Dismissing the "Immoral" Teacher for Conduct outside the Workplace-Do Current Laws Protect the Interests of Both School Authorities and Teachers?
Fulmer, Jason R., Journal of Law and Education
I. INTRODUCTION-MORALITY: AN AGE OLD CONCEPT BEING CHALLENGED BY NEW APPROACHES TO EDUCATION
The old saying that teachers should practice what they preach is tested anew in today's classroom. Few school-related topics are hotter these days than "character education," a movement to teach students positive values! Recent polls indicated registered voters strongly support the idea that schools should share the responsibility with parents in teaching children moral principles.2 This growing demand for character education was evident in the recent 2000 presidential debates, and is now at the forefront of President George W. Bush's education agenda. "We want our schools to care about the character of our children. I am talking about communicating the values we share, in all our diversity, such as respect, responsibility, self-restraint, family commitment, civic duty, fairness, and compassion-the moral landmarks that guide a successful life."3
As expectations for students to be more moral continue to rise, there may be an increasing desire to evaluate the character of those who teach it. School districts displeased with teachers' non-conventional acts or habits, such as their sexual orientation or choice of living arrangements, have dismissed them, labeling their conduct "immoral" despite the fact the behavior occurred away from school. Few would dispute a school district's right to police teacher
behavior or language on school grounds,' but should schools demand teachers live their lives a certain way even while away from school?
Many questions arise when one approaches the subject of "morality," or the absence of "morality," or rather, "immorality." What is it? What conduct does it encompass? Is a teacher's sexual orientation a moral question? Should a school board be able to dictate what a teacher does in his or her spare time, or with whom he or she associates after the school house doors have closed? If the law permits inquiry into a teacher's morality, what limits, if any, should be imposed? Should the definition be different from community to community as toleration levels vary? This article will examine the competing interests of school districts in employing "moral" teachers and teachers' interests in privacy and lives detached from government control. This article will also discuss the constitutional shortcomings of current laws and new approaches being explored to address these concerns. Finally, this article will suggest that, as school districts' desire to inquire into a teacher's off-duty conduct increases, both school authorities and teachers should be aware that their power to inquire is not unlimited.
II. IDENTIFYING THE CURRENT BAR: WHAT TYPE OF CONDUCT IS PROHIBITED?
Long before the current movement towards character education, teachers were terminated for flaws in their character. While state codes vary as to the specific grounds for dismissal, teachers have been terminated, among other things, for "incompetency,"5 "insubordination,"6 "neglect of duty,"7 "sufficient cause,"8 "conduct unbecoming,"9 and "immorality."10 Typically, these words are broad and left undefined. For example, North Carolina provides that "No teacher shall be dismissed or demoted ... except ... for immorality."" Most of these broad provisions do not present a problem because of their inherent focus on conduct surrounding the teacher's job performance. "Incompetency," "neg
lect of duty," and "insubordination," by their very terms, merely state the principle that a teacher may be terminated for deficiencies in job performance. However, it is not as clear what conduct is required in order to terminate a teacher based on "immorality." This term has given courts, as well as teachers, difficulty in ascertaining exactly what conduct is prohibited.
Few jurisdictions expound on what warrants termination for being "immoral. …