I. INTRODUCTION-MORALITY: AN AGE OLD CONCEPT BEING CHALLENGED BY NEW APPROACHES TO EDUCATION
The old saying that teachers should practice what they preach is tested anew in today's classroom. Few school-related topics are hotter these days than "character education," a movement to teach students positive values! Recent polls indicated registered voters strongly support the idea that schools should share the responsibility with parents in teaching children moral principles.2 This growing demand for character education was evident in the recent 2000 presidential debates, and is now at the forefront of President George W. Bush's education agenda. "We want our schools to care about the character of our children. I am talking about communicating the values we share, in all our diversity, such as respect, responsibility, self-restraint, family commitment, civic duty, fairness, and compassion-the moral landmarks that guide a successful life."
As expectations for students to be more moral continue to rise, there may be an increasing desire to evaluate the character of those who teach it. School districts displeased with teachers' non-conventional acts or habits, such as their sexual orientation or choice of living arrangements, have dismissed them, labeling their conduct "immoral" despite the fact the behavior occurred away from school. Few would dispute a school district's right to police teacher behavior or language on school grounds,' but should schools demand teachers live their lives a certain way even while away from school.
Many questions arise when one approaches the subject of "morality," or the absence of "morality," or rather, "immorality." What is it? What conduct does it encompass? Is a teacher's sexual orientation a moral question? Should a school board be able to dictate what a teacher does in his or her spare time, or with whom he or she associates after the school house doors have closed? If the law permits inquiry into a teacher's morality, what limits, if any, should be imposed? Should the definition be different from community to community as toleration levels vary? This article will examine the competing interests of school districts in employing "moral" teachers and teachers' interests in privacy and lives detached from government control. This article will also discuss the constitutional shortcomings of current laws and new approaches being explored to address these concerns. Finally, this article will suggest that, as school districts' desire to inquire into a teacher's off-duty conduct increases, both school authorities and teachers should be aware that their power to inquire is not unlimited.
II. IDENTIFYING THE CURRENT BAR: WHAT TYPE OF CONDUCT IS PROHIBITED?
Long before the current movement towards character education, teachers were terminated for flaws in their character. While state codes vary as to the specific grounds for dismissal, teachers have been terminated, among other things, for "incompetency,"5 "insubordination,"6 "neglect of duty,"7 "sufficient cause,"8 "conduct unbecoming,"9 and "immorality."10 Typically, these words are broad and left undefined. For example, North Carolina provides that "No teacher shall be dismissed or demoted ... except ... for immorality."" Most of these broad provisions do not present a problem because of their inherent focus on conduct surrounding the teacher's job performance. "Incompetency," neglect of duty," and "insubordination," by their very terms, merely state the principle that a teacher may be terminated for deficiencies in job performance. However, it is not as clear what conduct is required in order to terminate a teacher based on "immorality." This term has given courts, as well as teachers, difficulty in ascertaining exactly what conduct is prohibited.
Few jurisdictions expound on what warrants termination for being "immoral." As one court states,
Immorality is an imprecise word which means different things to different people. In essence, it connotes conduct not in conformity with accepted principles of right and wrong behavior. It is contrary to the moral code of the community; wicked; especially, not in conformity with the acceptable standards of proper sexual behavior.
Another court has written, tautologically: "Immoral conduct contemplates behavior sufficiently contrary to justice, honesty, modesty, or good morals." To religious groups which draw their accepted principles from sacred texts such as the Bible, immorality conjures up behaviors such as adultery, homosexuality, and debauchery. "In the opinion of many people, laziness, gluttony, vanity, selfishness, avarice, and cowardice constitute immoral conduct." Yet, most state codes do not even have what guidance is given by these unhelpful interpretations." As a result, the imperfect human teacher holds his breath waiting to see whether other imperfect humans will determine his conduct has become "immoral."
A. Constitutional Challenges
Teachers have challenged these statutes for being unconstitutionally vague. Although teachers have made several arguments in support of the void-for-- vagueness theory, few have been successful. The majority of courts have upheld these statutes "as applied" to the individual teacher by reading a narrowing construction, such as a "fitness to teach" requirement into the definition of "immorality."
One of the principal arguments made by teachers is that vague laws are offensive to our notions of due process, fair play, and substantial justice. "Our judicial system has always insisted that laws give persons of ordinary intelligence an opportunity to know what conduct is prohibited so as to avoid that type of conduct."" This argument seems fair in that it is difficult to subject someone to punishment when that person had no way of knowing that his conduct would bring about punishment. In Alford v. Ingram, the court, in construing a statute permitting termination for "immoral" conduct, stated that "while these words may have had certain concrete meanings in simpler times, this court has serious doubts as to whether these terms currently provide fair warning of proscribed conduct."
Perhaps this is true. The notion of immorality may have been more concrete in times past, serving fair notice of proscribed conduct. Modern issues, like HIV infection and homosexuality, were virtually unknown, or at least not discussed, in generations past. Perhaps the Ingram court was merely recognizing that times have changed, and that what was "immoral" yesterday may not be "immoral" today. Or, by its decision to uphold the statute, the court may have been suggesting that there may yet be a realm of "universal core" conduct that could be fairly defined as "immoral."
The United States Supreme Court has also recognized that the root of the vagueness problem is a rough idea of fairness, but that there are "practical difficulties in drawing... statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited."" Thus, the Court has tended to tip the scales in favor of those who have made the laws, as opposed to the teachers.
Teachers also point out that these termination statutes are unfair in that the definition of immorality often depends on what the school board thinks it means. This, in turn, could result in "arbitrary and discriminatory enforcement of the statute which could be applied so broadly that every teacher in the state could be subject to discipline."" In Burton v. Cascade School District Union High School No. 5, a teacher was dismissed on the basis of "immorality" for being homosexual. The court struck down this statute because it did not define what conduct constituted "immorality." Statutes this broad make those charged with enforcement the "arbiters of morality for the entire community," and, in doing so, "subject the livelihood of every teacher in the state to the irrationality and irregularity of its judgments."
Although the Burton decision is not widely followed because its approach was to strike down the statute instead of applying a narrowing construction its wisdom is evident. The court recognized that broad statutes require those who enforce them to read an unstated "community standard" into the the statute. For example, two courts may interpret "immorality" as encompassing different conduct: a liberal, tolerant community conceivably might not find anything wrong with a teacher who is homosexual; yet a rural town in the Bible belt may have grave difficulty in accepting this teacher in its schools.
It seems reasonable to conclude that the current application of the "immorality" standard depends on what the community applying the statute thinks it means. In addition, according to most courts, the immoral conduct warranting dismissal must be conduct that would adversely affect the teacher's job performance.
III. MEETING THE CURRENT BAR: TERMINATION FOR CONDUCT RELATED TO JOB PERFORMANCE-- CONSISTENT WITH SOCIETY'S INTEREST IN PROTECTING THE SCHOOL COMMUNITY
A. Society's Interest: Protecting the School Community
It is difficult to disagree with the proposition that the school board has a significant interest in protecting the school community from anything that would distract it from fulfilling its purpose of educating each child that attends its schools. This interest encompasses not only employing highly qualified teachers to teach, but also fostering an environment that promotes effective learning. Since school districts are beginning to implement character-based curriculums for students, teachers naturally will have to be trained to implement these programs. Regardless of the nature of the program-whether it be one of comprehensive morality" or simpler matters such as teaching mutual respect"-the school district, both as employer and educator, has an important interest in its employees' conduct that potentially could interfere with that mission.
The law recognizes that a teacher's role is unique in our society. "Teaching is not like driving rivets. It is not merely the rote, mechanical conveyance of factual information from one mind to another. Teaching is the shaping of young minds, the cultivation of a precious resource."" Because of this unique role, "teachers are intended by parents, citizenry, and lawmakers alike to serve as good examples for their young charges."
Many people regard a teacher as an "exemplar, whose words and actions are likely to be followed by the students coming under his care and protection." A teacher dismissed for immorality seemingly has an uphill battle if the act would affect those whom he teaches. For example, many courts have found that a teacher's private bad act was not sufficient to justify dismissal based on "immorality" where there were no students involved," or where the act occurred in the privacy of the teacher's home." However, a Chicago teacher's private possession of drugs was an immoral act in light of his being assigned to teach children involved with gangs or who had otherwise been in trouble with the authorities.35 Because of the influence the teacher had on those particular students, and because he was hired to be a role model for them, an act of this sort need not have been tolerated by the school district.
It is perhaps because teachers play this important role of character model that their conduct has been subjected to greater scrutiny." "It is undisputed that a child is under a teacher's care approximately seven hours a day, five days a week. Nearly half of a child's waking existence is under that of a teacher hired by local school boards."" Thus, it seems reasonable that a teacher's character and conduct should be expected to be above that of an average citizen not working in "so sensitive a relationship as that of a teacher to pupil."
Despite the fact that teachers may be held to a higher standard due to their relationship with students, should that expectation nullify a teacher's interest in living a private life away from school? In Sullivan v. Meade County Independent School District No. 101, a teacher's act of living with her boyfriend in a trailer park was sufficiently "immoral," according to the court." The court said that the live-in arrangement would have a grave impact on her ability to be a role model for her students." But should it have? Being a role model perhaps is a valid interest during school hours, for which the teacher is paid. But should this interest extend beyond that time? When the teacher signed her contract, did she bargain for an around-the-clock role model job with only eight-to-five pay?
B. A Reasonable Expectation-Getting Fired for Something Work-Related
In our society today, it seems reasonable that employees should not be surprised to be fired for failure to perform their duties at work. The bank teller who consistently gives his window customers an extra $100 should expect to hear from the boss that his days at the bank are numbered. The CEO of a major corporation should have no doubts that his impending replacement is because of unrealized financial expectations of the company, not because he failed to make his mortgage payment last month. A teacher, as well, should realize that taking a four hour coffee break during school hours will lead to the numbering of her days as a teacher. Thus, it is reasonable to assume that the average employee would not be surprised for being terminated for inadequately performing his job. However, it also seems reasonable to surmise that the bank teller, the CEO, and the teacher would be shocked if they came to work Monday morning only to find that they had been terminated for telling lies to preachers on Sunday.
Courts have generally upheld teacher termination cases based on work-related conduct. However, dismissing a teacher on the basis of "immorality" presents difficulty, both in that "immorality" is hard to define, and because "immoral" conduct can occur both inside and outside of the school setting. "Immorality" generally refers to some specific act. While there are exceptions to the rule, an "immoral" teacher will lead an "immoral" lifestyle and may not necessarily behave differently during school hours. However, the opposite can also be true. A person that society would consider "moral," as evidenced by his actions most of the time, may act in an "immoral" way on occasion. Because of this dilemma, as the cases demonstrate, school authorities generally do not focus on an immoral lifestyle but rather are concerned with a specific, unacceptable act. Thus, the conduct school authorities are concerned with most is conduct that would adversely affect a teacher's ability to perform his or her job.
C. Cases Involving Termination for Conduct Involving Students-The Easy Cases
Whether or not the conduct occurs away from school, few would contest the legitimacy of terminating a teacher for immorality based on improper conduct involving students. In fact, with respect to teachers, this might be the type of conduct which could be defined as "universal core" conduct. The many decisions finding a teacher's conduct with students to be "immoral" suggest the courts may have identified a per se standard of immorality that is applied regardless of the beliefs of the community applying the statute. However, a few illustrative examples of teachers displaying a momentary lapse of control indicate that "immorality" may simply be the most convenient category of conduct available to the authorities.
It should be no surprise that attempted sexual encounters with students have not been treated lightly by the courts. In Board of Trustees of the Compton Junior College District of Los Angeles County v. Stubblefield a court had no trouble concluding that a teacher had engaged in "immoral" conduct when the teacher was caught without his pants.' The court held the teacher was properly terminated when he was found in a "state of undress" with a female student in a parked car outside the school. The court stated, "[i]t would seem that, at a minimum, responsible conduct ... excludes meretricious relationships with a teacher's students."' Similarly, an Alaska court upheld the termination of a teacher when the school district discovered that the teacher, had engaged in a sexual relationship with a fifteen year-old student while working previously in another school district.
Aside from sexual encounters, teachers have also been terminated for dishonest acts involving students. An Ohio court, for example, held that the conduct of a teacher who instructed a student wrestler to misrepresent his status by weighing in for an older student was sufficient grounds of "immorality" warranting dismissal.
There are numerous accounts of teachers behaving inappropriately with students. An otherwise innocent school-sponsored field trip with students resulted in a Colorado teacher losing his job in Weissman v. Board of Education of Jefferson City School District No. R-J. Despite the teacher's characterization of his actions as "good natured horseplay," the court found that his touching and tickling female students was sufficiently "immoral" to justify termination." In Dickson v. Aaron, a court found that a teacher was properly dismissed for "immoral" conduct when the teacher, while chaperoning a student field trip, ordered a pitcher of beer at a restaurant and drank it in front of the students.
Even inviting students to social functions outside of school or engaging in inappropriate conversations with them while in school can constitute "immoral" conduct. In Gardner v. Commission on Professional Competence, a court upheld a teacher's termination for inviting a fifteen year-old student to lunch and an evening date and stating at least five times that one of his female students had a "nice ass."" Similarly, courts have upheld decisions to terminate a teacher where the teacher was caught smoking marijuana with students. As these cases illustrate, where society's and school authorities' interests are the highest-at school or involving students-courts will not hesitate to uphold a teacher's termination for immorality. Such conduct interferes with the school district's interest in protecting the school community.
IV. MISSING THE CURRENT BAR: TERMINATION FOR CONDUCT UNRELATED TO JOB PERFORMANCE-POTENTIAL INTERFERENCE WITH TEACHERS' CONSTITUTIONAL RIGHTS
A. Teachers' Interests: Various Protections Afforded by the Constitution
While teachers recognize that a school district may have an interest in protecting the school community, most teachers do not believe this interest should extend into their private lives. Teachers are naturally reluctant to grant school authorities an unlimited license to police their private conduct that occurs away from school, does not involve students, or has nothing to do with being a school teacher. In these situations, teachers have raised claims based on guarantees afforded by the Constitution, such as the right to privacy, freedom of speech, and freedom of association.
For example, in Lile v. Hancock Place School District, a teacher argued that his private conduct was beyond the reach or concern of authorities in determining "immoral" conduct that could be used to dismiss him." In Lile, the teacher was charged with sexual abuse of two children in the custody of the woman with whom he was living. Although the sexual abuse charges against the teacher were ultimately dropped, the court seemed to uphold the immorality-based termination because the alleged victims were the same age as the teacher's students. Also, even though the "immoral" act occurred away from school, the court said that certain acts of the teacher that had become known to the public (such as walking around the house in the nude and taking baths with the children with whom he lived) could have an adverse effect on his relationship with students." In refusing to extend a right of privacy for sexual acts that occurred in the teacher's home, the court observed that the United States Supreme Court "has not extended the right of privacy to embrace any and all activities that occur in the home, or to embrace the individual's interest in living a particular lifestyle.'
Nevertheless, school authorities should not assume they have unlimited oversight of their employee's private affairs simply because the right of privacy is not absolute. Privacy protected under the Constitution requires a balancing between the employee's interest in maintaining a sense of personal autonomy, and an employer's interest in running an effective enterprise." Generally, the courts look to see if the employee had a reasonable expectation of privacy, and if so, whether the employer's intrusions were unreasonable." Private employers have been held liable for intrusions which pry into an employee's personal space and dignity. For example, a store employee accused by a customer of stealing brought successful claims of outrage and invasion of privacy against her employer, who asked her to take off her clothes in order to prove she had not taken any of the allegedly stolen items.
It seems only reasonable that a teacher's right to privacy, especially while away from school, should be similarly protected. Society is willing to protect a teacher's privacy with respect to her personnel files and is willing to pass laws which forbid authorities from monitoring personal phone calls made from the workplace"-arguably at a place where she should reasonably expect less protection of her interests. Should we not expect that society would be more protective of a teacher's privacy at home? If so, the teacher would seem to have a more reasonable expectation of privacy in conduct that occurs away from the workplace.
In addition to privacy interests, teachers have associational rights protected under the First Amendment to the Constitution. Teachers have brought freedom of association claims against school districts that have arguably overstepped the line into a teacher's private affairs. While these cases have varied with respect to their outcomes, they are consistent in the sense that the school board was concerned that the teacher was involved in a socially unacceptable relationship. Associational claims have been brought when teachers have been dismissed for living with someone other than their spouse,66 being pregnant out of wedlock,67 openly proclaiming themselves to be homosexual," and "keeping" members of the opposite sex in their home.69 IMAGE FORMULA 36
While a school district cannot require a teacher to submit affidavits listing all the people he or she associates with after hours," a school district seemingly has authority to terminate an employee whose associations compete with its interests. For example, a Department of Housing and Urban Development appraiser was disciplined when he managed his wife's slum property in direct contradiction of his employer's mandate." Also, in Shahar v. Bowers," a lesbian employee's freedom of association claim failed against her employer, the Attorney General of Georgia, where the Attorney General asserted that the employment of a lesbian in an office that enforces state law would conflict with defending a law that prohibited homosexual sodomy."
Moreover, school districts should be especially careful when evaluating a teacher's conduct that might be characterized as speech. A statute that gives state officials the authority to terminate a teacher based on "immorality" may run afoul of the First Amendment right to free speech." Could a school district terminate a teacher for marching in a Saturday afternoon gay rights parade around the local court square? A good argument exists that in doing so, the school district would no longer be regulating mere "immoral" conduct, but has crossed the line into regulating speech."
What emerges from these cases is a realization that school authorities do not have unlimited discretion to police the private lives of their teachers. While the school district has a strong interest in protecting the school community, it must recognize that its teachers also have rights that are protected by the Constitution. Because a balancing of interests is required when the government attempts discipline based on a teacher's off-duty conduct, several jurisdictions have proposed a compromise to ensure that both the school board's inquiries are warranted, and the teacher's interests are protected: This is the requirement of nexus. IMAGE FORMULA 38
V. AN APPROPRIATE BAR: FINDING THE NEXUS - A COMPROMISE THAT AFFORDS PROTECTION TO INTERESTS OF BOTH SOCIETY AND TEACHER
A. Procedural Due Process and the Need for "Nexus"
Teachers possess an important right under the Constitution - the right to procedural due process under the law. Procedural due process requires that "state action which deprives a person of life, liberty, or property, must have a rational basis-that is to say, the reason for the deprivation may not be so inadequate that the judiciary will characterize it as "arbitrary or capricious."' In other words, a school district potentially could violate a teacher's procedural due process rights if its decision to terminate the teacher is "arbitrary" or "marked by whim or caprice rather than reason."
As such, before dismissing a teacher for "immorality" based on conduct occurring outside the classroom, a majority of jurisdictions will require that a 11 nexus" be shown between the conduct in question and the teacher's job. It should be noted that not all jurisdictions have chosen to adopt the "nexus" approach.
B. Not All Jurisdictions Require a "Nexus" be Shown
Not all jurisdictions demand that a "nexus" be shown in connection with dismissing a teacher for "immorality." While these jurisdictions represent the minority, the reasons courts have given in rejecting this requirement illustrate the competing interests between the school district and teacher. Some jurisdictions do not require a nexus to be shown simply because the teacher serves as a role model and is expected to behave in appropriate ways, regardless of where the conduct takes place." In Hainline v. Bond," the court found a teacher dismissed for burglary was put on adequate notice that commission of a crime was prohibited within the term "immorality."" The court may not have seen a need to adopt a nexus requirement in this case, perhaps because the offense was historically one of moral turpitude. It seems that most cases involving criminal convictions, especially felonies, are illustrative of that "universal core" body of conduct that is often labeled immoral. As the court stated, "One of the goals of education is to instill respect for the law, and teachers are expected to serve as role models for their students.""
Other jurisdictions do not require a separate showing of "nexus" because "immorality" is defined in the statute as involving an "act of moral turpitude." These jurisdictions reason that "if a teacher cannot abide by these standards [set out in the law], his or her fitness as a teacher is necessarily called into question."" Still other jurisdictions see no need to adopt a nexus requirement.
Other minority jurisdictions look to the egregiousness of the conduct in question and, if warranted, find the conduct implicitly calls into question a teacher's fitness for the job. In Barringer v. Caldwell County Board of Education, the court reasoned a reasonable public school teacher of "ordinary intelligence" utilizing "common understanding" would have known that approaching a crowded local pool hall armed with a fully loaded shotgun and sidearm, proffering violent intent, would place his job in jeopardy." The court stated a reasonable person should realize that this conduct would likely become known to the teacher's students, thus manifesting approval of violence and vigilantism, inappropriate for a teacher."
C. Requiring a "Nexus"-The Majority Position
However, a majority of jurisdictions require that a nexus exist between the off-duty conduct and a teacher's duties before allowing termination of the teacher based on immorality. A nexus requirement is important for both teacher and school district. For the school district, a showing of nexus increases the likelihood of its prevailing against a teacher's due process claim. For the teacher, the requirement of nexus ensures the teacher will only be dismissed for something truly related to his job, i.e., something for which most people would reasonably expect to be terminated.
In addition, when presented with a case involving First Amendment concerns, a showing of nexus certainly makes clearer any ambiguities that might be present in balancing both the school district and teacher's interests. For example, if a nexus is found, it at least arguably raises a rebuttable presumption that the school district had an interest worth protecting to which a teacher's interest may be required to yield. While it is clear, according to a majority of jurisdictions, that a nexus need only be shown for conduct occurring outside the classroom,89 few courts are explicit in defining nexus or providing instruction on how to establish this important element.
D. Defining Nexus
Although the specific language in the cases varies, most courts require the school district to show some connection between the conduct in question and the teacher's professional duties. "While the school board may legitimately inquire into the character and integrity of its teachers, in reviewing the character of a teacher, a nexus between the teacher's conduct and the workings of the educational system must be demonstrated."' Other courts require a "rational nexus"91 or "sufficient nexus"92 or even a "substantial nexus"93 between the conduct and duties in question. Regardless of the degree of nexus, most courts say that the outside conduct must relate to the teacher's "fitness to teach."'
E. Establishing Nexus-"Fitness to Teach"
After a court finds the teacher's conduct to be sufficiently immoral, those jurisdictions which require a nexus typically focus on how the conduct may affect the teacher's ability to teach. While "fitness to teach" is a broad term, most courts interpret "fitness" to refer to a teacher's ability to maintain discipline in the classroom, the effect the act will have on the teacher's students, and the attitudes of the students' parents. For example, courts have found that a teacher's fitness to teach has been adversely affected for conduct involving possessing or smoking illegal drugs, being charged with a crime such as battery" or sexual abuse, engaging in meretricious relationships,98 or even tampering with school property.'
In Board of Education of Cape Giradeau School District No. 3. v. Thomas," A Missouri court found that a teacher who intentionally shot at her estranged husband's girlfriend had exhibited immoral conduct that rendered her unfit to teach."' While the teacher went inside to talk to her estranged husband, the husband's lover scratched "bitch" on the teacher's car and then proceeded to leave."' When the teacher came out of the house and saw her car, she became enraged, pulled a gun, and fired four shots, one of which hit the lover in the leg."' Although the incident occurred in the summer, the school board convened and dismissed the teacher for immoral conduct.'" At the hearing, the board delivered twenty-seven findings of fact that the teacher was "unfit to teach."" The only testimony presented to establish the nexus was from the junior high principal and a human resources coordinator." Both testified that students and teachers were aware of the conduct and that the conduct would confuse students who are taught that "we are a gun-free, violence-free environment.""' Testimony was also presented that if the teacher were allowed to continue to teach, this would create a difficult situation for other parents and teachers because the teacher's actions contravened school policy and her role as authority figure and role model for the students."' The teacher appealed and argued that no nexus had been presented.
The appeals court upheld the trial court's findings that the teacher was properly terminated and a nexus was properly established between the conduct and her "fitness to teach.""' The court relied on two major factors in determining that the conduct affected the teacher's fitness to teach, namely the age and maturity of the teacher's students, and the likelihood and degree of an adverse effect on the students and other teachers."' The court found that the teacher's adolescent students were very impressionable, that the use of violence by the teacher to solve personal problems was likely to have an adverse effect on her students, and that the teacher's commission of a crime would adversely effect her relationship with other faculty and parents because her conduct was a breach of both policy and law, affecting her position as a role model and authority figure."' After recognizing that teachers are held to a higher standard in our society, the court upheld the lower court's decision that the teacher was properly terminated."'
There are, however, cases in which a teacher's conduct, although faulted, did not result in the teacher being terminated. In each case, the deficiencies were found to have had no effect on the teacher's "fitness to teach."I" Thus, it can be seen that the outcome is highly dependent on the specific facts of each case. Nonetheless, requiring a showing of proper nexus between the conduct and the teacher's fitness to teach makes vague statutes based on mere "immorality" fundamentally more fair.
First, the requirement of nexus brings into focus the previously unstated rule of "community standards." For example, in a liberal, more tolerant community where homosexual lifestyles would be more accepted, a teacher may have a better argument that her lifestyle would not adversely affect her ability to teach. Conversely, a homosexual teacher's ability to teach in a Christian community would more likely be hampered. Also, certain acts, such as the commission of a felony, may be labeled as per se immoral because they always affect a teacher's fitness to teach, regardless of the views of the community applying the statute.
Second, a nexus requirement may affect the balancing of interests that must take place when First Amendment rights are at issue. Whether it be free speech, association, or privacy claims, if a school district can adequately demonstrate that a teacher's conduct would affect his or her ability to teach, at least a rebuttable presumption is raised that the school's interest may be superior to any First Amendment rights claimed by the teacher. For example, a teacher who is terminated for "immorality" based on her conduct of marching in a gay rights demonstration may have a claim against the school district if she can prove that what in fact the school district is doing is attempting to regulate her off-campus speech. Accordingly, it seems the teacher should prevail, unless the school district can sufficiently demonstrate that her speech affects her overall "fitness to teach." I" However, the level of "fitness to teach" showing should be greater than the one the court accepted in Sullivan v. Meade County Independent School District No. 101. In Sullivan, the court upheld the discharge of a teacher who lived with her boyfriend in a trailer park located in a rural school district community."' The court held that the teacher's conduct affected her fitness to teach in that it occurred on school property (the mobile home was provided by the school district) and a majority of students and teachers, who also lived in the same trailer park, were aware of the conduct."' Arguably, the mere fact that students lived in the area and were aware of the conduct should not have given the school district the right to police the teacher's choice of companion.I" The fact that school authorities may not approve of every aspect of a teacher's life does not give them an unfettered right to intrude so as to correct it.
Inquiries by school authorities into a teacher's conduct away from the school setting should be limited to conduct that has a sufficient connection with the school's interest. Concerns arise when school authorities rely on vague "immorality" based statutes to dismiss a teacher for conduct outside the school setting. By using these statutes, school authorities may be inviting constitutional challenges based on vagueness, as well as claims based on the right to privacy, association, and speech.
An increasingly large number of jurisdictions have adopted a nexus requirement to alleviate some of these concerns. The nexus requirement generally requires that the school district sufficiently demonstrate a connection between the conduct in question and the teacher's fitness to teach. It seems that this approach is fundamentally more fair. By requiring a sufficient showing that the teacher's fitness to teach has been hampered, both the interests of school authorities and teachers will have to be addressed. In addition, the requirement of nexus brings into focus the previously unstated rule of "community standards" and forces the district to articulate which standard is offended and how that offense relates to the education of its children.
Perhaps the solution to these issues lies with the individual school districts and boards educating their teachers as to what specific conduct is required of them. Or perhaps the solution lies with the various state legislatures, in passing laws which more clearly define the scope of prohibited conduct, or by establishing minimal levels of positive qualifications that teachers must possess before being allowed to teach. The laws that allow teachers to be dismissed for "immorality" are simply outdated, and pose significant difficulties when applied to today's more complex world. The need for well-educated, "moral" teachers, however, is not outdated and will likely always be present.
JASON R. FULMER*
*J.D., University of Arkansas School of Law 2001. Mr. Fulmer is an associate with the law firm of Gardere, Wynne, Sewell, LLP in Dallas, Texas.