Fewer than 100 years ago, teachers were subject to the "employment at will" doctrine which, simply put, means that the employer employed and the employee agreed to accept employment at the will of either party. The employer could fire or the employee could quit "at will" absent a contract of employment which provided otherwise. Few employers provided their employees with such protection. One need only read the novels of Charles Dickens for a description of the rights of the working class.

      While the law treated employer and employee as equals in the bargaining process, the reality was and is that the employer can ordinarily replace an employee with relative ease. But for the employee, termination may be devastating. Gradually teachers have won employment rights through collective action -- bargaining, lobbying state and national legislatures, and in the courts.

      Before we begin our discussion of what teachers' rights are, we should describe what they were -- and not too long ago.

      For many years, teachers could be fired for joining a professional organization or labor union. In 1892, the Massachusetts Supreme Court held in a case where a policeman was fired for joining the local fraternal order of police, "[T]he petitioner may have a constitutional right to talk politics . . . but no right to be a policeman." The principle was applied to teachers.

      In 1965, the Utah Supreme Court upheld the right of a school board to fire a teacher because she became pregnant. One teacher was fired because he lived 22 miles from the school where he was a counselor which was 11 miles outside the district's boundaries.

      Teachers historically have been held to a standard of personal conduct that might have suffocated Caesar's wife. For example, until World War I, "[d]ancing, card-playing, smoking, drinking, theater-going, and Sabbath-breaking were still regarded by multitudes as sinful . . . ." The teacher was expected in all these matters to be exemplary.

      In 1883 Josiah Royce wrote that a teacher "may find all of a sudden that his non-attendance at church or the fact that he drinks beer, or rides a bicycle, is considered of more moment than his power to instruct." Even before he got into difficulties over teaching evolution, John Scopes was criticized in Dayton, Ohio for cigarette smoking and dancing.

  In a 1915 contract, female teachers had to promise "not to keep company with men; to be home between the hours of 8:00 p.m. and 6:00 a.m. unless in attendance at a school function; not to loiter downtown in ice cream stores; and not to get in a carriage or automobile with any man except her father or brother."

      Similar restraints were imposed even after the First World War. For example, a 1935 Virginia contract specified that teachers could not keep company with "sorry young men." A Tennessee contract required that the teacher "refrain from any and all questionable pastimes." An Alabama contract required the teacher to promise that, if employed, she "will not have company or go automobile riding on Monday, Tuesday, Wednesday and Thursday nights . . . ." One young teacher echoed Royce's remark, "How I conduct my classes seems to be of no great interest to the school authorities . . . but what I do when school is not in session concerns them tremendously."

      Some courts have upheld the right of school boards to fire teachers that take outside employment, or for living with a person of the opposite sex. In more recent times they are being fired for living with a person of the same sex. One recent case held that a school teacher could be fired for engaging in an altercation with his wife and mother-in-law which resulted in his arrest. Older cases suggest that teachers may be fired for immoral conduct for behavior creating a suspicion of immorality because of the harmful impressions made on students. Until recently, teachers could be fired for criticizing the conduct of elected members of the board of education or the superintendent. Other courts have held that absent a statute or contract, a board of education may require teachers to come early, stay late, and assist in the performance of duties necessary to the operation of the schools. Older cases upheld the right of school boards to fire teachers because they were too old.

      Such attitudes survive in some school districts today, particularly in small towns and rural communities. In the 1970s a Wyoming federal jury found that one of the reasons for the non-renewal of a teacher's contract was her lack of church attendance and the conduct of her personal life. She testified that the principal had informed her, among other things, that "there was dissatisfaction in the community with the fact that she played cards . . . ." In one case, the principal fired a female teacher because she had a male visitor who stayed over night. To obtain this vital information, the principal had staked out the teacher's home for an entire week.

      During the 1960s a survey of state laws showed, not surprisingly, that the two almost universal grounds for dismissing a tenured public school teacher were "incompetence" and "immorality." I was intrigued to learn that in one western state the grounds for dismissal were "incompetence" and "gross immorality." Apparently, in that state, mere run-of-the-mill immorality was condoned. For teacher dismissal, really rock-solid immorality was requisite.

      Things have changed since the 1960s when the NEA and its affiliate organizations began to press for greater teacher rights.

      While none of these rights are unqualified, association activity over the past several decades has resulted in significant changes in and expansion of teachers' rights.

      Courts have held in NEA/UEA-funded cases or cases supported by NEA that teachers have the constitutional rights of citizens! In one case, the local board of education was surprised to learn that teachers had the right to speak in public about matters of public concern including educational issues. In another case, the school board found that teacher can join and participate in professional associations without being fired. In other cases local school boards found that women teachers can be pregnant and keep their jobs, that teachers have rights of privacy, that teachers cannot be fired because somebody does not like what they do in their own homes, on vacation, or that they have outside employment which some member of the school board doesn't like. Principals have found that they cannot fire teachers merely because he wants somebody else teaching in his school. The Utah legislature has enacted laws requiring school districts to show teachers their files when requested by the teacher, to require districts to show "good cause" before firing a permanent teacher, and to prohibit districts from imposing residence as a condition of employment.

      In one case, the court held that conviction of the crime of driving under the influence of alcohol and driving without a valid driver's license did not constitute immorality, unfitness to teach, or incompetence absent a showing that the crimes significantly impaired the teacher's ability to perform his teaching duties.

      A teacher's criticism of the school board is constitutionally protected as long as the speech does not result in an impairment or discipline, or materially interfere with school activities.

      Teachers cannot be fired because they bring unannounced representatives to a meeting with the principal where the teacher suspects that his employment is in question.¹ One teacher was fired because she refused to meet with the principal unless her attorney was present even when the purpose of the meeting had nothing to do with her job security.

      Modern cases hold that merely being arrested and charged with a crime is not a basis for discharge of a teacher. Even conviction of a crime is not necessarily a basis for discharge where the criminal conduct is unrelated to the teaching functions of the teacher and does not impair his abilities to perform his duties. UEA recently supported legislation which proscribes the Utah State Board of Education from taking action against an educator's certificate unless the conduct of the educator "evidenced unfitness for duty." While that may seem insignificant, it means that your private life cannot be considered by the state board in any decision it may take on a certificate or certification criteria. It also means that conduct unrelated to the job cannot be considered in licensure actions.

      State and federal civil rights acts prohibit any school district from hiring, firing, or making any adverse employment decision on the basis of race, age, sex, color, handicap, religion or national origin. (Age 40+)

      The United States Constitution guarantees the right of teachers to freely associate with each other, to speak freely on public issues, to have private lives outside the control of boards of education, and to not be deprived of their job for reasons related to protected activities, e.g., speech, religion, age, sex [ see above].

      Under Utah's Orderly Termination Act, teachers cannot be dismissed without due process -- in summary: To receive notice of the reasons their contract may not be renewed, of an opportunity to correct the problem and of a fair hearing at which the teacher is entitled to hear the evidence against him, to examine witnesses and the evidence, to be represented by legal counsel and to present his side of the case.

      These rights, which we too often take for granted, were hardly fought and contested by school administrators. They fought us in the legislature and the courts. These rights, although limited and subject to reason, are still being contested -- too often school boards don't like to be told that teachers have rights. You should know that constitutional and statutory rights cannot be waived by the individual except on a case by case basis, and then only in limited circumstances. One district tried to have the teacher waive her rights to due process as a condition of continuing her employment. The agreement was void. Another district made some teachers sign a release and waiver wherein the teacher agreed to allow a police check of his/her criminal background and waived his/her right to examine his/her personnel file. Since the right to examine his/her personnel file is protected in the master agreement, the waiver was unenforceable. The right to examine your personnel file is also statutory and cannot be waived for that reason.

     Utah law now prohibits districts from terminating employees who happen to live in another school district.

      While these rights are personal to each of us, we have other rights secured by the Association through legislation. Prior to 1974 teachers could be sued by students and parents for accidents or injuries. In 1974 the Association secured passage of legislation which absolutely and in all cases requires school districts to defend and indemnify (pay) all actions and judgments against a school district which arise out of their employment EXCEPT where the teacher acted with malice (intentionally), fraud (theft) or involving drunk driving. In 1985, the legislature enacted a criminal defense law which requires school districts to pay the criminal defense costs where teachers are charged with and acquitted of criminal acts arising from their employment. Unfortunately, districts tend not to indemnify and defend employees charged with criminal conduct.

      There is another source of teacher's rights. Realistically, it is the most important because the rights are tailor-made for educators. Those rights arise out of the master agreements between the association and the school board, or in those districts which do not negotiate with the association, board policy. I'm going to refer to both board policy and the master agreement as the master agreement, but it means and includes board policy. The master agreement should provide for sick leave benefits. It should provide for insurance benefits. It should provide for personal leave days, and association leave days. It should provide that the association is recognized as the exclusive representative of the association and is entitled to exclusively exercise the rights granted under the agreement. Most important, the agreement should provide for a grievance procedure, define grievance, and remediation procedures for teachers whose performance is found to be below minimally acceptable. Many master agreements contain provisions for professional leave, attendance at conventions or continuing education courses, pay for extra duties, jury duty, military leave, fellowship grants, summer employment, sabbatical leave and employment rights on return, teacher rights when assaulted by a parent or a student, rights regarding how materials are placed in a personnel file, and when materials must be removed. Some agreements require the district to provide insurance to compensate when the teachers personal property used at the school for school purposes is stolen or destroyed. More important recently are provisions for reduction in force clauses based on seniority and the right of recall. Some associations facetiously negotiate for maximum class size (the practice is real in most states). In these days of privatization, associations may negotiate to preclude contracting out where there is a teacher that could perform the work without first offering the work to teachers. It is entirely possible to negotiate portions of the district's evaluation and tie evaluation to the grievance procedure. Associations regularly negotiate the provisions relating to cause for termination. Many agreements include provisions which preclude administrators from assigning teachers to perform non-teaching duties. Voluntary and involuntary transfers are subject to negotiation and agreement. Obviously, salary, lanes, advancements, and benefits are rights which may be obtained in master agreements.

      Recently, the UEA has been stressing improving teaching. A negotiated agreement can provide released and preparation time, reduced class size, increased access to equipment and facilities, training, and for a quality educator evaluation program.

   Almost any term or condition of employment is subject to negotiations and creates teacher rights which may be enforced by the courts when part of a negotiated agreement.