Judicial thinking has developed to the position that if a teacher is able to allege that a specific constitutional right such as freedom of speech, freedom of religion, or the right to equal protection has been violated, then redress is available. If the court agrees that action of the state infringes upon such a right, its attention then turns to the issue of procedural due process; that is, in the face of the competing interests involved, did the actions of the state comport with what the courts have defined as due process? This procedural due process may include such things as right to notice of the charges, right to a hearing, and right to confront witnesses. However, if the individual is unable to allege, or is unsuccessful in alleging the infringement of a specific constitutional right, the courts have been singularly reluctant to enter the controversy and extend relief to the injured party. It is submitted that the courts should extend relief in such a situation because it would protect important policy interests, policy interests which outweigh those supporting any interest the state may have in the possession of unfettered dismissal power. Though it is evident that some courts have felt this to be the case, there has been a failure to adequately develop and define a rationale for granting such relief.
Gary L. Dolan,
Due Process Restriction on the Employment Power and the Teaching Profession,
50 Neb. L. Rev. 655
Available at: http://digitalcommons.unl.edu/nlr/vol50/iss4/7