Off Campus Teacher Misconduct

Termination of Teachers for Off Campus Behavior Harding & Shultz (402) 434-3000 Kelley Baker ba e @ s ega .co kbaker@hslegalfirm.com Steve Williams swilliams@hslegalfirm.com H & S School Law

The Problem Tinker inke v. Des es Moines oines School District, ist ict, 393 US 503 (1969) • neither "students students nor teachers shed their rights at the school house gate."

B tP But Patrons t don’t d ’t really ll care about b t the th Supreme Court:

The Solution Tinker inke v. Des es Moines oines School District, ist ict, 393 US 503 (1969) • neither "students students nor teachers shed their rights at the school house gate." • Schools S h l mustt b be able bl tto show h th thatt th the disfavored conduct would "materially and d substantially b t ti ll interfere" i t f " with ith the th operation of the school.

Determining “substantial interference” Courts have considered: • Evidence of disruption • Board policies • Illegality of the conduct • Teacher’s motives Community u y sstandards d ds ((risky) s y) • Co

Cases

Sex Cases

Fisher v. Snyder 476 F.2d F 2d 375 (8th Cir. Cir 1973)

• Teacher had out-of-town houseguests g overnight in her apartment • Board Findings of Fact: – Frances A. Fish[er] is a single woman – Duringg the current school yyear men,, not related to Frances A. Fisher, stayed in her apartment in Tryon, McPherson County, Nebraska, on several occasions ranging from one night to a period of at least one week. This constitutes conduct unbecoming b i a tteacher h

Fisher v. Snyder •

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“While a school board may legitimately inquire into the character and integrity of its teachers, it must be certain that it does not arbitrarily or capriciously dismiss a teacher based on unsupported conclusions drawn from such inquiries” inquiries “[H]ere there is no proof of improper conduct conduct” “Idle speculation certainly does not provide a basis in fact for the board’s board s conclusory inference….”

Fisher v. Snyder • “She did not attempt to conceal the presence off h her h houseguests…” t ” • “No evidence of a community reaction against Mrs. Fisher has been presented…

• “…nor has she been shown incapable p of maintaining discipline in her classes because of any inference of impropriety drawn by her students or their parents.”

Bertolini v. Whitehall City S h Di Sch. Dist. Bd Bd. Of Ed Ed. 744 N.E.2d 1245 (Oh. App. 2000)

• Assoc. supt. was terminated for "serious immorality" because of his adulterous immorality affair with another school employee.

• The Th Affair Aff i – Woman broke it off – Plaintiff continued to e-mail her on school’s system and leave messages on home phone – Woman told Superintendent

Bertolini v. Whitehall City S h Di Sch. Dist. Bd Bd. Of Ed Ed. •

Referee held initial hearing; recommended that Plaintiff be retained based on: – His glowing evaluations – No work disruption • Board terminated for “gross inefficiency, immorality, willful and persistent violation of reasonable regulations of the Board …”

Bertolini v. Whitehall City S h Di Sch. Dist. Bd Bd. Of Ed Ed. • Not grossly inefficient: witnesses and “glowing glowing evaluation evaluation” • Rejected “role model” theory • No N sex h harassment, t so no violation i l ti off board policy • No immorality: compared to other cases • Plaintiff never given opportunity to conform to board expectations

Pettit v. State Bd. Of Ed. 513 P P.2d 2d 889 (Cal (Cal. 1973)

• Elementary teacher joined Swingers Club • Undercover cop attended club party – “in in one hour period, period [cop] observed plaintiff commit three separate acts of oral copulation with three different men . . .”

– Plaintiff arrested, charged, pled guilty to LIO – Plaintiff appeared on TV shows to discuss “nonconventional nonconventional sexual lifestyles lifestyles.”

• Teaching credentials revoked

Pettit v. State Bd. Of Ed. • Three superintendents testified: – T Teachers h iinstill till morall values l – Plaintiff would lose her effectiveness because pupils il look l k to t teachers t h ffor morall guidance id – Might inject her ideas about sexual morals i t classroom into l

• Pettit introduced – Good evaluations – Teaching contract issued for following year

Pettit v. State Bd. Of Ed. • State Board revoked license • Court C t upheld h ld – Distinguished between private and public sexuall conduct d t – “…plaintiff’s flagrant display indicated a serious i defect f off moral character, normal prudence and good common sense.”

– “…expert testimony asserting plaintiff’s unfitness to teach.”

Glover v. Williamsburg Local S h Di Sch. Dist. Bd Bd. Of Ed Ed. 20 F. Supp.2d 1160 (S.D. Oh. 1998)

• Gay teacher with African-American b f i d boyfriend – Had his boyfriend come help with Christmas party – Rumor that they were holding hands – Parents complained to superintendent

Glover v. Williamsburg Local S h Di Sch. Dist. Bd Bd. Of Ed Ed. • Evaluations – One “poor” p on first semester eval. based on hand-holding rumor – 6 observations second semester – Scores dropped significantly – Principal p told Plaintiff he had recommended renewal, then changed his mind

• Another teacher with worse classroom control than Plaintiff was renewed

Glover v. Williamsburg Local S h Di Sch. Dist. Bd Bd. Of Ed Ed. 20 F. Supp.2d 1160 (S.D. Oh. 1998)

• Board’s justification – Poor classroom control – Plaintiff’s criticism of administration during g hearing – Failure to acknowledge deficiencies – Other teacher willing to work to improve

• Appealed claiming – Equal Protection Clause – Ohio O i Civil Ci i Rights i Act A – First Amendment

Glover v. Williamsburg Local S h Di Sch. Dist. Bd Bd. Of Ed Ed. • Court found Board’s decision pretextual: – Poor evaluations suspect – Classroom Cl controll was pretext because b kept k other poor teacher – “shifting reasons” – Board’s contradictory statements on what they discussed

• Awarded two-year contract, $71,000 in damages, and fees • Legal questions remain

Alcohol Al h l Cases

In re Termination of Kibbe, 996 P.2d P 2d 419 (N.M. (N M 1999)

• Teacher fired for DUI citation.

• Board Findings: – You have severely compromised your ability to be an effective teacher, coach and employee by being arrested and charged with [DUI], resisting or obstructing an officer and battery especially in your capacity as the battery, driver’s education instructor – You have compromised your effectiveness by the public scandal involving your behavior...”

In re Termination of Kibbe, • Administration’s evidence: – Being a good role model is integral to both teaching and coaching – Everyone in community knew; majority opposed retention

• Plaintiff’s eevidence: idence: – Has used incident as teaching moment – Everyone E who h h has spoken k tto hi him ffrom community has been supportive.

In re Termination of Kibbe, •

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No doubt that administration proved DUI, but “ N evidence “…No id iin the th record d th thatt th these actions, standing alone, have any relationship whatsoever h t tto [hi [his]] competence t . . . .” ” “…these actions do not constitute moral turpitude.”

Insufficient evidence of “public scandal” Other teachers had been cited for DUI but were not fired.

Drug Cases

Drugg Cases • Most Courts allow a hard line: – Dominy v. Mays, 257 S.E.2d 317 (1979) – Bd. of Ed. v. Wood, 717 S.W.2d 837 (Ky. 1986) – Gedney v. Board of Ed., 703 A.2d 804 (1997)

• Exceptions p – Teacher grew one marijuana plant: Board of g , 123 Cal. Rptr. p 830 ((1975)) Trustees v. Judge, – Criminal charges dropped; no evidence of impaired p teaching: g Rogliano g v. Fayette y Countyy Bd. Of Ed., 347 S.E.2d 220 (1986)

Termination of Teachers for Off Campus Behavior Harding & Shultz (402) 434-3000 Kelley Baker ba e @ s ega .co kbaker@hslegalfirm.com Steve Williams swilliams@hslegalfirm.com H & S School Law