Bob Bombast was reading the newspaper one evening when the telephone rang. Pamela Parent, who has a daughter attending the Median Middle School in Nutmeg, had disturbing news for him. The parent reported that her daughter told her that a teacher in the school has a MySpace.com account, with the screen name PartyGurl. Bob was skeptical, but intrigued, and he asked the parent to identify the teacher. The parent told him that her daughter claimed not to know exactly which teacher it was.
Bob vowed to find out, and he told Pamela that he would get back to her. Bob then called newly-elected Board member, Eager Beaver, and asked for help. As the mother of a fourteen-year-old daughter herself, Eager already had a fake MySpace account, and was adept at surfing the MySpace accounts to keep a surreptitious maternal eye on her daughter.
It did not take long for Eager to track down the rumor. The next day, she called Bob with the news that PartyGurl was the nom-de-Internet of Patty Perky, a first year teacher at Median Middle School. Eager also told Bob that PartyGurl’s homepage on MySpace had references to alcohol and some pictures that might make even Ms. USA blush. She and Bob quickly decided that they had to do something.
Bob asked Eager to wait on the line, and he placed a conference call to fellow board members Penny Pincher, Red Cent and Ms. Chairperson. Bob explained their findings to the other Board members, and he implored them to make Ms. Perky an example for all teachers. There was consensus that Patty had to go, but Ms. Chairperson told Bob that she was not comfortable with the Board getting directly involved at this point. The Board members agreed that Ms. Chairperson would tell Mr. Superintendent about their discovery and tactfully tell him that they expected to see Ms. Perky on the non-renewal list later this month.
Ms. Chairperson shared this news with Mr. Superintendent, who then promptly called Patty in for a little talk. When he mentioned her MySpace.com account, Ms. Perky asked whether she should have union representation. Mr. Superintendent told her not to bother because he was just collecting information.
Patty then acknowledged that she’s had a MySpace account since college, and she asked what the problem was. Mr. Superintendent then told her that her webpage was highly inappropriate, with its references to drinking and "indiscretions." Patty apologized, stating that she had not looked at the account in months, and she promised that she would take the page down immediately. Mr. Superintendent told her, however, that the Board had already decided that she had to go. At that point, Patty said that she would not be bullied, and she left the meeting.
Mr. Superintendent subsequently brought a recommendation for non-renewal to the Board, and the Board so voted. However, when she received written notification of the Board’s vote not to renew her contract, Patty requested a hearing before the Board of Education on the non-renewal. Now what?
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The Board has several problems. The main problem is that the Board members did not understand that they should not get involved in the investigation of potential teacher misconduct. As chief executive officer of the board of education, the superintendent is responsible for supervising teachers. Accordingly, if there is a problem with a teacher’s conduct or performance, the superintendent is responsible for investigating and for recommending non-renewal or termination where appropriate.
By contrast, board of education members must stay out of such issues. Before attaining tenure, teachers have no right to expect continued employment, and the superintendent is free to decide whether they will be offered reemployment. If not, the superintendent recommends non-renewal. At this point, the board votes not to renew the teacher’s contract, with no evidence or discussion of the case. Any hearing on the merits comes only if the teacher requests a statement of reasons and a hearing.
The Teacher Tenure Law is very specific about the role that board members must play in a hearing concerning the non-renewal or termination of teacher contracts. If the non-tenure teacher requests a hearing, the role of the board of education is limited. The statute provides that the decision of non-renewal shall be affirmed unless it is "arbitrary and capricious." Therefore, when the superintendent can show that the non-renewal decision has some reasonable basis, the board should affirm the decision.
This lax standard notwithstanding, the statute does give non-tenured teachers the right to due process, and there is a difference between some due process and none. One of the elements of due process is a decision by an impartial decision-maker. Here, Patty Perky is subject to non-renewal for any legitimate reason, but she could have a due process claim. Given the impartiality required as a part of due process, board members should not get directly involved in any teacher employment issues unless and until it comes to them in the proper forum. Where a board member hears a concern, he or she should simply refer it to the superintendent for review. The problem here is that the board members who would hear Patty’s case were anything but impartial – a majority of the board was instrumental in effecting the non-renewal of her contract.
Patty has another claim against the Nutmeg Board. When Bob had the conference call with his Board colleagues, a quorum was convened by electronic means to discuss a Board issue. That communication was an illegal meeting of the Board, because it was neither posted nor accessible to members of the public, including Patty.
Patty also has a potential claim against Mr. Superintendent. A teacher is entitled to union representation upon request whenever he or she reasonably fears for his or her job security, even if the supervisor is simply "gathering information," as Mr. Superintendent claimed. He should have terminated the interview or provided Patty with union representation; he should not have gone forward with the interview.
Finally, this case does present one difficult legal issue. Teachers are role models, and misconduct may result in their non-renewal. The courts have also ruled, however, that teachers have constitutional rights to live their lives without undue interference from school officials. It is not always easy to sort out where a teacher’s privacy interests end and legitimate school interests begin. Here, Patty’s offer to take down the webpage appears to be an appropriate response to this situation. Non-renewal or termination for off-site conduct would typically be appropriate only if that conduct significantly impairs the teacher’s effectiveness.
Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.