Education Law

Does Privledging Male Teachers in Hiring Constitute Illegal Discrimination?

My sharp as a tack ed. law class asked me the other day whether the privledging of male teachers in hiring decisions in schools constitutes discrimination. The short answer here is yes, it does. But, let's break it down a little. 

It is certainly no secret that education has a lack of male teachers, and doesn't really know what to do about it as my friend Shaun Johnson notes. Less than 10 percent of elementary school teachers are male, according to the NEA in 2003. It is also no secret that men are privileged in hiring decisions by principals simply because they are men. When I was coming up the teaching ranks I was frequently told that "I would have no problem finding a job because I was a man and we needed more male English teachers." Even when I was hired in a public high school I was explicitly told that "It was nice I was a man because I could relate more to the students" (I taught a lot of behavior challenged boys). So, it is out there and I don't think anyone that's been in the schools would seriously dispute that.

So, let's look at the underlying legal issues here. First, think about discrimination broadly. The question is not whether there is discrimination (there always is some form of discrimination conceptualized broadly), but whether that discrimination is illegal. We discriminate all the time, but usually all we need is a rational reason to do so. We discriminate by college attended, for instance. We discriminate by grade point average. That's fine. The college you go to or the GPA you earn are not protected classes and thus all we need is a rational reason to discriminate using those reasons under the 14th Amendment's Equal Protection Clause. But, sex is a protected class in America under Title VII. In fact, here is the language:

Title VII of the Civil Rights Act of 1964 via kwout

So, when you have a protected class at stake, such as sex, we have a different test to determine whether the discrimination is illegal. Specially we ask whether there is a compelling reason to discriminate and whether that discrimination is narrowly tailored. Let's try this test out: Who should supervise the girl's locker room? There is a compelling case to be made that only a female teacher should do so. If we discriminately hire only female teachers to teach girl's P.E., but limit ourselves only to P.E. the courts are going to say that is fine because there is 1) a compelling reason to discriminate and 2) the policy was narrowly tailored. Okay, see how that works? Well, let's play the same game with male elementary teachers. Is there a compelling interest to hire male teachers? Is there a reason that only a man should teach second graders? No. Is there some potential benefit? Absolutely. But does that benefit rise to the level of a compelling interest? Absolutely not. Thus, if you are using sex, namely maleness, as a basis in your hiring decisions, you are illegally discriminating against female candidates.

So, there is the law behind this and why it is illegal to base your typical hiring decisions for teaching positions on maleness. There is no affirmative action for male teachers. If you have a more qualified female candidate and you privledge the less qualified male candidate (even though you have good intentions), you could be successfully sued.

So, what to do about this? Well, here are a few suggestions, although I am sure there are lots more. 

1. Take advantage of the men you do have. When I was teaching, because there were few men in the school, I was asked to take boys aside from time to time. I did it and it was fine with me.
2. Support your female teachers. There is a difference in levels of authority associated with different sexes and men naturally get more authority associated to them by young boys - it is unfortunately still part of our culture. But, that doesn't mean that only men can be authority figures - women can also and administrators can help by making sure they themselves are associating just as much authority in their female teachers. Kids pick up on these things.
3. A dad's club. Listen to Peg Tyre talk about it and it makes a lot of sense to get more of a male presence in the school.
4. Use coach's to your advantage. There is a lot of discrimination in sports, moreso than perhaps any other area in the schools. In fact, we had to pass a whole nother law about that. But, the fact remains that there are men accessible to schools in the coaching ranks. Volunteer dads, assistant coaches, referees ... these men can be allies for schools and help convey a consistent message with the administration. 
5. Tap into male dominated fields. Invite an engineer to your science class or the local newspaper man to your English class. Most business folks are happy to give back to the schools.
6. Father - Son activites. Title IX makes a specific exception for these activities, although you need to do mother-daughter activities as well.

Anyway, I am sure there are lots more, but those are just a few from the top of my head. The point is there are legal ways to increase the male presence in your schools. But, basing hiring decisions on maleness and hiring less qualified male candidates for teaching positions is illegal.

Full post as published by Edjurist on November 19, 2008 (boomark / email).