
Can school districts can force teachers back to in-person
teaching?
Due to the COVID-19
pandemic and ever-improving virtual meeting technology, American teachers are
facing a proliferation of new modalities by which students can be educated.
School districts are under ever more pressure to make challenging decisions
that balance responsibilities under the law, interests of the students and teachers’
personal rights and safety. Ad COVID-19 cases fall, vaccinations rise and
people get more used to the idea of living with COVID as a reality of life,
more jurisdictions are requiring or considering requiring teachers to return to
in-person classrooms under threat of disciplinary action.
Across the country,
some teachers are threatening to strike, sue, or take other legal action to
slow or prevent transitions back to in-person learning.[1] This legal action begs the
question of whether school districts can legally force teachers back into their
classrooms under threat of losing their jobs.
Because our
educational policy recognizes the importance of creative and intellectual
freedom in the classroom, most teachers enjoy special protections that prevent
them from being dismissed without cause. Some states with tenure laws allow the
involuntary dismissal of a tenured teacher only based on a limited number of
causes. These teachers are entitled to extensive due process that concludes
with reinstatement if post-dismissal hearings find that the school board failed
to show cause.[2]
Some state tenure
statues provide a list of specific circumstances meriting cause for dismissal
of a teacher. Common causes for dismissal include illegal or immoral conduct, incompetence,
negligence of duty, fraud or misrepresentation and insubordination.
If a teacher is a
member of a union, he or she may enjoy even greater job protections. When a
school district decides to terminate a unionized teacher, the union may intervene
in the process on behalf of the teacher. The union may file a grievance
alleging a contractual violation or some other issue with the dismissal.
Sometimes, school districts will withdraw decisions to terminate in response to
the grievance, and other times these cases move to arbitration or administrative
courts.[3]
Most statutes include a
catch-all provision that allows teachers to be dismissed following contractual
and constitutional due process for any “good” or “just” cause. This has created
a substantial degree of discretion in teacher dismissals. For-cause dismissals
can generally withstand legal challenges as long as the showing of just cause
is sufficient to provide the terminated teacher fair notice of the circumstance
leading to the dismissal.[4] The question then becomes
whether a teacher be dismissed for insubordination or another
legally-recognized caused for refusing to a working environment the teacher considers
unsafe.
Because
insubordination is generally recognized as a just or reasonable cause for
teacher dismissal, it is reasonably foreseeable that a teachers’ refusal to
return to an in-classroom setting could result in being terminated. As many
schools work hard to return to in-person classroom teaching, however, some
teachers are pushing back against district mandates. In January, the Broward Teachers
Union filed a lawsuit against its school district seeking an injunction to
prevent the district from forcing teachers with serious medical conditions to
return to classrooms.[5] While this lawsuit plays
out in Florida’s courts, school districts in other areas are going on the
offensive.
A school district in
New Jersey filed a lawsuit against the local teacher’s union over delays in
in-person teaching. The Montclair School District has been in talks with the
teacher’s union after the district was forced to delay its switch from
all-remote-learning to a hybrid model because the district could not find
enough teachers to return to class. The suit sought an injunction requiring
unionized teachers to return to work, but the first hearing in the case was
decided in favor of the teachers. Citing the district’s inability to prove that
classroom learning is safe, the judge ruled that an injunction would not be
appropriate.[6]
Like other employees,
teachers are protected under the National Labor Relations Act. This law affords
covered employees workplace rights, which include freedom to engage in both
unionization activities and non-union “concerted activities.” Concerted
activities include any circumstances in which two or more employees take action
for their “mutual aid or protection,” such as discussions over workplace safety
issues.[7] The National Labor
Relations Act expressly prohibits employers from imposing disciplinary action
on employees for engaging in concerted activities.[8] Any resistance to
in-person teaching taken by two or more teachers within a particular district is
likely to qualify as a concerted activity protected federal workplace
protection laws as long as the action was taken pursuant to the teachers’
mutual aid or protection from harm.
Although an increasing
number of districts and teachers’ unions across the nation are facing a threat
of litigation over the issue of whether teachers can be forced to return to in
person classroom learning environments, one fact remains clear: teachers are
entitled to safe working conditions. Unless and until school districts can
prove that in-person learning is safe, it is unlikely that they will be able to
use the courts to force teachers back into their classrooms.
[3] https://www.the74million.org/article/analysis-when-unions-dont-protect-teachers-jobs/#:~:text=It%20is%20very%20rare%20for,excessive%20absences%2C%20among%20other%20offenses.
[5] Broward Teachers Union Local 1975 v. Broward County Public Schools, Broward County 17th Circuit Court No. 119234163 (Jan. 7, 2021).