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Overview
As the new school year moves through its
early stages, administrators, classroom teachers, and staff are
busy carrying out the responsibilities and tasks agreed to last
spring when they signed their employment contract. Whether
negotiated individually (in some states, e.g., Virginia,
local school boards are not vested by law to collectively
bargain with teachers), or collectively (in states, e.g.,
New York, allowing collective bargaining), the importance of the
contract for employment can not be overemphasized. The signed
contract serves as (1) the foundation upon which the entire
employer/employee relationship rests, and (2) the document that
sets out the scope of the job and as a general rule includes,
among other things, duration, salary and compensation, and other
terms and conditions of employment.
It is a basic tenet of contract law that
ignorance of the contents of a contract is not an excuse for a
party’s failure to carry out the agreement. Ironically, however,
employment contracts in public education (including collective
bargaining agreements) are not as clearly and specifically
drafted as one might think. Thus, confusion often exists
regarding contractual obligations and benefits.
Not intended as an extensive treatment of
contract law, the purpose of this commentary is to briefly
discuss basic principles of contract law as applied to public
school system employment. The focus of the research and writing
will be on legal and policy issues involving full-time classroom
teachers in public school systems.
Principles of Contract Law
Contract: What Is It? The “right to
contract” is firmly rooted in constitutional law.
However, what is not clear is the meaning of word contract.
Professor Corbin in his comprehensive treatise offers the
following definition: “…a contract is a promise enforceable at
law directly or indirectly.” He then cautions that “[s]uch a
definition as this does not inform us as to what kind of facts
will operate to create legal rights and duties….” Corbin (1952)
Black’s Law Dictionary tells us that a contract is “[a]n
agreement between two or more parties creating obligations that
are enforceable or otherwise recognizable at law….” Garner
(1999) The Law Dictionary states that a contract is “an
agreement between competent parties, upon legal consideration,
to do or to abstain from doing some act.” Brann (1997) The
operative term used in the latter two definitions is
“agreement,” which Knapp defines as “a common understanding as
to something which is to be done in the future by one or more of
the parties.” Knapp (1976)
As a general rule, “once a contract exists,
it is enforceable by either party and it shall not be
significantly modified or breached unilaterally by either
party.” Vacca and Bosher (2003) Moreover, a contract “is binding
on both parties, and either party who fails to meet contractual
obligations has breached (broken) the contract.” Fischer,
Schimmel, and Kelly (1999)
What Makes a Contract Enforceable?
To be enforceable all local school district contracts “must not
only conform to the requirements of general contract law, but
also must satisfy other statutory and case law requirements.”
Alexander and Alexander (2005) In addition, a contract must be
agreed to by competent parties to do something lawful, and must
have four elements which are: (1) offer, (2) acceptance, (3)
consideration [ includes each party giving up something of value
and receiving some benefit from the promises made], and (4)
proper form. Knapp (1976)
Express and Implied Contracts.
Because there are express contracts (in which the parties
are clearly cognizant of the terms) and implied
contracts (where responsibilities and obligations arise from
mutual agreement and promise), 8.C. Michie’s Jurisprudence
(1999 Replacement), the intent of the parties often is left to
interpretation. In teacher employment contracts, for example,
such phrases as “all other assigned duties for which the
employee is qualified” often can be found. Vacca and Bosher
(2003) Thus, it is not surprising that school system personnel
(especially classroom teachers in non-collective bargaining
states) are routinely asked and/or assigned to tasks and
professional services not specifically enumerated in their
contract. As a federal district court recently held, teacher
assigned duties during the school term are appropriate “where
the contract allows for this.” Harper v City of Jackson
Municipal School District (S.D. Miss. 2005) Please note the
courts use of the word “allows.”
Contractual Fairness. A general
principle of contract law holds that while the individuals who
sign a contract agree to comply with their promises (i.e.,
obligations specified in the contract), all obligations and
responsibilities may not be clearly included in written form but
are “necessarily implied” in what is written. 8.C Michie’s
Jurisprudence (1999 Replacement) This is especially true of
assigned duties to teachers related to student clubs, bus duty,
and after school athletic events. However, on this point legal
experts caution school officials that “[b]oth state and federal
constitutions contain protections against the unilateral
alteration of contracts by the state to disadvantage individuals
in their relationships with government.” Alexander and Alexander
(2005)
Must Employment Contracts be in writing?
As a general rule, not all contracts must be in written form.
Suffice it to say, while a contract is enforceable and binding
on the parties whether oral or in written form, those that are
written are easier to deal with on a number of levels. However,
whether written or oral, one must establish a “reasonably clear
interpretation” and seek the “plain meaning” of words and
phrases contained in the agreement to establish who is
accountable to whom, and when and for what are they accountable.
On this latter point, the application of appropriate case law is
of critical importance in determining the intent of the
agreement.
Some states require written contracts. In
Virginia, for example, state law mandates that local public
school boards enter written contracts with classroom teachers.
Moreover, state law requires that these written contracts (1)
must be in a form prescribed by the State Board of Education,
and (2) signed by the parties in duplicate. 22.1-302 (A) Code
of Virginia (2006) In Maryland the law requires that “All
contracts with certificated employees shall be in writing and on
contract forms prescribed by the State Board of Education.”
13A.07.02.01 Maryland School Laws and Regulations Annotated
(2004)
Tenure Status, Continuing Contract, and
Annual (Term) Contract. Typically the following categories
of classroom teacher work in public school systems: (1)
substitute teachers (hired on a short-term, emergency
basis), (2) annual teachers (hired on a fixed,
year-by-year basis), and (3) where state law provides, tenure
or continuing contract teachers. The
constitutional protections (i.e., the Fourteenth
Amendment) and legal rights (federal and state) of employees
differ according to their contractual status. Bosher, Kaminski,
and Vacca (2004) Even though the employment term of a substitute
teacher and an annual contract teacher can be extended and
renewed, only a tenured or continuing contract teacher possesses
a clear expectation of continued employment in the school system
absent cause for termination.
Non-Renewal and Dismissal. While
tenure or continuing contract status does not guarantee
permanent employment, the courts have clearly held that a
teacher who has acquired tenure or continuing contract status
possesses both liberty and property interests and is entitled to
accompanying procedural due process protections, Board of
Regents v Roth (1972) and Perry v Sindermann (1972)
Any decision to terminate his/her employment relationship
(whether during a contract year or at the end of a contract
year) is considered a dismissal. Conversely, only termination of
an annual contract teacher during the term of the contract in
place at the time is considered a dismissal from employment. In
such situations the annual contract teacher also is entitled to
basic procedural due process. Carey v Aldine I.S.D.,
(S.D. Tex. 1998) One must look to appropriate state law for
clarification. For example, statutory law in Virginia clearly
states: “Dismissal means the dismissal of any teacher
during the term of such teacher’s contract and the nonrenewal of
the contract of a teacher on continuing contract. 22.1-306
Code of Virginia (2005)
Legal and Policy Issues
Teachers make employment contracts with
local school boards and not with school superintendents or
building principals. As a general rule, state statutes and
courts of law grant considerable authority to local school
boards to make all personnel decisions necessary for “the best
interests of the children.” The traditional rule holds that
local school boards operate in good faith, and personnel
decisions will stand absent a showing that the board acted
arbitrarily, or capriciously, or beyond the scope of its legal
authority, or abused its legal authority, or acted in violation
of an employee’s constitutional rights. Bosher and Vacca (2003)
Preconditions of Employment Contracts.
In recent years, states have enacted statutes requiring
pre-employment background checks (e.g., fingerprinting)
of all prospective employees, and mandating that the results of
these checks must be known by the local school board prior to
the awarding of the contract for employment. (See, e.g.,
22.1-296.2, Code of Virginia, 2006) So too are some
states requiring that all applicants for jobs involving direct
contact with students, applicants who either are offered or
accept a contract for employment, give written consent for the
local school board to obtain personal information in a search of
the registry of founded complaints of child abuse or neglect. In
Maryland, for example, the law specifies that “The State Board
shall adopt regulations that prohibit a county board from
knowingly hiring, as a non-certified employee, any individual
who has been convicted of a crime involving, among other things,
‘child sexual abuse’ and ‘crimes of violence.’” 6-11 Maryland
School Laws and Regulations Annotated (2004)
Falsification of Application. As a
general rule, an employee who enters a contract for employment
with a local school board, but either failed to comply with the
state law requirements, or had in some way entered false data on
the initial employment application, is subject to immediate
dismissal form his/her job. In essence, no matter how long the
employee has been on the job, falsification of information on an
application for employment will, when discovered, void the
contract.
On-The-Job Performance and Employment
Contracts. In an era of accountability, as public school
systems work to (1) provide a quality education to all students,
(2) comply with the requirements of the IDEA (2004), (3)
carry out the mandates of the No Child Left Behind Act
(2001), and (4) implement statewide student testing
programs, it is imperative that students be taught by classroom
teachers who are both qualified (licensed) and competent
(effective) in the subject(s) for which they are under contract
to teach.
Qualifications v Competence. While
it is possible to establish a teacher’s job qualifications by
reviewing transcripts and letters of recommendation, competence
in actually carrying out the contract is a more time consuming
and complicated process. Classroom observations of performance
over time furnish important data. To gather these data,
evaluations must be carried out and analyzed by trained
evaluators. Another important indicator of teacher competence
can be found in results as measured by student academic
progress. As states use more technology options to link student
achievement on statewide tests to individual school buildings,
the productivity profile of individual principals and classroom
teachers in those schools will be factored into decisions
regarding contract renewal. Vacca and Bosher (2003)
Remediation of Work-Related Deficiencies.
The courts have made it clear that unless required by state law
it is not necessary to provide remedial help to probationary
and/or annual (term) contract teachers. Schofield v Richland
County School District (S.C. 1994) In dealing with tenure or
continuing contract teachers, however, the following procedural
elements should be in place: (1) notice (feedback) of
specifically identified deficiencies, and (2) opportunities for
remediation of identified deficiencies provided. Roberts v
Houston I.S.D. (Tex.App.1990)
Other Causes for Non-Renewal or
Dismissal. Not all contract termination decisions are the
result of inside the school house behaviors. Teachers can be
dismissed from employment for a variety of reasons not directly
related to classroom performance. As the United States Supreme
Court established more than fifty years ago, “We find no
requirement in the federal Constitution that a teacher’s
classroom conduct be the sole basis for determining his fitness.
Fitness for teaching depends on a broad range of factors.”
Beilan v Board of Education (1952) The key to successfully
defending a contract termination is (1) having the necessary
documentation (substantive evidence) to make the case, and (2)
following a fair process. These elements are critically
important in situations where it is necessary to terminate a
contract for off-school property, non-classroom related conduct.
Some legal experts argue that because the burden of proof likely
will shift to school officials, the board’s decision must be:
(1) linked (nexus established) to contractual responsibilities
and expectations, and (2) supported by substantive evidence.
Russo (2004) As the Iowa Supreme Court opined in a recent
non-classroom related conduct teacher dismissal case, “a
preponderance of competent evidence must exist in the record” to
support a local school board’s decision to terminate the
contract. Walthart v Board of Directors (Iowa 2005)
The reader is cautioned that this is an
area of potential litigation where employees claim “pretext.”
For example, this is evident in cases where employees claim that
their employer’s real (underlying) reason for terminating their
contract was in retaliation for an exercise of protected conduct
(First Amendment speech), or because of their race, age,
disability, or gender. For instructive court decisions on point
see, Jackson v Birmingham Board of Education
(2005); Cioffi v Averill Park Central School District
(2nd Cir. 2006); Ryan v Shawnee Mission U.S.D.
(D.Kan. 2006); and Smith v Central Dauphin School District
(M.D. Pa. 2006).
Policy Implications
As stated at the outset of this commentary,
employment contracts in local school systems can be a source of
problems and issues that impact on professional performance and
productivity. In my view, legal and policy issues spring less
from what is written within the four corners of the formal
contract (paper) signed by classroom teachers (or in some states
collective bargaining agents) and more from the actual agreement
that the written contract memorializes. As pointed out in the
above commentary, while teacher contracts seem vulnerable to
legal challenges (for example, allegations of unfairness based
on a lack of overall specificity and the inclusion of vague
language in contract language) that is not the case. However,
what follow are some suggestions for consideration by local
school officials in a proactive effort to minimize potential
contract related issues. It must be made clear in local policy
that:
-
The Board and its administrative agents and staff intend to
do all that is necessary to carry out the spirit of the
agreement set out in all employment contracts.
-
Employees are expected to review and be cognizant of all
aspects of their employment contract.
-
The Board expects that all employees will work in good faith
to carry out all duties and responsibilities agreed to in
the signed contract, including those necessarily implied in
the contract.
-
Applicable federal and state statutory law and local school
system personnel policies in effect at the time the contract
is signed are automatically incorporated into and become a
part of every employment contract.
-
The Board and its administrative agents and staff will work
to clarify and interpret the meaning of the written language
included in the signed contract.
-
All employees will be provided with information (both verbal
and written) explaining their legal rights and all
contractual duties, responsibilities, expectations, salary
and other compensation, and benefits.
-
All contract termination decisions will be communicated in a
timely manner and in accordance with appropriate procedural
safeguards.
Resources Cited
Alexander, Kern, and Alexander, M. David,
AMERICAN PUBLIC SCHOOL LAW, Sixth Edition (Thompson/West 2005)
Beilan v Board of Education, 463 U.S. 399
(1952)
Board of Regents v Roth, 408 U.S. 564
(1972)
Bosher, William C., Jr., Kaminski, Kate R.,
and Vacca, Richard S. THE SCHOOL LAW HANDBOOK: WHAT EVERY LEADER
NEEDS TO KNOW (ASCD 2004)
Brann, Amy B., Editor, THE LAW DICTIONARY,
Revised Edition (Anderson Company 1997)
Carey v Aldine I.S.D., 996 F.Supp.641 (S.D.
Tex. 1998)
Cioffi v Averill Park Central School
District Board of Education, 444 F.3d.158 (2nd Cir.
2006)
Code of Virginia (LexisNexis 2005),
22.1-296.2; 22.1-302; and 22.1-306
Corbin, Arthur L., CORBIN ON CONTRACTS
(West 1952)
Fischer, Louis, Schimmel, David, and Kelly,
Cynthia, TEACHERS AND THE LAW, Fifth Edition (Longman 1999)
Garner, Bryan A., Editor, BLACK’S LAW
DICTIONARY, Seventh Edition (West Group 1999)
Harper v City of Jackson Municipal School
District, 414 F.Supp.2d 595 (S.D. Miss. 2005)
Individuals with Disabilities Education
Improvement Act (IDEA), 20 U.S.C.A. 1400 et seq. (2004)
Jackson v Birmingham Board of Education,
544 U.S. 1497 (2005)
Knapp, Charles L., PROBLEMS IN CONTRACT
LAW: CASES AND MATERIALS (Little, Brown 1976)
Maryland School Laws and Regulations
Annotated (LexisNexis 2004), 6-11, and 13.07.02.01
Michie’s Jurisprudence (1999 Replacement),
8C “Express and Implied Contracts”
No Child Left Behind Act, 20 U.S.C.A. 6301,
et seq. (2001)
Perry v Sindermann, 408 U.S. 593 (1972)
Roberts v Houston I.S.D., 788 S.W.2d 107 (Tex.App.
1990)
Russo, Charles J., REUTTERS’ LAW OF PUBLIC
EDUCATION, Fifth Edition (Foundation Press 2004)
Ryan v Shawnee Mission U.S.D. 512, 416
F.Supp.2d 1090 (D.Kan. 2006)
Schofield v Richland County School
District, 447 S.E.2d 189 (S.C. 1994)
Smith v Central Dauphine School District,
419 F.Supp.2d 639 (M.D. Pa. 2006)
Vacca, Richard S., “Teacher Evaluation and
the Courts,” CEPI Education Law Newsletter CEPI 2004)
Vacca, Richard S., and Bosher, William C.,
Jr., LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS,
Sixth Edition (LexisNexis 2003), and 2006 CASE LAW SUPPLEMENT (LexisNexis
2006)
Walthart v Board of Directors, 694 N.W.2d
740 (Iowa 2005)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
