TEACHER RIGHTS AND LIABILITY:HELPING TEACHERS AVOID TROUBLE ON THE JOB
Judith Neumann, Esq. (Revisions by Matthew D. Jones, Esq.),MTA Division of Legal Services
A. Getting physical with students, whether for disciplinary purposes or as a form of sexual abuse or harassment, can expose a school employee to criminal charges and/or a “51A” report, as well as civil liability and suspension or discharge, especially if the circumstances suggest that the teacher behaved unreasonably or with intent to frighten or injure.
B. It's always in the employees' interests to get management authorization and guidance on issues of disciplining students, interfering in student fights, attending to students' medical or physical needs, and any unusual or off-site activities. Ask for guidance about employer's expectations, in the form of in-service programs, developing school committee policies, written “permission slips” and forms, or administrative directives.
C. Because of statutory immunities and NEA liability insurance, MTA members need be less concerned about civil liability than about possible disciplinary consequences of their conduct.
D. Policies and directives regarding employee conduct are generally mandatory subjects of bargaining. The Association can be helpful in clarifying the employer's expectations regarding a teacher's responsibilities in breaking up fights, administering medications, driving students in one's personal vehicle, etc.
II. CHAPTER 258: STATUTORY PROTECTION AGAINST LIABILITYA. G. L. c.258, § 2 frees teachers and other public employees from liability for accidental injuries occurring “in the course of their employment.” This law also provides that the employee will be represented by a “public attorney” if a claim that is covered by the statute is brought against the employee. The court has construed “in the course of employment” to mean “in furtherance of the employer's work.” (Clickner case, 1996).
B. This immunity is conditioned upon the employee cooperating with the employer in investigating and defending claims of negligence.
C. Because this immunity only pertains to activities undertaken within the scope of your employment, it is wise (though not always necessary) to have the employer clearly and in writing authorize or direct activities that involve leaving school premises, transportation in your vehicle, giving medications, intervening in fights, and other activities that are outside the normal classroom routine. The idea as much as possible is to have the administration assume responsibility for these decisions.
D. Intentional Torts. The law does not shield you from liability for injuries that you may cause recklessly or intentionally. But it does allow your employer to indemnify you for many of those injuries and this extra indemnification sometimes is negotiated into the contract by the union.
E. Civil Rights Violations. The statute does not immunize teachers from liability for violating another individual's civil rights. Sexual harassment, for example, could be viewed as a civil rights violation. As with intentional torts, Section 9 of the statute allows the school district to agree to indemnify its employees for civil rights violations, unless a teacher is proven to have been “grossly negligent, willful or malicious” in violating another person's civil rights. (The NEA liability insurance policy provides up to $300,000 worth of defense, settlements or judgments for proceedings involving civil rights. See Q's and A's on NEA Liability Insurance. Please note that the exact limits of coverage are determined only by the terms of the policy between the MTA and the insurer.)
F. School District Liability. The school district will be liable for an employee's negligence and the employee must cooperate in defending such a lawsuit. The school district is not liable for an employee's unauthorized actions or intentional torts. However, the school district might be sued for negligently supervising an employee who engages in such activities. Doe v. Blandford, 402 Mass. 831 (1988) (school district liable for failing to properly hire, supervise and control a guidance counselor who committed indecent assault and battery upon the plaintiff, a child).
G. Note: Disciplinary Consequences. Even if a teacher is immunized for damages arising out of a particular incident, the employer may still impose discipline upon the teacher for his actions. In that case, the teacher would have the same rights as any other teacher facing discipline for job-related issues.
III. ASSAULT AND BATTERY IN A SCHOOL CONTEXTA. Definition. “Assault” occurs when a person intends to hurt or scare someone and causes that person to believe that s/he is in danger of immediate harm. “Battery” occurs when someone intends to touch or hurt a person, without that person's consent, and does so.
B. When the Teacher is Accused
1. Corporal punishment is prohibited (G. L. c.71, § 37G). But the law does allow teachers to use “such reasonable force as is necessary to protect pupils, other persons, and themselves from an assault by a pupil.”
2. Criminal proceedings. Any unwelcome physical contact could amount to “battery,” but, while the police may investigate and question a teacher, the district attorney is unlikely to prosecute unless the circumstances are relatively serious.
3. If an Association member has been or is concerned that he may be accused of assault and battery, steps should be taken to:
a. Notify the administration and try to have the school nurse verify the injury.
b. Obtain legal assistance through the MTA's Legal Services Policy before the member discusses the situation in detail with any non-attorney. This is because the “attorney-client privilege” only applies to conversations between an attorney and the member.
4. The member is entitled to be represented by an MTA attorney during any questioning by the employer, police, and/or DSS investigator.
5. Sometimes the student or parents bring a criminal complaint even where the police have not done so. In this case a “show cause” hearing will be held before a magistrate at which the member is entitled to be represented by an MTA attorney.
6. If a criminal complaint issues against the member, the MTA Legal Services Policy will provide up to $5000 in attorneys' fees and costs. If the member is exonerated, the NEA's Liability Policy will pay for up to an additional $30,000 in legal fees and costs. If the assault arises out of a corporal punishment situation, the NEA's policy will provide attorneys' fees regardless of outcome.
C. When the Teacher is the Victim
1. The Education Reform Act buttressed a school district's obligations to provide a safe work place for staff.
a. For example, students in possession of dangerous weapons or certain drugs and students who assault staff members may be subject to expulsion. (G.L. c. 71, § 37H).
b. School districts must publish student and teacher conduct policies and those policies must include “standards and procedures to assure school building security and safety of students and school personnel.” (G.L. c. 71, § 37H).
c. The law requires that “any school department personnel shall report in writing to their immediate supervisor an incident involving a student's possession or use of a dangerous weapon on school premises at any time.” G. L. c. 71, § 37L.
d. The law also allows a principal to suspend a student charged with a felony, whether or not school-related, and to expel that student upon conviction, after affording certain due process rights set forth in the statute. M. G. L. c. 71, § 37H-1/2.
2. Federal law also requires a school superintendent to expel for at least one year any student who has brought a firearm to school.
3. A member who has suffered an assault at work can ask the police to bring charges and/or can file and assault and battery charge on their own against the student. At the “show cause” hearing, the member is entitled to be accompanied by an MTA attorney.
4. G. L. c.265, § 13D, applies a more strict penalty to students and others who are convicted of assaulting a teacher or other school employee while on duty. It provides for imprisonment of not less than 90 days and a fine of $500.
5. Parental Liability Law. M. G. L. c. 231, §85G makes parents liable within limits for the willful acts of their minor children that result in injury, death, or property damage, although recovery is limited to $5,000. Sometimes teachers file such actions in small claims court, where the recovery is limited to $1,500.00, but no attorney is necessary and the relaxed atmosphere is more conducive to amicable resolution.
6. Threats to Commit a Crime. The law (c.275, § 2) permits a person who has been the victim of a threat to commit a crime against his person or property to file a complaint in court, leading to an investigation (probably by a magistrate) about the circumstances of the threat and perhaps the issuance of a complaint.
IV. “CHILD ABUSE” REPORTING LAW (51A).A. Remember that the focus of a “51A” report (filed pursuant to M. G. L. c. 119, § 51A) is to identify children at risk and intervene where necessary. The DSS file is in the child's name.
B. Definition of “Abuse.” “Abuse” means the non-accidental commission of any act by a caretaker (which can include teachers and other school employees) upon a child under age 18 which causes, or creates a substantial risk of, serious physical or serious emotional injury, or constitutes a sexual offense under the laws of the Commonwealth.” 110 CMR 2:00(1).
1. “Serious Emotional Injury” means an impairment to or disorder of the intellectual or psychological capacity of a child as evidenced by observable and substantial reduction in the child's ability to function within a normal range of performance and behavior.” 110 CMR 2:00 (46).
2. “Serious Physical Injury” means (a) death; or (b) fracture of a bone, a subdural hematoma, burns, impairment of any organ, and any other such non-trivial injury; or (c) soft tissue swelling or skin bruising depending upon such factors as the child's age, circumstances under which the injury occurred, and the number and location of bruises; ... .” 110 CMR 2:00 (47).
3. Sexual abuse involves molestation, incest, and sexual exploitation.
4. Neglect includes abandonment, denial of medical care, nutritional deprivation, lack of proper food/clothing/hygiene, exposure to health hazard, permitting chronic truancy or failure to enroll child in school.
C. Teacher as accused perpetrator.
1. A charge of child abuse may be filed by anyone and there is no liability from making such a charge if it is made in good faith. If a parent or guardian brings allegations to the attention of school district administrators or other mandated reporters such as other staff members, the administration must investigate and, where the allegations appear to have validity, must file a report with DSS.
2. If the conduct of an Association member is under investigation by the Department of Social Services for alleged child abuse under “§ 51A,” the member is entitled to an MTA attorney throughout such proceedings.
3. Note that, apart from the DSS proceedings, the member could be subjected to discipline by the employer and, in that event, would be entitled to representation just as in any disciplinary proceeding.
4. How the process works. If the 51A report survives an initial screening at DSS, the DSS will investigate by interviewing the alleged victim and other “witnesses,” including the accused perpetrator. The investigator will prepare a report recommending that the allegations be “unsupported” or “supported.” If “supported,” the DSS may keep the case open for a while and offer services to the child. Where DSS finds the allegations “supported” and believes there is reason to protect the child from the alleged perpetrator, DSS may enter the perpetrator's name in the “Central Registry.” The perpetrator has a right to a “fair hearing to challenge this decision.
5. The courts have overturned two DSS designations of individuals as “alleged perpetrators” in the Central Registry, on the ground that the DSS determination was based upon evidence that was not credible, was exclusively hearsay, or was otherwise insubstantial. The Court noted that such a designation was “likely to cast a shadow over the person concerned indefinitely.” Arnone v. Comm'r of DSS, 43 Mass. App. Ct. 33 (1997); see also Edward E. v. DSS, 42 Mass. App Ct., 478 (1997).
D. Teacher as “Mandated Reporter.”
1. What triggers the reporting requirement? "Reasonable cause to believe that a child under 18 is suffering serious physical or emotional injury resulting from abuse inflicted upon him," including sexual abuse, neglect, or malnutrition.
2. When should the report be filed and with whom? "Immediately," by oral communication to the person in charge of the school (usually, the principal), or to the Department of Social Services (DSS). The person in charge of the school has the responsibility of filing a written report with DSS within 48 hours.
3. Must the report reveal the identity of the person making the report? Yes, the statute specifies that the mandated report must indicate "the name of the person or persons making such report," among several other mandatory items of information. However, the reports themselves are confidential and the law specifies that "[w]henever [DSS] releases any copy of a 51A report or 51B investigation, the name of (and any other reasonably identifying data concerning) the reporter shall be redacted." 110 CMR 12.10(6).
4. What liability could a teacher have for filing a 51A report? The law clearly protects mandatory reporters (such as teachers) from civil or criminal liability for filing the report (unless, of course, the person who filed the report was also a person who inflicted the abuse). Moreover, the statute specifically precludes an employer from disciplining or retaliating against a teacher who makes a 51A report in good faith.
5. What if a teacher fails to file a 51A Report? A teacher who fails to perform a duty that is required by his/her job may be assessed the statutory fine of “not more than $1,000.” (G.L. c. 119, § 51A). S/he also risks discipline, on the one hand and potential civil liability on the other. However, usually such a failure is a “judgment error” on the part of the teacher, and in all likelihood the teacher (though not the school district) would be indemnified for civil liability under Chapter 258, as discussed above.
A. Corporal Punishment is Outlawed, as discussed earlier.
B. Physical Restraints and “isolation.” Some situations require adults to physically restrain students in order to prevent harm to themselves or others. Whether the teacher has acted appropriately will depend upon a case-by-case determination of the circumstances and the “reasonableness” of the teacher's conduct. However, some guidelines can be suggested:
1. School systems must have physical restraint policies. In 2000, G.L. c. 71, § 37G was amended to require the state Board of Education to issue regulations to govern the use of restraint on students in all Massachusetts public education programs. Those regulations appear at 603 CMR 46.00, et seq. The highlights of the regulations are as follows:
-“Restraint” is the use of bodily force to limit a student’s freedom of movement. Touching or holding a student without the use of force (such as physical escort or touching during instruction) is not a “restraint.” 603 CMR 46.02 (3).
- Restraints may be used when non-physical interventions are not effective and the student’s behavior “poses a threat of imminent, serious physical harm to self and/or others.” 603 CMR 46.04 (1)
- School districts must have written restraint procedures, train all staff in restraint procedures and provide in depth training to certain, identified staff. 603 CMR 46.03.
- Staff must orally (as soon as possible) and in writing (by the next school work day) report use of restraints to administration. The administration must orally (as soon as possible) and in writing (postmarked no later than three school working days) report use of restraints to parents. 603 CMR 46.06(2) & (3).
- Restraints that result in a serious injury to a student or staff member or “extended restraints” (a restraint lasting more than 20 minutes) must be report at DOE. 603 CMR 46.06(5).
- Restraints administered according to an IEP or 504 plan can be used for other than safety reasons. 603 CMR 46.07(1)
- Parents may waive the basic reporting requirements, but cannot be coerced to do so. 603 CMR 46.07(2).
2. Ask the administration for guidance, consistent with the DOE requirements, in the form of policies, directives and further training. The Association can bargain over the content of such policies and in-service programs. As much as possible, try to obtain administrative intervention early in the process of handling a disruptive student.
3. If administrative directives or policies are issued, follow them!
4. If the child is a SPED student, and is known to have behavior problems, the IEP should address the issue thoroughly, such as providing for a classroom aide, providing for psychological and/or behavioral services, describing the form of physical restraint and/or isolation that may be applied and the circumstances in which it should be applied, setting forth protocols to follow in case of disruptive behavior, and otherwise providing for the security of the classroom teacher and the other children. Regular education teachers should try to participate in Team process and the formulation of the IEP to make sure their concerns are addressed. An IEP that does not adequately address how to handle a special education student with behavioral issues does not provide the student a “free and appropriate public education, as the law requires.
5. Can the teacher be liable for failing to follow the IEP? Yes, but this is more of a theoretical possibility than an actual threat. The failure of a school employee to implement an IEP could theoretically constitute discrimination against a student under Section 504 and the ADA for which the employee could be held liable. However, in order for failure to comply with special education requirements to constitute a violation of the ADA or Section 504, the failure must involve “bad faith or gross misjudgment.” Dohmen v. Three Rivers Public Schools, 207 F.Supp. 972, 990 (D. Neb., 2002); cf., Andrew S. v. School Committee of Greenfield, 59 F.Supp 2d 237, 244 (D. Mass., 1999). For example, under this standard, the complete failure to provide special education to an eligible student might constitute “bad faith or gross misjudgment,” but disagreements about the appropriate placement for a special education student or the failure to completely or ideally implement an IEP would not result in liability. See, School Committee of Greenfield, supra at 246 (even though school district was ordered to implement better training for personnel in autistic child’s placement, district’s violation of special education requirements did not rise to “bad faith or gross misjudgment.”). Thus, it is highly unlikely that the typical difficulties that arise in implementing IEPs would result in individual liability for teachers under Section 504 and the ADA. If the teacher or other service provider is attempting in good faith to implement the IEP, there should be no realistic concern about individual liability under Section 504 or the ADA.
6. Similarly, claims for damages under a federal civil rights law (Section 1983) are theoretically possible, but usually not a realistic concern because of the doctrine of “qualified immunity.” Under that doctrine, public officials who carry out executive or administrative functions, including teachers, are protected from personal monetary liability so long as their actions do not violate “clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed. 2d 396 (1982). Thus, a teacher or administrator could be liable for damages under Section 1983 only for blatant IDEA violations, for example, suspending a special education student without complying with the procedural safeguards in the IDEA. The many gray areas of special education are unlikely to give rise to liability under Section 1983. For example, the nuances of whether a particular placement is appropriate, where the school system is attempting to provide an arguably appropriate placement, would be unlikely to lead to Section 1983 liability. Similarly, the failure to consistently implement every detail of an IEP would be unlikely to lead to liability. On the other hand, a complete, willful failure to provide a service called for in an IEP (e.g., not providing any speech therapy even though it is called for in the IEP) probably would create liability for damages under Section 1983. The liability in this example would probably rest with the administrator who is responsible for seeing that services called for in IEPs are provided.
C. SPED Students: Do special rules apply?
1. YES! Both federal and state special education laws strictly regulate the situations in which special needs students may be excluded from school. Because of changes in federal law (the “Individuals with Disabilities Education Act” or “IDEA”), DOE has updated its guidelines on disciplining SPED students. This information can be found on the DOE web site (http://www.doe.mass.edu/).
2. Students whose special needs include behavioral needs that could lead to disruptive or violent conduct must have those needs identified and addressed in the IEP. This should include a behavioral intervention plan -- including a consideration of what alternative educational settings would be appropriate if needed -- for students for whom problematic behavior is an issue.
3. A SPED student may be excluded (including suspended) even over a parent's objection. If a student is exclusion for more than ten cumulative days in a school year, the school must place the student in an appropriate alternative setting that will continue the child's education. The exclusion may not last more than ten school days, unless it is for carrying a weapon to school, for using or possessing illegal drugs at school, or because his presence at school is “substantially likely to result in injury” to himself or others. In those circumstances, the student can be excluded for up to 45 days.
4. Federal and state law require the school districts and the IEP teams to engage in certain timely assessments and interventions where SPED student discipline is an issue.
5. Making sure these regulations are complied with is the school administration's responsibility. However, the staff members are responsible for knowing what the student's IEP contains and following those requirements.
6. Where the IEP does not seem to be effective in managing the student's behavior, staff members should promptly bring this concern to the attention of school administrators and the student's team liaison. The staff member can ask that the IEP team reconvene, although this decision would remain in the hands of the administration, unless there are local school district policies that provide otherwise.
A. Breaking Up Student Fights. Essentially, with or without a specific directive to intervene in a fight, a teacher who accidentally injures a student while responding reasonably (or who allows a student to be injured by failing to intervene) would be protected from liability under Chapter 258. Nonetheless, the more guidance from the administration the better, in terms of defining when and how a teacher is expected to respond. To a large extent, the Association would have a right to negotiate over the content of these policies or protocols.
NOTE: The “Good Samaritan” Act, G. L. c.72, § 55A immunizes public school employees from civil liability where they have rendered “emergency first aid or transportation” to “injured” or “incapacitated” students. This law does not require a teacher to intervene. However, a school district might require such intervention by policy or directive.
B. Members accused of Sexual Harassment.
1. Sexual harassment is a form of sex discrimination that violates both state and federal law. There are two kinds:
a. “Quid pro quo” harassment, which occurs when a school employee explicitly or implicitly conditions a privilege, a benefit, a grade, an evaluation, or other services upon another person's submission to sexual advances
b. “Hostile environment”, which occurs when a person is the victim of severe or pervasive physical or verbal acts of a sexual nature that impair his or her ability to work or learn. This can take the form of sexual insults and name-calling, off color jokes, intimidation by words or actions, offensive touching, and pressure for sexual activity. A person who is not the target of the sexually offensive behavior, such as another student in the class, could be the victim of the “hostile environment” that is thereby created.
2. It is more likely that the employer, rather than the individual employee, will be sued for sexual harassment that is committed by teachers at school, whether it is against students or other staff members. However, sexual harassment could be viewed as a civil rights violation, in which case Chapter 258 does not indemnify the individual employee. Moreover, it is possible, although not clear, that an individual employee could be the subject of a discrimination charge at the Massachusetts Commission Against Discrimination (MCAD).
3. If a member is sued for sexual harassment, the NEA's legal services policy will provide a defense and, if the offense is categorized as a “civil rights” matter, the member is insured for up to $250,000 in damages assessed against him/her.
4. If a member is disciplined by the employer in a member vs. member situation, the local union usually must investigate and make a reasoned and good faith determination about which member's claim to support. Usually an accused member will be provided representation at least through the employer's investigation.
C. Handling Sensitive or Confidential Information from Students. It is difficult to offer general comprehensive guidance about how school personnel should handle sensitive information disclosed by students. As discussed in the preceding section, “51A” requires a staff member to report information indicating serious physical or emotional abuse. M. G. L. c. 71, § 56, also requires school officials to notify parents or guardians “if any child is found to be suffering from any disease or defect, or if any child is found to have any defect or disability requiring treatment.” At least arguably, this requirement applies to information about pregnancy, alcoholism, sexually transmitted diseases, and suicidal suggestions or intentions. Staff should also keep in mind that the law protects the privacy of student records, which may not be disclosed to anyone besides the student and his/her parents without written consent. M. G. L. c. 71, § 34D; 603 CMR 23.07. Health care workers must also keep confidential any information they receive about venereal diseases and HIV status. M. G. L. c. 111, §§ 70F and 119. Revelations about sexual harassment can be particularly difficult for staff members to handle, especially if the harassment does not amount to “abuse” under “51A.” Many school districts have sexual harassment policies that require staff members to inform school administrators about incidents of harassment, so that the school district can intervene. Guidance counselors, in particular, may wish to avoid overly broad promises of confidentiality to students that they may not be able to fulfill.
D. Employees Called as Witnesses. Generally members will find that they do not need MTA legal assistance in situations where they are called as witnesses in connection with a suit against the school district, such as SPED appeals, defending against negligence lawsuits, or defending against discrimination charges. This is because the teacher is not a “party” to the proceeding and his/her interests are generally protected by the attorneys for the actual parties.
However, teachers sometimes fear that their testimony may give rise to disciplinary proceedings against them. While teachers must fulfill the obligation to be completely truthful while testifying, the union may be able to assist the teacher beforehand by obtaining assurances from the employer that no disciplinary consequences will flow from the teacher's testimony.
E. Transporting Students in Personal Vehicles.
1. In order to obtain the protection of Chapter 258, it is best to obtain written permission or directives from administrators and parents before transporting students off school grounds, especially in personal vehicles. Naturally, ad hoc situations may arise, where staff members simply must exercise good judgment about transporting students and where permission cannot be obtained, as a practical matter. In all likelihood, the teacher's private auto insurance would provide coverage in those situations.
2. If staff members find that they must routinely transport students in personal vehicles, then (1) written authorization should be obtained; (2) the staff member should consult with his/her auto insurance agent about coverage; and (3) the Association may wish to negotiate for the school district to pay any additional premium costs. (Note that the NEA liability insurance policy does not normally cover operating vehicles, except for drivers' education and some voc-ed instructors).
F. Administration of Medications and other Quasi-Medical Duties.
1. Prescription medications. The state Department of Public Health (DPH) has issued comprehensive regulations governing the circumstances under which a school district may require personnel, other than registered nurses, to dispense prescription medications. In a nutshell, the district must have registered with DPH for this purpose and must have adopted a delegation policy based upon a proposal developed by the school nurse. The district's policy should specify the circumstances under which non-nurse personnel may dispense medications and must provide training and supervision by the school nurse. Association officials can inquire about the district's compliance with the DPH regulations and may wish to negotiate about related issues that affect teachers' working conditions.
2. Epi-Pen. The DPH has adopted a regulation allowing school districts to delegate the task of administering Epi-Pen (epinephrine) injections, even if the district does not choose to explore or adopt a wholesale prescription medication delegation policy. Before directing any non-medically licensed staff member to administer Epi-Pen, the school district must adopt a policy governing such situations, including the prior selection of such individuals and prior training by the school nurse. The child's individual medical plan must specify the individuals who are authorized and trained to administer the drug and the protocols under which that will be done, and the child's individual health plan or IEP must also specify these situations and individuals. The school's policy must provide for immediate notification of local emergency services as well as the school nurse, student's parents, and student's physician, in the event Epi-Pen must be administered. The policy must also meet several requirements regarding storage, review of incidents, etc., and set forth in the regulations. As with any other decision to impose non-teaching duties upon teaching staff, the school district must bargain with the Association before adopting an Epi-Pen policy.
3. Other quasi-medical duties. Teachers, especially special education and inclusion classroom teachers, are sometimes asked to perform such quasi-medical duties as changing an ileostomy bag, suction a tracheotomy, feed a child through a tube, diaper, or toilet a child. Such directives are probably not unlawful, but they would be subject to various special education laws and regulations and to the collective bargaining law. For example, before non-medically-licensed staff members undertake quasi-medical duties, they might wish to make sure that the child's individual education plan and/or individual health plan specify the duties to be performed, the staff members authorized to perform those duties, the training provided to non-licensed personnel in order to perform the duties, and the circumstances under which the services would be provided. The association may wish to negotiate with the school district about these and other working condition issues associated with such directives.
VII. DISCIPLINARY CONSEQUENCES FOR MISCONDUCT WITH STUDENTSA. By far the likeliest consequence of a teacher's alleged mishandling of a student is that the administration will impose discipline on the teacher.
B. Under state law (G. L. c.71, § 42), teachers attain “professional teacher status” or PTS after three consecutive years as a teacher in a district. A teacher with PTS cannot be dismissed without “just cause.” Some collective bargaining agreements also include “just cause” clauses.
C. For suspension, but not for dismissal, the statute provides all employees a right to “counsel” before supervisor interrogates you.
D. Weingarten Rights. Whenever an employee is called for questioning that may lead to discipline, s/he is entitled to be accompanied by a representative. This is called a “Weingarten” right, named after the case in which the right was first enunciated. Important: the employee must ask for this representation; the law does not require the employer to notify the employee of his or her Weingarten rights, unless this requirement is set forth in the collective bargaining agreement.
D. For suspension and dismissal, the law requires notice of intent with reasons and, if you ask within ten days, an opportunity to review those reasons, at which you can be represented.
E. “Just cause” for suspension and dismissal is determined by an arbitrator.
1. Statutory Grounds:
- inefficiency
- incompetency
- incapacity
- conduct unbecoming a teacher
- insubordination
- failure on the part of the teacher to satisfy teacher performance standards
- “other just cause.”2. The arbitrator must take into consideration “the best interests of the pupils in the district and the need for elevation of performance standards.”
3. “Just Cause” puts burden on employer to prove not only that you committed the misconduct or performance deficiency, but also that the punishment fits the “crime.” (A three-justice minority of the Supreme Judicial Court held that, in most situations, the arbitrator cannot second-guess the level of discipline imposed by the administration once he or finds the offense was committed. School District of Beverly v. Geller, 435 Mass. 223 (2001). This holding has no formal effect, as it did not command a majority of the Court.)
4. This is a case-by-case determination, judged by each individual arbitrator. Factors:
• How clear the employer's rules have been.
• The employee's previous record and length of employment.
• Whether the employer has given the employee enough notice and opportunity to correct the deficiency or realize the consequences
• Whether the employer has complied with procedural rights contained in the statute (such as right to counsel) and/or the contract (such as evaluation procedures)
5. Employer's case must be supported by first hand witnesses, such as the students who allege that they were mistreated.
F. What kinds of behavior constitute “just cause?” Arbitrators tend to be far less forgiving of sexual misconduct than they are of minor corporal punishment. They tend to be more lax with long-term teachers of proven ability, whereas they tend to accept an employer's view of performance deficiencies if the employer has kept a consistent “record” of those deficiencies for some time. Repeated misconduct will usually justify greater discipline. Sometimes the same conduct can be sufficient for dismissal in one school district and insufficient even for a brief suspension in another district.
G. Not all criminal conduct is “just cause” for dismissal. In fact, an arbitrator under the Ed Reform Act has reinstated a teacher with 20 years of exemplary service who pleaded guilty to a felony tax claim, because the conduct was not related to his “effectiveness to teach math in a middle school setting.”
H. The “climate” is to erode disciplinary rights of teachers – both arbitrators and courts tend to treat teacher misconduct more harshly than may have been the case twenty, or even ten, years ago.
A. Collective Bargaining. As discussed from time to time earlier in this outline, the Association can try to negotiate for clear and limited directives and policies from management regarding handling disruptive students, physical contact with students, protocols for intervening in student fights, protocols for transporting students or administering medication, student use of the Internet, etc.
1. In bargaining, the Union could seek in-service or training regarding these expectations. The Union can also try to negotiate civil liability indemnification up to the statutory limits under Chapter 258.
2. Student Discipline. As noted earlier, the Ed Reform Act included several provisions addressing disruptive or violent students. The Association can use these laws to obtain policies or contract language requiring that:
a. the primary responsibility for dealing with dangerous students lies with administrators, rather than teachers.
b. a teacher who relies upon an administrator to quell a disruptive or violent student will not be penalized in any manner or evaluated negatively for having done so.
c. the administration should impose the maximum possible discipline upon students who assault staff.
d. the administration should seek expulsion information for incoming students (the law does not require any school district to accept a student who has been expelled for assaulting a staff member, §37H).
e. the administration should actively support a teacher in pursuing criminal charges against assaultive students, for example by accompanying the teacher to the probable cause hearing and/or supplying supportive evidence.
f. The teacher will not lose sick leave for days out of school connected to a student assault.
g. The administration should cover any defense costs where student who has been disciplined files a criminal charge against a teacher.
3. Inclusion/SPED Protocols. The Association can advocate for a district-wide set of inclusion protocols addressing such issues as:Class sizes, SPED/non-SPED ratios, support services, security and liability protection, collaboration and training release time and funding, and procedures ensuring faculty input into formulating and revising the IEP.
Procedures to ensure faculty input could include: guaranteed right of classroom teacher to participate in TEAM; right of all TEAM members to submit written proposals for TEAM consideration regarding necessary support services; an opportunity for all TEAM members to review the IEP before it is submitted for parental and administrative signatures; right of TEAM members to attach a "dissenting report" to the IEP if requested services are not included; circumstances and procedures under which teachers and TEAM members can insist that the TEAM be reconvened to reconsider the IEP; access to contractual grievance procedure or a separate complaint procedure for TEAM members to air disagreements about contents or implementation of IEP.
B. Representation. If a teacher is called in for an investigatory interview, the teacher must affirmatively ask for a union representative to be present. This serves several purposes: keeping the conversation less emotional, avoiding unnecessary admissions, and having a witness who can later testify about what occurred.
When requested by local union leaders, the MTA's professional consultants or attorneys will represent teachers in pre-disciplinary meetings and in arbitrating suspension or dismissal. MTA professional assistance is usually necessary where the allegations against the teacher are very serious or have criminal implications. MTA attorneys represent members who have been suspended or terminated in enforcing any contractual or statutory rights.
C. NEA Liability Insurance Policy.
With certain exceptions set forth in the policy, members are protected from incurring personal financial liability as a result of accidents or other alleged negligence, including recklessness (which is not covered under the statutory immunity), during the course of employment up to $1M. While this policy excludes actions ultimately found to have been intentional, the insurer generally provides a legal defense when members are sued for such conduct in order to argue that the conduct was not intentional. As indicated earlier, the policy does not generally cover automobile accidents. The exact terms of coverage are set only by the language of the policy itself.