Legal and Ethical Issues in Teaching
Source - Teaching with Love and Logic by J. Fay and D. Funk (1995).
Teachers are guaranteed protection legally for performing activities and duties that are within their written scope of employment. The term scope of employment is a term that basically means we have job-related legal protection for activities we have been contracted or directed to do and that have been approved by some authority. Teachers who do things that are outside of officially sanctioned activities may be placing themselves in a position of great vulnerability. Examples include: teachers who take students on field trips without approval from or sanction by school authorities which includes parental permission as well; or teachers who discipline students outside of approved school procedures.
Teachers who transport students for school related activities may be putting themselves at great risk legally. Carefully following the school district's policies
for student transport is imperative. When permission is granted from school authorities to
transport students and district policies are followed, teachers who transport students even
in the teacher's own vehicle are commonly covered by the school district's liability
policies in excess of the teacher's own liability covered within the teacher's auto insurance policy. However, the risk occurs when a claim must be paid by the teacher's insurance company, the teacher runs substantial risk of having the company cancel their auto insurance policy. Protection for teachers comes from ensuring that all activities are approved within the contract, or at least through written authorization of a school
administrator as well as making sure that all other variables (e.g. insurance coverage) are well considered.
Malpractice involved the lack of skill in performing professional duties, no matter what the profession. Because teachers are certified, the presumption is that they have at least a minimal level of competency. Those who fail, and, some cases, organizations that hire them, can face serious consequences.
Lack of Skill:
Certified teachers are presumed to have acquired sufficient skills to maintain an environment conducive to learning and to convey knowledge and/or skills to their students. This is often summarized by the phrase "duty to supervise and instruct." When this cannot be accomplished, the accusation of "lack of skill" can be made.
Repeating Ineffective Procedures:
When students are repeatedly subjected to ineffective procedures or strategies, a case may be made for educational malpractice. There are a number of activities, used in education from time immemorial, that, given the tenor of today's society, could be cause for concern. Some examples are abusing detentions, homework as punishment, sarcasm or ridicule or any other verbally abusive tactic. As parents become more legally savvy and focus on calling schools to task, teachers may want to give considerable thought before continuing some practices simply because they worked in the past.
Learning as Punishment
Using learning, extra work or homework as punishment is a practice that only serves to antagonize students and their parents, and has little, if any, remedial justification.
Using Grades to Control Behavior
Teachers would be well advised to reconsider using grades for anything except reflecting actual skill or content mastery, rather than effort, improvement, or other behavior. To be judicious, all grades should be equally accessible to every student.
Grading on a Curve
This is another practice to avoid. This practice does not allow for equal accessibility to every student (criterion-referenced), and only indicates mastery relative to others in the grading pool (norm-referenced). It does not give an accurate indication of what skills and/or content the student does or does not have.
Ignoring Students' Individual Capicities
With the advent of special education and "504 Legislation" (referring to the section of the civil rights legislation that went into effect in 1973, which basically states that individuals cannot be discriminated against because of being handicapped), the courts are now increasingly involved in determining a definition for "appropriate instruction." This individualization may include modifying materials, giving additional time to complete tasks, and developing teaching strategies to address different ways of learning.
Student Access to the Results of Other Students' Work or Personally Identifiable Information
A teacher may unwittingly get into trouble trying to encourage one student by offering that student information about another student that is, in actuality, confidential. Since both tangible and'intangible property (grades are considered intangible property) can be "taken away" only through due process, giving this information indiscreetly may be considered a violation of a student's rights.
Punishing Special Education Students for Behavior Related to or Resulting from the Handicapping Condition
We all know the level of annoyance a disturbed student can create, but, to a large degree, special education laws indicate that for a student to be punished because of his/her handicapping condition results in a discrimination against that student. We need to proceed with caution when it comes to disciplining special education students.
Discipline and Constitutional Rights
After the Tinker v. Des Moines Public Schools decision in the late 1960s, school regulations with respect to students had to be weighed against the rights and freedoms protecting individuals as per the Constitution of the United States. Because of this court decision, schools must rely more on students' First Amendment rights than on what is deemed appropriate. Students' rights can only be reduced or removed, in the final assessment, through due process.
Due process is provided for in the 14th Amendment stating that "life, liberty, and property" cannot be taken except by due process. Although life is usually not a question for schools, liberty and property certainly are and involve student speech, locker searches, dress codes, personal items, and evidence of learning. Students have a constitutional right to an access to education. To reduce or deny this right involves due process. There are two types of due process:
Substantive Due Process: refers to the substance or content of rules and regulations. Provided these regulations are not arbitrary or capricious, there is usually no need for concern.
Procedural Due Process: refers to the process itself. It is more complicated and more cause for concern. Teachers who wish to ensure to a high degree that they are not violating due process should:
- Have clear goals and expectations. Base your rules and regulations on justifiable standards avoiding being arbitrary or capricious. Convey your rules to all involved: students, parents and administrators. Post rules in classroom, send letters home, teach your rules and procedures as you would any lesson with guided practice and frequent checks for student understanding. You want to avoid the accusation from a violator that "they didn't know the rules."
- Have evidence of student involvement. Having students involved in the development of the disciplinary process substantiates that they have had an opportunity to understand the effects of their conduct and have had input into what strategies would be most effective to address the situation. Examples of student involvement include: documenting conferences with the student, student involvement in determining consequences or misbehavior, or the testimony of others serving as observers.
- Give opportunity to improve. Although we are not obligated to indefinitely keep trying things that are not working, there is a need to give students a chance to indicate her or his good-faith (bonaflde) effort to improve. There has to be the opportunity to determine if a particular remedial or disciplinary technique is working. That is not to imply that the same ineffective procedure is to be used over and over. One could develop a hierarchical scale wherein subsequent violations of rules/regulations results in more severe consequences. Caution: if this is done more than three times without positive results, this is a sign that this consequence is not effective for this student.
- Have written evidence to support the circumstance. Written evidence (documentation) is vitally important to: (1) justify higher levels of intervention and (2) protect teachers. Such evidence may include documentation of the incidents involved, summaries of the interactions from both teacher and student, and/or copies of letters to parents and administrators. All written evidence should be dated. If conversations are to be used as documentation, these be be summarized and reviewed ^ with all parties to ascertain accuracy.
Compelling State Interests
Because teachers are considered agents of the state, we have a vital resource called compelling state interests. Although individual rights are of high priority, the law recognizes that there will be times when individual rights must be subordinate to what is best for the Common Good. If we use compelling state interests as the foundation for rules that will limit individual rights, we will be developing fewer rules and regulations that will be need to be changed.
What are compelling state interests? They are fairly common sense and, if used properly, powerful tools for educators in their quest to have order in the classroom.
- Prevention of property loss or damage. Schools have the right to establish rules that will protect property from being stolen or damaged. Although rules against vandalism reduce what some studnents want to do, the rules are valid. Likewise, classroom rules based on treating the property of others with respect are on a sound foundation.
- Preservation of health and safety. Rules and regulations based on the intent to preserve health and safety of students and teachers are not only obvious, but justifiable on the basis of maintaining the common good. Rules based on this premise are also on a good foundation.
- Serving legitimate educational purposes. Although this may be a bit more esoteric than the previous two, it is just as valid. Requiring class attendance, setting grading standards, and requiring homework can fall within the parameters of this concept. The primary defense of regulations based on this compelling state interest is in the school's justification of the requirements.
- Prevention of disruption to the educational process. There is the assumption that certain givens are necessary for learning to take place, including (1) appropriate interaction, (2) a safe environment, and (3) freedom from disruption. Rules based on this premise, provided they are legitimate and not arbitrary or capricious, would most likely be upheld under judicious scrutiny.
As of a 1991 decision by the U.S. Department of Education, all teachers have the responsibility to teach children with disabilities who wind up in their classrooms. Section 504 defines handicap as any condition that causes a disruption of a major life activity, including walking, working, breathing, and learning. While several categories are identified, in essence, it is an open list. When dealing with either special education or 504 issues, it is of primary importance to be procedurally correct. It is of vital importance that timelines, notifications, and appropriate personnel be considered.
Protection from Liability
The following recommendations are given for consideration.
Guidelines for Being Legally Prepared
- Individualize whenever possible. In most cases this is just good educational practice, but with special education and 504 students it is imperative.
- Document all occurrences, no matter how small. Documentation is a powerful * took for defending your actions, clarifying situations, and establishing your credibility.
- Maintain and upgrade professional skills. Formal training places you at an advantage in terms of becoming an "expert" and giving your recommendations additional credibility.
- Be aware of your vulnerability. We are victims of what we are not aware of. The legal realm is no exception. Many teachers have gone merrily on their way down a path that has been disastrous simply because they did not realize the jeopary there were in. Teachers should regularly review professional materials that deal with legal issues.
- Discuss potential legal situations only with supervisors, legal representation, and insurance agents. Teachers often openly discuss very sensitive issues in very public places like the hallways, lunchrooms, restrooms or teacher's lounges. Realize that whoever is privy to certain information can be subpoenaed in the event a case goes to hearing or court.
- Be cautious about forcing a child to do something without due process and documentation. This is especially true of children who are enrolled in an Exceptional Educational Need program, but this can be true of all students. Disciplinary measures can be a trap for teachers if due process is violated or if the circumstances of the situation are the slightest bit hazy.
- Legal and moral are not always synonymous. It is naive to believe that doing the "right" thing will exonerate teachers who violate policies or laws. Ignorance of the law is no excuse.
- Make rules and safety precautions obvious and available to all. These can be posted in the room, sent home to parents in an introductory letter, used as agenda items at open houses, and written into lesson plan books. The point is, make these as public as possible.
- Modify "no exceptions" language. If teachers are required to "supervise halls outside their rooms" they may be liable for any incident that occurs in that area, even if they are engaged in some other valid activity. Eliminate this locking in by using language (rewrite teacher's guides if necessary) that gives latitude. Working on the hall question might be, "Teachers are normally expected to monitor halls outside their classrooms."
- Ensure that all staff are in-serviced in developing procedu rally correct IEPs and 504 Accommodation Plans. Because teachers are usually responsible for implementation of these plans, they would be well advised to be intimately aware of what is expected.
- Read your master agreement. What many master agreements (teaching contracts) say is at the discretion of the Board can be very revealing. Administrative hearings requre far less evidence or compelling arguments than court hearings. Even "hearsay" has been used in administrative hearings to the detriment of a teacher.
- Make strong requests to your district for training. Training, and requests for it, can reduce the liability of both teacher and district by demonstrating good-faith efforts to address specific problems.
Dr. Robert Sweetland's Notes ©