Building a Competitive Education Industry
A Weekly Column by Myron Lieberman

Last week I was in the Baltimore area and read an interesting item in the Baltimore Sun. The article was about a female substitute teacher in the area who had sexual relations with nine of her students. At the sentencing session, her lawyer argued that the teacher had already suffered enough. The situation had been the subject of several talk shows and much bedroom humor; her lawyer argued that "just to get another pound of flesh out of her with incarceration isn't appropriate." Naturally, her psychiatrist agreed, but most readers will probably agree with the judge, who opined that although it is interesting to know why crimes were committed "some punishment should be exacted." I believe that she was sentenced to 18 months in jail and highly restrictive probation for five years.

In this column, I want to consider a related issue. Assume for the sake of discussion that the teacher was a member of her local NEA affiliate and the state and national union as well. Would they have a responsibility, legal, moral, or both, to represent the teacher? After all, as the state's attorney made clear, the charges were based in part on the abuse of her teaching role.

Bear in mind that absent a confession (which materialized in this case), the "guilt" issue cannot be determined before anyone knows for sure what the outcome of a trial (if one is held) is going to be. For instance, there is the possibility of a successful insanity defense, or a not guilty verdict due to a violation of the defendant's Miranda rights. Heretofore, the teacher unions have taken the position that their role is not to protect incompetent teachers, or the teachers charged with serious misconduct related to their employment. Instead, their role is to ensure that their members are accorded due process, that is, certain procedural protections. Is the case under discussion any different?

In my opinion, it should not be. What is the justification for taking teacher union dues for several years in order to provide assistance when it is needed, and then, just when the teacher has the most urgent need for union services, allow the union to refuse to protect the teacher's rights to due process? If the union is to be the judge as well as the teacher representative, the latter role is likely to be diminished.

Note that in our judicial system, everyone indicted or charged with a crime is entitled to legal counsel. And although incompetence is not a crime, the consequences of noncriminal action to a person may even be more serious. When accused of defending egregious misconduct, the NEA/AFT assert that they are protecting the teacher's right to due process, not defending incompetent or criminal teachers per se. If teachers cannot be fired apart from violations of their rights to due process, so be it; perhaps the case against them isn't strong enough to begin with.

The issue being raised here is whether the union has any responsibility to ensure due process regarding teacher actions in the course of employment or related thereto, regardless of the unpopularity of the union position. Perhaps I should add that I have no idea of whether the aforementioned teacher was a union member, appealed to the union for assistance, or whether the union responded to such an appeal, or was involved in any way. Most of the popular criticism of the teacher unions is based upon their vigorous defense of teachers who deserve disciplinary action. We hear less about their failure to represent teachers subject to disciplinary action, but it happens, albeit not as often as the excessive defense.