Law & Courts Opinion

Do As They Say: It’s the Law

By Edwin C. Darden & Phi Delta Kappan — July 23, 2013 5 min read
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In action movies, defiance is portrayed as a virtue. The fearless hero disobeys a direct order, proceeds to save the day, and is applauded for bravery, creativity, and rebelling against the limited vision of dimwitted superiors. Roll credits.

But, in real life, insubordination at work is rarely celebrated and often punished. To me, that assumption is both logical and reasonable. Public school districts have the legal right as employers to expect workers will faithfully comply with management directives. Refusing a direct command can yield disciplinary consequences, a job transfer, or even dismissal.

But that norm is also what makes the standardized test boycott by Washington state teachers so striking. In Seattle, a cadre of teachers in January 2013 refused to administer a district-mandated academic proficiency test to students. To them, it was a moral stand on behalf of children. Their action garnered national attention and widespread support in education circles.

A Feb. 9, 2013, story in the New York Times, explains the motivation. “We’ve tried testing again and again, and it hasn’t worked,” said Jesse Hagopian, a teacher at Garfield High School and a leader of the group. “It doesn’t cultivate the type of thinking we need, and it doesn’t bring in the resources that we need to make students successful.”

Hagopian and colleagues say the Measures of Academic Progress (MAP) test is not worth the paper it’s written on. Sympathizing teachers at Seattle’s Ballard High School and a few other schools also joined the protest. As of publication time, the Seattle clash still had not been fully resolved. Garfield’s principal and assistant principal oversaw student testing in early February. But some parents, siding with faculty, submitted opt-out forms for their children. The teachers, meanwhile, face possible sanctions, and a superintendent-convened task force is reviewing the district’s entire testing strategy.

Can Employees Say “No”?

The incident raises a larger legal question: Under what circumstances can an employee refuse to obey a supervisor’s order? The answer: Proceed at your peril. Courts recognize only a few instances that justify saying an outright “no.”

Labor and employment statutes vary from state to state. But virtual uniformity exists in how state laws and courts treat the employer-employee relationship. Often using the archaic terms “master” and “servant,” the law gives employers the right to control the actions of servants (workers) on the job. With only rare exceptions, plaintiffs must cross a high legal hurdle to demonstrate that noncompliance is justified.

Let’s be clear. The ultimate trump card belongs to the servant. If an employee is dissatisfied with working conditions, he can simply vote with his feet and seek employment elsewhere.

In the case of the Seattle teachers, they collectively refused to give the tests because of a philosophical objection. Simply disagreeing with management’s view, however, will seldom defeat the legal obligation to do what you’re told.

A similar case decided by the Court of Appeals of Washington, Division #1 in 2011 could spell trouble for the group. It involved two teachers who refused on principle to administer federally mandated tests to six special education students. The teachers were suspended for 10 days without pay for insubordination. The court unanimously ruled in favor of the district.

Likewise, in Sims v. Board of Trustees, Holly Springs Municipal Separate School District, the Mississippi Supreme Court upheld the dismissal of a teacher for insubordination. That 1982 case established the state’s definition of insubordination as a “constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority.”

California’s law opines that, “Implicit in the agreement of hire is the concept that an employee is subject to some degree of authority exercised by the employer or the employer’s representative. An employee is insubordinate if he or she intentionally disregards the employer’s interest and willfully violates the standard of behavior which the employer may rightfully expect of employees...”

The following is a true story, and an example of a conscience-driven objection: A former nun teaching in an elementary school has duties that include teaching the family life curriculum to students. One unit focuses on sex education, which includes instruction about birth control and sexual orientation. The nun-turned-teacher tells the principal that she doesn’t feel comfortable discussing those topics, and cannot in good conscience instruct students in this manner. While a school district might accommodate such a request rather than spark conflict, there is no legal obligation for officials to respect an employee’s personal misgivings.

The Pyramid of Authority

The two strongest reasons an employee can supply are health/safety and illegality. For example, if a principal ordered a custodian to rig the heating and air conditioning system in a way that saves money but is ultimately dangerous, the court would likely uphold the refusal as necessary to protect the health and safety of that employee and others. Similarly, if an employee is told to perform an action that is clearly contrary to law, the employee is on solid ground in resisting.

Contract is also a legitimate defense. If a teacher’s contract provides certain rights or protections and an administrator seeks to violate that pact, courts would not consider it insubordination if the teacher declines. Of course, if a school district seeks to reprimand or dismiss an employee in response to the kind of defiance that Hollywood lauds on screen, it must provide the due process guaranteed by the U.S. Constitution.

The general framework of compelling employees to follow management instructions is sensible. Imagine the chaos if schools were forced to regularly accommodate all manner of challenges to curriculum or job responsibilities. That scenario would not only be a logistical nightmare, it would also impede the core mission of delivering an efficient and effective education.

Thus, the pyramid of authority serves an important function. Simply saying you are over-worked, disagree pedagogically, or are a conscientious objector will frequently fail as a justification in court. Constitutional reasons, including First Amendment claims advancing religion or free speech arguments are judged using a higher standard, but still face a long and winding, uphill labyrinth in the legal system.

So, while collaboration and listening are desired traits in the school district workplace, the person highest on the organizational chart is entitled to final say. Ironically, perhaps, the action demanded of an employee does not even have to demonstrate good judgment. The supervisor typically has a legal right to be wrong.

All articles published in Phi Delta Kappan are protected by copyright. For permission to use or reproduce Kappan articles, please e-mail kappan@pdkintl.org.


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