Educators’ Rights to Report Wrongdoing

Federal civil rights laws such as Title VII Title VII of the Civil Rights Act of 1964 (“Title VII”),4 prohibits employment discrimination based on race, color, religion, sex, or national origin. Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person’s gender. Sex discrimination also can involve treating someone less favorably because of his or her connection with an organization or group that is generally associated with people of a certain sex. and Title IX Title IX of the Education Amendments of 1972, 20 U.S.C. §1681, et. Seq. (“Title IX”), prohibits sex discrimination (including discrimination on the basis of sexual orientation or gender identity) in any educational institution that receives federal funding. protect very specific forms of speech. The primary focus of these laws is to stop discrimination based on race, color, age, sex (including sexual orientation, gender identity, and pregnancy), religion, national origin, and disability status. 1 Title VI and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq., 2000e et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681. Go to reference

Schools must follow these civil rights laws, which means they cannot discriminate on these bases against their students or their employees. Most states also have their own civil rights laws that prohibit discrimination.

State laws often provide the same or broader coverage than their federal counterparts.

These laws also protect speech when the speaker is objecting to discrimination. They prohibit schools from punishing students, families, and educators for speaking up against discrimination. 2 42 U.S.C. § 2000e-3(a). Go to reference

Schools may not fire, transfer, demote, or otherwise retaliate against an educator because that educator complained about illegal discrimination. This is true regardless of whether the educator is complaining about discrimination they personally experienced or speaking out about discrimination against students or other staff. 3 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 179 (2005) (holding that employee can bring a retaliation claim based on complaints of discrimination against others); Barker v. Riverside Cty. Off. of Educ., 584 F.3d 821, 826 (9th Cir. 2009) (holding that a special education teacher had standing to bring a retaliation claim under Section 504 of the Rehabilitation Act); Whittaker v. St. Lucie Cty. Sch. Bd., No. 10-14172-CIV, 2011 WL 3424564, at *4 (S.D. Fla. Aug. 5, 2011) (same); see also U.S. Department of Education, Office of Civil Rights, Dear Colleague Letter (April 24, 2013), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.html. Go to reference

Some of these civil rights laws provide overlapping protections.

For example, an educator who complains about potential violations of the Individuals with Disabilities Act (IDEA) or otherwise advocates for students with disabilities may be protected from retaliation under the Americans with Disabilities Act (ADA) and Section 504 of the 1973 Rehabilitation Act. Similarly, an educator who is from Palestine and wears a hijab as a Muslim is protected against discrimination based on their national origin and/or their religious faith.

• 1 Title VI and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq., 2000e et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681.
• 2 42 U.S.C. § 2000e-3(a).
• 3 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 179 (2005) (holding that employee can bring a retaliation claim based on complaints of discrimination against others); Barker v. Riverside Cty. Off. of Educ., 584 F.3d 821, 826 (9th Cir. 2009) (holding that a special education teacher had standing to bring a retaliation claim under Section 504 of the Rehabilitation Act); Whittaker v. St. Lucie Cty. Sch. Bd., No. 10-14172-CIV, 2011 WL 3424564, at *4 (S.D. Fla. Aug. 5, 2011) (same); see also U.S. Department of Education, Office of Civil Rights, Dear Colleague Letter (April 24, 2013), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.html.

If Retaliation Occurs

An educator who is retaliated against by their employer for complaining about discrimination can sue under these civil rights laws, though they may first need to file a complaint with an administrative agency such as the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Education Office of Civil Rights, or a related state agency.

The educator must be able to show three things.

• First, that they complained about illegal discrimination in a way that connects the employee’s complaint to discrimination. For example, it is not enough for the coach of a girls’ basketball team to complain that the team’s budget is too small. The coach would have to complain that his athletes are receiving less money because they are girls. The coach can make his case stronger by comparing the girls’ budget to the boys’ budget. 4 See, e.g., Jackson, 544 U.S. at 171. Go to reference
• Second, educators must reasonably believe that they are complaining about illegal discrimination. 5 Moyo v. Gomez, 32 F.3d 1382, 1385 (9th Cir.), amended on other grounds, 40 F.3d 982 (9th Cir. 1994). Go to reference  It is okay for the educator to be mistaken about the law or about the facts. But it must be an honest mistake, and the mistake must have been reasonable. 6 Id. at 1386-87. Go to reference
• Finally, the educator must be able to connect the discipline or adverse action by the employer to the complaint. This may be difficult to prove. Schools will rarely announce that they are firing a teacher because the teacher told the school to stop discriminating.

More often, educators will have to rely on other circumstances of the discipline. A bus driver might show that the school fired her immediately after she complained that the school provided better, safer buses for white students than for students of color. She can strengthen her argument by showing that she has never been in trouble with the school before and always received positive reviews. Or she could compare how the school treated her to how the school treated another bus driver.

Other federal laws protect educators from retaliation for other protected conduct such as filing a complaint under the Fair Labor Standards Act or the Family and Medical Leave Act. 7 Retaliation, U.S. Dep’t of Labor, Wage & Hour Division, https://www.dol.gov/agencies/whd/retaliation (last visited Mar. 27, 2023). Go to reference

In addition, state whistleblower statutes may offer protections for reporting violations of other state laws.

Dig Deeper

For more information about protections from discrimination and how to file a claim, see NEA’s Harassment and Discrimination Toolkit and detailed guidance on LGBTQ+ rights and sex-based discrimination.

• 4 See, e.g., Jackson, 544 U.S. at 171.
• 5 Moyo v. Gomez, 32 F.3d 1382, 1385 (9th Cir.), amended on other grounds, 40 F.3d 982 (9th Cir. 1994).
• 6 Id. at 1386-87.
• 7 Retaliation, U.S. Dep’t of Labor, Wage & Hour Division, https://www.dol.gov/agencies/whd/retaliation (last visited Mar. 27, 2023).