Newsline Volume 31, Number 3

Teachers Who Advocate: Protections and Suggestions (Part One)

By Robert K. Crabtree, Esquire

Recently, a new special education teacher asked if I had any guidance for a teacher who wants to advocate for students with disabilities and also keep her job. A good answer includes information about:

  1. Legal protections for teachers when they speak up for students with disabilities (addressed below), and


  2. Suggestions on navigating the school environment with regard for one's own well-being (to be published in the May 2011 issue of Newsline).

Be advised, there are "costs" to accessing the legal protections outlined here. It may be easier to "move on" than to incur the emotional cost of suing a school district. Litigation is always uncertain. You will be subject to delays, insults, and time-consuming discovery. Moreover, the financial costs of pursuing a lawsuit, unless your union or another entity takes up the case, may be prohibitive.

Teachers with tenure (in Massachusetts this status applies after three years of employment if a teacher is employed for a fourth year, see M.G.L. c 71, sec. 41), cannot be dismissed, except as part of a general reduction in force, without good cause, defined in M.G.L. c 71, sec. 42 as "inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards." A court or arbitrator would be unlikely to find a teacher's advocacy for special needs students to be "good cause" for termination.

Massachusetts teachers without tenure who have taught for at least ninety calendar days are entitled to notice and written reasons if the school seeks to dismiss them. They also have limited rights to present their side of the case to a principal or superintendent, but they are considered "at will" employees and can still be fired for any legal reason. However, even at will employees may not suffer dismissal or adverse work conditions imposed for an illegal reason, such as retaliation for advocating for a person with disabilities. Case law in Massachusetts also suggests that an employee cannot be terminated or suffer adverse changes in job conditions for a reason that violates public policy - policy that is grounded in a statute or constitutional provision. Presumably, the policies embodied in IDEA, state special education statutes, and in the Massachusetts Constitution Amendment Article 114 (akin to Section 504 of the Rehabilitation Act) would qualify as "public policy" for these purposes.

In addition, teachers and school employees who belong to a collective bargaining unit may enjoy protections built in to their contracts. When employees feel the school district has unfairly or illegally dismissed them or changed their work conditions, the first stop should be a meeting with the union representative.

The primary federal protections for a person who faces adverse consequences for advocating for kids with disabilities arise under Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA). For example, in Barker v. Riverside County Office of Education, 584 F.3d 821 (9th Cir. 2009), an experienced special education resource teacher had joined another teacher in filing a complaint at the federal Office for Civil Rights (OCR) claiming that her employer had violated students' rights under IDEA. She later alleged in a lawsuit under Section 504 and the ADA that, because of her complaint to OCR, she was forced to leave her job due to arbitrary and intolerable changes the school district made in her work conditions. The district argued that she had no right to sue under those discrimination laws because she was not disabled herself. However, the court rejected that argument, pointing out that Section 504 protects those who speak up for persons with disabilities as certainly as it protects those with disabilities.

Whether a teacher or other school employee enjoys Free Speech protection under the First Amendment for speaking up on behalf of students with disabilities has been complicated by the Supreme Court's decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), in which the Court held that there was no First Amendment protection when a public employee speaks pursuant to her official duties rather than as a private citizen. However, if an employee's comments are not exactly part of her job requirements, she could potentially be seen as speaking as a private citizen. For example, in Reinhardt v. Albuquerque Public Schools Board of Education, 595 F.3d 1126 (10th Cir. 2010), a speech-language pathologist complained that her caseload was lower than it should be and that students were being denied services they were entitled to under IDEA. The court said that reporting wrongdoing was not part of the employee's official job requirements, which were only to provide speech services. As such, her complaints were protected by the First Amendment, despite the holding in Garcetti.

So, protections may exist under tenure laws, public policy, Section 504 and the ADA, and perhaps under the First Amendment. That said, here are two cautionary suggestions:

  1. Even if an employee can show that termination or another adverse job change happened for a wrongful reason, if an employer can demonstrate other, non-discriminatory, real reasons for the action, the employer wins. Thus, an employee who wishes to be an effective advocate must always behave professionally in tone of voice, use of language, behavior under stress, and attitude toward administrators, peers, parents, and students - so that a school district has no reason to punish the employee for poor behavior.


  2. Effective advocates should document everything. Keep a journal. Make entries regarding important communications about particular students, school policies, and efforts to obtain different or better resources. Entries should be objective, factual, and record who said what, when, and in whose earshot. Having a record of this kind can be immensely helpful if relations break down and the teacher needs to prove that it was his or her advocacy that led to adverse employment consequences and not some other reason.

______________________________________________________________________

Robert Crabtree is a partner at Kotin, Crabtree, and Strong, LLP, a general practice law firm in Boston, MA. He concentrates in special education and disability law.
______________________________________________________________________