President Obama called access to education the civil rights issue of our time. Now, with more than 800,000 Arizona students being deprived of an education due to an illegal teacher strike, the Goldwater Institute today sent letters to the state’s public school superintendents warning them that if they don’t open their doors and resume educating children immediately, they risk legal action by parents and students.
In the letter, Goldwater Institute Vice President for Litigation Timothy Sandefur clearly sets forth the constitutional obligation of districts to provide children an education, and the legal duty for public school teachers to comply with their contractual obligations as government employees. In addition, Sandefur explains that the so-called “walk-out” by educators is a flagrant violation of the law.
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“This unlawful strike—and the district’s efforts to aid or encourage it—are therefore not only a breach of contract, but an intentional effort to deprive Arizona students of their constitutional rights,” Sandefur explains. And not only are the students being deprived of their rights, but they’re also suffering very real harm, says Matthew Simon, Director of Education Policy at the Goldwater Institute.
“As a former teacher, I know the negative impact even one day of missed instruction can have on a student, let alone several days,” Simon explains. “Students deserve to have their education uninterrupted by politics. The impact of these missed days and potential extended school years can impact achievement on Advanced Placement exams, delayed graduation, negative consequences for students with special needs, and previously planned activities based on the school year calendar.”
And while the students are suffering harm, these illegal actions expose school districts to legal liability if schools don’t resume educating students immediately.
“In order to prevent the possibility of a lawsuit, it is necessary for district employees to return to work, and for the district to operate as normal, including, if necessary, taking steps to find substitute teachers to replace those who refuse to comply with their legal and contractual obligations,” Sandefur wrote to the superintendents.
“Also, the district must not facilitate the unlawful strike, including altering its employment policies to aid those who choose to violate their legal obligations or closing school when not absolutely necessary. Should the district fail to comply, parents and students will have grounds for lawsuits against the district and its employees.”
The letter reads:
This week, your district unlawfully closed schools as part of a coordinated plan to allow public school employees to refuse to report for duty or to discharge their contractual obligations as district employees. Although dubbed a “walk-out,” this action constitutes an illegal strike. This letter is to inform you and all district employees that these acts are unlawful. If the district does not reopen and employees do not return to their duties, parents and students will have a legal cause of action against them.
The Arizona Constitution provides that the state shall provide for “a general and uniform public school system.” Ariz. Const. art. XI § 1. This provision guarantees all students the right to an education, Shofstall v. Hollins, 110 Ariz. 88 (1973), and imposes on the district the constitutional obligation to provide for that education as specified in the law and in the employment contracts to which these government employees have agreed. This unlawful strike — and the district’s efforts to aid or encourage it—are therefore not only a breach of contract, but an intentional effort to deprive Arizona students of their constitutional rights.
Arizona law does not permit public school employees to strike. Communications Workers v. Arizona Board of Regents, 17 Ariz. App. 398, 400 (1972); Ariz. Att’y Gen. Op. No. 71-12 (R40) (Apr. 5, 1971); Ariz. Att’y Gen. Op. No. I80-039 (R80-12) (Mar. 18, 1980).
The refusal of public employees to honor the conditions of their employment contracts is a breach of contract, and a breach of contract constitutes insubordinate and unprofessional conduct under state law. A.R.S. § 15-534(C), (D). The Arizona State Board of Education’s Disciplinary Guidelines1 specify that breach of contract is unprofessional conduct, and that employees who breach their contracts should be suspended for one year.
Arizona law also makes it a felony for any person to enter onto the property of a public school for purposes of from interfering with the lawful use of that property, A.R.S. § 13-2911(2), and forbids any public school employee from using school district resources to influence the outcome of an election, or from seeking to pressure a subordinate on a political matter. A.R.S. § 15-511. Violations of this statute are punishable by fines of up to $5,000, and violators can be held personally liable to repay misused funds.
In order to prevent the possibility of a lawsuit, it is necessary for district employees to return to work, and for the district to operate as normal, including, if necessary, taking steps to find substitute teachers to replace those who refuse to comply with their legal and contractual obligations. Also, the district must not facilitate the unlawful strike, including altering its employment policies to aid those who choose to violate their legal obligations or closing school when not absolutely necessary. Should the district fail to comply, parents and students will have grounds for lawsuits against the district and its employees.
1 https://azsbe.az.gov/sites/default/files/media/Discipline%20Guidelines%20Adtoped%20February%202017_1.pdf