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Legally Speaking: Breaking down what walking out could mean for teachers

(AP Photo)

It’s happening.

Teachers are one step closer to a strike, er, I mean a walkout. Fifty-seven thousand teachers voted last week, which resulted in 78 percent voting to continue with the walk-ins and schedule a walkout.

Monday, Tuesday and Wednesday will be treated as walk-ins, while Thursday’s protest, on April 26, will be a walkout, a statewide first.

There has been discussion and banter about whether teachers can strike walkout and what risks they run. Let’s look at the basic legalities and the realities of the situation. For this, we have to agree that a walkout is essentially the same thing as a strike, even if it is a one-day strike.

First, legally speaking, Arizona is a right to fire state, err I mean an employment at will state. Practically speaking that means employers can fire an employee without cause as long as they do not break the law. Of course, there are exceptions based on discrimination that may give the employee recourse but that is a different situation and doesn’t apply for purposes of this post.

In Arizona, a state employee can be terminated from employment if they fail to show up at work. In this situation, if a teacher fails to show up at work on any given day, that could be grounds for termination.

Second, it appears there are no laws specifically on point in regard to public teachers striking. There is no law that says it is not allowed, there is no law that says it is allowed. However, there is an Arizona Attorney General Opinion that addressed the issue, although it was in 1971. Remember, the Arizona Attorney General is an elected position and he is the attorney for the state of Arizona, he is not a judge. He can prosecute, he can sue, he can argue, he can give an opinion, but he cannot make a ruling. That being said, the official opinions of the AG can be persuasive in court.

That 1971 opinion is that public teachers in Arizona do not have the right to strike. They gave up that right when they signed a contract to be a public employee, an agent of the state.

“The choice to become a public employee carries with it the surrendering of the right to strike, which the individual would have as an employee of a private enterprise. That teachers are public employees cannot be argued…

Further, the existence of the tenure laws in Arizona indicates the intention of the Legislature to consider teachers as public employees, thus providing them statutory job protection in lieu of the right to strike.”

Third, if a public school teacher actually strikes (walks out), that action could be considered the tendering of their resignation and/or an “unprofessional act.”

Under Arizona law 15-201 et. seq., a public school teacher cannot properly resign until they have submitted their resignation AND the school board has approved that resignation. If they do so prior to school board approval they can be deemed to have committed an unprofessional act. If a complaint is then filed in regard to the teacher’s unapproved resignation or unprofessional act, the Board of Education could revoke the teacher’s teaching credentials.

Put simply,

Strike = resignation without approval and/or unprofessional conduct.

Act of unprofessional conduct = possible suspension of revocation of teaching credentials.

Fourth, let’s turn to the realities. Arizona Gov. Doug Ducey essentially declared a state of emergency, because we didn’t have enough teachers, and allowed the hiring of non-credentialed teachers. Therefore, at this point in time, you do not need those credentials to be a public school teacher in Arizona. Some may argue that the risk of losing those credentials is inconsequential because of this. However, if a teacher does lose them it would be noted in their professional, permanent file and could affect their employment in the future.

Fifth, the reality is that if a large number of teachers walkout, there is no way the school districts or the school boards would engage in mass terminations. The consequences would be dire. Many classrooms and perhaps even schools would have to close because there simply wouldn’t be enough teachers. We already have a shortage and this would make it worse.

So here is the bottom line, legally and realistically speaking, teachers can strike, err I mean walkout, but they may face negative consequences. Some may feel that the risk of losing their jobs and/or their credentials is small in comparison to the potential benefit of having all their demands met. That is a decision each individual teacher must make on their own.

But I would say that Arizona, through its taxpayers and its politicians, also has a decision to make here. Is it going to support the attempts to find a resolution or will it enlarge the chasm that already exists between it and the teachers by hiding behind, or citing, the law?