Expectations of the Exemplar: An Exploration of the Burdens on Public School Teachers in the Absence of Tenure
Expectations of the Exemplar: An Exploration of the Burdens on Public School Teachers in the Absence of Tenure
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1 Jacqueline A. Meese, Expectations of the Exemplar: An Exploration of the Burdens on Public School Teachers in the Absence of Tenure , 19 CUNY L. Rev. 131 (2015). Available at:
2 Jacqueline A. Meese CUNY School of Law
EXPECTATIONS OF THE EXEMPLAR:
AN EXPLORATION OF THE BURDENS
ON PUBLIC SCHOOL TEACHERS IN
THE ABSENCE OF TENURE
Jacqueline A. Meese †
† CUNY School of Law, J.D. Candidate 2016. The author would like to thank
Professor Ruthann Robson, Serena Newell, Anna James Neuman Wipfler, and the staff
and board of the CUNY Law Review. She would also like acknowledge the support of
Rodney Martinez, Debra Lee Meese, Doug Meese, and the rest of her family, without
whom this piece would not have been possible. This note is dedicated to the author’s
stepmother Julie Meese and all other public school teachers who are working hard to
improve the lives of their students.
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VI. RESPONSE TO THE FIGHT AGAINST INEFFECTIVE TEACHERS & TENURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 VII. CONCLUSION & RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . 163
Consider this hypothetical: You have an accountant who has
prepared your taxes for the past three years, and you meet with this
accountant several times leading up to April 15. Over the course of
this professional relationship, you have determined that this
accountant is proficient—the accountant finds you a refund when
possible and makes sense of your year’s worth of receipts. Perhaps
there are better accountants in the larger profession, but this one
creates no cause for complaint.
Then, one day, you discover that your accountant routinely
posts ads on Craigslist seeking casual sex. These ads are not
meretricious, but they do include explicit language describing the
desired sex and nude photos of the accountant. The ads neither
mention the accountant’s profession nor the accounting firm for
which he works.
Would this revelation cause you to fire your accountant? This
behavior appears to have no impact on the accountant’s
professional performance, and the ads appear to be solely confined to
the accountant’s private life.
Now consider a second hypothetical: You have a daughter in
eighth grade. She has little interaction with her school’s dean of
students but, as far as you know, the dean is proficient—the
students are generally well behaved and other parents seem to like
him. Perhaps there are better disciplinarians in the school district,
but this one performs well enough.
Then, one day, another parent forwards you an ad from
Craigslist, in which the dean is soliciting casual sex. These ads are not
meretricious, but they do include explicit language describing the
sex and nude photos of the dean. They include no information
about his position or the school, and the ads in no way mention
Would this revelation cause you to ask for the dean’s
termination?1 This behavior appears to have no impact on his performance
as the dean, the students are unaware of the ads, and the ads
appear to be solely confined to the dean’s private life.
1 This hypothetical was adapted from Frank Lampedusa’s court case, in which he
was fired for this exact behavior. See San Diego Unified Sch. Dist. v. Comm’n on Prof’l
Competence, 194 Cal. App. 4th 1454, 1458 (Cal. App. Ct. 4th Dist. 2011).
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If your answer was different for the dean than it was for the
accountant, you’re likely not alone. Even though both accountants
and teachers are professions licensed by the state, these professions
clearly carry different expectations. Teachers are often set apart
from other occupations because teachers are required to be
exemplars2 for good and moral conduct. “With great sincerity, parents
and the community believe[ ] a teacher should serve the
community through an upright exemplary life and whose influence will
give their children the characters they themselves aspired to and
failed to attain.”3 To put it simply, teachers are expected to act
differently than other people.
Thus, teaching is a curious profession. Communities feel very
comfortable with telling teachers how to do their jobs and live their
lives, and likely no other job occupies the minds of the American
public as does teaching. For instance, in April 2015, eleven
teachers were convicted on racketeering charges for their involvement
in changing students’ answers on standardized tests so as to
increase their scores.4 When the teachers attempted to appeal the
sentence, the judge responded, “They have made their bed and
they’re going to have to lie in it, and it starts today.”5 The need to
discipline the cheating teachers is likely undisputed—even within
the most stringent tenure system, this misconduct is grounds for
dismissal and revocation of their teaching licenses. Yet, the fact
that this misconduct made its way into a criminal court is
simultaneously exceedingly troublesome and unsurprising. By imposing
an eleven-year sentence, the presiding judge determined that
cheating on an exam was quantifiably worse than involuntary
manslaughter, which carries a maximum ten-year prison sentence in
Georgia.6 Such a sentence appears to be rooted in both the
heightened expectations of teachers and the comfort with which the
community exercises control over teachers.
As extreme as the Atlanta teachers’ sentences may be, this
exercise of control is not novel. Perhaps nothing crystalizes this point
more than the manner in which the American public is fascinated
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with the sex lives of teachers. From kindergarten teachers through
college professors, stories about teachers’ sexual relationships,
sexual choices, and gender identity regularly populate the news cycle.7
The rise of social media has made it immensely easier to peer into
teachers’ private lives, and communities are quick to pass
judgment on teachers’ sexual “misconduct.” Overall, teachers’ privacy
is minimized in a way that others do not experience.
Simultaneously, however, there is a movement that is aimed at
treating teachers the same as other professionals. The Educational
Policy Reform movement8 has lofty and admirable goals, which are
targeted at overhauling our entire “failing” education system. For
Ed Reformers, our country’s educational ills will be cured by
removing “ineffective” teachers from classrooms, but there is a
complication: “ineffective” teachers are protected by teacher tenure
and cannot be easily removed.9 As such, this movement has long
been focused on dismantling teacher tenure for elementary and
secondary public school teachers10 to fix our education system.11
The ultimate goal is to make teachers at-will employees,12 just like
Yet, teachers’ limited privacy rights and heightened
expectations make the newest Ed Reform strategy worrisome. Although
there are admitted problems with the current teacher tenure
system in many states, this paper will argue that eliminating or rolling
back teacher tenure is an inappropriate mechanism for solving the
country’s educational difficulties because of the public’s attempt to
control the lives of teachers. Throughout, this paper will use
teachers’ sex lives as the lens by which to understand the implications of
eliminating tenure. Section II will examine the current teacher
tenure cases in New York and California and explore the legal
arguments posited by the parties. Next, Section III will conduct a
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comprehensive discussion of tenure. The section will start by
explaining what teacher tenure actually is today, before moving into
the history of teacher tenure. This section will also explore the
weakness in the tenure system. Section IV will turn to how the
American public treats teacher sex and how this impacts the
limited constitutional protections given to teachers. Section V will
inventory the ways in which this preoccupation has influenced
termination decisions at non-unionized schools and will discuss
how employment law treats teachers in the absence of tenure.
Section VI will discuss the critiques of teacher tenure and respond to
those critiques. Section VII will conclude by making
recommendations for how to improve education without compromising the
protections given by the tenure system.
II. CURRENT CASES
Attempts to eliminate teacher tenure have historically been
focused on policy changes and statutory revisions, but such efforts
have been largely unsuccessful in most states.14 Thus, the Ed
Reform movement has recently shifted its strategy and is seeking
As of August 2015, two consolidated teacher tenure cases are
pending in New York state. The first is Davids v. State, in which the
plaintiffs allege that New York’s teacher tenure statute prevents
school administrators from firing ineffective teachers in violation
of students’ right to a sound basic education under the New York
State Constitution.15 According to the complaint, K-12 teachers are
afforded job protection beyond what other public employees are
given, and this “super due process” stops school administrators
from terminating ineffective teachers.16
The second and more widely known case is Wright v. New York,
which also alleges the New York education law granting tenure to
public school teachers violates students’ right to a sound basic
education under the New York Constitution.17 The complaint goes on
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to describe how “effective teachers” are a key part of a sound basic
education by citing a host of social science studies.18
New York Attorney General Eric Schneiderman moved to
consolidate the two cases, and Judge Minardo of the Richmond
County Supreme Court ruled in favor of the motion on September
.19 Both the United Federation of Teachers (“UFT”) and
the New York State United Teachers (“NYSUT”) have intervened
in the suit,20 claiming that they have an interest in the outcome of
the suit since they represent hundreds of thousands of teachers in
New York State. NYSUT has moved to dismiss the case, claiming
that the plaintiffs failed to state a claim, lacked standing, and
presented a non-justiciable claim.21
On March 12, 2015, Judge Minardo denied the defendants’
motion to dismiss.22 On the failure to state a claim grounds, the
judge explained that, accepting all of the alleged facts as true, the
plaintiffs have asserted a cause of action by alleging that the
dismissal policy caused the injury.23 The statistical evidence presented by
the plaintiffs also supported this point.24
The judge went on to refuse the motion to dismiss for
nonjusticiability and standing.25 The judge determined that the issue is
justiciable because the court’s appropriate role is to “interpret and
safeguard” the students’ constitutional rights.26 The court rejected
the claim that the outcome in this case would amount to judicial
policy-making.27 Additionally, the judge acknowledged that the
plaintiffs have standing because they have suffered an injury—the
deprivation of a sound basic education.28 Thus, the court
concluded that they are within the “zone of protected interests”
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ated by the statute.29
Moving into discovery, the defendants have good reason to be
worried. These cases were filed on the heels of the decision in
Vergara v. California, a California case that made national headlines
when the judge ruled in favor of the plaintiffs who posited that
teacher tenure violated students’ equal protection rights under the
California State Constitution.30 The judge relied heavily on Brown
v. Board of Education and other California cases to reach his
decision, criticizing the “uber due process” guaranteed to K-12 teachers
by statute.31 An important difference between the California and
New York cases is that Vergara focused on the impact on
low-income and minority students,32 whereas the Wright and Davids
complaints focus on all students, regardless of household income or
wealth. Perhaps this is due in part to the landmark New York case
that guaranteed sound basic education to all children,33 despite
the unfavorable federal law determination that education is not a
All three cases were filed by Ed Reform activist
groups35—Students Matter in Vergara, New York City Parents Union in Davids,
and Partnership for Educational Justice in Wright. Though these
cases are touted as parental activism in the Ed Reform world,36
there are others,37 such as the United Federation of Teachers, who
consider these cases to be anti-teacher. Their response to the
litigation is that vilifying teachers for the problems with the education
system is unfair, as well as purely political. “This action is not
brought by aggrieved Plaintiffs who have been denied a ‘sound
basic education;’ it is brought by political advocacy groups attempting
to drive policy that is in closer alignment with their own political
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preferences for the way they believe New York State School
Districts ought to be run.”38
Overall, these cases are troublesome for the teaching
workforce. Of course, predicting a future consequence of a case
that has yet to be decided is far from foolproof. Still, the historical
and contemporaneous treatment of teachers provides an
instructional basis for forecasting the ways in which the “exemplar” label
can be an impossible burden to carry, even with tenure.
UNTANGLING TENURE – SAFEGUARDS & SHORTFALLS
Against this political and legal backdrop, a general discussion
about teacher tenure becomes crucial to understanding the risks
posed by Vergara, Davids, and Wright. Teachers are already provided
with limited legal protection, and an outcome like that in Vergara
will chip away the little protection that is provided. As such, this
section reviews the purpose and history of tenure, the history of the
exemplar label, and the gaps left by the exemplar label that tenure
is intended to fill.
Teacher tenure is an often-misunderstood term, as it is often
thought to confer permanent employment39 on public
schoolteachers.40 However, tenure is a statutorily-created interest in a
teacher’s employment that guarantees certain due process rights
before termination.41 This guarantee of employment is one of the
benefits for almost all government jobs, and the general protection
of public service positions was created in part to stimulate
productivity by insulating the employees from political changes.42 Thus,
permanent employment was implemented to stop newly-elected
EXPECTATIONS OF THE EXEMPLAR
politicians from firing existing public employees and hiring friends
into the open positions, as was the practice under the “spoils
system.”43 This anti-corruption, anti-cronyism policy is still in effect
today,44 and this is partially why teachers have tenure.
Consequently, in New York, most non-political civil servant
jobs are given permanent employee status, including public school
teachers.45 The statute granting teacher tenure requires an eligible
teacher to go through a three-year probationary period and obtain
a recommendation from the superintendent of schools before
Yet, even after obtaining tenure, a New York teacher can be
dismissed for: (a) insubordination, immoral character, or conduct
unbecoming a teacher; (b) inefficiency, incompetency, physical or
mental disability, or neglect of duty; or (c) failure to maintain
certification as required by this chapter47 and by the regulations of the
commissioner.48 However, under the federal Due Process Clause, a
state-created statutory-interest in employment can only be revoked
after the employee has been given notice and some opportunity to
be heard.49 For New York teachers, the process due to the teachers
amounts to a notice of the termination charges, a hearing before
an impartial hearing officer at which the teacher may mount a
defense, a record of the hearing, and the right to appeal the
These are the statutes the plaintiffs in Wright and Davids seek
to challenge.51 Specifically, the Davids complaint regards this as
“super due process,”52 a term which is likely referring to the
portion of the Vergara opinion in which the judge referred to
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nia’s statutory steps as “uber due process.”53 Yet, the process due in
both states is the same as it is for other public employees.
While permanent employment laws have critics no matter the
position,54 the current plaintiffs are specifically only targeting
teacher tenure. This distinction is interesting since the road to
permanent employment for teachers was unique.
B. History of Teacher Tenure
The existence of teacher tenure can only be properly
understood within the context of the history of the teaching profession
itself. Public schools were built on the backs of a female
workforce—taxpayers in the mid-1800’s were initially reluctant to
finance a public school system, and the system only survived
because the governments could pay female teachers little to no
money.55 Still, because of cultural attitudes of the time, many were
wary of allowing women into the workforce and permitting them to
have public lives at all.56 Thus, the discussion of the public school
system often framed education as a “private” space, akin to the
By positioning the school as a private space, the greater public
could exercise control over the lives of the female teachers, since
they were acting in loco parentis. Professor Kristin Shotwell posits
this is where the obsession with teachers’ sex lives was born.58 Not
only were female teachers generally required to be unmarried due
to coverture laws, but these teachers were also expected to be
chaste so as to set a moral example for their students.59 Because
teachers were operating in a “private” sphere that was an extension
of the home, parents and the community felt comfortable
intruding into teachers’ lives and requiring them to live up to a higher
standard of moral conduct than the parents themselves abided
by.60 This hybridization of the teachers’ public/private life to
exercise control illustrates the feminist legal critique of privacy as a
legal structure used to advance progressive objectives in lieu of
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equality, which minimizes women as belonging to a primarily
Ultimately, the current teacher tenure system emerged early
in the twentieth century, at a time when this mostly-female work
force was both obtaining the right to vote and seeking the similar
workplace protections as male manufacturing workers.62 Tenure
was initially offered at colleges and universities to protect
professors’ academic integrity and freedom of speech; the system was
eventually extended to K-12 teachers as well.63
The K-12 teacher tenure system had unique aims, since this
teaching corps was mostly female and the school administrators
tended to be mostly white males.64 Even well into the mid-twentieth
century, public school teachers were subjected to unusually strict
employment rules—such as those forbidding them from dating or
wearing pants—and were dismissed for peculiarly frivolous
reasons—such as getting married, becoming pregnant, or wearing
pants—that the male workforce did not have to endure.65
Through organized labor efforts, female teachers were able to
secure employment protection that otherwise eluded them simply
because they were female.66 The development of this system was
intended to be a guarantee of due process for teachers before they
could be removed from their jobs and was not intended to
guarantee “permanent employment.”67
Despite moving away from considering schools to be an
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sion of the private home in the twentieth century, teachers are still
required to be “exemplars” for their students. Thus, teachers must
model perfect behavior since students are expected to follow all
instructions and guidance provided by their teachers.68 Parents,
administrators, and politicians require more prudent and moral
behavior from teachers because, “[e]xcept for sex, education is the
most intimate of human contacts. Other than marriage, it is the
most loving and momentous of personal relations.”69
Because public schools have their roots in a puritanical
conception of Christianity,70 schools are intended to “inculcate[e]
fundamental values necessary to the maintenance of the democratic
political system” and “a teacher serves as a role model for his
students, exerting a subtle but important influence over their
perceptions and values,”71 which increases the importance of the role
model function of teaching. “Parents who smoked, drank,
gambled, lied, and committed adultery demanded that a teacher’s
conduct be above their own.”72
Thus, teachers’ personal lives are frequently inspected by the
greater public, which results in teachers regularly being denied the
protections that are given to other citizens.73 More often than not,
this entails scrutiny of the teacher’s sexual life. For the greater
public, sexual activity is a constitutionally protected aspect of privacy.74
Although sex is usually considered a means to some end under the
law (such as intimacy or procreation), the privacy of the act and
communication about it are still typically protected.75 This is less
true for teachers because, for them, “[i]f suspicion of vice or
immorality be once entertained against a teacher, his[/her] influence
for good is gone. The parents become distrustful, the pupils
contemptuous and the school discipline essential to success is at an
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D. Shortcomings of Teacher Tenure
Because of the heightened expectations for teachers’ private
behavior, teacher tenure has not been a panacea for all
employment discrimination.77 Under most tenure statutes, teachers can
still be fired on the following grounds: incompetence, inadequate
performance, immoral conduct, insubordination, willful neglect of
duties, unfitness, or any other sufficient cause.78
Perhaps unsurprisingly, “immoral conduct” and “unfitness”
became the loopholes for continuing sex discrimination under the
tenure system. Until the mid-1980s, a female teacher who became
pregnant out of wedlock could be considered to have engaged in
“immoral conduct” and could still be fired for her “indiscretion.”79
For instance, in 1976, a federal district court in Nebraska held that
a teacher who became pregnant out of wedlock could be
terminated for being “unfit” since her continued employment could
condone out-of-wedlock pregnancies.80
Furthermore, teachers’ choices about their romantic lives have
also come under scrutiny as “immoral.” For example, in 1975, a
female teacher who lived with her boyfriend in a trailer park was
determined to have engaged in “immoral conduct.”81 Because her
supervisor warned her that this living arrangement was “grossly
immoral” under her contract, the court upheld the teacher’s
dismissal on the grounds that her behavior was both immoral and
Thus, the protection afforded by teacher tenure is only as
strong as the community standards in which the tenure system
exists. Though these examples come from a generation ago, this
history illuminates how external standards of morality influenced
teachers’ employment. The next section will examine the
shortcomings of other protections given to the rest of the citizenry.
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TEACHING WITH TENURE: LIMITATIONS ON LIBERTIES
Even with tenure, teachers and other public employees have
limitations on their civil liberties as a result of their employment.
Understanding the ways in which cultural attitudes about sex
intersect with our vision of the teaching profession is a useful lens for
understanding how these limitations impact teachers’ private lives.
Despite developing more permissive attitudes towards sex in
recent years, our society is still remarkably preoccupied with the
sex lives of teachers, arguably more so than any other profession.
When conducting a general internet search with the keywords
“teacher sex,” an uncountable number of news articles surface.83 In
fact, an entire section of the Huffington Post is dedicated to
describing “Teacher Sex Scandals,” which has four pages worth of teacher
sex stories.84 A Wikipedia page called “Sexual harassment in
education in the United States” provides a comprehensive overview of
sexual relationships between teachers and students.85
The rise of social media has fueled this obsession with teacher
sex. Some school districts encourage parents to google their
children’s teachers and see what they can discover about the teachers’
private conduct.86 Stories about teachers’ racy photos on social
media have also become popular for online news readership.87
Furthermore, this phenomenon is not limited to the
twentyfour hour news cycle and sensational journalism techniques. There
is robust legal scholarship about the grounds on which a tenured
teacher can be fired, and the first and most extensive category of
“misconduct” is almost always about sex.88
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Consequently, this section will discuss how simply being a
teacher can lead to intrusions into one’s sexual choices because
the teacher is an exemplar. This is further complicated by the
limitations placed on teachers’ right to privacy and freedom of speech.
Aside from the lives of teachers, privacy generally occupies a
peculiar space in American jurisprudence. Although not written
into the Constitution, the right to privacy has been elevated to
constitutional status as part of substantive due process doctrine.89
Because teachers are expected to be exemplars, they are
afforded markedly less privacy than the general public.90 Courts have
recognized that unlimited intrusion into a teacher’s personal life
would raise constitutional concerns because of the fundamental
right to privacy.91 However, these same courts recognize that a
teacher’s right to privacy is limited by the possibility of a public
injury.92 The scope of “public injury” has been broadened by the
internet. Teachers who post material intended for a limited
audience may find themselves facing allegations of public injury.
For example, Frank Lampedusa was fired after he posted an
ad on Craigslist soliciting casual sex.93 He had been a middle
school teacher and dean of students for nine years when he was
sibilities of P-12 Educators: Off Duty Conduct as Grounds for Adverse Employment Actions, 171
EDUC. L. REP. 691, 698-706 (2003) (first discussing “sexual misconduct,” “pregnancy
out of wedlock,” and “sexual orientation” before discussing “drug use,” “alcohol
abuse,” or “criminal misconduct.”).
89 See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“If the right of privacy means
anything, it is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as
the decision to bear or beget a child.”).
90 Shotwell, supra note 55, at 68-70.
91 See, e.g., Morrison v. St. Bd. of Educ., 461 P.2d 375, 392 (Cal. 1969)
(“Conscientious school officials concerned with enforcing such a broad provision might be
inclined to probe into the private life of each and every teacher, no matter how
exemplary his classroom conduct. Such prying might all too readily lead school
officials to search for ‘telltale signs’ of immorality in violation of the teacher’s
92 See id. at 391.
93 San Diego Unified Sch. Dist. v. Comm’n on Prof. Competence, 194 Cal. App.
4th 1454, 1458 (Cal. App. Ct. 4th Dist. 2011). The court decision included the whole
text of the Craigslist ad, which read:
In shape guy, mac, attractive, 32 waist, swimmer’s build, horny as fuck.
Looking to suck and swallow masc guys, also looking to get fucked.
Uncut and huge shooters jump to head of line. Give my [sic] your loads so
I can shoot mine. White, black, Hispanic, European, all good. No fats,
fems, queens, Asians. NO BELLIES. Have pics when you email.
Id. at 1498.
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fired from his position because the posting included graphic
photos of Lampedusa’s body, including his genitalia and his
anus.94 Though the Commission on Professional Competence95
found Lampedusa to be a qualified teacher, a California appellate
court reversed the decision and upheld his dismissal because of his
“moral indifference” and the “unique position of public school
Lampedusa’s case demonstrates the fine line between private
electronic conduct, intended for a limited audience, and the
public nature of the internet. Despite making a public listing,
Lampedusa claimed he did not think anyone from the school or his
students would see the ad because it was on the adults-only section
of Craigslist, and because he did not list his name or his place of
employment; the ad was intended to help him meet someone in
his personal life for a sexual relationship.97 The Commission
accepted Lampedusa’s version of the story, noting that the ad was
“neither praiseworthy nor blameworthy, although [Lampedusa] is
now more mindful of how his actions in his private life can
inadvertently affect his public life as a teacher.”98
The California appellate court was not persuaded and upheld
his initial termination because of his “unfitness to serve” and his
“moral conduct.”99 The court relied heavily on the idea that a
teacher should be an exemplar. According to the court, “there are
certain professions which impose upon persons attracted to them,
responsibilities and limitations on freedom of action which do not
exist in regard to other callings. Public officials such as judges,
policemen and schoolteachers fall into such a category.”100 The court
noted that a parent in the community did actually see the ad, and
its pornographic nature “interfered with his ability to serve as role
model at the school.”101
Although Lampedusa believed that he was making private
sexual decisions using a public forum, the Court ultimately found that
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his position as a schoolteacher stripped him of the privacy rights
that would be afforded to a person in a different position.102
B. Freedom of Speech
The Supreme Court has held that the First Amendment
protects teachers’ private speech, but that the protection is limited by
the state’s interest in advancing employment goals.103 Such an
inquiry into whether a teacher’s private speech is protected
ultimately results in “balanc[ing] between the interests of the teacher,
as a citizen, in commenting upon matters of public concern and
the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees.”104
Accordingly, the Court developed a two-step analysis for
conducting this balancing test:
First, does the speech in question touch on a legitimate matter
of public concern? If the teacher is speaking on a matter of
public concern, then the second question is whether the state’s
interest in its educational goals or maintaining order and
discipline in the schools outweighs the teacher’s interest in free
The Court went on to define “public concern” as speech “relating
to any matter of political, social, or other concern to the
Thus, teachers are given limited protection on speech
concerning their sexual expression, since it may not be determined to
be a matter of “public concern.” Law Professor Eva DuBuisson has
written at length about teacher’s “out-speech” and how schools
have attempted to censor such speech or fire teachers for engaging
102 Id. at 1466 (“Moreover, the definition of immoral or unprofessional conduct
must be considered in conjunction with the unique position of public school
teachers, upon whom are imposed responsibilities and limitations of freedom of action
which do not exist in regard to other callings.”) (internal quotations omitted).
103 Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (“The problem in any case is
to arrive at a balance between the interests of the teacher, as a citizen, in commenting
upon matters of public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees.”).
Since the Pickering decision, the Court has further rolled back speech protections for
public employees by requiring that the speech be made by a citizen in order to be
protected, in addition to touching on matter of public concern. See Garcetti v.
Ceballos, 547 U.S. 410, 422 (2006). However, the ramifications of this decision are outside
the scope of this paper.
104 Pickering, 391 U.S. at 568.
105 Eva DuBuisson, Teaching from the Closet: Freedom of Expression and Out-Speech by
Public School Teachers, 85 N.C. L. REV. 301, 313 (2006) (citing Cox v. Dardanelle Pub.
Sch. Dist., 790 F.2d 668, 672 (8th Cir. 1986)).
106 Connick v. Myers, 461 U.S. 138, 144-46 (1983).
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in such speech.107 Yet, the greater American community has grown
more accepting of the LGBTQ community in the new millennium
and teachers are less likely to be fired for engaging in such private
However, teachers are still not immune from being fired for
their sexual speech. Although the Pickering/Connick analysis is used
for teachers’ private speech, teachers’ speech inside the school—
whether in the classroom or in an extracurricular setting—is
treated differently. The Supreme Court has held that schools are
permitted to regulate the content of any speech, so long as the
regulation serves a legitimate pedagogical interest.109 These
legitimate pedagogical interests can include “assur[ing] that
participants learn whatever lessons the activity is designed to teach, that
readers or listeners are not exposed to material that may be
inappropriate for their level of maturity, and that the views of the
individual speaker are not erroneously attributed to the school.”110
Although Hazelwood was decided on a student speech issue, courts
have subsequently applied this analysis to teachers as well.111
For example, Julia Frost was a veteran English teacher when
she took a position at Sultana High School in California.112 Once
hired at the new school, Frost informed her colleagues that she is a
lesbian, and her co-workers invited her to be a faculty advisor for
the school’s Gay/Straight Alliance, which is a student-run
organization that aims to end anti-gay sentiment.113 Some months later
during the same school year, the Vice Principal of Discipline informed
Frost that she was being investigated for “teaching homosexuality”
and determined that she was “teaching gay things.”114 Despite this
investigation, Frost received an exemplary review at the end of the
107 DuBuisson, supra note 105, at 304 (“[S]chool administrators in some
communities still face strong incentives to keep gay teachers in the closet for fear of community
108 Davison, supra note 88, at 703.
109 See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (“A school
need not tolerate student speech that is inconsistent with its “basic educational
mission . . . even though the government could not censor similar speech outside the
school.”) (internal quotation marks omitted).
110 Id. at 271.
111 DuBuisson, supra note 105, at 336 (citing Ward v. Hickey, 996 F.2d 448 (1st Cir.
112 Complaint for Damages, Injunctive and Declaratory Relief ¶ 1, Frost v. Hesperia
Unified Sch. Dist., No. CIVDS 1313980 (Super. Ct. Cal. Cty. of San Bernadino Nov.
19, 2013), http://www.lambdalegal.org/in-court/legal-docs/frost_ca_20131119_com
114 Id. ¶
EXPECTATIONS OF THE EXEMPLAR
Ultimately, Frost was terminated at the end of her
probationary period and was not granted tenure.116 She claims that she was
dismissed because of her sexual orientation.117 However, the
school contends that she was just “not a good fit” with the school
and that is why her contract was not “reelected.”118
Thus, the school district could terminate a teacher for
classroom speech related to being a lesbian. Because schools are
permitted to advance the pedagogical interest in not exposing
students to “material that may be inappropriate for their level of
maturity,”119 these schools can stop teachers from having
conversations with students about sexual orientation because the topic is
“too mature.” Claiming that discussing sexual orientation is too
mature for children under the age of eighteen is clearly reflective
of the attitude that homosexuality is “outside the norm,” “taboo,”
or “wrong.” Thus, the current law permits schools to advance their
own moral attitudes towards homosexuality.
C. Freedom of Association
Additionally, the freedom of association is an ancillary right to
the freedom of speech.120 Essentially, a portion of this right allows
association for the exercise of free speech as a group, when the
First Amendment protects the underlying speech.121 This gets
murky because the First Amendment does not protect all speech,
and gets even murkier when the speaker is a teacher.
For example, Peter Melzer was fired from his teaching
position at Bronx High School of Science in 2000 for being a member
of the North American Man/Boy Love Association (“NAMBLA”)
after over thirty years of employment with the school.122
NAMBLA’s mission is to change sexual attitudes towards sexual activity
between men and boys, and Melzer had been a member of the
organization since 1979.123 Parents found out about Melzer’s
mem115 Id. ¶ 5.
116 Id. ¶ 1.
118 Id. ¶ 11.
119 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988).
120 See Roberts v. U.S. Jaycees, 468 U.S. 609, 617-23 (1984) (describing the right to
intimate association and the right to expressive association).
121 Mark Strauss, Public Employees’ Freedom of Association: Should Connick v. Myers
Speech-Based Public-Concern Rule Apply?, 61 FORDHAM L. REV. 473, 478 (1992)
(citing N.Y. State Club Ass’n v. City of N.Y., 487 U.S. 1, 13 (1988)).
122 Melzer v. Bd. of Educ., 336 F.3d 185, 188-89 (2d Cir. 2003).
123 Id. at 189.
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bership in the group, and parents and students alike called for his
termination.124 As his defense, Melzer argued that his termination
violated his freedom of speech and freedom of association
The case went up to the Second Circuit and the court applied
the Pickering test.126 Although the court determined that Melzer’s
speech was a matter of public concern, the court ultimately
determined that the school board met its burden by showing that the
disruption caused by the speech outweighed Melzer’s speech and
association rights.127 Melzer’s position as a teacher was central to
the outcome, and the court stated:
Melzer’s position as a school teacher is central to our review. He
acts in loco parentis for a group of students that includes
adolescent boys . . . At the same time, he advocates changes in the law
that would accommodate his professed desire to have sexual
relationships with such children. We think it is perfectly
reasonable to predict that parents will fear his influence and
predilections. Parents so concerned may remove their children
from the school, thereby interrupting the children’s education,
impairing the school’s reputation, and impairing
educationally desirable interdependency and cooperation among parents,
teachers, and administrators.128
Despite poetically quoting Alexis de Tocqueville at the outset
of the opinion,129 the court ultimately determined that the parents’
outrage could override Melzer’s constitutional rights. This
illustrates both how Melzer failed to be an exemplar and how his sexual
identity ultimately led to his termination.
Considered together, teachers’ limited privacy and speech
rights expose how demanding the role of exemplar actually is. The
law specifically separates out teachers and treats them differently
than the rest of the public. Even compared to other public
employees, the burden of being an exemplar influences how teachers’
privacy and speech are analyzed by the courts. For this reason, tenure
becomes exceedingly important and explains why teachers are
given heightened job security.
124 Id. at 191.
125 Id. at 189.
126 Id. at 192-95.
127 Id. at 198.
128 Id. at 199 (internal citations omitted).
129 Id. at 188 (“Among the liberties an American citizen enjoys is the right to
associate with whomever he or she chooses for whatever purpose. That right, Alexis de
Tocqueville observed in discussing it 168 years ago in his classic book is ‘almost as
inalienable in its nature as [the right of] individual freedom.’”).
V. TEACHING WITHOUT TENURE: INVENTORY OF INTRUSIONS
Importantly, not all teachers are protected by tenure. Though
these teachers are still required to be exemplars, their only legal
protections come from federal and state employment statutes.
Those who advocate for ending K-12 tenure claim that tenure’s
protections are now provided by federal civil rights legislation.
Specifically, if schools move to an “at-will” system130 of employment,
Title VII of the Civil Rights Act of 1964, the Pregnancy
Discrimination Act, or the Family Medical Leave Act are supposed to protect
teachers from unwarranted intrusions into their personal lives
which form the basis for termination.
As such, this section will provide an inventory of examples in
which teachers were fired for their sexual conduct. Schools that
operate without teacher tenure or teacher unions—namely private
schools, parochial schools, and charter schools—illustrate the ways
in which teachers’ sex lives are implicated in termination
decisions.131 The section will then address the legality of these
termination decisions under federal employment statutes.
A. Sexual Orientation
As described below, teachers can be terminated for their
sexual identity, rather than any specific sexual act. However,
sometimes behavior can bleed into the notion of identity. For each
example below, however, the teacher’s private sexual orientation
became public grounds for termination.
1. Sexual Identity
Nichole Williams claims she was fired from Life School
Waxahachie, a charter high school in Texas where she was a varsity
basketball coach and ninth-grade geography teacher, for being a
lesbian.132 The school, however, denies that she was fired because
of her sexual orientation, and instead claims that the termination
decision was made after an incident that occurred on October 13,
130 At-will employment is practiced by most employers and allows either the
employer or employee to terminate the employment relationship at any time. See
Fineman, supra note 42, at 57-58.
131 Although some of the examples come from Catholic schools that have
particular exemptions because of the religious affiliation, the sexual undercurrent of the
termination decision still illustrates the problem of being obsessed with teacher sex.
132 John Wright, Charter school won’t reconsider coach’s firing, DALLAS VOICE (Nov. 11,
The “incident” occurred when Williams let some of her
students stay in her office during a conference period.134 Because
these students were supposed to be in a scheduled class at that
time, Williams expected to get into trouble for the minor incident
but did not expect to be fired because of it. Thus, she believes that
her termination for that incident was a pretext for sexual
As often occurs in employment discrimination cases,136
Williams and Life School Waxahachie settled before the case went to
trial.137 Still, this case illustrates both how intolerance for a
teacher’s sexual orientation can cast a shadow over a termination
decision and how a possible pretext for that discrimination can be
2. Same-Sex Marriage
Michael Griffin was fired from Holy Ghost Preparatory School
in Philadelphia, Pennsylvania, when he and his male partner
decided to get married.138 Griffin taught at the school for twelve
years, and the school community was aware that he identified as a
gay man for the entirety of his employment.139 He frequently
attended school events with his partner and did not attempt to hide
his sexuality, despite being employed at a Catholic school.140
On December 6, 2013, the school principal terminated
Griffin’s contract and explicitly stated that Griffin and his partner’s
marriage license application was the grounds for the
termination.141 The Archdiocese issued a public statement that the school
136 Christine Caulfield, To Settle Or Not To Settle: Lawyer’s Share Their Tips, LAW 360
(July 10, 2009), https://www.hunton.com/files/News/236c18dd-fcb6-4486-a348-e965
137 John Wright, Coach settles with Waxahachie school that allegedly fired her for being gay,
DALLAS VOICE (Jan. 12, 2012),
138 David Gibson, Students, alumni rally around fired gay teacher at Catholic school,
WASH. POST (Dec. 13, 2013), http://www.washingtonpost.com/national/religion/stu
had “no choice” but to terminate Griffin because the school’s
teaching contract “requires all faculty and staff to follow the
teachings of the Church as a condition of their employment . . . .”142 The
Archdiocese did not explain why the license to engage in a
samesex marriage was the tipping point for terminating Griffin’s
contract, rather than Griffin’s identity as gay man, which also goes
against the church’s teachings.
The community response to Griffin’s termination amounted
to outrage.143 Students, alumni, and allies started a change.org
petition, which gathered more than 4,000 signatures in one week.144
However, despite the public outcry, the school refused to reinstate
Griffin.145 Hence, this case demonstrates the ways in which the
exercise of a fundamental right146 can undercut otherwise secure
employment because a marriage will publicly broadcast a teacher’s
3. Imputed Sexual Identity
Tim Torkildson was an education blogger when he was fired
from his position as a teacher at Nomen Global Language Center
in Provo, Utah, in July 2014 for a personal blog post that he
wrote.147 In this blog, Torkildson correctly defined “homophone”
as “two words that sound alike but are spelled differently.”148 The
owner of the Nomen school subsequently fired Torkildson because
he believed readers would associate the word “homophone” with
“homosexuality,” and feared that the readers would associate the
school with a “gay agenda.”149
Thus, Torkildson need not even identify as gay or engage in
any sexual conduct to be terminated on the basis of sexual
orientation. The Nomen school’s intolerance for homosexuality was
sufficient reason for the school to fire Torkildson.
144 Reinstate Michael Griffin, CHANGE.ORG,
146 See Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015) (“The Court, in this
decision, holds same-sex couples may exercise the fundamental right to marry in all
147 Zach Schonfeld, Education Blogger Fired for Writing About Homophones and
Confusing Homophobes, NEWSWEEK (Jul. 31, 2014),
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Title VII & Sexual Orientation
Title VII of the Civil Rights Act of 1964 makes it illegal for an
employer to discriminate against employees based on their sex in
hiring, promotion, or termination decisions.150 Sexual orientation
is not its own protected class, although it may be covered by the
term “sex” in the statute in certain instances.151 The Court has
recognized that an employer may not discriminate against employees
based on “ ‘stereotyped’ impressions about the characteristics of
males or females.”152 Yet, within the concept, legal scholars are
divided over how to advance an equality agenda. Some advocate for a
similarity approach, in which men and women must be treated
equally only with respect to the areas where the sexes are similar.153
Others argue that sex-based discrimination exists not only when
the sexes are equal but treated differently, but rather any time that
a rule or practice “disproportionately burdens one sex because of
However, to make a claim for disparate treatment under Title
VII for sexual orientation, the claim must be shown to be about
“sex stereotypes” about how a “real” man or woman would
behave.155 Thus, a person who is experiencing discrimination based
on sexual orientation must first determine what the cultural sex
stereotype is and the ways in which his or her behavior is at odds
with the stereotype.
To make out a claim of disparate treatment156 for any type of
sex-based discrimination, the initial burden rests on the plaintiff to
show that there was intentional discrimination based on sex under
the McDonnell Douglas burden-shifting framework.157 From there,
the burden shifts to the defendant-employer to show that there was
a legitimate, non-discriminatory purpose for the plaintiff being
treated differently.158 If successful, the burden shifts back to the
150 42 U.S.C. § 2000e-2 (2015).
151 See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Cf. Baldwin v. Dep’t
of Transportation, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 1
152 L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 (1978).
153 See, e.g., Deborah M. Weiss, All Work Cultures Discriminate, 24 HASTINGS WOMEN’S
L.J. 247, 248 (2013) (citing Carol Gilligan, Getting Civilized, 63 FORDHAM L. REV. 17,
154 CATHERINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF
SEX DISCRIMINATION 225 (1979).
155 Id. at 251.
156 Sex-discrimination cases can also be brought under a “disparate impact” theory
but such suits are outside the scope of this paper.
157 See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
plaintiff to show that the employer’s stated reasons were pretext for
Thus, without tenure protection, a school may fire an at-will
teacher for a discriminatory purpose and claim that the
non-discriminatory purpose was the teacher’s ineffectiveness. Then, the
burden will be on the employee to show that the “ineffective” label
was pretext for some other form of discrimination. For instance,
Nichole Williams believed the charter school’s reason for her
termination was pretext for sex-discrimination based on sexual
orientation, meaning Williams would have to present evidence of the
intentional discrimination to win her case. Finding such evidence
is typically very difficult, and public school teachers would be
exposed to these difficulties without due process and with limited
privacy and free speech protections.
Similarly, even if the teacher-plaintiff can assert direct
evidence of discrimination, the failure of federal courts to recognize
sexual orientation discrimination as protected under Title VII
means that the teacher will need to tie the discrimination to the
statutorily-protected class of sex on a gender stereotype theory.
Title VII protections are limited by the gender-stereotyping theory
for sexual orientation.160 As such, Michael Griffith and Tim
Torkildson would likely be unable to invoke Title VII protections
for their terminations because they might not be able to show how
their terminations were caused by their failure to conform to
gender stereotypes. Perhaps Griffith could argue that marrying a man
is a failure to comply with the gender-stereotype of a different-sex
marriage, but courts have been reluctant to find such a cause of
action for fear of opening up the flood gates to sexual orientation
as a protected class in and of itself.161
B. Gender Identity
As attitudes about sex have become more relaxed, cultural
understanding of gender identity has increased. However,
transgender teachers still face difficulties because of the worries about
how students will respond to a teacher’s gender expression.
160 Zachary A. Kramer, Note, The Ultimate Gender Stereotype: Equalizing
Gender-Conforming and Gender-Nonconforming Homosexuals under Title VII, 2004 U. ILL. L. REV. 465
161 See, e.g., Dawson v. Bumble & Bumble, 398 F.3d 211, 219 (2d Cir. 2005).
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Mark Krolikowski taught at St. Francis Preparatory School in
Queens, New York for over thirty-two years before he was fired for
his162 gender identity.163 Some years before his termination in
January 2013, Krolikowski began to grow his hair out, wear nail polish,
and dress in more feminine clothing.164 Although the students
noticed Krolikowski’s change in appearance, they claimed to not feel
affected by it.165
The school, however, did not react positively. During the
20112012 school year evaluations, Krolikowski was instructed to “tone
down his appearance.”166 Bishop Leonard Conway told Krolikowski
that he would not be able to attend school functions if he dressed
in women’s clothing.167 Bishop Conway went on to say that
Krolikowski’s gender identity was “worse than [being] gay.”168
Krolikowski was ultimately terminated for insubordination for
failing to dress appropriately.169 Much like Michael Griffin’s
termination for entering into a same-sex marriage, Krolikowski’s
students, alumni, and allies were outraged by his termination and
started a change.org petition.170 However, the school refused to
rehire Krolikowski, and he took the case to court.171
Krolikowski’s case demonstrates how teachers who are gender
non-conforming can be subject to discriminatory employment
162 Krolikowski has confirmed in media stories that he prefers the continued use of
male pronouns, and asks that his students call him “Mr. K.” Michelle Garcia,
Transgender Teacher Fired From Catholic School, ADVOCATE (Jan. 8, 2013, 7:19 PM), http://www
166 Miriam Lazewatsky, Queens Teacher Fired for Being Transgender, GLAAD.ORG BLOG
(Jan. 31, 2013), http://www.glaad.org/blog/queens-teacher-fired-being-transgender
168 Russell Goldman, Transgender Teacher Sues Catholic School Over Firing, ABC News
(Jan. 7, 2013),
170 St. Francis Preparatory High School: Formally Apologize to Mark (Marla) Krolikowski for
Sexual Discrimination, CHANGE.ORG,
171 Sarah Wallace, Victory for Transgender Former Teacher, EYEWITNESS NEWS (Sep. 9,
2013, 6:18 PM), http://abc7ny.com/archive/9241977/
EXPECTATIONS OF THE EXEMPLAR
practices because of the sometimes-public nature of their gender
Gender Identity & Title VII
Like sexual orientation, Title VII does not address gender
identity as its own protected class, but it, too, is covered by the term
“sex” in the statute.172 “Title VII’s prohibition on sex
discrimination proscribes gender discrimination, and not just discrimination
on the basis of biological sex,” such that “[w]hen an employer
discriminates against someone because the person is transgender, the
employer has engaged in disparate treatment ‘related to the sex of
the victim’ in violation of Title VII.”173 Attorney General Eric
Holder announced on December 18, 2014 that the Department of
Justice will officially extend Title VII protection to those
discriminated against because of their gender identity.174
Still, Mark Krolikowski would likely not be successful in
bringing his suit to the Equal Employment Opportunity Commission
(“EEOC”) because of the ministerial exception to Title VII. The
Supreme Court has recognized a ministerial exception to Title VII
that allows religious institutions to discriminate against ministerial
employees who do not follow the institution’s religious
requirements, as a means to protect the institution’s First Amendment
freedoms.175 For example, while a religious school is not permitted
to fire a teacher for being pregnant, that school is permitted to fire
a teacher for having a child out of wedlock or for using assistive
reproductive technologies when that teacher is a ministerial
[C]ourts have made clear that if the school’s purported
‘discrimination’ is based on a policy of preventing non-marital
sexual activity which emanates from the religious and moral
precepts of the school, and if that policy is applied equally to its
male and female employees, then the school has not
discrimi172 See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004).
173 Macy v. Holder, EEOC Appeal No. 0120120821 (Apr. 20, 2012), http://www
174 Attorney General Holder Directs Department to Include Gender Identity Under Sex
Discrimination Employment Claims, DEP’T OF JUSTICE (Dec. 18, 2014), http://www.justice
175 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694,
709 (2012) (“The exception instead ensures that the authority to select and control
who will minister to the faithful—a matter ‘strictly ecclesiastical’—is the church’s
alone.”) (quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 119 (1952)).
176 Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir. 2000).
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nated based on pregnancy in violation of Title VII.177
Although this exception would not apply to public schools, the
ministerial exception does demonstrate that Title VII is not
impermeable when another legal right is at stake. Thus, it seems possible
that a similar exception could be carved out for teachers. Since
teachers are expected to adhere to a morally irreprehensible level
of conduct as exemplars, they could also have their permissible
sexual conduct further limited for the sake of the school’s pedagogical
Pregnancy and teaching have a long and complicated history.
Pregnancy by its very nature is not private, even if a pregnant
woman has every intention to keep her sex life private.178 Although
pregnancy-related rules often purport to be gender-neutral, the
underlying nature of pregnancy typically means only women’s
bodies will betray their privacy.179 Female teachers will ultimately bear
the brunt of any policies against premarital sex, and these cases
demonstrate how pregnancy can be treated today.
1. General Attitudes Towards Pregnancy
Loyda Suero and Leslie Cruz claimed that they were fired
from South Bronx Charter School for International Cultures in
July 2012 because they were pregnant.180 Though they never filed a
lawsuit, the two teachers told the media that their principal stated
that they must either plan to get pregnant in the summer or take a
month of maternity leave.181 Richard Riley, a United Federation of
Teachers representative, stated that because the teachers worked at
a charter school without a union or tenure, Suero and Cruz could
be terminated without cause.182
This case illustrates the broader attitude towards pregnancy at
schools. Teachers are often told to time their pregnancies so that
178 Fisher, supra note 69, at 557 n.173.
180 Candida Portuguese, Maestras Alegan Que Fueron Despedidas por Embarazo, EL
DIARIO (July 5, 2012),
http://www.eldiariony.com/2012/07/05/maestras-alegan-quefueron-despedidas-por-embarazo/ [http://perma.cc/WDW9-Z2C5], translated in
Charter School Teachers Say They Were Fired for Getting Pregnant, VOICES OF NY (July 9,
182 Id. However, given the UFT’s relationship with charter schools, this statement
may be biased.
EXPECTATIONS OF THE EXEMPLAR
they will give birth over the summer.183 Schools are typically
reluctant to get long-term substitute teachers and will push their
teachers to plan their sexual lives around the school calendar.
2. Out-of-Wedlock Pregnancy & Assistive Reproductive
In January 2014, Shaela Evenson was fired from her position as
a middle school teacher at a Catholic school in Montana for
becoming pregnant out of wedlock.184 Despite not being Catholic
herself, the school terminated her because her pregnancy by
artificial insemination went against “the moral and religious teachings
of the Roman Catholic Church” and violated her employment
contract.185 Although Evenson’s principal initially expressed happiness
for Evenson’s pregnancy, the Diocese stepped in to fire Evenson
after receiving an anonymous letter about her out-of-wedlock
pregnancy.186 The EEOC issued Evenson a right to sue letter in July
2014, and she has since filed a lawsuit in federal court.187 However,
Evenson’s lawsuit is currently on hold, as the Diocese is now in
Thus, this case reflects how pregnancy can betray a woman’s
desire to keep her sexual life private. Although the school may not
have intended to intrude into her sexual life, the school was still
able to form a judgment about Evenson’s life because of the public
nature of pregnancy.
3. Pregnancy Discrimination Act & Family Medical Leave
Pregnancy discrimination is illegal under Title VII of the Civil
Rights Act of 1964 as amended by the Pregnancy Discrimination
Act.189 Additionally, the Family Medical Leave Act guarantees
em183 June Kronholz, No Substitute for a Teacher, 13 EDUC. NEXT 2, 17 (2013), http://
184 Complaint and Demand for Jury Trial ¶ 22, Evenson v. Butte Central Catholic
Schs., No.14-cv-00055-DWM-JCL (D. Mont. Aug.
185 Id. ¶ 22.
186 Id. ¶¶ 17, 19.
187 Id. ¶ 6.
188 Angela Brandt, Former Butte Central teacher’s lawsuit on hold pending diocese
bankruptcy hearings, MONT. STANDARD (Nov. 8, 2014, 3:30 AM), http://mtstandard.com/
189 42 U.S.C. § 2000e(k) (2015) (“The terms ‘because of sex’ or ‘on the basis of sex’
include, but are not limited to, because of or on the basis of pregnancy, childbirth, or
related medical conditions; and women affected by pregnancy, childbirth, or related
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ployees “a total of 12 workweeks of leave during any 12-month
period for one or more of the following: (A) Because of the birth of a
son or daughter of the employee and in order to care for such son
Importantly, though, even if an employer may not be
permitted to terminate an employee on the basis of pregnancy, this does
not mean that the employers won’t still attempt to do so, as was the
case for Loyda Suero and Leslie Cruz. Pregnancy discrimination
suits have nearly doubled from 1997 through 2011.191
Given that there are approximately 3.3 million public school
teachers in the Unites States and roughly 1 million of those
teachers are women of childbearing age,192 eliminating teacher tenure
altogether could expose nearly .3% of the American population193
to erroneous termination claims from which they would otherwise
Furthermore, the relationship between assistive reproductive
technology (“ART”) and pregnancy discrimination is still tenuous.
The Pregnancy Discrimination Act does not explicitly prevent
employers from discriminating against an employee for using ARTs
because the Act was intended to protect the status of being
pregnant.194 Thus, Shelia Evenson will likely have to argue that her
termination was gender discrimination, rather than pregnancy
discrimination, because the termination was not about the status of
being pregnant. Courts may not be persuaded by such an
argument since people in both different- and same-sex couples rely on
ARTs to create families.
Title VII, the Pregnancy Discrimination Act, and the Family
Medical Leave Act protect the general public from a large swath of
discriminatory conduct. However, given teachers’ limited
constitumedical conditions shall be treated the same for all employment-related purposes
. . . .”).
190 29 U.S.C. § 2612 (2015).
191 Pregnancy Discrimination Charges EEOC & FEPAs Combined: FY 1997 - FY 2011, U.S.
EQUAL EMP’T OPPORTUNITY COMM’N,
192 Fast Facts: Teacher Trends, NAT’L CTR. FOR EDUC. STATS., U.S. DEP’T OF EDUC.,
193 Annual Estimates of the Resident Population by Single Year of Age and Sex for the United
States: April 1, 2010 to July 1, 201
4, U.S. CENSUS BUREAU (June 2015
194 JESSICA ARONS & ELIZABETH CHEN, CTR. FOR AM. PROGRESS, FUTURE CHOICES II:
AN UPDATE ON THE LEGAL, STATUTORY, AND POLICY LANDSCAPE OF ASSISTED
REPRODUCTIVE TECHNOLOGIES (Mar. 2013), https://www.americanprogress.org/wp-content/
EXPECTATIONS OF THE EXEMPLAR
tional protections, this federal civil rights legislation will likely be
insufficient to cover the gaps in privacy and speech rights. Taken
together, these examples of firing teachers for their sexual
orientation, their pregnancy status, or their gender identity provide an
important context for understanding teacher tenure. While all of
the American workforce can be subjected to such discriminatory
terminations, teachers are precariously more vulnerable to such
systemic failings because of the bizarre nature of their position in
society. Thus, the next section will describe the current battle
VI. RESPONSE TO THE FIGHT AGAINST INEFFECTIVE
TEACHERS & TENURE
Undoubtedly, teacher tenure is not without problems, and this
paper recognizes that any potential resolution will require
balancing two social justice goals—improving educational access and
protecting teachers. On the one hand, the Davids and Wright
complaints correctly assert that there are students who are assigned
to ineffective teachers. Specifically, the Wright plaintiffs are Kaylah
and Kyler Wright. They are twin sisters, both of whom entered
kindergarten at a Brooklyn public school in the fall of 2013.195
According to the complaint, Kyler was assigned to an “ineffective”
kindergarten teacher, which has resulted in her falling several
reading levels behind her sister.196 Kyler’s story is upsetting, as
every child should be provided meaningful opportunities to reach
their full potential.
Critics of teacher tenure are quick to point out stories like
Kyler’s as a means to prove that tenure should be abolished. They
claim that, under the tenure system, removal proceedings are so
costly and so often unsuccessful, that schools rarely pursue them to
remove ineffective teachers.197 Thus, school administrators instead
transfer ineffective teachers to different districts or accept that the
ineffective teachers will remain on the payroll.198
However, stories like Kyler’s raise more question than can be
resolved with the patent “end teacher tenure” response. Such an
answer fails to account for how difficult it is to determine which
teachers are “ineffective.” Currently, no objective system exists for
195 Wright complaint, supra note 17, ¶ 4.
196 Id. ¶ 3.
197 Nicholas Dagostino, Giving the School Bully a Timeout: Protecting Urban Schools
Students from Teacher’ Unions, 63 ALA. L. REV. 177, 194-95 (2011).
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determining which teachers are “ineffective”—evaluative systems
typically involve measuring student outcomes and some type of
observation by an administrator.199 However, the manner in which
student outcomes should be measured is a highly contested
topic,200 and the observational model allows for school
administrators to use subjective beliefs when evaluating teachers.
Typically, Ed Reform proponents claim that student test scores
should be the primary determinant in whether a teacher receives
tenure, thus increasing the evaluation’s objectivity.201 However,
educational testing experts consistently agree that testing is an
unreliable tool for predicting teacher effectiveness.202 “[Testing results]
will not simply reward or penalize teachers according to how well
or how poorly they teach. They will also reward or penalize
teachers according to which students they teach and which schools they
teach in.“203 For instance, a story like Kyler’s is upsetting, but it
indicates nothing about the outcomes of the other students in the
classroom. By using one student’s reading level to determine that a
teacher is “ineffective,” the complaint provides only limited insight
into what type of teacher she had. As such, even the complaint is
unable to objectively set forth a way to determine that a teacher is
Such a discussion raises the causation and redressability issues
presented by Davids, Wright, and Vergara. While the plaintiffs
pleaded statistical evidence that a student’s teacher has the most
impact on that student’s educational outcomes, the complaint only
described “ineffective” teachers in a broad sense.204 There were no
facts pleaded that the plaintiffs’ actual teachers were “ineffective.”
The complaints themselves were focused on the broad problems
with education,205 rather than the harm caused to the actual
litigants. Furthermore, the complaint did not address how
eliminating teacher tenure would redress these students’ problems—even
if “ineffective” teachers can be terminated more easily, they will not
necessarily be replaced by “effective” teachers.
199 Jim Hull, Trends in Teacher Evaluation: At a Glance, CTR. FOR PUB. EDUC. (Oct.
2013), http://www.centerforpubliceducation.org/teacherevalreview [http://perma
201 Dagostino, supra note 197, at 194.
202 See EDWARD H. HAERTEL, RELIABILITY AND VALIDITY OF INFERENCES ABOUT
TEACHERS BASED ON STUDENT TEST SCORES (Sept. 2013), http://www.ets.org/s/pdf/
203 Id. at 13.
204 Wright complaint, supra note 17, ¶ 4.
EXPECTATIONS OF THE EXEMPLAR
Furthermore, blaming the teacher for being “ineffective” is
only part of the problem. The majority of public schools fail to
provide their teachers with any meaningful professional
development.206 Most teachers receive infrequent professional
development training, and the trainings that are provided are generally
presented in an ineffective workshop style.207 Thus, teachers are
blamed for being ineffective, but their schools are failing to
Thus, on the other side of the social justice agenda, teachers
also need protection. Of course, attracting and maintaining highly
effective teachers is an important goal. Yet, unilaterally eliminating
or scaling back teacher tenure is not guaranteed to advance this
goal. Much more robust evaluative systems and teacher support
programs need to be developed before eliminating teacher tenure
will actually result in “ineffective” teachers being dismissed.
In the absence of such systems, teachers may be labeled as
“ineffective” when an administrator, parent, or community member is
unhappy with the teacher’s private sexual choices, the same way
teachers were labeled as “unfit” just a generation ago.208 Because of
the American public’s obsession with teachers’ sex lives, judicially
reforming teacher tenure could flood the legal system with
employment discrimination cases that otherwise could have been
prevented by the tenure system. As described throughout, teachers
occupy a peculiar legal space. In the absence of tenure, teachers
will continue to be exemplars but will be afforded limited privacy,
freedom of association, and freedom of speech rights. Removing
teacher tenure may expose teachers to additional discrimination
that the rest of the public does not experience.
Eliminating tenure may expose our teachers to the whims and
morals of the loudest opponents. Instead of weeding out truly
ineffective teachers, ending tenure may allow employing school
districts to use the “ineffective” label as a pretext for terminating
teachers whose sexual choices are questioned by their
Ensuring that the nation’s public school teachers are effective
206 Allison Gulamhussein, Teaching the Teachers: At a Glance, CTR. FOR PUB. EDUC.
(Sept. 2013), http://www.centerforpubliceducation.org/teachingtheteachers [http:/
208 See supra Part III, Section D.
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is an important goal. However, true effectiveness will not be
achieved through ending tenure and wrapping the education
reform efforts around an abundance of anti-teacher rhetoric.
Instead, supporting and developing our teaching workforce must be
the means to achieve true reform. As such, here are this paper’s
recommendations for reform:
1) Recognize Teacher Tenure as a Political Question. Given
the many competing policy goals of education reform and teacher
tenure, this issue is better left addressed by the political process.
Tenure needs to be refined by the public at large, not obliterated
by a judge.
2) Keep Tenure in Place Until “Ineffectiveness” Can Be
Objectively Observed. The cases outlined above illustrate how
reactions to teachers’ private sexual lives overestimate whether the
teachers are actually unfit to teach. Similarly, “ineffective” ratings
can be swayed or influenced by teachers’ private sexual conduct.
Thus, until a purely objective rating system exists, teachers should
continue to have tenure protections.
3) Invest in Professional Development. Every school district
has money earmarked for professional development programs,
but, in many school districts, this money is never spent and is
recycled back into the district at the end of the school year. School
districts need to commit to spending this money and offering
robust training programs to their teachers. Not only is it inefficient to
not offer such programs, it is also unfair to label teachers as
ineffective when the school districts fail to offer them support.
4) Create a Culture for Professional Development. Spending
money on professional development is only part of the problem.
Schoolteachers are faced with demanding schedules, but are often
told their jobs are easy or minimally challenging. Thus, changing
the effectiveness of teachers is not about firing practices, but rather
creating school cultures in which teachers are expected to grow
professionally and given the support they need to become
excellent educators. This is easier said than done, but there are many
bright spot schools throughout the nation that are doing just this.
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 II. CURRENT CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 III. UNTANGLING TENURE - SAFEGUARDS & SHORTFALLS . . . 138 A. What is Teacher Tenure? . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 B. History of Teacher Tenure . . . . . . . . . . . . . . . . . . . . . . . . . . 140 C. Teacher as Exemplar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 D. Shortcomings of Teacher Tenure . . . . . . . . . . . . . . . . . . . . . 143 IV. TEACHING WITH TENURE: LIMITATIONS ON LIBERTIES . . . 144 A. Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 B. Freedom of Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 C. Freedom of Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 V. TEACHING WITHOUT TENURE: INVENTORY OF INTRUSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 A. Sexual Orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
1. Sexual Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
2. Same-Sex Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
3. Imputed Sexual Identity . . . . . . . . . . . . . . . . . . . . . . 153
4. Title VII & Sexual Orientation . . . . . . . . . . . . . . . 154 B. Gender Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
1. Gender Identity Termination . . . . . . . . . . . . . . . . . 156
2. Gender Identity & Title VII . . . . . . . . . . . . . . . . . . 157 C. Pregnancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
1. General Attitudes Towards Pregnancy . . . . . . . . 158
2. Out-of-Wedlock Pregnancy & Assistive Reproductive Technology . . . . . . . . . . . . . . . . . . . . 159
3. Pregnancy Discrimination Act & Family Medical Leave Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
2 Black's Law Dictionary secondarily defines exemplar as “[a]n ideal example; the epitome of some characteristic.” Exemplar, BLACK'S LAW DICTIONARY (10th ed. 2014 ).
3 Todd A . DeMitchell, Sexual Orientation and the Public School Teacher , 19 B.U. PUB. INT . L.J. 65 , 69 ( 2009 ) (internal quotation marks omitted).
4 See Alia Wong & Terrance F. Ross , When Teachers Cheat, THE ATLANTIC (Apr. 2 , 2015 ), http://www.theatlantic.com/education/archive/2015/04/when-teacherscheat/389384/ [http://perma.cc/J324-GBAL].
6 GA. CODE ANN. § 16 -5- 3 ( 2015 ).
7 Why are Our Teachers Obsessed with Sex? , CBS TAMPA BAY, Feb. 7 , 2012 , http:// tampa.cbslocal.com/ 2012 /02/07/why-are -our-teachers-obsessed-with-sex-debra-la fave/ [http://perma.cc/E8VF-GDV7].
8 Henceforth, referred to as “Ed Reform.”
9 Rebecca Klein , This Is What It Takes To Get A Teacher Fired Around The Country , HUFFINGTON POST (Sept. 8 , 2015 ), http://www.huffingtonpost.com/ 2015 /06/03/ teacher-tenure-map_n_7502770.html [http://perma.cc/TXB3-4S4P].
10 Henceforth, referred to as “K-12 teachers” or “teachers.”
11 Jennifer Medina , Fight Over Effective Teachers Shifts to Courtroom, N.Y. TIMES (Jan. 31 , 2014 ), http://www.nytimes.com/ 2014 /02/01/education/fight-over -effectiveteachers-shifts-to-courtroom . html?_r=0.
12 “ At-will employees” are those who can be terminated at any time without cause . Employment At Will, BLACK'S LAW DICTIONARY (10th ed. 2014 ).
13 E.g., Can You Be Fired?, N.Y. STATE OFFICE OF THE ATT'Y GEN ., http://www.ag.ny .gov/labor/can-you - be-fired [http://perma.cc/Z57K-U3WC].
14 See, e.g., Tom Moroney & Jeffrey Young , Michelle Rhee Resigns as D.C. Schools Chancellor, BLOOMBERG NEWS (Oct. 13 , 2010 ), http://www.bloomberg.com/news/2010-10- 13/michelle-rhee -is-said-to-step-down-as-washington-d-c-schools-chancellor .html [http://perma.cc/28J4-6BCA].
15 Verified Amended Complaint ¶ 3, Davids v . State, No. 101105 /14 (N. Y. Sup. Ct. Richmond Cty . 2014 ), http://www.nycparentsunion.org/archives/1383 [http://per ma.cc/AW6E-VYS9].
16 Id. ¶ 37 .
17 Complaint for Declaratory and Injunctive Relief ¶ 4, Wright v . New York, A00641/2014 (N. Y. Sup. Ct. Albany Cty . 2014 ), http://nylawyer.nylj.com/adgifs/deci sions14/072914summons.pdf [http://perma.cc/FZ4T-QNZC].
18 Id. ¶¶ 27 - 33 .
19 Diane C. Lore, Now it's 'Davids v . Goliath' in New York teacher tenure lawuit, S.I. LIVE (Sept. 11 , 2014 ), http://www.silive.com/news/index.ssf/ 2014 /09/now_its_davids_v_goliath_in_ne.html [http://perma.cc/TFS6-4K8P].
20 Linda Ocasio , UFT becomes defendant in tenure lawsuit , UNITED FED'N OF TEACHERS (Oct. 2 , 2014 ), http://www.uft.org/news-stories/ uft-becomes-defendant-tenure-law suit [http://perma.cc/MW57-TF8Z].
21 NYSUT files motion to dismiss lawsuit challenging tenure law , NYUST (Oct. 29 , 2014 ), http://www.nysut.org/news/2014/october/nysut-files -motion-to-dismiss-lawsuit-challenging-tenure-law.
22 See Davids v. New York, Index No. 10115 /14, at 13 (N. Y. Sup. Ct. Richmond Cty . Mar. 12 , 2015 ), http://www.scribd.com/doc/258542104/Judge-Minardo- Decision-onDenied- Motions- to-Dismiss [http://perma.cc/UZ5V-XRLX].
24 Id. at 13-15.
25 Id. at 15.
26 Id. at 15-16.
30 Vergara v. California, No. BC484642, slip op. at 2 (Sup . Ct. Cal. L.A. Cty . Aug. 27 , 2014 ).
31 Id. at 6.
32 Id. at 2.
33 See generally Campaign for Fiscal Equity v . New York, 100 N.Y.2d 893 ( 2003 ).
34 See generally San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 ( 1973 ).
35 Generally, the Ed Reform world is multi-tiered, with many activist groups both working together and against each other. See generally Billy Easton, Changing Course on School Reform: Strategic Organizing around the New York City Mayoral Election, 39 VOICES IN URBAN EDUC ., 2014 , at 6, http://vue.annenberginstitute.org/sites/default/files/is sues/VUE39.pdf [http://perma.cc/HSU8-5TH2].
36 See Angela Dickens , Vergara's Effects Ripple Out to New York State, STUDENTS FIRST (July 31 , 2014 ), https://www.studentsfirst.org/blogs/entry/vergaras-effects - ripple-out - to-new-york-state [https://perma.cc/92D9- B3AZ ].
37 UFT urges dismissal of anti-tenure lawsuits , UNITED FED'N OF TEACHERS (Oct. 28 , 2014 ), http://www.uft.org/press-releases/ uft-urges-dismissal-anti-tenure-lawsuits [http://perma .cc/BLU3-NKP4].
39 This confusion likely stems from the term “permanent employee” being used interchangeably with “tenured employee.” However, this is a misnomer as the employment is not permanent, but is rather a statutory benefit .
40 M.J. Stephey , A Brief History of Tenure, TIME (Nov. 17 , 2008 ), http://www.time .com/time/nation/article/0,8599, 1859505 ,00.html.
41 See Goldberg v. Kelly , 397 U.S. 254 ( 1970 ) ; see also Civil Serv . Emps. Ass'n Inc. v. Venugopalan , 228 A.D. 767 ( 3d Dep't 1996 ).
42 Jonathan Fineman , Cronyism, Corruption, and Political Intrigue: A New Approach for Old Problems in Public Sector Employment Law, 8 CHARLESTON L . REV. 51 , 61 ( 2013 ) (“The belief was that employees who had some job stability and who did not have to worry about retribution could focus on performing their jobs to the best of their ability. The public would be better served if employees were rewarded based on their competence and expertise rather than their adherence to the dictates of a particular political party or as a reward for political favors .”).
43 Id. at 59 , 61 .
44 Id. at 91.
45 See, e.g., N.Y. CIV. SERV . LAW § 63 ( 1 ) (McKinney 2015 ).
46 N.Y. EDUC . LAW § 3012 ( 1 ) (McKinney 2015 ).
47 EDUC. Art. 61 (McKinney 2015 ).
48 EDUC. § 3012 ( 2 ).
49 See generally Mathews v. Eldridge , 424 U.S. 319 ( 1976 ).
50 EDUC. § 3020- a .
51 Complaint for Declaratory and Injunctive Relief ¶ 6, Wright v . New York, A00641/2014 (N. Y. Sup. Ct. Richmond Cty . 2014 ), http://nylawyer.nylj.com/adgifs/ decisions14/072914summons.pdf [http://perma.cc/F67W-MVNY]; Verified Amended Complaint ¶ 37 , Davids v. State, No. 101105 /14 (N. Y. Sup. Ct. Richmond Cty . 2014 ), http://www.nycparentsunion.org/archives/1383 [http://perma.cc/AW6EVYS9]. These plaintiffs are also are challenging New York's seniority system (“Last In, First Out” or “LIFO”), but these statutes are outside the scope of this paper .
52 Verified Amended Complaint ¶ 37 , Davids , No. 101105 /14.
53 Vergara v. California, No. BC484642, slip op . at 10 ( Sup . Ct. Cal. L.A. Cty . Aug. 27 , 2014 ).
54 See, e.g., Johan P. Olsen , Citizens, Public Administration and the Search for Theoretical Foundations, 37 POL. SCI. & POL . 69 , 70 - 71 ( 2004 ).
55 Kristin D. Shotwell , Secretly Falling in Love: America's Love Affair with Controlling the Hearts and Minds of Public School Teachers, 39 J.L. & EDUC . 37 , 44 ( 2010 ).
57 Id. at 47-48.
61 Ruth Gavison , Feminism and the Public/Private Distinction, 45 STAN. L. REV. 1 , 43 ( 1992 ) (“Women feel that too long we have been ignored, because we have been seen as private and unimportant. Furthermore, we feel that for too long our lives and our complaints have been ignored because they lacked visibility .”).
62 Stephey, supra note 40.
63 Laura McNeal , Total Recall: The Rise and Fall of Teacher Tenure, 30 HOFSTRA LAB . & EMPL . L.J. 489 , 492 ( 2013 ).
64 Sigrid Bathen , Tracing the Roots of Teacher Tenure, CAL . J., May 1999 , at 11, http:/ /www.cde.ca.gov/nr/re/hd/documents/yr1999hd05.pdf [http://perma.cc/ZLL7- U9DM].
65 Stephey, supra note 40.
66 Teacher tenure also protected all teachers' abilities to engage in free speech and political discourse, as well as provided protection for the teaching of radical or progressive ideas . See Ralph E. Shaffer, Opinion, History shows why teachers need tenure , L.A. DAILY NEWS ( June 11 , 2014 ), http://www.dailynews.com/opinion/20140611/his tory-shows -why-teachers-need-tenure-ralph-shaffer [http://perma.cc/DK4J-KVSU]. However, this article focuses primarily on using teachers' positions as public servants as a method to punish their sexual choices by revoking their employment .
67 McNeal, supra note 63 , at 492.
68 Jason R. Fulmer , Dismissing the “Immoral” Teacher for Conduct Outside the WorkplaceDo Current Laws Protect the Interests of Both School Authorities and Teachers?, 31 J.L. & EDUC . 271 , 276 ( 2002 ).
69 Lauren E. Fisher, A Miscarriage of Justice: Pregnancy Discrimination in Sectarian Schools, 16 WASH. & LEE J. C.R . & SOC. JUST . 529 , 557 n. 171 ( 2010 ).
70 Shotwell, supra note 55, at 48.
71 Ambach v. Norwick , 441 U.S. 68 , 77 - 78 ( 1979 ).
72 DeMitchell, supra note 3, at 69 ( internal quotation marks omitted).
73 Id. at 72-74.
74 See Margo Kaplan , Sex-Positive Law , 89 N.Y.U. L. REV. 89 , 141 - 42 ( 2014 ) (citing Lawrence v . Texas , 539 U.S. 558 ( 2003 ); Eisenstadt v . Baird , 405 U.S. 438 ( 1972 ); Griswold v . Connecticut , 381 U.S. 479 ( 1965 )).
75 Id. at 141.
76 Tingley v. Vaughn , 17 Ill. App. 347 , 351 (Ill. App. Ct. 1885 ).
77 For a robust discussion of why teacher tenure is necessary to protect against age discrimination and to prevent firing teachers who are paid more, see Mark A . Paige & Perry Zirkel , Teacher Termination Based on Performance Evaluations: Age and Disability Discrimination?, 300 EDUC. L. REP. 1 ( 2014 ).
78 McNeal, supra note 63 , at 491.
79 Floyd G. Delon, Is a Teacher's Pregnancy Out of Wedlock Constitutionally Protected Conduct?, 7 EDUC . L. REP. 9 , 11 ( 1987 ).
80 Brown v. Bathke , 416 F. Supp . 1194 , 1198 (D. Neb . 1976 ).
81 Sullivan v. Meade Cty. Indep. Sch. Dist . No. 101 , 387 F. Supp . 1237 , 1247 (D.S .D. 1975 ).
82 Id. at 1248.
83 In a review of 50 news articles about teacher sex conducted by the author, roughly 60% of the articles were about teachers having sex with students and about 20% were about teachers posting some sort of sexual material on social media.
84 Teacher Sex Scandals , HUFFINGTON POST, http://www.huffingtonpost.com/news/ teacher-sex/ [http://perma.cc/8QUS-G2QQ].
85 Sexual Harassment in Education in the United States , WIKIPEDIA, http://en.wikipedia .org/wiki/Sexual_harassment_in_education_in_the_United_States [http://perma .cc/F5PL-8VBD].
86 Shotwell, supra note 55, at 38.
87 See, e.g., Tiffani Webb , New York High School Counselor, Fired For Modeling Past, Racy Photos Taken 17 Years Ago , HUFFINGTON POST (Oct. 8 , 2012 , 2 :54 AM), http://www .huffingtonpost.com/ 2012 /10/08/tiffani-webb-new-york-hig_n_1947277.html [http:/ /perma.cc/U3NB-AHUT].
88 See generally John Trebilcock, Off Campus: School Board Control Over Teacher Misconduct, 35 TULSA L.J. 445 , 455 - 57 ( 2000 ) (discussing first the sexual activity cases that led to teacher dismissals before noting that sexual activity is “not the only area” for which teachers are dismissed); see also Clifford P. Hooker, Terminating Teachers and Revoking Their Licensure for Conduct Beyond the Schoolhouse Gate , 96 EDUC. L. REP. 1 , 5 - 9 ( 1995 ) (dedicating all of Section III of the article to sexual misconduct before moving on to other grounds of dismissal); Ruth L. Davison, The Personal Lives and Professional Respon-
95 In California, a terminated teacher may request review of his termination before the impartial Commission on Professional Competence. The Commission's decision can be appealed to state court for arbitrary and capricious review . See CAL. CODE OF CIV. PROC. ANN. § 1094.5 ( 1945 ).
96 San Diego Unified Sch. Dist., 194 Cal. App. 4th at 1466 (internal quotation omitted).
99 Id. at 1466-67.
100 Id. at 1463.
101 Id. 4. 1. 2. VII. CONCLUSION & RECOMMENDATIONS