Is an Arizona teacher walk out against the law?

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On Thursday, April 19, educators held a strike vote which resulted in the Arizona Education Association and the Arizona Educators United to announce that teachers will walk off the job on April 26. (Source: 3TV/CBS 5) On Thursday, April 19, educators held a strike vote which resulted in the Arizona Education Association and the Arizona Educators United to announce that teachers will walk off the job on April 26. (Source: 3TV/CBS 5)

By Michelle Swann, Partner at Radix Law

PHOENIX (3TV/CBS 5) - On Thursday, April 19, educators held a strike vote which resulted in the Arizona Education Association and the Arizona Educators United to announce that teachers will walk off the job on April 26. 

What legal implications could this have from an employment law standpoint? 

Public employment is governed by Arizona statutory and common law, federal law (including the First Amendment), and a teacher's individual contract. These laws and provisions govern the potential employment ramifications if the teacher chooses to engage in the walkout. 

[RELATED: Arizona teachers vote to walk out on Thursday, April 26 over education funding]

A school district might, for example, deem participation in a walkout as an abandonment of the teaching contract; essentially, a resignation. 

Under Arizona statute, resignation without receiving Board approval is considered an "unprofessional act" subject to disciplinary action, including suspension or revocation of the teacher's teaching certificate. 

A school district might simply deem a day missed during the walkout as an absence that does not violate Arizona law or breach the parties' contract.   

What is the current law in Arizona for teacher strikes?

Currently, there is no Arizona statute that prohibits teacher strikes or walk outs. 

There is a 1971 Arizona Attorney General Opinion that determined a teacher strike "unlawful" but it carefully limited the opinion to the facts as presented to the Attorney General. The Attorney General did not have statutory guidance upon which to base the analysis, which is still the case. 

[READ MORE: Arizona school districts release plans for teacher walk out]

The Arizona Attorney opined that such strikes were prohibited under common law because the public employees are an agent of the state and, therefore, as a state actor have no right to strike or to interfere with the state's government functions. 

The Attorney General opined that by becoming a public employee, a teacher surrendered what otherwise may be a right to strike. The Attorney General opined that the fact Arizona had adopted teacher tenure statutes indicated that the Legislation intended to provide those job protections in exchange for the right to strike. 

[SPECIAL SECTION: Arizona Schools in Crisis]

Ultimately, the Attorney General appeared to find that the strike constituted a job resignation without Board approval and therefore fell within conduct constituting "unprofessional acts" warranting disciplinary action.

While the Attorney General's opinion was reiterated by the Attorney General in 1980, an attorney general's opinion is not binding in courts, and I have been unable to locate any Arizona court decisions involving walkouts such as that planned on Thursday.  

[RELATED: Valley businesses offer child care during teacher walkout]

The First Amendment's freedom of association and free speech rights will guide whether a district may confidently take disciplinary action against a teacher participating in a walkout. However, First Amendment rights are not unlimited and do not allow a teacher to materially disrupt the educational interest of the school district. 

Because Arizona and federal law grant a public school teacher certain property interests in the right to continued employment, the district must afford a tenured teacher due process rights, including the right to a hearing prior to dismissal. I suspect that the length of time of a walkout, the teacher's motivation and conduct during the walkout, as well as the level of the district's support before and during the walkout would be closely examined during any resulting termination hearing.  

Could the strike violate teacher contracts? 

Whether a teacher walkout violates any particular teacher contract must be ascertained from the contract, itself.   If a district were to deem participation in a walkout as a resignation or job abandonment, then a court will examine the intent of the parties.  For example, was walking out the teacher's manifestation of an intent not to comply with the current contract for the remainder of the school year, giving the district a reasonable basis for declaring a resignation or abandonment?

[SPECIAL SECTION: GMAZ]

What legal steps would schools need to take in terms of extending schools days at the end of the year due to the strike? 

Arizona law states that school instruction shall be conducted for at least 180 days  180 days of instruction or an equivalent number of minutes of instruction per school year, on days approved by the school district governing board or charter school governing body.  In the event that a district needs to add days or time to meet that mandate, the governing board will likely vote at a public meeting to add the amount of time necessary to comply with the Arizona mandate.  Again, this is unchartered water and I have not heard how any particular board intends to schedule any necessary makeup days. 

About Radix Law 

Radix Law helps businesses, individuals, and families in Phoenix and throughout Arizona with their corporate and business law, bankruptcy, taxation, asset protection, wills, trusts, and estates, and litigation needs. The firm is located at the Kierland Commons in Scottsdale. For more information, visit radixlaw.com.

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