Professional Misconduct and Constitutional Rights First Fourth and
- Slides: 45
Professional Misconduct and Constitutional Rights First, Fourth, and Fourteenth Amendments NASDTEC Professional Practices Institute James R. Ward jward 01@alsde. edu 334‐ 242‐ 1899 1
1. Introduction • The reasons for a Constitutional analysis. • The Amendments that we’ll cover: – First (free speech, religion, right to petition) – Fourth (freedom from unreasonable searches and seizures) – Fourteenth, section one (due process) • We’ll also cover some applications of these principles in a few Alabama cases. 2
Background • In the beginning, Constitutional rights did not protect public employee jobs. • Over time this standard changed; now public employment and licensure are property rights protected by the Constitution in a variety of ways. • At the same time, a teacher’s misconduct may be grounds for revoking his or her certificate. 3
Background • Many states have only loosely defined by statute what unethical behavior is; thus, courts have stepped in to proved some details. • The analysis in Morrison v. State Board of Education, 461 P. 2 d 375 (1969), a California case, has been applied in Alabama and a number of other states. 4
Background • Morrison held that in order for a teacher’s unethical conduct to merit the revocation of his or her certificate, there has to be a nexus to the teacher’s fitness to teach. • Matters that may be considered are: • the likelihood that the conduct may have adversely affected students or fellow teachers, • the degree of such adversity anticipated, • the proximity or remoteness in time of the conduct, • the type of teaching certificate held by the party involved, 5
Background • the extenuating or aggravating circumstances, if any, surrounding the conduct, • the praiseworthiness or blameworthiness of the motives resulting in the conduct, • the likelihood of the recurrence of the questioned conduct, and • the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers. 6
Background • Even though all states have not explicitly adopted this analysis, practically all states apply a similar analysis. • Thus, all states have to consider, at lest in part, whether the conduct of the teacher is protected under the U. S. Constitution. 7
Background • We’ll cover the big stuff: Free Speech, Religious activity, petitioning the government, searches, and due process. • We will not cover gun rights, the right against self incrimination, or any of the other rights citizens have. • A note to Canadians: the principles described here will likely mirror the rights under your own constitution. 8
2. First Amendment • First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. • Note: The Fourteenth Amendment has incorporated most of the Bill of Rights to apply not only to the federal government but to state governments as well. 9
1 st Amend. – Free Speech • An Alabama teacher rants, gets recorded, gets You. Tube fame. • Here is a short version of his speech to his psychology class. • For the record, this is absolutely not a part of the Alabama Course of Study for any subject. • How do you analyze this? Well, there are some key cases to know about… 10
Free Speech cases • Pickering v. Board of Education, 391 U. S. 563 (1968). – Marvin L. Pickering, an Illinois teacher, published a letter in his local newspaper that criticized a plan by his local board of education to try to raise taxes. He was fired. He sued. – The U. S. Supreme Court balanced his right to comment on a matter of public concern against his employer’s interests and found that Mr. Pickering’s conduct was protected. 11
Free Speech cases • Connick v. Myers, 461 U. S. 138 (1983). – Sheila Myers had been an Assistant District Attorney when she provided a questionnaire she created to other Assistant D. A. s after she was told she was going to be reassigned. – Only one out of many questions had to do with a matter of public concern but it contributed to her discharge. So the Supreme Court balanced her interest in free speech against her employer’s interests. – Overall, the Court held that the employer did not have to “tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. ” – So Ms. Myers lost her case. 12
Free Speech cases • Garcetti v. Ceballos, 547 U. S. 410 (2006). – Richard Ceballos was working as a deputy district attorney for the Los Angeles County DA’s office when he recommended the dismissal of a case because he believed there were factual errors in the warrant. His job duties included making such reports. He later was called to testify as a witness for the defense. – Mr. Ceballos claimed that afterward he faced retaliation for his actions and that his employer violated his rights under the First and Fourteenth Amendments. 13
Free Speech cases • Garcetti v. Ceballos, 547 U. S. 410 (2006). – The fact that Ceballos expressed his views privately in the office, rather than publically is not dispositive. See Givhan v. Western Line Consol. School Dist. , 439 U. W. 410 (1979)(holding private speech about racial discrimination at a school to be a matter of public concern). – The Court also noted that it was not dispositive that the speech concerned the subject matter of Ceballos’s employment. – The controlling factor is that the statements Ceballo made were made pursuant to his duties as an employee – it was his job to make the type of report that he did. 14
Free Speech cases • Garcetti v. Ceballos, 547 U. S. 410 (2006). – In short, the court held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. 15
Free Speech cases • Monita Hara v. Pennsylvania Department of Education, No. 3: 09‐CV ‐ 1014, 2011 WL 5238728 (M. D. PA 2011), affirmed without published opinion, 492 Fed. Appx. 266 (table), No. 11‐ 4115 (3 rd Cir. 2012). – Monita Hara, an employee of the Pennsylvania Department of Education as the Superintendent of the Scranton State School for the Deaf, wrote an op‐ed for a local newspaper that opposed the Department’s proposed privatizing of the school. – The PA Department of Ed transferred her and suspended her for 10 days without pay. She then resigned and sued, claiming she was being retaliated against for exercising her free speech rights. – In this case the parties agreed that Ms. Hara was speaking as a citizen on a matter of public concern so that issue was not litigated. 16
Free Speech cases • Monita Hara v. Pennsylvania Department of Education, No. 3: 09‐CV ‐ 1014, 2011 WL 5238728 (M. D. PA 2011), affirmed without published opinion, 492 Fed. Appx. 266 (table), No. 11‐ 4115 (3 rd Cir. 2012). – However, the courts held in favor of the Department of Education, without any trial, on the basis that Hara’s high status at the school and her active attempt to thwart the Department’s objective hurt the close working relationships with the Department. – The lesson: the higher up a person is in the hierarchy of a public institution the less likely they have any protection for speaking about a matter of public concern that also takes a position contrary to the goals of the institution. 17
Free Speech cases • Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U. S. 274 (1977). – In this case a school teacher was fired after he had, among other things, called a radio station to share the substance of a memo his principal had circulated about teacher dress and appearance. – The Supreme Court held that although the teacher’s exercise of his free speech rights were apparently a reason he was not rehired, the trial court should consider whether he would have been fired anyway. – If the employee can meet his burden to show that his conduct was constitutionally protected and was a motivating factor in the decision to not rehire him or fire him, then it becomes the employer’s opportunity and burden to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. 18
Religion cases • Generally, teachers can exercise their religious freedom as long as they are not endorsing religion or violating the rights of students, or violating any laws or rules that are intended to preserve the religious neutrality of a school environment. 19
Religion cases • – – – Palmer v. Board of Education of the City of Chicago, 603 F. 2 d 1271 (7 th Cir. 1979) (curriculum). Joethelia Palmer was a member of the Jehovah’s Witnesses religion. She was also a probationary kindergartner teacher in Chicago public schools. She told her principal that she would not be able to teach any subjects having to do with love of country, the flag, or other patriotic matters in the curriculum. Ultimately, she was discharged from her job. The Court of Appeals for the 7 th Circuit held that it cannot be left to individual teachers to decide what to teach. A teacher has no right to require her students to submit to her views. In other words, teachers have to stick to the curriculum. 20
Religion cases • Wigg v. Sioux Falls School District, 382 F. 3 d 807 (8 th Cir. 2004) (religious activity after school). ‐ Barbara Wigg, an elementary school teacher in South Dakota, sued her local school system when it prohibited her from participating in after school religious programs at the same school she taught at. ‐ The school system had a policy that prohibited teachers from participating in religious activities on school grounds; but, the school was open to the public after hours and a number of groups used the facilities as a meeting place. ‐ In this case the court determined that Ms. Wigg’s participation was private speech; no reasonable person would think the school was endorsing her speech; the Pickering balancing test does not apply here. 21
Religion cases • Johnson v. Poway Unified School Dist. , 658 F. 3 d 954 (9 th Cir. 2011) (teacher religious activity in school). ‒ Bradley Johnson was a high school calculus teacher in San Diego County, California. He decided to hang two large banners in his classroom. Here are some pictures. 22
Religion cases 23
Religion cases 24
Religion cases – Other teachers had posters of other things on their walls, but none specifically mentioned God. – Johnson’s supervisors asked him to remove the banners and, eventually, he did. He also sued. The trial court held that his rights were violated. – The Court of Appeals for the 9 th Circuit said they were not. 25
Religion cases – The Court of Appeals had several reasons for this: • The trial court used the wrong legal analysis. • Pickering balancing should apply here, including the 9 th Circuit’s five part analysis: 1. 2. 3. 4. 5. whether the plaintiff spoke on a matter of public concern (plaintiff’s burden to prove); whether the plaintiff spoke as a private citizen or public employee (plaintiff’s burden to prove); whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action (plaintiff’s burden to prove); whether the state had an adequate justification for treating the employee differently from other members of the general public (government’s burden to prove); and, whether the state would have taken the adverse employment action even absent the protected speech (government’s burden to prove). 26
Religion cases – In this case, although religion is a matter of public concern, Johnson was only speaking as a state employee – not as a private citizen. – The court also addressed whether the school system unconstitutionally curtailed Johnson’s free exercise of religion. – It pointed out that what is necessary under the Constitution is government neutrality between religion and non‐religion. It applied the long established Lemon v. Kurtzman, 403 U. S. 602 (1971) test to determine whether the school system’s actions were consistent with the requirements of the establishment clause. That test asks whether a government act: (1) has a secular purpose, (2) has a principal or primary effect that neither advances or disapproves of religion, and (3) does not foster government entanglement with religion. 27
Religion cases – The court in Johnson held that the school system did not violate the Constitution because it was trying to avoid an Establishment Clause violation. • A note about religious garb: – The general rule appears to be that states can restrict what a teacher wears while at work. Cooper v. Eugene Shool District No. 4 J, 723 P. 2 d 298 (Or. 1986)(upholding the revocation of a certificate when a teacher did not comply with a state statute regarding attire); United States v. Board of Education for the School District of Philadelphia, 911 F. 2 d 882 (3 d Cir. 1990) (upholding action against a teacher for wearing Muslim attire). 28
Right to Petition The Gov’t • Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488 (2011). – Charles Guarieri was a chief of police in Duryea, Pennsylvania. The city tried to fire him but he filed a union grievance. When he was reinstated the city gave him various instructions for the performance of his job duties. He filed another grievance and a lawsuit claiming that the city retaliated against him for filing a petition that was protected under the Constitution. – Assuming that these things were “petitions, ” protected by the Constitution, the Supreme Court held that the proper standard to apply to public employee petitions to the government is the same standard that is applied in free speech cases. 29
3. The Fourth Amendment • Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 30
The Fourth Amendment • O’Conner v. Ortega, 480 U. S. 708 (1987). – Held that the Fourth amendment protections apply to public employees under investigation for violations of the employer’s policies; however, only reasonable suspicion is needed for a search to be conducted – not probable cause (the standard for a warrant for law enforcement). 31
The Fourth Amendment • O’Conner v. Ortega, 480 U. S. 708 (1987). – Plurality (four of the Justices) held: » Consider the operational realities of the workplace and on a case by case basis determine whether the employee has a reasonable expectation of privacy. » If a legitimate expectation of privacy exists, then is the employer’s intrusion on that privacy reasonable under all the circumstances? – Scalia (who provided the 5 th vote necessary for the majority) would simply hold that searches that are reasonable and normal in the private‐employer context do not violate the 4 th amendment. 32
The Fourth Amendment • Shaul V. Cherry Valley‐Springfield Central Sch. Dist. , 363 F. 3 d 177 (2 nd Cir. 2004). – This is perhaps the only federal appellate case to address the search of a teacher’s materials. – William Shaul was a high school mathematics teacher in New York. In November of 1998 he was accused of sexually harassing a student. In January of 1999 he was arrested for stalking a former student. Shortly after his arrest he was suspended from work and given a chance to clear out his stuff. He did not take advantage of the first chance he had to do that, but later he spent an hour and a half clearing out his belongings before he was asked to leave. – The school officials later found a number of incriminating things in his office, including photo album of the girl he was accused of stalking (and with whom he had an inappropriate relationship in 1990). – For reasons that are not specified in the opinion the hearing officer did not admit into evidence the materials the school system found. – Shaul was ultimately suspended without pay for the rest of the school year. He also sued, claiming that his 4 th Amendment rights were violated. 33
The Fourth Amendment • Shaul V. Cherry Valley‐Springfield Central Sch. Dist. , 363 F. 3 d 177 (2 nd Cir. 2004). – The Court of Appeals for the Second Circuit held that Shaul’s rights were not violated. In doing so they applied the plurality opinion from O’Connor. More specifically, the court held: » Shaul had no reasonable expectation of privacy to his materials that he did not remove from the classroom when he was also given the chance to do so but did not remove things that were locked up. » Even if he did have a reasonable expectation of privacy, the school system had a reasonable, non‐investigatory purpose in clearing out Shaul’s classroom to make room for the new teacher. » Plus, even if the search was motivated at least in part by an investigatory purpose, the search was reasonable given that a current student had complained of sexual harassment from him that had included written correspondence. 34
The Fourth Amendment • Ontario v. Quon, 560 U. S. 746 (2010). – A police officer kept going over his usage limit on his pager. He had been told his use of the pager would be subject to an audit, plus it would be treated in the same way as work email. – When his work‐time messages were checked to see if a different messaging plan may be needed it was learned that only 57 out of 456 messages were work related for August, 2002. The excess was at least partly due to an affair he was having. – The Supreme Court punted on the issue of whether electronic communications have any reasonable expectation of privacy in this context because it was not necessary in order to decide the case. 35
The Fourth Amendment • Ontario v. Quon, 560 U. S. 746 (2010). – This was because under either the plurality approach of O’Conner or Justice Scalia’s approach in that case, the search was reasonable under all the circumstances. – That is, it was (1) justified at its inception and (2) the measures used in the search were reasonably related to the objectives of the search, and (3) were not excessively intrusive in light of the circumstances that prompted the search in the first place. 36
4. The Fourteenth Amendment, Section One (Due Process) Fourteenth Amendment, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 37
Due Process – Two key cases were issued by the Supreme Court on the same day: Board of Regents of State Colleges v. Roth, 408 U. W. 564 (1972) and Perry v. Sindermann, 408 U. S. 593 (1972). Together they, and their progeny, stand for these principles: • Property and liberty interests are subject to due process protections. • Property interests do not come from the U. S. Constitution; instead they come from independent sources, like existing rules, statutes, regulations, express or implied contracts, or a mutually explicit understanding, for example. 38
Due Process – And these too: • Liberty interests arise when stigmatizing claims are made against a person and these claims have a result in a tangible deprivation of an interest, such as employment. In other words, the claim against the teacher might seriously damage his or her standing and associations in the community or good name and reputation. • The amount of process that is “due” depends on the circumstances. 39
Due Process • Flaskamp v. Dearborn Public Schools, 385 F. 3 d 935 (6 th Cir. 2004) (a teacher was denied tenure for an affair with former student). • • Laura Flaskamp was a high school P. E. teacher in Michigan. She was denied tenure when her principal was told by the mother of a student that had recently graduated that Ms. Flaskamp was romantically involved with the former student. Ms. Flaskamp claimed that her rights to intimate association, privacy, and to be free of arbitrary state action were all violated. The Court dodged the question of whether a teacher has any actual Fourteenth Amendment protection for this type of conduct. It held that even if there is such protection, the school system’s actions were all rational. So the teacher lost her suit. Note: dicta in the opinion indicates that a school system could prohibit teacher relationships with former students for up to two years after graduation. 40
Due Process • Things to know about due process in administrative hearings: – Generally speaking, the only process that is constitutionally guaranteed is that a person will have notice of the claims that are made against him, a right to a hearing, and an unbiased decision maker. – A statutory error does not equal a due process error. – Harmless error analysis applies to both statutory error and most constitutional errors. Neder v. U. S. , 527 U. S. 1 (1999). – It is very typical for the members of administrative agencies to receive the results of investigations, to approve the filing of charges or formal complaints instituting enforcement proceedings and then to participate in the ensuing hearings. This does not violate due process of law. Withrow v. Larkin, 421 U. S. 35 (1975). 41
Due Process • Things to know about due process in administrative hearings: – The prosecutor of an administrative case must not participate in the final decision in that case; but, a state agency must only provide for an internal separation of prosecutorial and advisory functions on a case‐by‐case basis. Morongo Band of Mission Indians v. State Water Res. Control Bd. , 199 P. 3 d 1142 (Cal. 2009) (holding that it was constitutional for an agency attorney to act as a prosecutor in one case and to concurrently advise the administrative decision maker in an entirely unrelated proceeding). 42
Some Alabama Situations • Discuss Morton v. Taylor, an Alabama case turning on due process and the application of harmless error analysis. • Discuss the application of Pickering to the Alabama teacher’s rant. 43
5. Conclusion • For teacher speech, religious speech, and petitions to the government cases – apply Pickering and its progeny to balance the interests. • For Search cases – apply the plurality in O’Conner to determine if any legitimate privacy expectation exists and then determine whether: (1) the search was justified at its inception, (2) the measures of the search were related to the objectives of the search, and (3) the search was not excessively intrusive in light of the circumstances that prompted the search. • For Due Process cases – determine whether the person had any liberty or property interests; whether the teacher had notice and an opportunity for a hearing before a non‐biased decision maker; whether any error in the process was harmless. • Good luck!!! 44
Questions? James Ward jward 01@alsde. edu 334‐ 242‐ 1899 45
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