Do as They Say: It's the Law: By Their Nature, Schools Are Places of Rampant Intellectual Discourse. but School Employees Rarely Have Leeway to Refuse Direct or Implied Orders from Higher-Ups

Article excerpt

In action movies, defiance is portrayed as a virtue. The fearless hero disobeys a direct order, proceeds to save the day, and is applauded for bravery, creativity, and rebelling against the limited vision of dimwitted superiors. Roll credits.

But, in real life, insubordination at work is rarely celebrated and often punished. To me, that assumption is both logical and reasonable. Public school districts have the legal right as employers to expect workers will faithfully comply with management directives. Refusing a direct command can yield disciplinary consequences, a job transfer, or even dismissal.

But that norm is also what makes the standardized test boycott by Washington state teachers so striking. In Seattle, a cadre of teachers in January 2013 refused to administer a district-mandated academic proficiency test to students. To them, it was a moral stand on behalf of children. Their action garnered national attention and widespread support in education circles.

A Feb. 9, 2013, story in the New York Times, explains the motivation. "We've tried testing again and again, and it hasn't worked," said Jesse Hagopian, a teacher at Garfield High School and a leader of the group. "It doesn't cultivate the type of thinking we need, and it doesn't bring in the resources that we need to make students successful."

Hagopian and colleagues say the Measures of Academic Progress (MAP) test is not worth the paper it's written on. Sympathizing teachers at Seattle's Ballard High School and a few other schools also joined the protest. As of publication time, the Seattle clash still had not been fully resolved. Garfield's principal and assistant principal oversaw student testing in early February. But some parents, siding with faculty, submitted opt-out forms for their children. The teachers, mean-while, face possible sanctions, and a superintendent-convened task force is reviewing the district's entire testing strategy.

Can employees say "no"?

The incident raises a larger legal question: Under what circumstances can an employee refuse to obey a supervisor's order? The answer: Proceed at your peril. Courts recognize only a few instances that justify saying an out-right "no."

Labor and employment statutes vary from state to state. But virtual uniformity exists in how state laws and courts treat the employer-employee relationship. Often using the archaic terms "master" and "servant," the law gives employers the right to control the actions of servants (workers) on the job. With only rare exceptions, plaintiffs must cross a high legal hurdle to demonstrate that noncompliance is justified.

Let's be clear. The ultimate trump card belongs to the servant. If an employee is dissatisfied with working conditions, he can simply vote with his feet and seek employment elsewhere.

In the case of the Seattle teachers, they collectively refused to give the tests because of a philosophical objection. Simply disagreeing with management's view, however, will seldom defeat the legal obligation to do what you're told.

A similar case decided by the Court of Appeals of Washington, Division #1 in 2011 could spell trouble for the group. It involved two teachers who refused on principle to administer federally mandated tests to six special education students. The teachers were suspended for 10 days without pay for insubordination. The court unanimously ruled in favor of the district.

Likewise, in Sims v. Board of Trustees, Holly Springs Municipal Separate School District, the Mississippi Supreme Court upheld the dismissal of a teacher for insubordination. That 1982 case established the state's definition of insubordination as a "constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority."

California's law opines that, "Implicit in the agreement of hire is the concept that an employee is subject to some degree of authority exercised by the employer or the employer's representative. …


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