Rights of Teachers

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Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

One of the teachers in my building is quite involved in political affairs and he regularly posts commentary on his blog. This week, however, I think that he went too far. Posting about the results of the recent election, he offered the observation that the mayor and entire political establishment in my town should be very worried because their days in control of town affairs are numbered. That was bad enough, but then he went on to recount a number of incidents in which the mayor had made mistakes and embarrassed himself. Unfortunately, I was not alone in my concern; the mayor’s assistant called me up to ask what I was going to do about this “disloyalty” by a town employee. I told him that it’s a free country and that the teacher has a right to express himself. The response from the mayor’s assistant, however, was concerning. He just responded curtly that he would report back to the mayor on where I stand.

I do believe that teachers do have free speech rights but, given the conversation with the mayor’s assistant, I thought that I should do something. I called the teacher down to the office and asked him in my most charming voice if he ever considered toning it down. I explained that the mayor tries hard and has a lot of influence. Maybe it would be better for everyone, I wondered aloud with him, if he would stop criticizing the mayor. The teacher was polite but non-committal. In any event, I was shocked to read in his next blog post his version of our meeting. There, he described how I had sought to “stifle” his “free speech,” and he declared that he would never be silenced.

Now I am mad. Can I discipline the teacher for publicizing a private meeting in which I simply counseled him that his obnoxious posts may not be worth the trouble they cause?

Thank you,
Righteously Indignant

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Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

I have been fortunate to be the principal in a school district that provides building substitutes and I have often been able simply to assign one of my two building subs to cover for an absent teacher without having to resort to the sub list. For example, early this year, one of my veteran teachers took seriously ill and, last October, I assigned a building sub to that class to cover for the teacher. Happily, the teacher is regaining his health, and he will return to work next fall. Given these circumstances, the building sub will continue covering the class until the end of the year.

My question has to do with the building sub. Fortunately, he has his teaching certification, and he has done a great job covering the class this year. Unfortunately, the powers that be have told me that the district can’t afford building subs next year and so the sub is out of a job. We do have a vacancy for next year because another teacher has resigned for retirement purposes effective at the end of the year; and, the sub has asked me for a recommendation as part of his application for the position. I think he is great, but I don’t want to exercise favoritism in the hiring process. Rather, in this competitive environment, I want the district to find the best candidate for the vacancy.

Do you think that I can gracefully decline this request?

Thank you,
Principally Polite

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Less than one week after the Second Circuit Court of Appeals held that Title VII’s prohibition on sex discrimination bars discrimination on the basis of sexual orientation, the Sixth Circuit Court of Appeals issued its own landmark Title VII decision finding that the antidiscrimination statute prohibits discrimination against transgender or transitioning individuals even where an employer’s religious exercise may be substantially burdened.…
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Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

As the principal in my building, I try to give teachers some space, so I don’t often stop by the teachers’ lounge. But yesterday I did so, and now I have a question. The teachers were chatting animatedly about the planned National School Walkout on March 14 to protest gun violence. One of the teachers announced grandly that he would be walking out of class at exactly 10:00 a.m. that day and that he would be encouraging his students to follow suit. The room got quiet, however, when I asked him rhetorically where he was planning to work starting on March 15. Then, after a minute’s reflection, the teacher became somewhat aggressive, and he pushed back, claiming that he has a right under the First Amendment to participate in the protest.

I am not proud to admit that then we got into it. In a condescending tone, the teacher cited a couple of Supreme Court cases about free speech and “comment on matters of public concern.” I responded by telling the teacher that he could protest sixteen hours a day, but not when he is being paid to teach. At the end of this brief and somewhat antagonistic exchange, the teacher told me that we would have to agree to disagree.

I don’t want to agree with this teacher on anything. Is he correct in his claim that he has the right under the First Amendment to walk out on March 14?

Thank you,
Old School

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Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

As the principal of a middle school, sometimes I feel more like a referee than an educator. Recently, I have received a number of complaints from teachers about one seventh grade biology teacher “hogging” the copier. It seems that she is constantly copying worksheets and other materials. Other teachers are having problems every morning making their own copies because this teacher gets to the copier early and stands there making hundreds of copies every morning.

Being a good principal, I met with her to discuss her copying practices. She was rather dismissive, asking me if I had ever taught biology. She claims that the textbook is woefully inadequate and that she must supplement the textbook extensively to teach her students appropriately. I asked her to show me what she meant, and she shared a number of articles and worksheets that she has gathered from other sources for just that one day of instruction. She claims that it is necessary for her to copy 30 to 40 pages of materials each day for her 100+ students. To make matters worse, she warned me ominously that, since she has been making this large number of copies every day since the beginning of the year, she is now protected by “past practice,” and I cannot impose restrictions now.

Am I stuck?

Thank you,

Copying Conundrum

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200412024-001On June 17, 2015, Connecticut’s Attorney General issued an opinion concerning the “statutory limits on the compensation provided to reemployed teachers (including superintendents and other administrators) pursuant to Conn. Gen. Stat.§ 10-183v(a).” Based on his analysis of the language of Conn. Gen. Stat. § 10-183v, the Attorney General concluded “that a teacher may be reemployed pursuant to Conn. Gen. Stat. § 10-183v(a) while receiving a retirement benefit from the [Teachers’ Retirement] System, but he or she may not receive compensation beyond ‘forty-five percent of the maximum salary for the assigned position.’”

Following the Attorney General’s opinion, the Teachers’ Retirement Board (TRB) released guidance concerning its interpretation and plans for implementation of provisions concerning the reemployment by school districts of retired teachers, in the form of a “Questions and Answers” publication, dated July 27, 2015. This client alert reports on how TRB will now be implementing reemployment provisions for retired teachers, administrators and superintendents (note that when the terms “teacher” or “teachers” are used in this Client Alert, the term includes certified administrators and superintendents).

The Attorney General opinion and the recent TRB guidance will significantly change the manner in which school districts may employ TRB retirees under the 45% rule. While this Client Alert provides a summary of the most significant changes, school districts are advised to consult counsel with specific questions related to the reemployment of specific individuals.

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