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. 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.
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.
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. 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. 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.
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. The National Labor Relations Act expressly prohibits employers from imposing disciplinary action on employees for engaging in concerted activities. 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.