Morality Clauses in Administrator Contracts

Recently, I have been hearing a lot about the inclusion of morality clauses in school principal employment contracts. Such provisions presumably give school boards the opportunity to terminate an employment contract if an administrator engages in “immoral conduct.”

The language might be boilerplate, such as: “The school principal, [your name], shall fulfill all aspects of the contract in a legal, ethical, and moral manner.” If you violate the provision, the school district would have grounds to terminate the employment relationship as a breach of contract.

What constitutes immoral conduct? What are the practical implications of morality clauses? Are they necessary? What could they mean for you if you see them emerge in your contracts and community? Every situation is different, but I will try to address some of these questions and offer guidance.

What Is Immoral?

Let’s start with a basic question: Can a school district insert a morality provision in an employment contract? The short answer is yes. While the question of what constitutes immoral conduct might seem vague, such provisions are permitted.

Of course, one important question then is: What represents conduct so immoral that it could lead to the sudden termination of a contract? In other words, what could lead to an on-the-spot firing, if you will, or more technically, the termination of a contract that was supposed to continue for a set period of time?

We have some examples that suggest what some consider immoral. For instance, an Oklahoma principal recently resigned amid suggestions of behavior that some state officials objected to, including his performing as a drag queen. A TikTok account, “Libs of TikTok,” revealed this, and the state’s superintendent called for removal of the principal, labeling drag performances “unacceptable.”

The principal was not terminated, but rather chose to resign. Thus, the question remains whether a court would hold that the conduct was immoral and justify termination. Regardless, it appears that some school officials—apparently at the state level—believed such activity crossed a line and warranted termination.

Importantly, terminating a contract can’t be used in a discriminatory fashion because a school board member objects to someone’s sexuality. In Wisconsin, for example, a school administrator filed a discrimination complaint alleging that his contract was not renewed because he is gay. Put another way, he is alleging that because some school board members have personal, moral objections to his sexual orientation, he lost his job. If that is the case, it would be a prohibited discriminatory act.

Morality and Job Performance

Another example? A principal working in a state where recreational marijuana use is illegal was revealed—perhaps through a Facebook post—to have used recreational marijuana while vacationing in Colorado, where recreational use is legal. In your mind, does this constitute immoral conduct warranting a termination?

We can’t possibly list all scenarios that might be alleged to be immoral by some and therefore provide grounds for dismissal. But there might be some general rules, and even these are subject to exceptions. Generally, there must be some nexus between the alleged immoral behavior and the effectiveness of the administrator’s job performance.

This nexus test recognizes that educators—teachers, principals, and staff—are role models standing in the place of parents, and who therefore occupy a special place in community life and must be held to higher standards. Under the nexus test, any alleged immoral off-campus behavior must connect to workplace performance to justify an adverse employment action such as termination.

What would be the result if we apply the nexus test to our marijuana-​smoking principal? What would be the arguments for and against termination under a morality clause?

Whether a school board moves to terminate the principal will turn on certain variables, including the community in which the administrator works. In one view, the school board could adopt a “zero tolerance” approach and move to exercise the clause. They might argue that drug use for minors—even in states permitting recreational marijuana—remains illegal, and the principal’s behavior does not reflect the type of role model we would want to see in school leaders.

But in another view, a school board could impose a lesser penalty such as unpaid leave if they believe that other mitigating circumstances should be considered. Perhaps the principal has a long track record of success, is well-regarded, and publicly apologizes. Thus, exercising such a clause might depend on a variety of circumstances, especially in “closer-call” situations.

Are Morality Provisions Necessary?

Weighing the costs and benefits, morality provisions are probably not needed in most contracts. If the goal is to ensure that a school district can terminate the employment of a principal who engages in behavior deemed immoral, there are likely already legal mechanisms to accomplish this.

To begin with, most states have an educator code of ethics that prohibits educators from engaging in immoral behavior—and further, unethical or illegal behavior. Each state’s code of ethics varies, to be sure, but bad behavior probably falls within its code of conduct. In our marijuana-smoking principal example, a state board of education might review the behavior under its code of ethics—quite apart from a local district exercising any morality clause.

Of course, such codes generally apply to a principal’s or teacher’s license being revoked for a violation. In other words, to remedy the supposed immoral conduct, a state would have to conduct the process associated with removing a teacher’s license under the state statute.

At the same time, many contracts already contain provisions that cover behavior that might cross a line or warrant some discipline from a school board. These might include discipline (including termination) for violating a school district code of conduct for employees. Depending on the facts, such provisions could be used to avoid the question of morality.

Problematic Conditions

Readers know that public education—and school board elections—have become increasingly polarized politically, and many different interest groups have sought to take control of local schools to shape curriculum and personnel decisions. This makes morality clauses problematic.

I fear that school boards might insist on morality clauses to impose a cultural or religious viewpoint on principals’ out-of-school behavior. In a highly charged political atmos­phere, educators are justified in worrying that school districts or officials could use such clauses to overstep their bounds.

Again, given that there might already be means to terminate a principal for unethical or inappropriate behavior, adding a clause that provides an opportunity to have a school board (or contingent of the board) enforce its view of morality to a contract might be unnecessary.

There are additional concerns with morality clauses. For instance, there is a potential to violate a principal’s constitutional rights in triggering a morality clause.

Let’s say a principal joins a regional advocacy group in their off-duty time; this offends the religious or moral view of a school board member or superintendent, who attempts to exercise the morality clause. The principal could argue that any adverse employment action violates their First Amendment rights.

Thus, with existing mechanisms to address off-duty behavior that truly interferes with a principal’s job performance, including a morality clause might invite unintended consequences. It might actually increase tensions within a community.

Examining a Contract

What are some recommendations if you are presented with a morality contract provision? First, negotiate. In many cases, you might find that you’re in a good negotiating position because of principal shortages. The contract might include this provision as an added layer of protection for the school district, but they might be willing to discard it depending on the circumstances.

Second, try to understand why the school district wants this provision. Ask them: “Why is this here?” Such provisions remain in the minority of principal contracts, so understanding their origins might give you a window into the mindset of school district leadership. That might help you decide an important question: Is this a good place for me to work?

Third, assess the temperature of the relationship among the community, educators, and school board. Is there a high degree of tension and controversy that might make you wary of signing a contract that includes a morality clause? Or is there a healthy relationship that is generally conducive to allowing you to fulfill your role as a school leader?

Morality clauses in administrator contracts might be entirely unnecessary, lead to unintended consequences, or even discourage people from becoming principals. You have bargaining power, however, and you might have to exercise that strength if you feel it appropriate.

Mark Paige is chair and professor of public policy at the University of Massachusetts Dartmouth and a former school law attorney.