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RUNNING HEAD: TEACHER’S RIGHTS BASIC AND CONSTITUTIONAL

Joyce H. Fragale

Teacher’s Rights

Basic and Constitutional

School Law, EDU 702

University of New England

April 12, 2014

Teacher’s Rights Exam Case

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Teacher suspended for anti-Semitic writing assignment [4/17/13]

Facts: According to Time, school officials at Albany High School have apologized after students

were assigned the task of “explaining why Jews are evil” as part of a persuasive writing class.

The English teacher responsible for the assignment has been placed on leave and could be

terminated. Students taking the course were asked to watch and read Nazi propaganda, and then

pretend their English teacher was a fascist official whom they must convince of their loyalty.

They were told they “must argue that Jews are evil, and use solid rationale from government

propaganda to convince me of your loyalty to the Third Reich.” Participants were urged to use

information garnered from their history classes as well as “any experiences you have” to present

a damning appraisal of the Jewish people. However, around one-third of the 10th graders

involved refused to take part in the assignment, prompting a speedy response from school staff.

“I would apologize to our families,” Albany Superintendent Marguerite Vanden Wyngaard told a

meeting called in response to the incident. “I don’t believe there was malice or intent to cause

any insensitivities to our families of Jewish faith.”

The teacher responsible for the controversial class could face further disciplinary action

including possible dismissal, reported the Albany Times Union. Vanden Wyngaard did not say

when or if the district would allow the teacher back in the classroom, but suggested it may not

happen before the end of the year.

Let’s say the teacher was terminated and is suing to get his job back. Analyze this case.

Teacher’s Rights Case Analysis

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Legal Basis for Teacher’s Rights

Teachers Basic Rights: Tenure and Seniority

Tenure is a property right, which is protected under the constitution and cannot be taken

away without due process. Although tenure cannot be transferred from one district to another, it

can be transferred to schools within the same district. States decide parameters surrounding

tenure, as well as standards for teacher evaluation and dismissal, including due process.

Typically due process is not required when a district decides not to rehire a pre-tenured teacher.

Seniority rights are determined by the state or by the local school board. Seniority rights

are valid within the district, and are subject to teacher certification surrounding grade level and

subject (Hillman and Trevaskis, 2014).

Teachers Substantive Constitutional Rights

Teachers Constitutional Rights include: Freedom of Expression, Academic Freedom,

Freedom of Association, Personal Appearance, and Rights to Privacy (Hillman and Trevaskis,

2014).

Freedom of Expression

Pickering v. Board of Education of Township High School District 205, Will County, 391

U.S. 563 (1968), set the precedent for cases involving freedom of speech. The “Pickering Test”

includes consideration of the following:

1) Does the item being discussed relate to a public issue or is it a private or personal concern?

If public the teacher is safer; if private the teacher has no protected right.

2) Disruption—did the speech interfere with the school’s operation?

If it did not, the teacher is safer.

3) Did it harm anyone’s reputation?

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If no, the teacher is safer; if yes, it hurts the teacher’s case.

4) If some statements were false, were there ways to know they were false?

If no, the teacher is safer; if yes, it hurts the teacher’s case.

In University of Texas Southwestern Medical Center v. Nassar , 133 S.Ct. 2517 (2013),

the Court decided that the proper standard for retaliation cases was a “but-for” test not the

“motivating-factor” test. Using the “Motivating-factor” test, the plaintiff only needs to show that

the retaliation is one factor. Using the “but-for” standard the plaintiff must show that “but-for”

the retaliation, he/she would not have been fired. This requires an addition of component 5.

5) Are there other sufficient causes independent of the protected speech that would cause the

dismissal?

In cases involving students protected by §504 and ADA, ( Barker v. Riverside County

Office of Education , No. 07-56313(2009), and Reinhardt v. Albuquerque Public School Board

of Education, 595 F.3d 1126 (2010)), a teacher’s speech was protected when she filed a

complaint alleging that the district was failing to provide students with FAPE, indicating that two

additional components should be added to the “Pickering” test.

6) Is the employee speaking pursuant to his/her job or is he/she speaking as a private citizen?

If the role is as a private citizen, the speech will fall under the protection of the First

Amendment. If not, it will not be considered protected speech.

7) Is the employee filing under any federal law that has anti-retaliation protections?

If yes and the teacher can meet the “but-for” standard, the employee’s case is much stronger.

The seven components listed above comprise the “definitive legal test for Free Speech”. Not all

points must be met, the first two are very important (Hillman and Trevaskis, 2014, p. 7-7).

In the case Burlington Northern v White , 548 U.S. (2006), an employees speech was protected

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when she spoke out about discrimination (Hillman and Trevaskis, 2014).

Mt. Healthy City School District v. Doyle, 429 U.S. 274, 282 (1977), demonstrated that if

a dismissal is for other reasons than “protected speech”, then the dismissal will be upheld

(Hillman and Trevaskis, 2014, p. 7-8). In the case of Connick v. Myers, 461 U.S. 138 (1983), the

U.S. Supreme Court held that “when a public employee speaks not as a citizen upon matters of

public concern, but instead as an employee upon matters only of personal interest…a federal

court is not the appropriate forum in which to review the wisdom” of the public agency’s

personnel decision. Therefore personal grievances are not protected (Hillman and Trevaskis,

2014, p. 7-8). In the case of Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States

Supreme Court found that the “First Amendment protects speech by private citizens about public

issues, not employee speech” (Hillman and Trevaskis, 2014, p. 7-8). In the Garcetti case, the

court also wrote, “We need not, and for that reason do not, decide whether the analysis we

conduct today would apply… to a case involving speech related to scholarship or teaching”

(Hillman and Trevaskis, 2014, p. 7-9).

Academic Freedom

“Academic freedom is the right of teachers to speak freely about their subjects, to

experiment with new ideas, and to select appropriate teaching materials and methods” (Hillman

and Trevaskis, 2014, p. 7-12). Two cases which set precedent in deciding academic freedom

cases are: Fowler v. Board of Education, 819 F.2d 657 (1987), where the teacher was relieved of

her duties for showing a movie that contained inappropriate content to high school students. and

Sixth Circuit Court of Appeals, and Keefe v. Geanakos, 418 F.2d 359 (1969) where the teacher’s

actions were upheld due to the relevance to the curriculum, and the material used being

reputable. The test evolving from these cases include:

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1) The age and level of maturity of the students

2) Words and materials used

3) Purpose of the material and relevance to the curriculum

4) Opinions of other educators as to the quality of the material

5) Effect (disruption) on the class

These factors must weigh toward the teacher, and the school board’s say also bears a great deal

of weight since they are charged with determining the curriculum and materials (Hillman and

Trevaskis, 2014, p. 7-17). In the case Kirkland v. Northside Independent School District , 890

F.2d 794 (1989), it was decided that teachers cannot disregard school designated curricular

materials for their own (Hillman and Trevaskis, 2014).

Freedom of Association

Goldsmith v. Board of Education, 225 P. 783, 66 Cal. App. 157 (1924) is a case that is

used with respect to freedom of association involving teachers (Hillman and Trevaskis, 2014, p.

7-19). Based upon this case the court decided that teachers can be prohibited from promoting

political candidates in class. Following are the factors to consider.

1). Was the teacher proselytizing or indoctrinating?

2). What is the age and maturity of the students:

3). Did the speech cause disruption?

In Keyishian v. Board of Regents of N.Y., 385 U.S. 589 (1967), the court decided that a teacher

cannot be punished for being a member of an organization. Precedent for this was set by

Elfbrandt v. Russell, 384 U. S. 11, “"Those who join an organization but do not share its

unlawful purposes and who do not participate in its unlawful activities surely pose no threat,

either as citizens or as public employees." …“proscription of mere knowing membership,

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without any showing of specific intent,' would run afoul of the Constitution.”” (Hillman and

Trevaskis, 2014, p. 7-21)

Personal Appearance

Hartford Ed. Assoc. v Board of Education, 562 F.2d 838 (1977) set the precedent for the

“balancing test” concerning dress or grooming which is not considered “pure speech” (Pure

speech would dictate the Freedom of Expression Test). The greater the divide between dress or

grooming and pure speech the more the government only need to show a rational basis for a

policy or rule. Therefore the school board’s decision is weighted heavily. In the case James v.

The Board of Education of Central District No. 1 of the Towns of Addison et. al ., 461 F.2d 566

(1972), the speech was considered “pure speech”, therefore the Tinker test applied, and the

balancing test weighed in favor of the teacher (Hillman and Trevaskis, 2014, p. 7-24). The

Tinker Test includes the following considerations:

Does the conduct constitute expression at all?

Is it meant to communicate an idea?

If the answers to the two prior questions are yes, then one follows up with these

additional questions:

Is the speech defamatory, obscene, vulgar or lewd?

Did the speech cause disruption (cannot be based on fear of disturbance)?

Is the school’s rule (that caused the student’s speech to be curtailed) uniformly applied, or is

there evidence of viewpoint discrimination?

Is the school’s action related to “legitimate pedagogical (meaning school or educational)

concerns?” (Hillman and Trevaskis, 2014, p. 6-14).

Rights to Privacy

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The United States Constitution does not specifically address privacy rights, but according

to the United States Supreme Court privacy rights are implied. The Fourth Amendment protects

against unreasonable searches and seizures. The Ninth Amendment addresses rights that are not

specifically listed in the Constitution, therefore a right to personal privacy has been inferred. The

Fourteenth Amendment protects personal liberties without due process of law (Hillman and

Trevaskis, 2014, p. 7-24).

The legal test used to analyze cases concerning teacher’s personal lives includes:

1) Has the private life of the teacher become public?

2) Is the activity against the law?

The last three factors (hang) and therefore are analyzed (together).

3) Community Standards

4) Disruption

5) Does the activity interfere with one’s ability to do his or her job?

(Hillman and Trevaskis, 2014, p. 7-28, 7-29).

The privacy rights case of Gaylord v. Tacoma School District Number 10 , 559 P.2d 1340

(1977), resulted in the upholding of the teacher’s termination due to community standards, a

disruption, and interference with job performance due to a damaged relationship with parents,

co- workers, administration, and students. However in Erb v. Iowa State Board of Public

Instruction, 216 N.W.2d 339 (1974), the teachers indiscretions were forgiven as he was forgiven

by his wife, the student body, and was a well thought of member of the community. In

Governing Board v. Brennan, 18 Cal.App.3d 396 (1971), the teacher was let go for creating an

affidavit defending the use of Marijuana. In Fisher v. Independent School District No. 622, 357

N.W.2d 152, it was decided that a teacher can be fired for sexual misconduct with a student that

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took place during many years prior (Hillman and Trevaskis, 2014, p. 7-29).

Teachers Rights with respect to Discrimination

Areas surrounding teacher’s rights with respect to discrimination include: discrimination

based on race and national origin, sex discrimination, religious discrimination, age

discrimination, and disability discrimination. Teacher discrimination claims often come under

violation of the 14th Amendment (protection of personal liberties without due process of law).

There are two categories of discrimination. In Facial discriminant acts, the action is directly

discriminatory. In Facially neutral discriminant acts, the action was not intended to discriminate,

but had the effect of discriminating (Hillman and Trevaskis, 2014, p. 7-31). As in discrimination

based on classification, tests based on strict scrutiny, intermediate scrutiny, and rational basis,

apply. Many Federal laws cover teacher discrimination cases:

Title VII prohibits employers from discriminating on the basis of race, color, religion,

sex, or national origin, unless a school can show that there is a bona fide occupational

qualification (BFOQ), (a job qualification that is “reasonably necessary to the normal operation

of the school” and can only be met by a particular group so employment is limited to this group),

related to religion, gender or national origin. A BFOQ must rise to a level that a job must be

drawn from a particular group since the position is very, very sensitive (Hillman and Trevaskis,

2014).

42 U.S.C. § 1981 is part of the Civil Rights Act of 1866 reads,

All persons within the jurisdiction of the United States shall have the same right

in every State and Territory to make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens, and shall be subject to the like

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punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no

other. Law 1981 has been applied to prohibit racial discrimination across ancestry

and ethnicity.

Congress added Section 1981(b) to the Civil Rights act of 1991 to clarify what was meant in

§1981 by “make and enforce contracts”. Section 1981(b) reads, “[f]or purposes of this section,

the term ‘make and enforce contracts’ includes the making, performance, modification, and

termination of contacts, and the enjoyment of all benefits, privileges, terms, and condition of the

contractual relationship.”

The Pregnancy Discrimination Act (1978 Amendment to Title VII) protects against

discrimination based on pregnancy, childbirth, or related medical conditions.

The Equal Pay Act of 1963 relates to compensation.

The Age Discrimination in Employment Act of 1967 (ADEA) protects against

discrimination based on age with people over the age of 40.

Section 504 of the Rehabilitation Act of 1973 protects against discrimination due to a

disability when the employer is receiving federal financial assistance. This, in essence, includes

all public schools.

The Americans with Disabilities Act of 1990, dictates compliance by private institutions

that do not receive federal aid. ADA Amendments passed in 1990 prohibit exclusion of

individuals with ameliorating effects, as well as expanded the scope of major life activities to

include things as concentration and thinking; and that are episodic or in remission if it would

substantially limit a major life activity when active (Hillman and Trevaskis, 2014, p. 7-31-7-33).

Race and National Origin Discrimination

“Lawsuits alleging race or national-origin discrimination may be filed under the

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Fourteenth Amendment, Title VII, and 42 U.S.C. §1981” (Hillman and Trevaskis, p. 7-33). The

case of Ricci v. DeStefano, 129 S. Ct. 2658 (2009) dictates that race must not be used in

employment decisions.

Sex Discrimination

“Lawsuits alleging sex discrimination may be filed under the Fourteenth Amendment,

Title VII, the Equal Pay Act of 1963, and the Pregnancy Discrimination Act” (Hillman and

Trevaskis, 2014, p. 7-33). Boyd v. Harding Academy of Memphis, Inc ., 88 F.3d 410 (1996),

indicates that inspite of the fact that the Pregnancy Discrimination Act prevents discrimination

on the basis of pregnancy, a school could dismiss a teacher on the basis of premarital sex.

However the focus must be on the sexual misconduct, and not on the pregnancy. Crawford v.

Metropolitan Government of Nashville and Davidson County , 129 S. Ct. 846 (2009), dictates

that Title VII protects against retaliation involving a sex discrimination case (Hillman and

Trevaskis, 2014)

Religious Discrimination

“Lawsuits alleging religious discrimination may be filed under the First Amendment, the

Fourteenth Amendment, and Title VII” (Hillman and Trevaskis, 2014, p. 7-34). Religious

beliefs cannot exempt a teacher from executing the essential functions of a teaching position.

Personal leave for religious holidays must not create an undue hardship for the schools, and these

days off need not be paid—just be equitable across all teachers (Hillman and Trevaskis, 2014, p.

7-35).

Age Discrimination

“Lawsuits alleging age discrimination may be filed under the Fourteenth Amendment and

the Age Discrimination in Employment Act of 1967 (ADEA) and includes people over the age of

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40” (Hillman and Trevaskis, 2014, p. 7-35). Age discrimination is limited generally to hiring.

So, for instance, it is acceptable to use age for seniority decisions or vesting in retirement.

In Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009), the justices ruled that a plaintiff

bringing a disparate-treatment claim under ADEA must generally prove that age was the central

motivating factor for an adverse employment action.

Disability Discrimination

“Lawsuits alleging disability discrimination may be filed under §504 of the

Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990” (Hillman and

Trevaskis, 2014, p.7-35). The teacher must prove that he/she has a disability and the teacher

must show that he/she is “otherwise qualified” (Hillman and Trevaskis, 2014).

Johnson v. Board of Trustees of Boundary County School District No. 101 , No. 10-

35233 (2011), indicated that it was not a reasonable accommodation that a teacher be placed in a

classroom without resistive students. Teachers need to be able to complete their job given

reasonable accommodations.

Mark which type of case this is:

Freedom of Expression

XXX Academic Freedom

Freedom of Association

Personal Appearance (if dress/hair can be seen as symbolic speech, then analyze under freedom

of expression)

Privacy Rights

Legal Back Ground for Academic Freedom

“Academic freedom is the right of teachers to speak freely about their subjects, to

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experiment with new ideas, and to select appropriate teaching materials and methods” (Hillman

and Trevaskis, 2014, p. 7-12). Two cases which set precedent in deciding academic freedom

cases are: Fowler v. Board of Education, where the teacher was relieved of her duties for

showing a movie that contained inappropriate content to high school students. 819 F.2d 657

(1987), and Sixth Circuit Court of Appeals, and Keefe v. Geanakos, 418 F.2d 359 (1969) where

the teacher’s actions were upheld due to the relevance to the curriculum, and the material used

being reputable. The test evolving from these cases include:






These factors must weigh toward the teacher, and the school board’s say also bears a great deal

of weight since they are charged with determining the curriculum and materials (Hillman and

Trevaskis, 2014, p. 7-17). In the case Kirkland v. Northside Independent School District , 890

F.2d 794 (1989), it was decided that teachers cannot disregard school designated curricular

materials for their own (Hillman and Trevaskis, 2014)

Lawyer for the Plaintiff, The English Teacher:

1) The age and level of maturity of the students.

The lawyer for the plaintiff would point out that the English class consisted of 10th grade

students. The background in history that a student possesses at this stage of their educational

career, along with their level of maturity, gives them the ability to view this assignment in the

spirit that it was intended.

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The lawyer for the plaintiff would point out that it was stated in the assignment “students

were urged to use information garnered from their history classes”. The fact that part of the

assignment was to pretend that the English teacher was a fascist official which needed to be

convinced of the students’ “loyalty to the 3rd Reich”, would lead a “rational thinking” individual

to understand that the assignment was of a fictitious nature. Most individuals would also

understand that the intent of the assignment was to allow students to show their best work by

empowering them to use material that they have been taught and are therefore familiar with and

passionate about.


The lawyer for the plaintiff would ask the court to consider that a persuasive essay

requires that the teacher choose a topic for which the students have a background that they can

relate to and are passionate about. Their education surrounding the history of Jewish people fits

both of these criteria.

The lawyer for the plaintiff would point to the case Keefe v. Geanakos, 418 F.2d 359

(1969), where the teacher’s actions were upheld due to the relevance to the curriculum, and the

material used being reputable.


The lawyer for the plaintiff would point out that the majority of educators would agree

that in order to engage students and promote efficient learning, strategies sometimes require

teachers to elicit emotional responses. Depending on the skill, and goal of the assignment, the

required emotional responses may vary.


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The lawyer for the plaintiff would require testimony that there was little disruption to the

class. Those students who misinterpreted the meaning of the assignment simply refused to

complete it. As was stated by the high school principal “I don’t believe that there was malice or

intent to cause any insensitivities to our families or Jewish faith”.

Lawyer for the Defendants, Albany High School:


The lawyer for the defendant would agree that the English class consisted of 10th grade

students. However, the lawyer would also state that the student body of Albany High School

most likely consists of individuals from all walks of life including differing religious

backgrounds and beliefs. Being subjected to this method of teaching is offensive and creates a

hostile environment for students of any religion, and particularly those of the Jewish faith. Above

this students were encouraged to include negative personal experiences pertaining to those of the

Jewish faith. The age and level of maturity of any individual would not withstand reliving an

injustice of such severity, especially given that the injustice was in this circumstance, to be

defended.


The lawyer for the defendant would remind the court that students were told that “they

must argue that Jews are evil”. Participants were encouraged to use…”any experiences that you

have ” …”to present a damning appraisal of the Jewish people”. Students were also required to

watch and read Nazi propaganda, and pretend that their teacher was a fascist and use “rational”

government propaganda in order to prove their loyalty to the 3rd Reich.


The lawyer for the defendant would claim that using this type of material, which is

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blatantly insensitive to a group, and against the sensitivities of a majority of the student body, is

to say the least irresponsible, and representative of bad judgment on behalf of the teacher. There

are many other methods by which persuasive essays may be taught, it is not necessary to

incorporate history at all, and definitely unnecessary to do so in such a controversial manner.

The lawyer would point to the case : Fowler v. Board of Education, 819 F.2d 657 (1987),

where the teacher was relieved of her duties for showing a movie that contained inappropriate

content to high school students. The teacher defended her actions by stating that the film had

significant value, however the board viewed the action as “conduct unbecoming a teacher”

(Hillman and Trevaskis, 2014). The lawyer would also refer to the case Kirkland v. Northside

Independent School District, 890 F. 2d 794 (1989), in which it was decided that teachers cannot

disregard school designated curricular materials for their own (Hillman and Trevaskis, 2014).


The lawyer for the defendant would ask the court to agree that educators in general would

be appalled at this approach in teaching history, and would find it completely unnecessary in the

teaching of English.


The lawyer for the plaintiff would bring forth testimony that the class was greatly

disrupted. He will garner testimony from one third of the student’s in the class that refused to

complete the assignment. He will also point out that the disruption reached the degree of causing

the superintendent to give a public apology.

Academic Freedom Taken By the School Law Student in Examining

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Other Legal Aspects of This Case

Defendant’s Claim that Plaintiff has Misused Rights Pertaining to Political Affiliation

Community members may in fact question the true intent of the teacher, and the teacher’s

political association. The teacher’s actions could be construed as student indoctrination. If this

were a case of “Freedom of Association”, then the teacher’s actions would not be upheld. The

lawyer would point to the case of Goldsmith v. Board of Education, 225 P. 783, 66 Cal. App.

157 (1924), which resulted in the teacher being charged with unprofessional conduct and

suspended by the school board (Hillman and Trevaskis, 2014). The test for “Freedom of

Association” requires the considerations of: age and maturity of the students, disruption, and

finally the question of indoctrination. The question of age and maturity of the students as well as

disruption has been addressed. Pertaining to the question of indoctrination, the board would only

have the teacher’s word to rest upon, however the question must be asked….is the disruption and

potential impact on the well being of the students, worth the risk of assumption that this is not a

case of indoctrination, based on political affiliation?

Rebuttal to Defendants Claim Pertaining to Plaintiff’s Political Affiliation

In rebuttal to the point made by the lawyer for the defendant pertaining to the political

affiliation of the plaintiff, the lawyer for the plaintiff would point to the case Keyishian v. Board

of Regents of N.Y., 385 U.S. 589 (1967), where the United States Supreme Court ruled that a

teacher cannot be punished merely for being a member of an organization, as well as the case of

Elfbrandt v. Russell, 384 U. S. 11, where the court wrote that "Those who join an organization

but do not share its unlawful purposes and who do not participate in its unlawful activities surely

pose no threat, either as citizens or as public employees." Id., at 17. …“proscription of mere

knowing membership, without any showing of `specific intent,' would run afoul of the

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Constitution.” (Hillman and Trevaskis, 2014, p. 7-21).

Plaintiff’s Right to Privacy Claim

The lawyer for the plaintiff would also point to the Ninth Amendment, which protects

an individual’s right to privacy.


Although the accusations of the defendant are unfounded, the plaintiff’s private life had not

come under public scrutiny until the incident of this unjust firing.


The lawyer for the plaintiff would again point to the cases of Keyishian v. Board of Regents of

N.Y., 385 U.S. 589 (1967), Elfbrandt v. Russell, 384 U. S. 11, as listed above.


The community is very diverse. Therefore members of the community are respectful of other’s

chosen affiliations.

4) Disruption

There is no disruption, those students who chose not to complete the assignment were respected.


Regardless of whether or not the implied political affiliation is a correct assumption, it does not

interfere with the teacher’s ability to perform his duties.

(Hillman and Trevaskis, 2014, p. 7-28, 7-29).

Defendant’s Rebuttal to Plaintiff’s Claim for Right to Privacy


By the teacher’s own hand in conducting such an experiment with innocent impressionable

youth, the teacher’s private life has now become public.

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The lawyer for the defendant would claim that the plaintiff is in violation of the “Establishment

Clause” and therefore also in violation of the United States Constitution.

1) Does the government action have a secular purpose?

The actions of the teacher may in fact have a hidden purpose which is religion based.

2) Does it have a primary effect of advancing or impeding religion?

The offending activity had a primary effect of shedding a negative light on those who profess

the Jewish faith.

3) Does it avoid excessive entanglement with religion?

This activity failed to avoid unnecessary entanglement with religion.

4) Does it endorse religion?

Religion was not endorsed, however it was negatively promoted. The lawyer for the

Plaintiff would reference C.F. v. Capistrano Unified School District (2009), where California

high school history teacher who was sued by a student and his parents for making

statements that were hostile toward religion.

Does it coerce individuals to profess a faith?

This activity in fact may have had the affect of coercing individuals to profess against the Jewish

faith.


The lawyer for the defendant would state that the disruption, which occurred due to the teacher’s

actions, is proof that these actions are not a reflection of community standards.

4) Disruption

As stated above the disruption was significant given the superintendents need to give a public

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apology.


Gaylord v. Tacoma School District Number 10 , 559 P.2d 1340 (1977), resulted in the upholding

of the teacher’s termination due to community standards, a disruption, and interference with job

performance due to a damaged relationship with parents, co- workers, administration, and

students (Hillman and Trevaskis, 2014, p. 7-28, 7-29).

Plaintiff’s Rebuttal to Claim that the Plaintiff is in Violation of the Establishment Clause

1) Does the government action have a secular purpose?

The actions of the teacher had a secular purpose in the form of a persuasive essay and

nothing more.

2) Does it have a primary effect of advancing or impeding religion?

The activity had an intended effect of reinforcing students’ opinions surrounding injustices.

3) Does it avoid excessive entanglement with religion?

The primary purpose of this assignment was not religion based.

4) Does it endorse religion?

A Religion was not endorsed. The lawyer would reference the case

Mozert v. Hawkins County Board of Education (1987) , “students were not required to

profess a creed or perform religious exercises in reading the basal program; therefore, it did

not impede the practice of their religion” Hillman and Trevaskis, 2014, p. .

5) Does it coerce individuals to profess a faith?

Individuals were in no way coerced to profess a faith.

The Lawyer for the Defendants Claim of the Plaintiff’s Violation of the First and 14 th

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Amendments and the Civil Rights Act of 1964

Since the offended group, people of Jewish faith, has a history of their rights being

violated, Strict Scrutiny should be applied. The school must show a “compelling interest” which

is “narrowly tailored” for discriminating against this group. This teacher is in violation of the

First Amendment of the United States Constitution Establishment Clause, the 14th Amendment

and the Federal Law Title VI of the Civil Rights Act of 1964.

The First Amendment of the United States Constitution

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 (http://www.law.cornell.edu/constitution/first_amendment ).

Section 1 of The 14th Amendment of the United States Constitution

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 ( http://www.law.cornell.edu/constitution/amendmentxiv ).

This ensures equal treatment for all students regardless of their classification. :

Title VI of the Civil Rights Act of 1964

No person in the United States shall, on the ground of race, color, or national origin, be

excluded from participation in, be denied the benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial assistance

21

http://www.law.cornell.edu/constitution/amendmentxiv

http://www.law.cornell.edu/constitution/first_amendment

TEACHERS’ RIGHTS

( http://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html ).

Your overall assessment—Who will win the case, do you believe?

I believe that the school district will win the case. The teacher fails the test of academic

freedom. Above this, as stated in Hillman and Trevaskis (2014, P. 7-17), “These factors must

weigh toward the teacher, and the school board’s say also bears a great deal of weight since they

are charged with determining the curriculum and materials”.

REFERENCES

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http://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html

TEACHERS’ RIGHTS

Equal Educational Opportunities Act of 1974. Retrieved from

http://en.wikipedia.org/wiki/Equal_Educational_Opportunities_Act_of_1974

First Amendment. Retrieved from http://www.law.cornell.edu/constitution/first_amendment

Fourteenth Amendment. Retrieved from http://www.law.cornell.edu/constitution/amendmentxiv

Title VI of the Civil Rights Act of 1964. Retrieved from


Hillman, S., & Trevaskis, D. (2014). school law: Legal framework, guiding principles, and

litigated areas. Pennsylvania Council for the Social Studies. Retrieved from

http://pcssonline.org/products-page/textbooks/digital-book

Statement of Academic Honesty: I have read and understand that plagiarism policy as

outlined in the “Student Plagiarism and Academic Misconduct” document relating to

the Honesty/Cheating Policy. By attaching this statement to the title page of my paper,

I certify that the work submitted is my original work developed specifically for this

course and to the MSED program. If it is found that cheating and/or plagiarism did

take place in the writing of this paper, I acknowledge the possible consequences of the

act/s, which could include expulsion from the University of New England

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http://pcssonline.org/products-page/textbooks/digital-book


http://www.law.cornell.edu/constitution/amendmentxiv

http://www.law.cornell.edu/constitution/first_amendment

http://en.wikipedia.org/wiki/Equal_Educational_Opportunities_Act_of_1974

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