................... 93
Chapter 17 Are There Special Rights for Students with Disabilities and Non-English-Speaking Students? 99
Chapter 18 Who Controls Student Records? .................................................................................................... 105
Chapter 19 Do Parents Have Choices in Educating their Children? ............................................................. 110
Chapter 20 When Can Schools Restrict Personal Appearance? .................................................................... 115
Chapter 21 No Child Left Behind Act of 2001, Control of the Internet, and Other Current Controversies 120
PART II Edited Significant United States Supreme Court Case Affecting Public Elementary and
Secondary Education......................................................................................................................... 125
PART III Federal Statutes Affecting Public Elementary and Secondary Education ............................... 214
PART IV Internet Resources ............................................................................................................................ 225
Answer Key............................................................................................................................................................. 227
EDITED SIGNIFICANT UNITED STATES SUPREME COURT CASES AFFECTING
PUBLIC ELEMENTARY AND SECONDARY EDUCATION
Bethel School District v. Fraser (1986) Chapter 10
*Issue: School’s Right to Discipline for Vulgar/Offensive Speech
Board of Education v. Earls Chapter 13
*Issue: Random Drug Testing of Students who Participate in Extracurricular Activities
is not an Unlawful Search or Invasion of Privacy
Brown v. Board of Education of Topeka (1954) Chapter 15
*Issue: Segregated Schools Are Inherently Unequal
Davis v. Monroe County Board of Education (1999) Chapter 16
*Issue: Sexual Harassment of Student by Student
Gebser v. Lago Vista Independent School District (1998) Chapter 16
*Issue: Sexual Harassment of Student by Teacher
Good News club v. Milford Central School (2001) Chapter 11
*Issue: After School Use of Building for Religious Activities
Goss v. Lopez (1975) Chapter 13
*Issue: Due Process in Suspension and Expulsion
Hazelwood v. Kuhlmeier (1987) Chapter 10
*Issue: Principal’s Right to Editorial Control of School Newspaper
Jackson v. Birmingham Board of Education (2005) Chapter 16
*Issue: Right of a male coach to be protected against retaliation for complaining about
unequal treatment of female athletes.
Lee v. Weisman (1992) Chapter 11
*Issue: Prayers at Graduation Violation of Establishment Clause
Morse v. Frederick (2007) Chapter 10
*Issue: School officials can regulate speech that promotes illegal drug use.
Mt. Healthy School District Board of Education v. Doyle (1977) Chapter 13
*Issue: Dismissal of Nontenured Teacher and First Amendment Rights
New Jersey v. T.L.O. (1985) Chapter 13
*Issue: Reasonable Suspicion Grounds for Public School Searches
Perry v. Sindermann (1972) Chapter 3
*Issue: Due Process Hearing Required When Teacher Dismissed Claiming Tenure/
Property Interest
Pickering v. Board of Education (1968) Chapter 9
*Issue: Teacher Free Speech v. Public’s Right to Know
Safford v. Redding (2009)
*Issue: Strip search of student for ibuprofen violated Fourth Amendment. Chapter 13
Santa Fe Independent School District v. Doe (2000) Chapter 11
*Issue: Prayer at High School Football Games
Schaffer ex rel. Schaffer v. Weast (2005) Chapter 17
*Issue: Burden of proof in due process hearings initiated under federal special education
law (IDEA).
Tinker v. Des Moines Independent School District (1969) Chapter 10
*Issue: Symbolic Freedom of Speech for Students
Wallace v. Jaffree (1985) Chapter 11
*Issue: Moment of Silence for “Meditation or Voluntary Prayer” Violation of
Establishment Clause
Wisconsin v. Yoder (1972) Chapter 11
*Issue: Right of Old Order Amish to Free Exercise of Religion Not Violation of
Compulsory Attendance Laws
FEDERAL STATUTES AFFECTING PUBLIC ELEMENTARY AND
SECONDARY EDUCATION
42 U.S.C. § 1981 – Civil Rights Acts of 1866, 1870
42 U.S.C. § 1983 – The Civil Rights Act of 1871
42 U.S.C. § 1985 and 1986 – The Civil Rights Act of 1871
42 U.S.C. § 2000(d) – The Civil Rights Act of 1964, Title VI
42 U.S.C. § 2000(e) – The Civil Rights Act of 1964, Title VII
20 U.S.C. § 1681 – Educational Amendments of 1972, Title IX
29 U.S.C. § 206(d) – Equal Pay Act
29 U.S.C. § 623 – Age Discrimination Act
20 U.S.C. § 1703 – Equal Educational Opportunities Act
29 U.S.C. § 794 – Rehabilitation Act of 1973
20 U.S.C. § 1232 – Family Educational Rights and Privacy Act of 1974
20 U.S.C. § 1400 et seq. – Individuals with Disabilities Education Act;
Excerpts from Regulations Under the Education of Individuals with Disabilities Act
20 U.S.C. § 3221 et seq. – Bilingual Education Act
20 U.S.C. § 4071 – Equal Access Act of 1984
20 U.S.C. § 11431 – McKinney-Vento Homeless Assistance Act
20 U.S.C. § 6317 – No Child Left Behind Act
INTERNET RESOURCES
1. General
2. School Law Web Sites
3. Federal Statutes and Regulations
4. Federal Case Law
5. U.S. Supreme Court Cases
INTRODUCTION
This instructor's manual is divided into four sections. The first section consists of aids for the instructor, including objectives for each chapter, suggested teaching activities, key terms, and a brief list of suggested readings, suggested examination questions and alternative assessment activities. New to this edition is a scenario and a link to a relevant YouTube clip to better illustrate the legal issues discussed. The scenario and YouTube clip appear in each chapter. These aids are targeted to serve instructors who are teaching undergraduate or masters level students.
The second section of the manual consists of edited U.S. Supreme Court cases. These cases will be helpful for students to gain a more in-depth understanding of the Court’s decision.
The third section consists of Federal Statues affecting public elementary and secondary education.
The fourth section contains a listing of Internet Resources designed to assist the reader with easy access to school law related research venues and, most especially, Circuit Court of Appeals and U. S. Supreme Court decisions. This Manual for Teachers and the Law is designed for instructors teaching both graduate and undergraduate education courses, and can even be used for teaching law school courses in education law.
Suzanne E. Eckes, Leslie R. Stellman, David
Schimmel and Cindy Conlon
CHAPTER 1
TEACHERS AND THE LEGAL SYSTEM
OBJECTIVES OF THE CHAPTER
At the end of this chapter the student will:
1. develop a working vocabulary of legal terms relevant to the legal system and its application to teachers, administrators and school boards in lawsuits.
2. explain basic issues that should be considered in choosing the jurisdiction in which to file suit.
3. demonstrate how to interview and choose a competent, experienced attorney to act on his/her behalf, given an appropriate scenario.
4. rank order the usual chain of events from filing the complaint through the levels of appeal possible, given an appropriate scenario.
5. compare and contrast the value of alternative dispute resolution programs to the value of the normal adversarial, litigious process.
6. demonstrate an ability to utilize a law library and do simple research on cases cited in this and later chapters.
SCENARIO
The Supreme Court held in Ingraham v. Wright, 430 U.S. 651 (1979) that corporal punishment in schools did not violate the Eighth Amendment’s prohibition of cruel and unusual punishment. Answer the following questions:
1. Can the 7th Circuit Court of Appeals find that corporal punishment does in fact violate the 8th Amendment?
2. Can a Missouri Supreme Court find that corporal punishment violates the Missouri State Constitution?
3. Can the Missouri legislature prohibit corporal punishment?
4. Can a local school board prohibit corporal punishment?
VIDEO CLIP
Search for a YouTube clip on a recent Supreme Court case. After playing this clip, lead the class in a discussion about how the case got to the Supreme Court. One recent case that we have used is Safford United School District v. Redding. To find this clip, we simply searched for the case name.
URL: http://www.youtube.com/watch?v=t9QQCiT1e_w&feature=related (but note that videos often are removed from YouTube, so this web address may no longer be available). If it is no longer available, there are several other Supreme Court cases highlighted on YouTube that can be found through a simple search of the case names.
Search terms: Safford v. Redding
SUGGESTED TEACHING ACTIVITIES
1. Using Jackson v. Birmingham, assign students to read the cases cited by the defendant/plaintiff as precedent to determine the logic that the court used in making the decision. Discuss the logic, and focus on the manner in which precedent is used to determine future cases. Is Birmingham a precedent setting case? If so, for what cases did it set a precedent?
2. Have students contact their NEA and AFT affiliates at the state and local district levels and determine the legal services available to support teachers in lawsuits. Consider having one of these representatives visit class to discuss these services.
3. Invite a school system attorney to the classroom to discuss the types of matters that he or she regularly encounters on the job, particularly focusing on teacher rights cases.
4. In small groups, have students compare and contrast the advantages and disadvantages of alternative dispute resolution strategies. Consider a mock arbitration proceeding, with the professor serving as arbitrator and students preparing the respective case on behalf of the school system and the teacher, using Birmingham’s facts as a model.
5. The textbook mentions LEXIS and WESTLAW for conducting legal research. What other free legal databases exist to assist teachers in locating cases? Also, what blogs discuss school legal issues? Have students search for cases using the free legal database “Findlaw.” Findlaw can be found through a simple search on Google. Students can also access school law blogs by typing “school law blog” into Google. Mark Walsh’s blog from Education Week is particularly helpful with locating current school law controversies.
6. Ask the students to listen to a Supreme Court oral argument on oyez.org (http://www.oyez.org/cases/2000-2009/2008/2008_08_479). For the activity, ask students to research the history of a case and explain what path the case took to get to the Supreme Court. This activity would be designed to help students gain familiarity with the structure of the legal system by working their way backwards through it. For example, you could use the oral argument from Safford v. Redding.
7. Ask your students to watch the following clip: http://www.annenbergclassroom.org/page/a-conversation-on-the-origin-nature-and-importance-of-the-supreme-court This clip is a 37-minute video of Chief Justice Roberts discussing the important role of the U.S. Supreme Court. Lead a discussion about how the Court impacts public schools.
8. Ask your students to watch the following clip: http://www.annenbergclassroom.org/page/the-story-of-the-bill-of-rights This 16-minute video clip discusses the origin and importance of the Bill of Rights. Discuss which amendments are most applicable to schools.
RESOURCES
Center for Education & Employment Law (2004). U.S. Supreme Court Education Cases (12th edition).
Dunn, J.M. (2009). From schoolhouse to courthouse: The judiciary’s role in American education. Washington, D.C.: Thomas B. Fordham Institution.
Patricia F. First, Researching Legal Topics from a Policy Studies Perspective, in Research that Makes a Difference: Complementary Methods for Examining Legal Issues in Education 93 (David Schimmel ed.,1996).
Hilyerd, W.A. (Oct. 2005). Using the law library: A guide for educators Part V: Finding legal materials by topic. Journal of Law and Education.
Kelly, E. B. (1998). Legal basics: A handbook for educators. Bloomington, IN: Phi Delta Kappa.
Redfield, S.E. (2003). The convergence of education and law: A new class of educators and lawyers. Indiana Law Review, 36, 609-620.
Reynolds, W. B. (1991). Judicial remedies: Braking the power to fix it. Harvard Journal of Law & Public Policy, 14(1), 120-128.
Staver, M.D. (2003). Teachers’ rights on public-school campuses. Liberty Counsel, http://www.lc.org/Resources/teachers_rights_0900.html.
Thro, W.E. & Langhauser, D.P. (2003). Emerging limitations on federal authority. West’s Education Law Reporter 176, 505-525.
Utter, R. F. (1991). Advancing state constitutions in court; protecting individual rights. Trial, 27, 41.
United States Courts (2010). The federal courts. Retrieved on August 1, 2010, from http://www.uscourts.gov/Home.aspx
U.S. Department of Education, The Federal Role in Education (Feb. 2013), from http://www2ed.gov/about/overview/fed/role.html
Wilkins, B. (2005). Should public education be a federal fundamental right? Brigham Young University Education and Law Journal, 2005, 261-276.
Zirkel, P. (2006). Paralyzing fear? Avoiding distorted assessments of the effect of law on education. Journal of Law and Education, 35, 461-478.
KEY TERMS
statutory law constitutional law common law
jurisdiction district courts federal question
diversity of citizenship small claims courts defendant
pleadings depositions appellate jurisdiction
mediation pro se representation complaint
answer discovery document requests
arbitration plaintiff review by writ of certiorari
counterclaims interrogatories original jurisdiction
SUGGESTED EXAMINATION QUESTIONS
1. Describe the basic structure of the legal system in your state. Explain how the federal system intertwines and overlays it.
2. Define the legal terms listed above.
3. Explain the basic issues that should be considered in choosing whether to file a suit in state or federal court.
4. When do teachers use administrative agencies to settle disputes.
5. Describe the chronology of filing a lawsuit, from complaint through appeal.
6. Compare and contrast the value of alternative dispute resolution programs to the value of normal adversarial, litigious process.
7. Where teachers are in unions, are there grievance procedures culminating in binding arbitration? What power does an arbitrator have? Compare and contrast that power to that of the courts.
8. Explain what U.S. Constitutional Amendments are most applicable to public schools and why.
ALTERNATIVE ASSESSMENT DEVICES
1. Consult your school district attorney and collect a portfolio of documents filed on an interesting case that has proceeded through the court system.
2. Have the student do library research finding precedent setting cases that may have impacted on Settlegoode but were not cited by defendant or plaintiff. Student should explain why s/he feels they were not considered.
3. Have students write short "briefs" as the attorney for either the defendant or plaintiff in Settlegoode..
4. The Supreme Court recently elaborated on the same rights government workers have to protest, internally, violations of the rights of others. Can you find that case? What did it say?
5. Create a podcast explaining the path that a recent education law case has taken through the courts. Identify the plaintiffs, the defendants, the issue, the court that the case was filed in, and how it was appealed (if it was).
RECENT CASES ON THE TOPIC
People v. Raucci, 968 N.Y.S.2d 211 (N.Y.A.D. 3 Dept., 2013), Decided that former school district employee could be prosecuted in current county for acts that occurred in another county, due to potential impact of these criminal acts on the county.
MULTIPLE CHOICE
1. Which states are within the Seventh Circuit Court of Appeals?
a. Wisconsin, Illinois, Indiana
b. Florida, Georgia, Alabama
c. Georgia, South Carolina, Texas
d. Minnesota, Iowa, Indiana
e. None of the above.
2. In which circuit is California located?
a. The Seventh Circuit
b. The Eleventh Circuit
c. The Ninth Circuit
d. The Fifteenth Circuit
e. None of the above.
3. What are two alternative dispute resolution options?
a. mediation and arbitration
b. federal and state appeals
c. quid pro quo and res ipsa
d. moderator and appointee
e. quid pro quo and arbitration
4. What does the United States Code do?
a. It tracks administrative regulations.
b. It publishes U.S. Supreme Court cases.
c. It compiles all state court cases.
d. It organizes laws by topic.
e. It identifies if a court decision has been overturned.
5. Which answer best describes LEXIS or WESTLAW?
a. It tracks only administrative regulations.
b. It publishes only U.S. Supreme Court cases.
c. It compiles only state court cases.
d. It is a computerized legal research system.
e. It identifies only if a court decision has been overturned.
6. What federal law did the Jackson v. Birmingham case address?
a. NCLB
b. Title VI
c. The Equal Access Act
d. Title IX
e. The Eighth Amendment
7. What does Title IX prohibit?
a. Discrimination based on sex.
b. Discrimination based on ethnicity.
c. Discrimination based on race.
d. Discrimination based on disability.
e. None of the above.
8. What does the Equal Employment Opportunity Commission investigate?
a. Workplace air quality.
b. Discrimination based on race, color, sex, age, national origin, religion, and disability.
c. Employee rights in foreign corporations.
d. Student rights in private schools.
e. Discrimination based on sexual orientation.
9. What is statutory law?
a. Laws that are created by the courts.
b. Laws that are created by federal agencies.
c. Laws that are created by Congress.
d. Laws that are created by state legislatures.
e. Choices c and d are correct.
10. What is common law?
a. Laws that are created by state legislatures
b. Laws that are created by federal agencies.
c. Laws that are created by Congress.
d. Laws that are established by court decisions.
e. Choices c and d are correct.
11. What is constitutional law?
a. Laws that are created by state legislatures
b. Laws that are created by federal agencies.
c. Laws that are created by Congress.
d. Laws that are established by court decisions that are based on state or the U.S. Constitution.
e. Choices c and d are correct.
12. What is the proper term that means to represent one’s self in court?
a. Pro bono
b. Pro representation
c. Miranda representation
d. Res ipsa
e. Pro se
13. How many U.S. circuit courts of appeal are there in the U.S.?
a. 5
b. 100
c. 50
d. 1
e. 13
14. Which best describes the federal court system?
a. Circuit Court, Superior Court, U.S. Supreme Court
b. Intermediate Court, U.S. District Courts, U.S. Supreme Court
c. Municipal Court, Federal Court, Superior Court
d. U.S. District Courts, U.S. Circuit Courts, and U.S. Supreme Court
e. Superior Court, Municipal Court, District Court
15. Which best describes the state court system?
a. U.S. District Courts, U.S. Circuit Courts, and U.S. Supreme Court
b. Municipal Court/Superior Court, Appellate Court, State Supreme Court
c. Municipal Court, Federal Court, Superior Court
d. Intermediate Court, U.S. District Courts, U.S. Supreme Court
e. Superior Court, Municipal Court, District Court
CHAPTER 2
DO I HAVE A CONTRACT?
OBJECTIVES OF THE CHAPTER
At the end of the chapter the student will:
1. enumerate and explain the five parts of a contract.
2. draft a simple, basic, first-year teacher's contract. Further, the student will be able to compare and contrast their contract to a first year teacher's contract obtained from his/her local school district.
3. demonstrate how to analyze both the employment contract of a first-year teacher and a collective bargaining agreement to determine whether these contracts contain the five parts of a legal contract. Further, the student will be able to identify additional items that are terms and conditions of the contract and are included by reference.
4. explain breach of contract and possible actions in response to breach by the teacher or board of education.
5. explain the remedies for breach in their state, and cite several court cases in their state which illustrate these remedies.
6. develop a working vocabulary of basic legal terms relevant to contracts.
7. understand the difference between teacher contracts and contracts between boards of education and the teachers’ union, which covers groups of teachers.
SCENARIO
The principal of Fairview Elementary School wants to hire another teaching assistant for a kindergarten classroom. Identify each requirement that is missing in the scenarios below:
1. The applicant signs a contract that does not specify the position, and she thinks that the contract is for a first grade teacher. (Meeting of the minds/definite terms)
2. The principal is intoxicated. (Competent parties)
3. The principal explains that the applicant will not get paid for the job. (Consideration)
4. The principal agrees to hire the applicant for 8 ounces of marijuana. (Legal subject matter)
VIDEO CLIP
Show a YouTube clip about a recent contractual issue. It is relatively rare for individual teacher contract issues to be covered on the news, so there may be more details about a superintendent’s contract termination. Alternatively, show a video about a school terminating a contract with one of its vendors (e.g., transportation, supplies). After viewing the clip, lead a discussion on the relevant issues.
URL: http://www.youtube.com/watch?v=0XwIKhe2EZA or
URL: http://www.youtube.com/watch?v=heL1utZAPFQ
Search terms: school and contract
SUGGESTED TEACHING ACTIVITIES
1. Divide students into five groups, and hand each group a card with one of the five parts of a contract printed on it. Each group will be in charge of exploring that term extensively, using the book or other resources. After five minutes, groups should “jigsaw” (one student from each group should form a new group) and share information about each of the individual terms.
2. Ask the students to first brainstorm and then draft a basic first year teacher's contract. Then divide them into small groups and have the students critique the contracts in terms of completeness.
3. Ask the students to obtain a copy of a first year teacher's contract from the local school district personnel office. In small groups, have them contrast the one they prepared to the one used by the district. Analyze the inclusions and references and justify them. Have small groups report to the large group about their findings and conclusions.
4. Divide the students into two groups (one representing the board of education and one representing the state-level NEA or AFT affiliate). As a result of research develop a series of cases in which breach of contract occurred and describe the remedy imposed by the courts in each case. Have each group summarize its finding before the class. Draw appropriate conclusions.
5. Have students discern if there is a connection, and if so what kind of connection, between the rights enumerated in a first-year teacher’s contract and teacher certification. Example: If a teacher is not certificated by the State department of education, does that lack of certification void the teacher’s contract in your State?
6. The issue of teacher contracts is often in the news. Have students do a simple search on Google using the search terms “teacher contracts.” Have students read one of the current events that came up during the search and discuss it with the class.
7. Using the web, have the students find a teacher contract for a charter school and a teacher contract for a traditional public school. Ask students to compare and contrast the differences between the two contracts.
RESOURCES
Andrews, H. (1995). Teachers can be fired. Chicago, IL: Catfeet Press.
Kerchner, J. C. (1994). United mind workers: unions and teaching in the knowledge society. San Francisco, CA: Jossey-Bass.
Mawdsley, R.D. (2004). Liquidated damage clauses in educational contracts. West’s Education Law Reporter 186, 587-603.
McDonald, D. K. (1985). Contract, a property right under the Fourteenth Amendment?: Vail v. Board of Education. College and University, 11(4), 445-464.
Mooney, C. J. (1994). Dismissals for cause. Chronicle of Higher Education, 41(15), A17,19-20.
Rotherham, A. (2010). Understanding teacher contracts. Education Sector, at http://www.educationsector.org/publications/understanding-teachers-contracts
Sawchuk, S. (2009). Researchers examine contracts' effects on policy issues. Education Week, 28(28), 6.
Sawchuk, S. (2009). Teacher contract called potential model for nation. Education Week, 29(9), 6.
Stellman, L.R. (1996). Coping with public school labor relations in the tax-conscious ‘90’s: an employer’s perspective. Journal of Law and Education, 25(4), 673-683.
Strunk, K.O. & Grissom, J.A. (2010). Do strong unions shape district policies?: Collective bargaining, teacher contract restrictiveness, and the political power of teachers' unions. Educational Evaluation and Policy Analysis, 32(3), 389-406.
KEY TERMS
meeting of the minds consideration legal subject matter
competent parties definite terms quasi-contract
interpret mitigate the damages injunctions
impossibility of performance damages writs of mandamus
by operation of law liquidated damages
SUGGESTED EXAMINATION QUESTIONS
1. What are the major elements of a contract? Explain.
2. Draft a basic, first-year teacher’s contract. Explain the parts of the contract, and justify their inclusion and that of any references.
3. Outline the various options that a board or teacher has in the event of breach.
4. When may a board of education or teacher legally end a contract?
5. Compare and contrast the issue of damages versus liquidated damages and explain how the issue of mitigation could influence the awarding of damages.
6. Explain the legal consequences involved when a teacher breaches her contract.
7. Define the legal terms listed above.
ALTERNATIVE ASSESSMENT DEVICES
1. Assign the student the responsibility of collecting a portfolio of first year teacher's contracts from various districts. Compare and contrast the contracts, and explain their differences.
2. Have the student do library research finding precedent-setting cases that relate to oral contracts in their state. The student should compare and contrast the points of law determined in the cases. As an alternative, the issue of working without a contract could he used.
3. Have the student write short briefs as the attorney for either the defendant or plaintiff in Loup v. Louisiana School for the Deaf.
4. Teachers often work without a group contract when unions and school district officials cannot come to agreement on terms. Use the Internet to research a school where teachers are working without a contract. What has delayed the contract? What rights do teachers have in this situation?
RECENT CASES ON THE TOPIC
Vincennes University ex rel. Bd. of Trustees of Vincennes v. Sparks, 988 N.E.2d 1160 (Ind.App., 2013) College basketball coach gave up tenure and signed a one-year term contract, and thus could be terminated after the year contract term, with or without cause.
Gabriele v. School Bd. of Manatee County, 114 So.3d 477 (Fla.App. 2 Dist., 2013) Florida state law does not allow school boards to change an employee’s contract from a professional service contract to an annual contract.
Sexton v. KIPP Reach Academy Charter School, 260 P.3d 435 (Okla. Ct. App. 2011). Holding that there was an implied contract when teacher was issued a faculty-only cell phone and enrolled a teacher’s conference.
MULTIPLE CHOICE
1. When can a teacher’s contract be automatically renewed?
a. If the school board fails to provide a timely notice to the teacher.
b. A teacher’s contract can be automatically renewed only if the teachers’ union approves it.
c. A teacher’s contract may never be automatically renewed
d. If the teacher and principal agree to automatic renewal at the original negotiation.
e. None of the above.
2. If the school board breaches a teacher’s contract, must the teacher look for another teaching position?
a. No. If the school board is at fault, the teacher has no duty to locate another teaching position.
b. No. The school district must continue to pay the teacher while the case is being litigated.
c. Yes. A discharged teacher generally has the duty to look for a similar teaching position.
d. Maybe. It depends on whether the teacher can prove a breach of duty.
e. None of the above.
3. What sets the standards for teacher certification?
a. State law
b. Federal law
c. U.S. Constitutional provisions
d. Federal regulations
e. None of the above.
4. Who hires teachers?
a. The school board
b. The superintendent
c. The principal
d. The teachers’ union
e. The principal and teachers together
5. What must a teacher’s contract have?
a. Clearly written terminology and the salary.
b. A meeting of the minds, valid consideration, legal subject matter, competent parties, and definite terms.
c. Health plan information, sick day policies, and other relevant policies.
d. The salary and health plan information.
e. None of the above.
6. To have valid consideration,
a. The teacher must have certification.
b. Each party must agree to a mutual assent to the terms.
c. The teacher must be of legal age.
d. Each party must give up something of value.
e. None of the above.
7. What is meant by definite terms?
a. It means that the contract be in writing.
b. It requires that teacher salary be explicitly stated in the contract.
c. It means that all provisions from the collective bargaining agreement be present.
d. It means that the contract must be clear enough so that each party knows what is required by it.
e. None of the above.
8. What does legal subject matter mean?
a. It means that the contract cannot require the parties to commit a crime or act against public policy.
b. It requires that teacher salary be explicitly stated in the contract.
c. It means that the contract must be clear enough so that each party knows what is required by it .
d. It means that the contract be in writing.
e. None of the above.
9. When does the contract become legally binding?
a. When the principal approves the contract.
b. When the school board approves the contract.
c. When the teachers’ union approves the contract.
d. When the superintendent approves the contract.
e. All of the above.
10. Must a teacher contract be in writing?
a. The contract does not need to be in writing if it is capable of being performed in one year or less.
b. Yes. A contract must always be in writing.
c. Not if two witnesses listen to the negotiation.
d. An oral agreement is fine if made in front of the school board.
e. None of the above.
CHAPTER 3
HOW SECURE IS MY EMPLOYMENT?
OBJECTIVES OF THE CHAPTER
At the end of this chapter the student will:
1. explain the general criteria used for granting teachers tenure status, enumerate the specific criteria necessary to achieve tenure status in his/her state, and compare and contrast these criteria with the criteria used in other states.
2. explain the usual rights teachers acquire when they achieve tenure, describe the rights teachers acquire when they achieve tenure in his/her state, and compare and contrast these rights with the rights acquired by teachers in other states.
3. explain the ways that tenure can be broken, list the usual reasons for breaking tenure, enumerate the reasons in his/her state, and explain the justification behind the reasons his/her state has adopted.
4. explain the process that must be followed, the type of notice(s) that must be received, the due process rights of the teachers, and the type of hearing(s) that must be held before tenured teachers can be dismissed in his/her state.
5. differentiate between the rights of probationary and tenured teachers with respect to non-renewal of contracts in his/her state.
6. discriminate between property and liberty interests and state the relevance to teacher dismissal proceedings, providing examples of an infringement on each type of interest.
7. explain the usual reasons for dismissal of a tenured teacher, compare and contrast the usual reasons to the specific reasons that have been adopted in his/her state, and explain the justification for those specific reasons.
8. develop a working vocabulary of basic legal terms related to teacher tenure and dismissal.
SCENARIO
Tameka, a ninth year teacher, was dismissed at the end of the school year for failing to follow her principal’s directions at Hamilton Elementary. The state’s tenure statute provides tenure after three years of teaching. Should Tameka get additional procedures before she is dismissed? Does the school board have an appropriate cause for dismissal?
VIDEO CLIP
Show YouTube clips demonstrating different reasons that teachers have been fired. After playing each clip, have
students discuss what cause for dismissal school officials could cite. If applicable, discuss whether the teacher would get due process.
URL: http://www.youtube.com/watch?v=Tc3rMW_JBQo&feature=related%22
http://www.youtube.com/watch?v=_3PHeZOPaws
http://www.youtube.com/watch?v=ahAxBltSlB8
http://www.youtube.com/watch?v=hMR_xLNdy38 http://www.clipsyndicate.com/video/play/1053347/suspended_perry_teacher_returning
Search terms: “teacher fired for”
SUGGESTED TEACHING ACTIVITIES
1. Hold a mock board of education meeting, and have the superintendent explain to the board members about the process by which a teacher becomes tenured and what the criteria for tenure are.
2. Assign the students to interview their building administrators. First, have students collectively develop a questionnaire based upon the criteria for tenure in their state. Determine the correlation between classroom performance measures, including classroom observations, and the determination of whether to grant tenure. Determine what weight is given to various non-instructional factors, such as “interpersonal skills,” in granting or denying tenure to new teachers.
3. Conduct a mock teacher dismissal proceeding. Have students assume the roles of defendant, plaintiff, defendant's counsel, plaintiff's counsel, hearing officer (arbitrator), and board of education members. Define and operationalize the concepts of "incompetent,” “immoral," "insubordinate," and "conduct unbecoming a teacher." Have the students base the script upon an actual case in their state.
4. If your State Board of Education holds open hearings on teacher dismissal appeals, attend such a hearing with your class.
5. Assign each group of students a different state to explore what the causes for dismissal are in that particular state. Students will share their findings with the large group.
6. Divide the students into two groups and have them debate whether teacher tenure should be abolished. In addition to legal arguments, the students could focus on policy arguments (“good for society arguments”) during the debate.
7. Create four or five different scenarios which detail close cases on whether or not a teacher can be dismissed (based on causes for dismissal). Have students work in groups to place the scenarios on a representation of the continuum below, allowing students to place a scenario in the middle of the line drawing if they think it is too close of a case. Students need to be able to articulate why or why not this teacher could be dismissed.
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8. Ask students to find a current event related to the “Rubber Rooms” in New York City. These articles can be found using a simple Google search (search terms: rubber room and New York). Have students examine some of the difficulties schools have when dismissing teachers.
RESOURCES
Colasanti, M. (2007). Teacher tenure/continuing contract laws. State notes: Teacher quality-teacher tenure (pp. 2-9), Denver, CO: ECS.
Crisafulli, T.P. (2006). No educator left unscathed: How No Child Left Behind threatens educators’ careers. Brigham Young University Education and Law Journal, 2006, 613.
Fleming, M.B., Cooley, A.H., &McFadden-Wade, G. (2009). Morals clauses for educators in secondary and postsecondary schools: Legal applications and constitutional concerns. Brigham Young University Education & Law Journal, 2009, 67-80.
Grant, C. M. (1995). Predismissal hearings for school employees”: developments since “Loudermill.” School Law Bulletin, 26(3), 1-9.
Hartmeister, F. (1995). The taxman commeth: reductions in force and affirmative action. School Business Affairs, 61(7), 9-12.
Lacks, C. (1997). The teacher’s nightmare: getting fired for good teaching. English Journal, 86(2), 29-33.
Lawrence, C. E. (2000). The marginal teacher: a step by step guide to fair procedures for identification and dismissal. Thousand Oaks, CA: Corwin Press.
Permuth, S. (2002). Letting teachers go – legally. Principal Leadership, 3(1), 22.
Sendor, B. (1996). When a gadfly gets under your skin. American School Board Journal, 183(4), 22, 24-25.
Shotwell, K.D. (2010). Secretly falling in love: Controlling the hearts and minds of teachers. Journal of Law and Education, 39, 37-45.
Strange, J.H. (1997). Evaluating teaching: a guide to current thinking and best practice. Thousand Oaks, CA: Corwin Press.
Richardson, M, Mense, E., Lane, K., & Van Berkum, D. (2013). Teacher dismissal. In M. Gooden, S. Eckes, J. Mead, L. McNeal, & M. Torres (Eds.), The principal’s legal handbook (5th ed., pp. 365-382). Dayton, OH: Education Law Association.
Waintroob, A.R. (1995). Remediating and dismissing the incompetent teacher. School Administrator, 52(5), 20-24.
Ward, M. (1995). Teacher dismissal: the impact of tenure, administrator competence, and other factors. School Administrator, 52(5), 16-19.
Winters, M. & Cowen, J. (2013). Who would stay, who would be dismissed? An empirical consideration of value-added teacher retention policies. Educational Researcher,1(1), 1-8.
Zirkel, P. A. (2001). A gross over order. Phi Delta Kappan, 83(3), 273-74.
Zirkel. P.A. (2003). Legal boundaries for performance evaluation of public school professional personnel. West’s Education Law Reporter, 172, 1-15.
KEY TERMS
tenure property interest removed from office
remediable incompetency riffing
continuing contractual service good and just cause immorality
probationary teacher resignation remediation plan cause
conduct unbecoming a teacher tenure by custom liberty interest
irremediable grounds for dismissal insubordination willful neglect of duty
SUGGESTED EXAMINATION QUESTIONS
1. Explain the general criteria used for granting teachers tenure status. Further, enumerate the specific criteria necessary to achieve tenure status in your state, and compare and contrast those to the criteria in other states.
2. Explain the usual rights teachers acquire when they achieve tenure. Additionally, explain the rights that teachers acquire when they achieve tenure in your state.
3. Explain how tenure can be broken, list the usual reasons for breaking tenure, enumerate the reasons in your state, and provide examples of each basis.
4. Explain the process which must be followed, the type of notice(s) that must be received, and the type of hearing(s) that must be held before a tenured teacher can be dismissed in your state. What types of due process are teachers entitled to?
6. Explain the difference between property and liberty interests, and describe their relevance to teacher dismissal proceedings.
7. Define the above terms.
ALTERNATIVE ASSESSMENT DEVICES
1. Interview appropriate individuals (contract administrator, negotiations specialist, personnel representative) to determine how reduction-in-force is handled in your school district. Ask them for examples and specific situations.
2 Have the student develop an alternative to tenure that would be acceptable to both administrators and teachers. Debate the merits and weaknesses of the proposed alternative to those of traditional tenure.
3. Examine a State Board of Education decision upholding tenure dismissal of a teacher for incompetency. What criteria were used? How many years of poor performance predated the decision to terminate? What remedial tools, if any, were required to be used before finally terminating the teacher?
4. Have students conduct research to determine whether their state is an “at-will” employment state, and if so, if there are exceptions, such as for terminations of employment violative of public policy. Examine what those public policy reasons may be.
RECENT CASES ON THE TOPIC
Harbaugh v. Board of Educ. of City of Chicago, 716 F.3d 983 (7th Cir. 2013) Teacher who had served as substitute could not count this time towards the time needed to achieve tenure.
Benatouil v. Calhoun School, 959 N.Y.S.2d 385 (N.Y.Sup. 2012) Termination for cause upheld for teacher who allowed students to drink wine, with parental permission, on a school-sponsored field trip to France. Actions found to be in violation of school’s zero-tolerance alcohol policy.
Thompson v. Memphis City Schools Bd. of Educ., 395 S.W.3d 616 (Tenn. 2012) Teacher who failed to return from sick leave at the designated time did not forfeit tenure nor constructively resign from position.
MULTIPLE CHOICE
1. When can teachers be fired for insubordination?
a. When they fail to sign their contract in a timely manner.
b. When they offend a parent outside of the school day.
c. When they interview for another position in another district.
d. When they deliberately defy school authorities or violate reasonable school rules.
e. None of the above.
2. Are all tenure laws the same in every state?
a. No. Each state determines its own tenure laws.
b. Yes. All tenure laws are derived from constitutional provisions.
c. Yes. All tenure laws are derived from federal law.
d. No. Each school board determines its own tenure laws.
e. None of the above.
3. What does RIF stand for?
a. Reduction in force.
b. Reducing initial finances.
c. Reduction in financial incentives.
d. Reduction in finances.
e. None of the above.
4. Teacher tenure is governed by
a. State law
b. The federal subcommittee on teacher tenure.
c. The Teacher Tenure Act of 1984
d. School board directive
e. None of the above
5. Is it possible for a state to do away with tenure?
a. No. Tenure is a right guaranteed by the U.S. Constitution.
b. Yes. If a state law decides to take this right away.
c. No. Tenure is guaranteed by the Teacher Tenure Act of 1984.
d. No. Tenure is a right guaranteed by federal law.
e. Yes. If the school board decides that tenure will not be awarded in the district.
6. Is it possible for a school board to do away with tenure?
a. No. Tenure laws are decided by the state.
b. No. Tenure is a right guaranteed by federal law.
c. No. Tenure is a right guaranteed by the U.S. Constitution.
d. Yes. If the school board receives a waiver from the state department of education.
e. Yes. If the school board decides that tenure will not be awarded in the district.
7. What rights do tenured teachers have?
a. They can only be dismissed when the principal documents three unprofessional situations
b. They can only be dismissed if they violate the Teacher Tenure Act of 1984.
c. They can only be dismissed for sexual impropriety.
d. They can only be dismissed "for cause."
e. They can only be dismissed when the community supports his/her removal.
8. What are some examples of "cause" in dismissing teachers?
a. Incompetency
b. Misconduct in office
c. Willful neglect of duty
d. Insubordination
e. All of the above could be considered a cause for dismissal.
9. Generally, what procedures must be followed before a tenured teacher can be dismissed?
a. The teacher must receive a hearing in front of a state judge.
b. The teacher must be given notice of the charges and an opportunity for a hearing.
c. The teacher must receive a hearing in front of an appointed community panel.
d. The teacher must receive a hearing in front of a federal judge.
e. The teacher must be given five warnings from the school board before dismissal.
10. What constitutional protections apply in teacher dismissal cases?
a. Teachers have Ninth Amendment rights in a dismissal case.
b. Teachers have notice and warning rights under the U.S. Constitution.
c. Teachers have Fourth Amendment rights in a dismissal case.
d. Teachers have liberty and property rights under the U.S. Constitution.
e. Teachers have due process rights under the Eighth Amendment in dismissal cases.
CHAPTER 4
HOW DOES COLLECTIVE BARGAINING AFFECT ME?
OBJECTIVES OF THE CHAPTER
At the end of this chapter the student will:
1. explain in his/her own words the logic of teachers' right to organize versus the teachers' right to strike as found in the Norwalk Teachers Association case.
2. explain whether or not s/he has the right to join a union in general, and specifically whether or not s/he has the right to bargain collectively in his/her state. S/he will then compare and contrast this right to the same right in adjoining states.
3. name the labor relations board that governs educational collective bargaining in his/her state, if one exists, and if one does not exist, identify how that process is conducted.
4. outline the process for selecting the exclusive bargaining representative in his/her state.
5. define “union shop,” “closed shop,” and “agency shop.” Additionally, compare and contrast those concepts and explain the ramifications of each in the workplace. Finally, as a result of research describe his/her district's collective bargaining agreement to determine whether or not the district has a fair-share provision, the way in which it is collected, amount of the fair share contribution, the way in which it is computed, penalties for non-compliance, and alternatives to fair-share if there is a constitutional conflict.
6. explain the union's legal responsibilities as the exclusive collective bargaining representative and outline how these responsibilities are carried out in his/her district.
7. compare and contrast the concepts of good faith and bad faith bargaining, enumerate the mandatory subjects of bargaining in his/her state, outline the steps in collective bargaining, and explain how it is conducted in his/her district.
8. define then compare and contrast the concepts of “impasse,” “mediation,” “factfinding,” “arbitration” and “strike,” explaining what concepts are legal options in his/her state, what options are illegal, and what the penalties are for violation of the law.
9. analyze the collective bargaining agreement from his/her district, identify the agreement's parts, explain the grievance procedure, and identify the rights and responsibilities of each of the parties under the grievance procedure.
10. develop a working vocabulary of basic legal terms related to the collective bargaining process.
11. demonstrate the ability to read and thoroughly analyze the collective bargaining agreement found in his/her district.
12. identify which topics are deemed “mandatory” subjects of bargaining, which are “illegal,” and which, if any, are “permissive.”
SCENARIO
Ms. Wilborn is the union representative at Excel School District. During negotiations regarding the collective bargaining agreement, the school district refuses to negotiate about personal days. Is the school district’s conduct impermissible? What could happen if the school district continues to refuse to bargain on this subject?
VIDEO CLIPS
Search for a YouTube clip about the recent union controversy in Washington D.C. After playing this clip, lead the class in a discussion about some of the current tensions between teachers’ unions and school administration.
URL: http://www.youtube.com/watch?v=r3CGM1m5JEI&feature=channel (but note that videos often are removed from YouTube, so this web address may no longer be available).
Search terms: Michelle Rhee and unions
Search for a YouTube clip about a recent teacher strike. After playing this clip, lead the class in a discussion about the reasons why teachers may be striking.
URL: http://www.youtube.com/watch?v=de6sTbqZKXM (but note that videos often are removed from YouTube, so this web address may no longer be available.
Search terms: teachers and strike
SUGGESTED TEACHING ACTIVITIES
1. Provide collective bargaining agreements for students from diverse school districts (urban, rural, suburban, as well as different geographic locations). Divide the class into small groups. Have the groups work with the same collective bargaining agreements, identifying first the different parts of the collective bargaining agreement (e.g., preamble, recognition clause, maintenance clause, etc.) and exploring second the substance of the agreement. Suggested questions that groups should answer include: What is the salary for a first year teacher? What is the salary for a fifth year teacher? How does teacher salary change with education? What is the district’s leave policy for childbirth or other family events?
2. Invite the local association/union representative to class and ask him/her to outline the composition of the state educational labor relations board, the method of selecting members, and the duties and responsibilities of the members.
3. Hold a mock bargaining session. Assign class members to respective roles, and have them negotiate on two or three selected issues: class size, number of class preparation periods per day, or extracurricular pay for coaching versus class sponsorship.
4. Hold a mock grievance arbitration session. As professor, act as the arbitrator, or ask a local association/union representative to be the arbitrator. Issues to be arbitrated should be gleaned from local district contracts discussed in Item 1.
5. Invite the chief negotiators from a local school board and a local teacher's association to discuss the collective bargaining process, their roles, roles of subordinates, and the pros and cons of the process. Ask what the key topics of discussion are at the bargaining table. Have the class brainstorm questions and submit to the presenters in advance.
6. Divide the students into small groups and distribute cards which have the following topics:
a. class size
b. salary
c. reduction-in-force
d. hiring practices
e. grievance procedures
f. health and welfare benefits
g. leave
h. payroll deductions
i. safety issues
j. vacations
k. in-service training
1. student disciplinary procedures
m. staff disciplinary procedures
n. school calendar
o. pupil-teacher ratio
Ask students to determine whether the topics are permissive, mandatory, or illegal subjects for bargaining in their state or local school districts. Discuss as a large group any discrepancies.
7. Have the students debate the pros and cons of joining a union, including both personal and policy reasons. When preparing for their debate, the students should interview teachers who have both joined or not joined a union. They should share their findings with the class.
8. Ask students to find a current event related to the “right to work:” laws that were passed in Indiana and Michigan in 2012. Have them describe what right to work means and why these state laws were amended.
RESOURCES
Bathon, J.M. (2013). Collective bargaining in public schools. In M. Gooden, S. Eckes, J. Mead, L. McNeal, & M. Torres (Eds.), , The principal’s legal handbook (5th ed., pp. 569-583). Dayton, OH: Education Law Association.
Burroughs, N. (2008). Arguments and evidence: The debate over collective bargaining's role in public education. Education Policy Brief, 6(8). Center for Evaluation and Education Policy, Indiana University.
Cozza, R. J. (1992). Peaceful grievance resolution. American School Board Journal, 178(7), 20-22.
DeMitchell, T. & Cobb, C. (2006). Teachers: Their union and their profession. A tangled relationship. Education Law Reporter, 212, 1-15.
Eberts, R. (2007). Teacher unions and student performance: Help or hindrance. The Future of Children, 17(1), 175-200.
Geisert, G., & Leiberman, M. (1994). Teacher union bargaining: practice and policy. Chicago, IL: Precept Press.
Hannaway, J., & Rotherham, A. (Ed.). (2006). Collective bargaining in education. Cambridge, MA: Harvard Ed. Press.
Hazi, H. (1994). The teacher evaluation-supervision dilemma: a case of entanglement and irreconcilable differences. Journal of Curriculum and Supervision, 9(2), 195-216.
Hess, F., & West, M. (2005). A better bargain: Overhauling teacher collective bargaining for the 21st century. Harvard University. Retrieved on June 11, 2010, from http://www.hks.harvard.edu/pepg/PDF/Papers/BetterBargain.pdf
Hyman, R.T. (1996). The forum matters: a union victory under a restrained court decision. West’s Education Law Quarterly, 5(1), 149-161.
Kahlenberg, R.D. (2006). The history of collective bargaining among teachers. In Hannaway, J. & Rotherham, A. (Eds.). Collective bargaining in education: Negotiating change in today’s schools (pp. 7-25). Cambridge, MA: Harvard Press.
Keane, W.G. (1996). Win/win or else: collective bargaining in an age of discontent. Thousand Oaks, CA: Corwin Press.
Kearchner, C.T., Koppich, J.E. & Ayers, W. (1993). A union of professionals: Labor relations and educational reform. NY: Teachers College Press.
Koski, W.S. (2012). Teacher collective bargaining, teacher quality, and the teacher quality gap: Toward a policy analytic framework. Harvard Law & Policy Review, 6(1), 67-90.
Krisbergh, J.P. (2007). Marginalizing organized educators: The effect of school choice and 'No Child Left Behind' on teacher unions. University of Pennsylvania Journal of Labor & Employment Law, 8(Summer), 1025-1045.
Lieberman, M. (2000). The teachers’ unions: How they Sabotage educational reform and why. San Francisco: Encounter Books.
Loveless, T. Ed. (2000). Conflicting missions: Teacher unions and educational reform. Washington, D.C: Brookings Institution Press.
Maciejewski, J. (2007). Broadening collective bargaining. District Administration, 43(7), 34-39.
Streshey, W.A. (2001). Preventing and managing teacher strikes. Lanham, MD: Scarecrow Press.
KEY TERMS
collective bargaining grievance procedure labor relations boards
bargaining unit management rights clause sanctions
agency shop union shop/closed shop fair share
free riders duty of fair representation exclusive collective
open public meeting laws meet and confer arbitration
recognition clause representation clause terms of the agreement
teachers' rights clause bargaining representative bad faith
counterproposal mediation impasse
maintenance clause injunctive relief notice of intent
good faith bargaining initial proposal mandatory subjects
fact-finding public employee relations boards preamble
SUGGESTED EXAMINATION QUESTIONS
1. Explain in your own words the logic of teachers' right to organize versus the teachers' right to strike as found in Norwalk Teachers Association.
2. Explain whether or not you have the right to join a union in general and specifically whether or not you have the right to bargain collectively in this state. Compare and contrast this right to the same right in adjoining states.
3. Name the labor relations board which governs educational collective bargaining in this state, explain the composition of the board, and explain the way in which members are selected.
4. Outline the process for selecting the exclusive bargaining representative in this state.
5. Define "union shop"/"closed shop" and "agency shop." Compare and contrast those concepts, and explain the ramifications of each in the workplace.
6. Explain the union's legal responsibilities as the exclusive collective bargaining representative, and outline how those responsibilities are carried out in your district.
7. Compare and contrast the concepts of good faith and bad faith bargaining, enumerate the mandatory subjects of bargaining in this state, outline the steps in collective bargaining, and explain the way in which it is conducted in most districts. Give examples of “mandatory,” “permissive,” and “illegal” subjects of bargaining.
8. Explain what happens when collective bargaining reaches an impasse during negotiations.
9. Define and then compare and contrast the concepts of "impasse," "mediation," "fact- finding," "arbitration" and "strike." Explain what concepts are legal options in this state, what options are illegal, and what the penalties are for violation of the law.
10. Define the above terms.
RECENT CASES ON THE TOPIC
Huntley v. Ohio Ass’n of Public School Employees,508 Fed.Appx.361 (6th Cir. 2012) School district did not violate collective bargaining agreement with teachers’ union in failing to arbitrate grievance of terminated teacher’s assistant.
Board of Educ. of City School Dist. of City of New York v. Mulgrew, 967 N.Y.S.2d 8 (N.Y.A.D. 1 Dept., 2013) Teachers’ union grievances regarding school closings were found to be arbitrable under the collective bargaining agreement.
Wis. Educ. Ass’n Council v. Walker, 824 F. Supp. 2d 856 (W.D. 2012). Case involving preliminary injunction related to the collection of union dues.
United Teachers v. Sch. Dist. Of Miami-Dade Cnty., 68 So. 3d 1003 (Fla. Dist. Ct. App. 2011). Case involved a claim regarding an unfair labor practice.
ALTERNATIVE ASSESSMENT DEVICES
1. Assign the students to analyze the collective bargaining agreement from his/her district, identify the agreement's parts, explain the grievance procedure, and identify the rights/responsibilities of each of the parties under the grievance procedure. Compare and contrast your findings with a classmate from another school district.
2. Assign the student to research his/her district's collective bargaining agreement to determine whether or not the district has a fair share provision, the manner in which it is collected, the amount of the fair share contribution, the way in which it is computed, the penalties for non-compliance, and alternatives to fair-share if there is a constitutional conflict. Have students share their findings and discuss similarities and differences.
MULTIPLE CHOICE
1. Are there other limitations on the scope of bargaining?
a. Yes. All teachers in the school must agree to the scope of the bargaining and they may limit any issue from being discussed.
b. Yes. Salary may not be discussed without an attorney present.
c. Yes. School boards may not bargain unless all teachers have been given at least two weeks notice.
d. Yes. The parties cannot enter into any contractual negotiations that are in violation of the constitution or state and federal laws.
e. None of the above.
2. Do teachers have the right to strike?
a. Yes. Teachers are guaranteed by the U.S. Constitution the right to strike.
b. Yes. Teachers are guaranteed the right to strike by the U.S. Department of Education.
c. Yes. About half of the states have passed laws that give teachers the right to strike.
d. No. Every state has forbidden teachers to strike.
e. None of the above.
3. Can penalties be imposed on teachers who strike?
a. No penalties may not be imposed on teachers who strike because it is their constitutional right to do so.
b. No penalties may be imposed on teachers who strike because it is their right to do so under U.S. Department of Education directives.
c. Possibly. State laws could impose penalties for teachers who strike.
d. Yes. All state laws guarantee the right to fire any teacher who strikes.
e. Yes. The U.S. Constitution guarantees the right to fire any teacher who strikes.
4. What percentage of teachers belong to the National Education Association of the American Federation of Teachers?
a. Under 15% of teachers belong to the NEA or the AFT.
b. Approximately 80% of teachers belong to the NEA of the AFT..
c. Approximately 50% of teachers belong to the NEA or the AFT.
d. Approximately 25% of teachers belong to the NEA or the AFT.
e. All teachers are automatically a member of the NEA or the AFT.
5. Do teachers have a constitutional right to join a union?
a. No. There is no constitutional right to join a union.
b. Yes. Teachers have a constitutional right to join a union.
c. No. There is no constitutional right to a join a union unless specified by federal statute.
d. No. There is no constitutional right to join a union unless specified by the school board.
e. None of the above.
6. Do teachers have a right to engage in collective bargaining?
a. Yes. Teachers have a constitutional right to engage in collective bargaining.
b. No. There is no right to engage in collective bargaining unless specified by the school board.
c. No. There is no right to engage in collective bargaining unless specified by federal statute.
d. No. There is no right to engage in collective bargaining unless specified by state law.
e. None of the above.
7. Can teachers who are not members of unions be required to pay fees to unions?
a. Yes. Such agreements are often referred to as "pay as you go.".
b. No. It would be unconstitutional to require teachers to pay union fees.
c. No. It would be unconstitutional to require teachers to pay union fees unless permitted by federal regulations.
d. Yes. Such agreements are often referred to as "agency-shop" or "fair share" arrangements
e. None of the above.
8. May the school board bargain individually with teachers to determine salary?
a. No. The school board must bargain exclusively with the person designated by teachers.
b. The Office of Management and Budget permits all public school teachers to negotiate for individual salaries with the principal.
c. The U.S. Constitution permits all public school teachers to negotiate for individual salaries with the principal.
d. Maybe. Salary negotiations vary from school district to school district.
e. None of the above.
9. What happens during collective bargaining?
a. The teachers’ union or the school board drafts a contract proposal or exchanges initial proposals.
b. All of the teachers meet with the principal to draft a contract.
c. The principals meet with the superintendent to draft a contract.
d. The school board meets with its attorney to discuss salary.
e. None of the above.
10. What do the unions and school boards bargain about?
a. Wages
b. Hours
c. Other terms and conditions of employment
d. Choices a and c are correct.
e. Choices a, b, and c are correct.
CHAPTER 5
WHEN AM I LIABLE?
OBJECTIVES OF THE CHAPTER
At the end of this chapter the student will:
1. explain when a teacher might be found personally liable for the injury of a student and what action(s) a teacher might take to prevent the liability suit from being successful.
2. define and explain the appropriate uses for the following defenses: contributory negligence, comparative negligence, assumption of risk, and governmental immunity.
3. explain in simple terms the weaknesses and appropriate uses for a waiver or release.
4. explain to other class members the school board policy in his/her district concerning students with communicable diseases and AIDS, and analyze that policy in light of the comments in the text concerning AIDS policies.
5. explain why appeals courts do not usually find teachers guilty of educational malpractice.
6. explain the concepts of: "punitive damages," "compensatory damages," and "nominal damages,” giving examples when each type might be awarded and the conditions under which punitive damages might apply.
7. explain the necessity of background investigations of potential employees and the liability implications should the completion of such investigations be ignored or accomplished in a shoddy manner.
8. explain the rights of students and teachers under Section 1983 of the U.S. Code and explain why this section is important if the plaintiff's constitutional rights are violated.
9. develop a working vocabulary of basic legal terms related to negligence and liability.
10. examine and understand teacher immunity laws, both local and federal, including the Paul D. Coverdell Teacher Immunity Act.
11. understand the limits of written waivers of liability that parents and students sign for various school activities.
SCENARIO
Instead of paying attention to the students when she was on playground duty, Ms. Smith was discussing with another teacher where they would meet for happy hour that evening. During this time, a third grade student ran across the playground, tripped, fell on her face, broke three teeth, and received six stitches. Would Ms. Smith be liable for the student’s injuries?
VIDEO CLIP
Search for a YouTube clip that explains a recent incident that could be classified as negligence. After watching it,
discuss what additional facts are necessary to determine whether the school/teacher was negligent and whether the
school has any defenses. In the suggested clip below, which describes the death of a high school football player from overheating, the teacher was acquitted of criminal charges. Could the parents then sue the school or coach for negligence?
URL: http://www.youtube.com/watch?v=4cUddZEom0k (but note that videos often are removed from YouTube, so this web address may no longer be available).
Search terms: school and sued and negligent
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