Out of School Faculty Behavior

At the beginning of the twenty-first century, public school faculty are facing scrutiny and accountability for their behavior in and out of school. In their professional roles, faculty are faced with ethical issues, increased student needs, increased student violence, new technology, new teaching standards, and battles over teachers' rights. Different laws and mores govern faculty behavior in and out of school. Faculty at all levels, including elementary, secondary, and higher education, are held to different work standards and personal standards by parents, teachers unions, school boards, and the society at large. Out of school, faculty speech is protected under the First Amendment. Out of school, the teacher-student relationship limits and curtails faculty behavior as it is related to students. In school, faculty are subject to the rules and laws that govern employee-employer relationships as well as the standards and laws that direct teacher student relationships.

Keywords American Civil Liberties Union; Bill of Rights; Blogs; Boundary Violations; Ethics; Faculty; Fiduciary Relationship; First Amendment; Freedom of Expression; Mentors; Public Schools; School Districts; Supreme Court; Teacher Student Relationships

Overview

At the beginning of the twenty first century, faculty face scrutiny and accountability for their behavior in and out of school. In their professional roles, faculty are faced with ethical issues, increased student needs, increased student violence, new technology, new teaching standards, and battles over teachers' rights. Different laws and mores govern faculty behavior in and out of school. Faculty at all levels, including elementary, secondary, and higher education, are held to different work standards and personal standards by parents, teachers unions, school boards, and the society at large. Out of school, faculty speech is protected under the First Amendment. Out of school, the teacher student relationship limits and curtails faculty behavior as it is related to students. In school, faculty are subject to the rules and laws that govern employee-employer relationships as well as the standards and laws that direct teacher student relationships.

This article provides an examination of the issue of faculty behavior out of school. It addresses the question of whether or not teachers have the right to free speech outside of school as well as the liberties guaranteed teachers outside of school and the curtailment of some teacher student relationships and behaviors. The following sections discuss teachers' First Amendment rights. The relationship between faculty behavior, district policies, and federal education law are also discussed. The line between professional and personal faculty behavior and teacher student relationships is addressed and the role of faculty as mentor is examined.

Faculty Rights & the First Amendment

Inside and outside of the school environment, faculty enjoy different First Amendment protections. In school, faculty are subject to the desires, wills, commands, and perspectives of their employers. Inside the school environment, the personal opinions of faculty are not protected as free speech. Outside of the school environment, the First Amendment protects the personal opinions of faculty. In the United States, freedom of expression is guaranteed and protected by the First Amendment of the Bill of Rights. The First Amendment of the Bill of Rights prohibits the national government from limiting freedom of expression. It states that the government and Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Freedom of expression refers to a person's right to say or publish what he or she believes. Freedom of expression comes with societal and legal parameters. For example, the U.S. Supreme Court has defined numerous instances of impermissible speech. Throughout the twentieth century, the Supreme Court, the highest federal court in the United States, ruled on conflicts surrounding issues related to freedom of expression, such as free speech, free press, obscenity, libel, slander, symbolic speech, and commercial speech. Supreme Court rulings have defined the parameters of free speech that are acceptable in our society.

The American Civil Liberties Union

The American Civil Liberties Union (ACLU) protects the free speech rights of public school teachers. The American Civil Liberties Union, established in 1920, is a legal organization dedicated to protecting civil liberties such as First Amendment rights, equal protection under the law, right to due process, and right to privacy. The American Civil Liberties Union, and other legal organizations, believes that freedom of expression requires constant legal vigilance and protection. The American Civil Liberties Union publishes information about the free speech rights of teachers as related to speech outside of school, speech inside the classroom, teachers' clothing, classroom or office decoration, bulletin boards, on-campus conversations with colleagues, and on-campus demonstrations or meetings open to the public. According to the American Civil Liberties Union, the First Amendment protects teacher speech outside of the school environment. The American Civil Liberties Union promotes information about the law to inform teacher and school district behavior and relations. The American Civil Liberties Union shares the following information about teachers' rights with the general public:

• Teachers do not forfeit the right to comment publicly on matters of public importance simply because they accept a public school teaching position.

• Teachers cannot be fired or disciplined for statements about matters of public importance unless it can be demonstrated that the teacher's speech created a substantial adverse impact on school functioning.

• A teacher's off-campus statements regarding the war or participation in an off-campus political demonstration are not acceptable bases for job discipline or termination.

Applicable Court Cases

The Constitution provides little protection for teachers who express their beliefs in the classroom. Two court cases illustrate the different free speech protections afforded teachers inside and outside the classroom. In 2003, the Mayer v. Monroe County Community School Corporation court case found that public employees, including primary and secondary school teachers, do not have a constitutional right to share their own beliefs and opinions when speaking as employees. The court case was brought by a teacher, Deborah Mayer, whose contract was not renewed after telling her students, "I honk for peace," during a discussion of war protests and the war in Iraq. The court case followed a January 2003 ruling by the Seventh U.S. Circuit Court of Appeals that declared a teacher's speech to be a commodity that he or she sells to an employer in exchange for a salary (Egelko, 2007).

In contrast, a 2006 court case between a substitute teacher, Jeffrey Herman, represented by the American Civil Liberties Union of Massachusetts, and the Boston Teachers Union illustrates the free speech rights of teachers outside of school. In this case, the teacher Jeffrey Herman was put on a do not employ list by a school headmaster after the headmaster heard the teacher testify at a City Council hearing against the spending of one million dollars on Junior Reserve Officer Training Corps (JROTC) programs in the Boston public schools. The parties involved settled the case out of court. The attorneys at the American Civil Liberties Union of Massachusetts issued a statement explaining that teachers, out of school, are entitled to political opinions like other members of society.

The current socio-political climate creates students and teachers who know their rights and administrators charged with protecting the safety of a diverse student body. The U.S. democratic process invites and facilitates the process of questioning and challenging constitutional rights and liberties. As society and culture develop, new environments and scenarios arise in public institutions that require constitutional interpretation. Educational institutions, as a cornerstone of society, require constitutional review, oversight, and interpretation. The interpretation of the Constitution is an ongoing process. The public education system has become a location of Constitutional challenge and interpretation. The U.S. education system, a relatively new and still evolving public institution, is often in tension with public mores and Constitutional law.

Applications

Teacher Student Relationships

While the speech of teachers is constitutionally protected out of school, teacher student relationships out of school are not protected, allowed, or encouraged by families, school districts, and the law. Incidents of teacher student fraternization and sexual relationships have received publicity over the past decade. Scholars and law enforcement professionals debate whether or not the high profile cases represent a rising trend in teacher student boundary violations. The teaching profession, over the past twenty years, has undergone increased professionalization. Examples of the change in profession standards include the move from state certification to state licensure, more rigorous postbaccalaureate certification exams for prospective teachers, and rigorous continuing education requirements for employed teachers. The No Child Left Behind Act (2001) put a focus on teacher competency, certification, and continued education. While the focus on teaching standards has risen, there has been little focus on standardizing professional conduct. While other human service professions, including medicine, psychology, and law, have developed professionally recognized and enforceable codes of ethics, teaching has not.

The National Education Association Code of Ethics

In 1975, the National Education Association (NEA) created a code of ethics for the teaching profession. The National Education Association code of ethics of the education profession (1975) includes a statement of commitment to the student and to the profession of teaching. The code states that the educator will make the following commitments:

• The educator shall not unreasonably restrain the student from independent action in the pursuit of learning;

• The educator shall not unreasonably deny the student's access to varying points of view; the educator shall not deliberately suppress or distort subject matter relevant to the student's progress;

• The educator shall make reasonable effort to protect the student from conditions harmful to learning or to health and safety;

• The educator shall not intentionally expose the student to embarrassment or disparagement;

• The educator shall not on the basis of race, color, creed, sex, national origin, marital status, political or religious beliefs, family, social or cultural background, or sexual orientation, unfairly exclude any student from participation in any program or rant any advantage to any student;

• The educator shall not use professional relationships with students for private advantage;

• The educator shall not disclose information about students obtained in the course of professional service unless disclosure serves a compelling professional purpose or is required by law.

The National Education Association guidelines are vague and not enforceable by law. High profile cases of teacher student relationships have received wide-spread publicity. Criminal misconduct by teachers, in the area of relationships with students, has not resulted in professional and enforceable ethical and behavioral standards. While there is an implicit moral code for teachers in America, no professional code of ethics for teachers yet exists. Teacher student boundary violations are a serious occurrence (Barrett & Headley, 2006). Teachers and students are involved in a fiduciary relationship. Fiduciary relationship refers to a special relationship in which one person accepts the trust and confidence of another to act in the latter's best interest. Fiduciary relationships differ from consensual relationships between peers or adults. Relationships between teachers and students are always fundamentally asymmetric in nature. The student teacher relationship has distinctive issues with power, ethics, and boundaries. There are five main types of power including reward, coercive, legitimate, referrant, and expert. Teachers enjoy or experience all five types of power (Plaut, 1993).

Teachers as Mentors

Teachers often serve as mentors to their students. The mentoring relationship is multifaceted and includes multiple roles: Teacher, sponsor, guide, exemplar, counselor, believer, and evaluator.

• Teacher: The mentor's role is to enhance the student's skills and intellectual development.

• Sponsor: The mentor uses his or her influence to facilitate the student's entry and advancement into a chosen field or domain.

• Guide: The mentor welcomes the student into a new knowledge domain or field.

• Exemplar: The mentor serves as one whom the student can emulate.

• Counselor: The mentor's role in times of student stress is to serve as counselor and empathic listener.

• Believer: The mentor's role is to facilitate the student's academic, personal, and professional development.

• Evaluator: The mentor evaluates the student's performance.

Mentor relationships are complicated by the following factors: Parent-peer balance, mutuality, and social interaction.

• Parent-peer balance refers to the mentor's primary function as a transitional figure. The mentor represents a combination of parent and peer.

• Mutuality in the mentor peer relationship refers to the student and mentor's desire to see their success as reflecting on one another.

• Social interaction acknowledges that student mentor relationships serve a number of important functions. The functions include the following: Enhance the teaching and learning relationship; help acquaint the student with a new field or domain of knowledge; and help contribute to the personal development of the student.

Boundaries

Teachers and mentors are required to establish boundaries with their students. Boundaries refer to a spectrum of activities that have the potential to exploit the dependency of a student in a number of ways. Boundaries are the limits of a fiduciary relationship. Appropriate boundaries are not restricted to sexual contact. Boundaries are required to limit the development of dual relationships between teachers and students. Dual relationship can confuse roles for the student. Boundary violations, which refer to relationships outside the professional relationship, may compromise the integrity and effectiveness of the student-teacher relationship. Boundary violations between teachers and students have academic consequences for students. Some students who have become sexually involved with their mentors may change or abandon the educational programs or may be dismissed from the academic program. In addition, boundary violations have the potential of personal harm to the student if there is a student history of poor self-esteem, dependency, or victimization (Plaut, 1993).

Teachers and students are engaged in social roles. Social roles have inherent expectations about how a person in a particular role is to behave as well as the rights and obligations which pertain to that role. Role conflicts arise when the expectations attached to one role call for behavior which is incompatible with that of another role. Student teacher boundary violations occur most often when dual role relationships exist. A dual role relationship exists when an individual simultaneously or sequentially participates in two role categories (Gottlieb, 1993).

The prevention of teacher student boundary violations requires vigilance and self-awareness on the part of teachers. Teachers must pay attention to the following issues: Risk factors, transference issues for student, predatory sexism, and psychological vulnerabilities. Ultimately, there exist constant risk factors inherent in the professional or institutional setting itself-a closed system (Plaut, 1993). State boards of education and school districts issue guidelines to faculty for managing teacher student relationships in and out of school. For example, the Pennsylvania State Education Association promotes the following strategies for teacher-student relationships in an effort to avoid liability:

• Maintain personal space: Teachers cannot permit students to invade their personal space. Teachers cannot allow students to touch them, stroke their hair or hang on them to gain attention.

• Avoid double entendres: Teachers must be extremely careful when choosing their words. Students may report teacher remarks to their parents or administrators in ways that distort the context in which they were intended.

• Do not discuss sexually explicit topics: Teachers cannot afford to be drawn into conversations regarding sexually explicit topics, song lyrics, jokes or movies. Teachers should always discourage and try to stop such conversations in their presence.

• Do not be alone with students: Teachers should avoid being alone with a student in an enclosed space where teachers will not be observed by another adult. Examples of unacceptable situations include after-school detention, keeping a student in from recess, make-up tests, and tutoring are all examples of potentially risky situations.

• Do not become friends with students: Teachers should always maintain the line which lets students know that they are the teacher. If this line becomes blurred, students may become too comfortable with the teacher. This comfort can lead the student to make romantic overtures toward the teacher.

• Do not socialize with students: Teachers must be careful not to socialize with students outside of school. If teachers are seen in public with a student, people may assume an inappropriate relationship exists.

Primary, secondary, and higher education faculty are subject to different laws and standards. The following colleges have policies against consensual sexual relations between professors and students: William and Mary, Tufts, Indiana, Harvard and Radcliff, Amherst, Oberlin, Stanford, Yale, Duke, the University of Virginia, Ohio Wesleyan, the University of Iowa, College of William and Mary, University of Michigan, University of California, and Ohio Northern University. These colleges and universities all consider faculty student romantic relationships to be an ethics violation but vary in the formality and severity of their rules and regulations on student faculty relationships. The rationale for college bans on student teacher relations is based on the imbalance of power between teachers and students (Oliviero, 1994). The imbalance of power between teachers and students is less in higher education settings but still does exist. Teacher student boundary crossings and violations are more common in higher education than in primary and secondary school settings. As a result, colleges and universities are increasingly creating rules and guidelines for faculty student social interactions.

Conclusion

In the final analysis, faculty behavior, as it relates to student relationships, is subject to the same laws inside and outside of the school environment. In contrast, out of school faculty speech is not subject to the same education laws as in school faculty speech. Outside of the school environment, faculty speech is, for the most part, protected by the First Amendment. Possible exceptions to out of school faculty free speech protections are arising from new communication technologies. New communication technologies, such as email, instant messaging, and blogging, blur the lines that once demarcated out of school and in school faculty behavior. Blogs refer to online personal journals with frequent posts of links and content. Are faculty who choose to keep personal blogs on which to write about their work environments protected under the First Amendment protections that shelter other off campus teacher speech? School boards and school districts have broad statutes about professional and unprofessional conduct. For example, the California Education Code discusses and allows dismissal of teachers on the grounds of immoral or unprofessional conduct. This statute could be used to limit and curtail First Amendment speech rights with regard to blogging. Ultimately, the U.S. Supreme Court, school districts, society at large, and faculty themselves will mediate the parameters of out of school faculty behavior.

Terms & Concepts

American Civil Liberties Union: A legal organization, established in 1920, dedicated to protecting civil liberties such as first amendment rights, equal protection under the law, right to due process, and right to privacy.

Bill of Rights: The first ten amendments to the U.S. Constitution.

Blogs: Online personal journals with frequent posts of links and content.

Boundary Violations: Relationships outside the professional relationship.

Ethics: A perception and determination of right and wrong.

Faculty: Members of the teaching profession.

Fiduciary Relationship: A special relationship in which one person accepts the trust and confidence of another to act in the latter's best interest.

First Amendment: An amendment to the Constitution that states that the government and Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Freedom of Expression: A person's right to say or publish what he or she believes.

Mentor: A teacher who serves as a counselor and role model.

Public Schools: The elementary or secondary school system in the United States supported by public funds.

Supreme Court: The highest federal court in the United States.

Bibliography

ACLU and Teachers Union Settle Free Speech Lawsuit Against City of Boston. (2007).The American Civil Liberties Union. Retrieved November 14, 2007, from http://www.aclu.org/freespeech/gen/30331prs20070702.html

Barrett, D., Headley, K., Stovall, B., & Witte, J. (2006). Teachers' perceptions of the frequency and seriousness of violations of ethical standards. Journal of Psychology, 140 , 421-433. Retrieved November 14, 2007, from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=23153502&site=ehost-live

Belch, H. (2011). Teachers Beware! The Dark Side of Social Networking. Learning & Leading With Technology, 39, 15-19. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=70298897&site=ehost-live

Code of Ethics of the Education Profession. (1975). The National Education Association. Retrieved November 14, 2007, from http://www.nea.org/aboutnea/code.html

Eckes, S.E. (2013). Strippers, beer, and bachelorette parties: Regulating teachers' out-of-school conduct. Principal Leadership, 14, 8-10. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=90024721&site=ehost-live

Egelko, B. (2007). Supreme Court denies hearing for fired 'honk for peace' teacher. The San Francisco Chronichle, A-7. Retrieved November 14, 2007, from http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/10/02/MNEASHSN0.DTL

Free speech rights of public school teachers. (2003). The American Civil Liberties Union. Retrieved November 14, 2007, from http://www.aclu-wa.org/detail.cfm?id=59

Gottlieb, M. (1993). Avoiding exploitive dual relationships: A decision-making model. Psychotherapy, 30 , 41-48.

Henshaw, C. (2004). Boundary issues between faculty and students in associate degree nursing programs. Seattle University Press, 145.

Johnston, P. 2005. I walk the line. Chronicle of Higher Education, 51 , C1-C4. Retrieved November 14, 2007, from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=17067082&site=ehost-live

Oliveiro, T. (1994). (E)strange(d) bedfellows: Thoughts on the bans against faculty-student sexual relations and how they can hurt us. Radical Teacher, 45, 9.

Owen, P., & Zwahr-Castro, J. (2007). Boundary issues in academia: Student perceptions of faculty-student boundary crossings. Ethics & Behavior, 17 , 117-129.

Plaut, M. (1992). Boundary issues in teacher-student relationships. The Journal of Sex and Marital Therapy, 19, 210-219.

Sex and schools: By the numbers. (2013). Phi Delta Kappan, 94, 32-33. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=85410294&site=ehost-live

Shipley, G. (2011). Cyber misconduct: Discipline and the law. Leadership, 41, 14-16. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=87052580&site=ehost-live

Staying out of trouble: Teacher-student relationships. Pennsylvania State Education Association. Retrieved November 14, 2007, from http://heyteach.org/ht_trouble_pt2.cfm

Young, V. (2012). Not guilty, but not fit. School Administrator, 69, 9. Retrieved December 15, 2013, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=83416307&site=ehost-live

Suggested Reading

Blackburn, R., & Lindquist, J. (1971). Faculty behavior in the legislative process: Professorial attitudes vs. behavior concerning inclusion of students in academic decision-making. Sociology of Education, 44 , 398-421. Retrieved November 14, 2007, from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=13008253&site=ehost-live

Morgan, B., & Korschgen, A. (2001). The ethics of faculty behavior: Students' and professors' views. College Student Journal, 35 , 418. Retrieved November 14, 2007, from EBSCO Online Database Academic Search Premier. http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=6816229&site=ehost-live

Stratton, R., Myers, S., & King, R. (1994). Faculty behavior, grades, and student evaluations. Journal of Economic Education, 25 , 5-15. Retrieved November 14, 2007, from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=9702181495&site=ehost-live