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LEGAL OPINIONS

The private lives of public educators
Be conscious that you not only work, but also live, in the public eye

BY PAUL TAPP, ATPE MEMBER LEGAL SERVICES MANAGING ATTORNEY

I am sure that it sometimes feels like teaching has taken over your life. With nights spent grading homework, afternoons tutoring and mornings prepping for TAKS, you probably feel like your personal life is nonexistent. Unfortunately, every year some educators find that the wall between their professional selves and their private lives is even more porous than they had ever imagined.

Janet’s lost cell phone

Janet and Bob’s 20th anniversary was special: a sunny, relaxing Caribbean getaway. In other words, just what Janet needed for spring break. They felt like newlyweds, and one night after dancing, they got a little silly. Alone in their room, Bob took some intimate photos of Janet on her cell phone camera.

Janet would never have considered letting anyone else see those pictures, but it still made her smile to think of them. Later, when her cell phone turned up missing at the end of a school day, Janet’s only thought was what a pain it was going to be to get a replacement. At least that was her only thought until she was called in to meet with the district’s human resources director.

The HR director explained that apparently a student had downloaded the pictures and made copies, one of which had been brought in by a parent. Far from being sympathetic to her embarrassment, the HR director told Janet that she was being placed on leave immediately and would likely be terminated because so many students had seen or knew about the pictures.

John’s boys’ night out

John’s head pounded the morning after George’s bachelor party. Things had gotten a little wild, of course, but one reason John liked George was that he reminded him of his crazy college days, when he wasn’t a predictable history teacher.

But John’s head hurt even worse after he was called in by his principal. John had not even been aware that anyone was taking pictures at the party—much less that George had posted them on his blog. Students had found the photos, and John was the boys’ new hero. Now all they wanted to talk about was the party. John’s principal sent him home to decide whether he was going to resign. Otherwise, the principal said, the superintendent was going to recommend to the school board that he be terminated.

Grounds for negative action?

Janet’s and John’s stories are fictional, but sadly the ATPE Member Legal Services Department receives calls nearly every week from educators who find themselves in similar situations. They might reasonably ask why an incident from their private lives should affect their work lives. Shouldn’t the school administration have to show that they were doing a bad job at work to take action against them? Shouldn’t the district at least have to show that the educator was doing something bad?

The answer is both yes and no. Generally, a district does have to base an employment action on work-related considerations. However, a district can claim that personal activities, once they became known, diminished an educator’s ability to perform his duties effectively. School boards and the commissioner of education have recognized that “diminished effectiveness” may be grounds for negative employment action—including termination—and it is regularly included in the laundry list of grounds for contract nonrenewal that state law requires school districts to maintain. A common policy states that one ground for contract nonrenewal is:

Any activity, school-connected or otherwise, that, because of the publicity given it, or knowledge of it among students, faculty and community, impairs or diminishes the employee’s effectiveness in the District.

The important thing to recognize in the policy and to understand about its interpretation by boards, the commissioner and the courts is that it does not specifically require that the activity causing the diminished effectiveness be anything illegal or even morally wrong. Obviously, public knowledge of an educator’s illegal activity or an activity that runs against the community’s moral standards might be more likely to cause a reaction, but the standard is whether the students’ or community’s reaction has caused an educator’s effectiveness to be diminished—not whether the educator did something “wrong.”

Defining diminished effectiveness

What is diminished effectiveness? It is a practical term. It means that something has occurred that makes it harder for a teacher to teach or for students to learn. Perhaps a line of parents has formed at the principal’s door demanding that their children be moved out of the teacher’s class. Perhaps the students are refusing to focus on learning their lessons and instead only want to talk about the issue. One thing that is not diminished effectiveness, however, is an assumption of diminished effectiveness. In most cases, a district cannot just assume that an educator is incapable of being effective because of a perceived or potential scandal. The district must show that the educator’s effectiveness really has been diminished.

Almost no one (other than a few Hollywood starlets) wants her private life in the public spotlight, but it’s important to remember that as public school educators you are in the public eye, and that can result in both embarrassment and potential negative consequences to your career if you are not careful.

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The legal information provided on this Web site is for general purposes only. It is not intended as a substitute for individual legal advice or the provision of legal services. Accessing this information does not create an attorney-client relationship. Individual legal situations vary greatly and readers should consult directly with an attorney. Eligible ATPE members should contact the ATPE Member Legal Services Department using our online system, MLSIS.

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