Teachers are afforded several rights regarding their employment and are provided with certain freedoms and entitlements as well as prohibitions against discrimination and procedural protections from dismissal or termination from their employment. These rights are referred as the due process rights which are derived from the Fifth and Fourteenth Amendments of the United States Constitution.
The Fourth Amendment right safeguards the individual from possible actions of the State that would... "...deprive any person of life, liberty, or property, without due process of law...." (Perry, 2002, p. 3). Due process is defined as "the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial" (Webster, as cited in Perry, 2002, p. 15). While the Fifth Amendment also carries with it the same phrase, the difference is that the due process guarantee included in the Fifth Amendment applies to actions committed by the federal government while the Fourteenth Amendment applies explicitly to actions by the states. However, both rights imply the protection of an individual's due process rights from state actors rather than private entities.
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Due process: substantive and procedural
Public school teachers are protected against arbitrary deprivation of their liberty or property interests without due process. Due process has two aspects, substantive and procedural (Rapp, 2001). Substantive due process requires that there is justifiable ground or reason behind any deprivation or liberty or property interest. Procedural due process requires that the mandates procedures are followed before such liberty or property is deprived of an individual. The components of procedural due process include: a) notice; b) hearing; and c) appeal.
The substantive due process right demands a prohibition for arbitrariness. Before states can dismiss or terminate teachers from employment, "just cause" must be provided to merit such an action. The termination or dismissal of teachers should be accompanied by constitutional or statutory grounds. For instance, before a Pennsylvania public school teacher can be dismissed from employment, the state has to justify the action on either of the following grounds (Rapp, 2001): "1) immoral conduct or indecent behavior; 2) incompetency; 3) violations of ethical standards; 4) unprofessional conduct; 5) misrepresentation or fraud; and 6) willful neglect of duty" (p. 34). Moreover, under the substantive due process right, a teacher cannot be dismissed because of race, gender, or religious persuasion.
In Georgia, the Dismissal Law provides the grounds for dismissal of tenured and non-tenured teachers: "1) incompetency; 2) insubordination; 3) willful neglect of duties; 4) immorality; 5) inciting, encouraging, or counseling students to violate any valid law or school board policy; 6) reduction in staff due to loss of students or cancellation of program; 7) failure to secure and maintain necessary educational training; and 8) any other good and sufficient cause" (Essex, 2009, p. 75).
Procedural due process provides for the minimal procedural requirements of due process to be satisfied before a tenured teacher can be terminated. The U.S. Constitution demands that before a tenured teacher could be dismissed, the due process requirement must be satisfied. In the seminal 1985 case of Cleveland Board of Education v. Loudermill, the Supreme Court ruled that a tenured teacher is endowed with a property right that requires the state to satisfy minimum procedural requirements for due process (as cited in Essex, 2009). The High Court said that before being terminated, a teacher has to undergo not a full-blown hearing but a "pretermination hearing," a written or oral notice of charges lodged against him or her, an explanation of the evidence used as basis for such a charge, and the opportunity to present his or her side. Termination absent these conditions is violative of the due process rights enjoyed under the Fourteenth Amendment. Procedural due process regulations are given legal force not by the federal government but mostly by the states. States vary in procedural due process requirements and can be looked up in the state's Public School Code, case law, Board of Education regulations, and collective bargaining agreements (Rapp, 2001).
Due process rights of tenured and non-tenured teachers
The due process rights of tenured and non-tenured teachers in the public school are different. The basis for this difference is that the property interests of both classifications of teachers are different as well. The tenured teacher occupies a "permanent" position while the non-tenured teacher occupies a "temporary" position. While the substantive due process rights of teachers and non-tenured teachers are similar, their procedural due process rights are different. Tenured teachers are afforded more safeguards and protection from dismissal than non-tenured teachers. For instance, in Board of Regents v. Roth, non-tenured teacher David Roth was dismissed without notice or hearing from the Wisconsin State University in Oshkosh following what the university deemed improper conduct when Roth publicly criticized the University for dismissing several black students arbitrarily (Columbia Law School, 1973). Roth filed a suit against Wisconsin State citing violations of the Fourteenth Amendment's due process guarantees to a notice, hearing, and appeal. The District Court and the Court of Appeals ruled in favor of Roth, stating that his due process rights have been violated by the university when it failed to satisfy the minimum procedural requirements for due process. Upon appeal, the Supreme Court reversed the decision of the appellate court and upheld the decision of Wisconsin State, opining that the Fourteenth Amendment does not require a formal notice or hearing for the dismissal of non-tenured teachers or non-renewal of their contracts. Because, as the High Court opined, that employment in the federal government was a "privilege," the procedural due process rights afforded to permanent employees do not apply to temporary employees.
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Columbia Law School. (1973). Board of Regents v. Roth: Procedural due process rights of non-tenured teachers. Columbia Law Review, 73, 882-830.
Essex, N. (2009). School Law and the Public Schools: A Practical Guide for Educational Leaders. Boston, MA: Allyn and Bacon.
Perry, M. J. (2002). We the People: The Fourteenth Amendment and the Supreme Court. New York: Oxford University Press.
Rapp, J. A. (2001). Education Law. New York: Lexis Publishing.