Within the scheme of contemporary education, the probationary teacher emerges as a figure meriting special legal inquiry. A variety of protections, statutory, quasi-legal, or contractual in origin may be available to the probationary teacher in order to insure a minimum degree of employment security. However, few states have enacted statutes protecting the nontenured status, and it is a rare contract that provides for procedural rights in the event of dismissal. Thus, stripped of these protections, the probationary teacher whose contract is not renewed must look to the Constitution for relief.
While private enterprise may act unfettered by the constraints of the fourteenth amendment, the government must conduct its affairs within prescribed constitutional limits. Courts have, nonetheless, evinced considerable reluctance to apply this proposition, without qualification, to all areas of state activity. In particular, public service is one of many areas in which a judicially constructed barrier enables only “rights” to pass through the constitutional filter while deflecting those interests deemed “privileges. ‘ Public employees have repeatedly invoked the due process clause of the fourteenth amendment in an effort to achieve substantive protection against discharge and to secure attendant procedural rights. Such litigation has spawned a conflicting body of case law with results ranging from the denial of any procedural protection at all to the granting of the full panoply of pretermination safeguards. The United States Supreme Court in Board of Regents of State Colleges v. Roth, held that the benefits of the due process clause do not inure to the probationary teacher since he does not suffer a deprivation of life, liberty, or property when his contract is not renewed.
Roth had just completed his first year of teaching as an assistant professor at Wisconsin State University-Oshkosh when he was informed, pursuant to the rules promulgated by the Board of Regents, that his contract would not be renewed. Although the rules provide for an intramural hearing and investigation in case of dismissal during the school term, the probationary teacher whose contract is simply not renewed has no rights whatsoever under university regulations. Roth succeeded in obtaining a partial summary judgment in federal district court, which was affirmed by the court of appeals, directing the university to provide a statement of reasons and a hearing on its decision not to rehire him for the following year.
Roth had claimed that the decision not to rehire him was constitutionally infirm on first and fourteenth amendment grounds. It was his contention that the university’s action was in reprisal for his public criticism of school officials. However, the partial summary judgment was on the procedural issue alone, and the circuit court affirmed on that basis. Although no substantive first amendment question was before the Supreme Court, Justice Stewart nevertheless made it clear that Roth’s interest in retaining employment could not be categorized as a right deriving from freedom of speech.
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Federal employment law should expand beyond the group-based protections established in Title VII to protect and promote an employee’s authentic self in the workplace.
Michael M. Oswalt∞ Organizing is risky. Some workers join in and get fired, others face intimidation and drop out, while most—sensing the tension between legal rights and remedial realities—simply opt out. And more and more, the campaigns—and the campaigners—are getting