Dismissing the "immoral" teacher for conduct outside the workplace--do current laws protect the interests of both school authorities and teachers?

Journal of Law and Education, Jul 2002 by Fulmer, Jason R

I. INTRODUCTION-MORALITY: AN AGE OLD CONCEPT BEING CHALLENGED BY NEW APPROACHES TO EDUCATION

The old saying that teachers should practice what they preach is tested anew in today's classroom. Few school-related topics are hotter these days than "character education," a movement to teach students positive values! Recent polls indicated registered voters strongly support the idea that schools should share the responsibility with parents in teaching children moral principles.2 This growing demand for character education was evident in the recent 2000 presidential debates, and is now at the forefront of President George W. Bush's education agenda. "We want our schools to care about the character of our children. I am talking about communicating the values we share, in all our diversity, such as respect, responsibility, self-restraint, family commitment, civic duty, fairness, and compassion-the moral landmarks that guide a successful life."3

behavior or language on school grounds,' but should schools demand teachers live their lives a certain way even while away from school?

Many questions arise when one approaches the subject of "morality," or the absence of "morality," or rather, "immorality." What is it? What conduct does it encompass? Is a teacher's sexual orientation a moral question? Should a school board be able to dictate what a teacher does in his or her spare time, or with whom he or she associates after the school house doors have closed? If the law permits inquiry into a teacher's morality, what limits, if any, should be imposed? Should the definition be different from community to community as toleration levels vary? This article will examine the competing interests of school districts in employing "moral" teachers and teachers' interests in privacy and lives detached from government control. This article will also discuss the constitutional shortcomings of current laws and new approaches being explored to address these concerns. Finally, this article will suggest that, as school districts' desire to inquire into a teacher's off-duty conduct increases, both school authorities and teachers should be aware that their power to inquire is not unlimited.

II. IDENTIFYING THE CURRENT BAR: WHAT TYPE OF CONDUCT IS PROHIBITED?

lect of duty," and "insubordination," by their very terms, merely state the principle that a teacher may be terminated for deficiencies in job performance. However, it is not as clear what conduct is required in order to terminate a teacher based on "immorality." This term has given courts, as well as teachers, difficulty in ascertaining exactly what conduct is prohibited.

Few jurisdictions expound on what warrants termination for being "immoral." As one court stated,

Immorality is an imprecise word which means different things to different people. In essence, it connotes conduct not in conformity with accepted principles of right and wrong behavior. It is contrary to the moral code of the community; wicked; especially, not in conformity with the acceptable standards of proper sexual behavior.12

Another court has written, tautologically: "Immoral conduct contemplates behavior sufficiently contrary to justice, honesty, modesty, or good morals."13 To religious groups which draw their accepted principles from sacred texts such as the Bible, immorality conjures up behaviors such as adultery, homosexuality, and debauchery.14 "In the opinion of many people, laziness, gluttony, vanity, selfishness, avarice, and cowardice constitute immoral conduct."15 Yet, most state codes do not even have what guidance is given by these unhelpful interpretations."16 As a result, the imperfect human teacher holds his breath waiting to see whether other imperfect humans will determine his conduct has become "immoral."

A. Constitutional Challenges

rowing construction, such as a "fitness to teach" requirement into the definition of "immorality."17

One of the principal arguments made by teachers is that vague laws are offensive to our notions of due process, fair play, and substantial justice. "Our judicial system has always insisted that laws give persons of ordinary intelligence an opportunity to know what conduct is prohibited so as to avoid that type of conduct."" This argument seems fair in that it is difficult to subject someone to punishment when that person had no way of knowing that his conduct would bring about punishment. In Alford v. Ingram, the court, in construing a statute permitting termination for "immoral" conduct, stated that "while these words may have had certain concrete meanings in simpler times, this court has serious doubts as to whether these terms currently provide fair warning of proscribed conduct."19

Perhaps this is true. The notion of immorality may have been more concrete in times past, serving fair notice of proscribed conduct. Modern issues, like HIV infection and homosexuality, were virtually unknown, or at least not discussed, in generations past. Perhaps the Ingram court was merely recognizing that times have changed, and that what was "immoral" yesterday may not be "immoral" today. Or, by its decision to uphold the statute, the court may have been suggesting that there may yet be a realm of "universal core" conduct that could be fairly defined as "immoral."10