Education Law Topics: Union & Employment Issues

Ninth Circuit Upholds Free Speech Rights of Academic Employees; Pickering Test, not Garcetti Decision, Applies

In Garcetti v. Cevallos, 547 U.S. 410 (2006) the United States Supreme Court held that when a public employee speaks out in his or her capacity as a public employee (and not as a private citizen) the remarks are not protected by the First Amendment and may support disciplinary action by the employer.  In the wake of that decision, questions have arisen as to whether various individuals were, in fact, speaking out in their “official capacity” or as private citizens on matters of public concern.

Court Rules Schools Must Meet Stricter Standards Under ADA than IDEA

The IDEA and the ADA are related, but they are not the same.

The beginning premise is simple enough:  When a disabled student requests help under the Individuals with Disabilities Education Act (IDEA)(20 USC §1412) in order to obtain a “free appropriate public education,” commonly known as a FAPE in education law lingo, school districts must develop an Individualized Education Plan (“IEP”) to bridge the gap. 

Courts Uphold “Ministerial Exception” in Wrongful Termination Case; Religious School Exempt from Title VII, ADA and FEHA; Key is Religious Nature of Employer and Religious Nature of Employee's Duties


The First Amendment protects religious freedom and, because of that important right, religious institutions are entitled to an exemption from civil rights statutes that govern employment discrimination.  This principle was at the core of two important decisions, one from the U.S. Supreme Court and another from the California Court of Appeal.

In Teacher Dismissal Hearing, School District Liable for Attorney's Fees When It Dismisses Charges on Eve of Proceedings


The California Education Code entitles employees to a hearing regarding their dismissal should they request it.  The third district court of appeal has also  ruled that once a school district employee requests a hearing to contest his/her dismissal, the school district cannot simply “dismiss” the case to avoid an award of attorney’s fees.

PERB Confirms Rules of Grievance Handling and Union’s Duty of Fair Representation; Union Must be Fair, But Is Not Required To Be Perfect

A decision from California’s Public Employment Relations Board clarifies the rules that apply when an employee asserts that his/her union breached the “duty of fair representation” when handling (or in this case not handling) the employee’s grievance. Here is the nub of the PERB ruling in Jacala v. SEIU:

Public Employees First Amendment Rights Upheld By Ninth Circuit; School District Employee Engaged in Protected Speech When She Sat Next To Colleague at Board Meeting

We have commented previously about the First Amendment free speech rights of public employees.  In Nichols v. Dancer, the law took another step in favor of protecting an employee’s right to associate with colleagues who may be involved in controversial issues.

Sexting Costs Certificated Teacher His Job – Personal Ad on Craigslist for Sexual Relations Deemed “Immoral Conduct” and Evidence of “Unfitness” Under Education Code Section 44932; Court Declares That Teachers, as Role Models, Occupy Special Position and

Sometimes when teachers do what others do, they can get into trouble simply because they are teachers.  A case from San Diego highlights this very problem. In San Diego Unified School District v. Commission on Professional Competence, the court held that a teacher’s act of posting lewd photos and advertising for sex on Craigslist constituted “immoral conduct” and made the teacher “unfit” to continue working in the San Diego school district.

California Teachers & DUI – CTC Reporting Requirements

California teachers who have been convicted of driving under the influence (DUI) often ask us about their reporting responsibilities to the Commission on Teacher Credentialing (CTC).  The short answer is that a teacher who is already certificated does not necessarily have to report a DUI conviction at the time it is entered on the record, but a bit of background is helpful.

Hudson Notice Not Required For Mid-Year Temporary Fee Increase

Public employee unions are required to send a “Hudson notice” to bargaining unit members which must provide an “adequate explanation of the basis for union representation fees, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow for the amount reasonably in dispute while such challenges are pending.  (See Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986.)).

Classified Employees – Reemployment – No Claim to Continuing Permanent Status Unless Rehired in Same Class/Grade as Previous Position

When classified school district employees are laid off due to lack of work/funds, they are subject to being rehired within 39 months.  If rehired, they resume their former employment status.  However, if they are rehired in a different position, the clock, in essence, restarts with respect to gaining permanent status.