Court upholds Board's decision to permanently revoke teacher's license

The Franklin County Court of Appeals this week upheld the State Board of Education's permanent revocation of a teacher's license.

In that case, two teachers had held a Christmas party in an area of a school buidling was not authorized to by the principal. Two students began boxing, with the knowledge of the teacher. One of the students was struck, was severely injured, and nearly died. The two teachers then allegedly concocted a story that they thought would keep them out of trouble. The teachers allegedly told students to lie to the principal if asked.

The principal then began an investigation. He interviewed students who were present during the Christmas party. The students stuck to the teachers' allegedly concocted story. Later, however, one of the teachers confessed the true story. However, the other teacher stuck to the original story. Both teachers later resigned, and an investigator in the Department's Office of Professional Conduct, Kelly Beall, was assigned to investigate the matter. As a result of Beall's investigation, the Board issued the teacher a notice of its intent to determine whether to limit, suspend, or revoke his teaching license.

Pursuant to R.C. 119.07, the State Board of Education must hold a hearing if a party requests it within 30 days of the mailing of a notice of intent. The notice of intent informed the teacher of his right to request a hearing, and it warned the teacher that if he did not exercise this right, the Board could suspend, limit, or revoke his teaching license in his absence.

After the hearing, the hearing officer determined that the inadequate supervision of students, among other things, amounted to conduct unbecoming to the teacher's position, and that the Board had grounds to sanction the teacher under R.C. 3319.31(B)(1) and Ohio Adm. Code 3301-73-22. The hearing examiner recommended that the Board revoke the teacher's teaching license and render him permanently ineligible to apply for any license issued by the Board. The Board adopted the hearing officer's recommendation. The teacher then appealed both to the Court of Common Pleas, and to the appeals court, both of which upheld the revocation.

School Board terminates teacher's contract, adopts referee's recommendation

The Mount Vernon School Board of Education voted this week to terminate the contract of a teacher accused of, among other things, violating school board policies, violating the U.S. Constitution, and teaching Christianity in class. In their 4-1 vote, the school board adopted the decision of the "referee" or hearing officer.

Pursuant to Ohio Revised Code 3319.16, public school teachers employed pursuant to a contract may only have that contract terminated for "good and just cause." Before such termination may take place, however, the school board has to give the teacher notice of intention, and an opportunity for a hearing in front of either the board, or a referee. Both parties may be present at such hearing, be represented by counsel, subpoena witnesses, require witnesses to be under oath, cross-examine witnesses, take a record of the proceedings. The referee must then furnish her report, recommending a termination or not. The board must then vote to adopt the report and recommendation or to reject it by majority vote.

The teacher affected then has the opportunity to appeal the case to the court of common pleas in which the school is located.

Teacher reinstated, but board of education does not have to pay attorney fees, appeals court rules

The First District Court of Appeals today affirmed a decision by a trial court to reinstate a teacher who was terminated by his board of education under R.C. 3319.16 for "good and just cause" for alleging throwing a basketball at a student. That court, however, also found that the teacher was not entitled to attorney fees because his district did not act in bad faith.

The case involved a physical education/health teacher who had 20 years experience. Throughout his tenure, he had received positive reviews and had eight consecutive years of perfect attendance. In his evaluations, the teacher was specifically complimented on his (1) "strong discipline"; (2) his "professional manner"; (3) having "full control of * * * his classes"; (4) his "classroom management"; (5) his "professional manner structure and organization"; (6) the fact that "safety is stressed in both health and PE"; (7) being a "good role model"; and (8) being a "true professional who is a great role model for the students."

In June 2007, a male student athlete who stood six feet seven inches left the teacher's class without permission and began "shooting hoops" in the gymnasium. The teacher found the student and instructed him to go to the locker room to change clothes and then to attend his next class. The teacher had to instruct this student three times before the student complied. The student changed in the locker room, but instead of going to his next class, he went back to the gym to play basketball. The teacher again instructed the student, at least five or six times, not to shoot the basketball and to leave the court. When the student refused to comply with the instructions, the teacher, "with a two-hand push" of his own basketball, knocked the basketball the student was holding out of the student's hands in an effort to get him to leave the court. The student was angry and approached the teacher, but another teacher escorted the student from the gymnasium. The student was not injured.

Although the student claimed that he had been hit in the stomach, another student who had witnessed the incident stated that the ball that the teacher had thrown hit the basketball in the student's hands. The teacher was suspended indefinitely without pay.

The male student's mother initiated criminal proceedings against the teacher. The state charged him with assault, but he was acquitted following the presentation of the state's case due to the failure to prove that he had knowingly caused or attempted to cause physical harm to the student. The student had testified that the teacher had not thrown the ball "very hard" at him and that he had not believed that the teacher intended to harm him. He further testified that he had not been injured.

As a result of this incident, the Board initiated termination proceedings against the teacher. After hearing evidence, a referee determined that the teacher had not intended to throw a basketball at the student and that there was a difference between throwing a ball at a student and throwing a ball at an object the student was holding. The referee recommended reinstatement.

The Board of Education, however, terminated the teacher's contract, not agreeing with the referee's distinction between throwing a ball at a student and throwing a ball at an object a student was holding. The teacher appealed to the Court of Common Pleas, who agreed with the referee, that the incident was not a "fairly serious matter." The Court also awarded the teacher all of his attorney fees.

The Board of Education appealed. The Court of Appeals agreed that the incident was not a "fairly serious matter" but disagreed with the trial court that the board acted in bad faith. Thus, it upheld the teacher's reinstatement, but denied his attorney fees.

The case is Stalder v. St. Bernard-Elmwood Place City School District, 2010-Ohio-2363.

Appeals Court Upholds Grant of Unemployment to Special Education Teacher

The Ninth District Court of Appeals has upheld the decision of a trial court finding that a special education teacher was terminated without just cause.

In that case, the special education teacher was discharged by her board of education for allegedly abusing a student in her care. She was initially denied unemployment benefits, after there was a finding that she was discharged for just cause. However, the teacher continued her appeals, and the decision was subsequently reversed by the review commission.

The review commission's decision was appealed to the Court of Common Pleas, which upheld the decision of the review commission. That decision was affirmed by the Ninth District. In reaching its decision that the trial court's decision was not unlawful, unreasonable, or against the manifest weight of the evidence, the appeals court relied on the facts that a county children services did not reveal bruising on the child's wrist or neck. Also, the children services’ final determination was that the claim of abuse was unsubstantiated and the Center for the Teaching Profession after conducting an investigation determined there was no abuse and renewed the appellee individual's teaching certificate. Furthermore, the state Department of Mental Retardation and Developmental Disabilities did not place the appellee individual on its registry of those who had abused students.

Accordingly, the teacher was able to collect her unemployment benefits.

Supreme Court of Ohio sets oral arguments in school background check case

The Supreme Court of Ohio has set oral arguments for June 8, 2010 in a dispute over the constitutionality of a law requiring the termination of all school employees with certain convictions.

In that case, the plaintiff was terminated his contract from his position of 11 years with the Cincinnati Public Schools after it was found out that he had been convicted of selling narcotics in 1976. The conviction had been expunged from his record and the plaintiff had been rehabilitated and not committed any other crimes.

The lawsuit alleges violations of both state and federal law. The federal court asked the Supreme Court of Ohio to clarify whether the statute violated two provisions of the Ohio Constitution, namely, (1) whether the statute was impermissibly retroactive under Article II, Section 28 and (2) whether the statute violated the Contracts Clause of the Ohio Constitution.

After the Supreme Court makes its determination, the lawsuit will likely be sent back to the federal court for determination of the federal issues.

Columbus Dispatch article highlights ODE's notification system

The Columbus Dispatch ran a story today about the Ohio Department of Education's new system that scours Ohio arrest reports for licensed educators. The article is located at http://www.dispatch.com/live/content/local_news/stories/2009/10/21/teacherarrests.ART_ART_10-21-09_A1_S2FEB0D.html?sid=101

The system, in place since August of this year, sends a notification to the Ohio Department of Education who, in turn, notifies the educator's school district that there has been an arrest.

The article does not go into detail regarding the accuracy of the system or if any educators have been falsely flagged as offenders by the new system. Similarly, it does not go into any detail about whether licensed educators have been charged with crimes that the system did not pick up.

Pursuant to Ohio Revised Code 3319.31, ODE can among other things, suspend, limit, or revoke licenses for criminal offenses listed in that statute or for "conduct unbecoming" of the teaching profession. Educators who have been arrested for any crime, even those not specifically listed in the statute, should contact an attorney familiar with school and education law in order to assess the situation and whether further action is needed.

U.S. Sixth Circuit Court of Appeals reverses trial court on school custodian's firing

The Sixth Circuit Court of Appeals reversed last week a decision of the U.S. District Court for the Southern District of Ohio regarding the placement of a school custodian on involuntary leave in the Valley View School District. The school custodian claimed that the school district violated the Family and Medical Leave Act when it placed her on leave due to her taking leaves of absence after a car accident, on the advice of her physician.

The superintendent admitted that the school had used the custodian's leaves of absence as a factor against her in placing her on leave. The court reiterated that an employer is prohibited from “us[ing] the taking of FMLA leave as a negative factor in employment actions.” Thus, the Court found that the lower court was incorrect in its finding for the school district.

The U.S. Sixth Circuit Court of Appeals has appellate jurisdiction over district courts in Ohio, Tennessee, Kentucky, and Michigan.

Court of Appeals sides with teacher, against school district, in termination case

The case involved a teacher with several years of teaching experience. For a senior class project in his sociology class, the teacher required students to make a 20 year class reunion prediction regarding other students in the class. The results were to be read out loud in class, aftering being reviewed for appropriateness. However, after some students complained that some predictions were embarassing, the Board suspended the teacher.

The teacher exercised his constitutional right to a hearing under R.C. 3319.16 before a referee. After a two day hearing, the hearing officer recommended that the teacher be reprimanded, but not terminated. The School Board rejected the hearing officer's determination. The Court of Common Pleas reversed the decision of the school board and reinstated the teacher, finding that the Board's decision was not
supported by the weight of the evidence. The Court of Appeals also sided with the teacher. In making its decisions, both courts reviewed several factors, including the fact that the teacher had been described as outstanding, had done this very assignment for 12 years, and never had other incidents, and had a minor disciplinary record.

Supreme Court clarifies “grounds for appeal” language in R.C. 119.12

The Supreme Court of Ohio today clarified that R.C. 119.12 requires a party appealing an administrative order or ruling by a state agency to identify in its notice of appeal one or more specific legal or factual errors in the order being appeal. The decision makes clear that the notice of appeal must include more than a restatement of the statutory standard of review for such orders.

The decision has implications for Ohio educators because, among other reasons, R.C. 119.12 may be used to appeal decisions of the Ohio Department of Education suspending or revoking a teacher or administrator’s licensure. The procedures contained in R.C. 119.12 may also be used by an educator to recoup his or her attorney’s fees after successfully defending him or herself in an ODE hearing.

It seems the caveat laid down by the Supreme Court today is, when appealing decisions of administrative agencies pursuant to R.C. 119.12, err on the side of more information than less. What might seem like a technicality could actually divest a court of jurisdiction to hear an appeal.

Supreme Court refuses to hear suspended teacher's appeal

The Supreme Court of Ohio today, in a 4-3 vote, declined to hear the appeal of a teacher who had her teaching licensed suspended by the Ohio State Board of Education for alleged violations of R.C. 3319.151(A).

At issue in the case was a teacher with 25 years teaching experience. In March 2006, she served as a proctor of the Ohio Achievement Test. During the reading test administration, the teacher created a practice worksheet for the math portion of the test. Certain questions on her practice worksheet requested that the student "solve for the value of X." Later, while flipping through the test booklet for another matter, she noticed the instruction in the test booklet, "solve for X." Believing instruction in the test booklet to be "much more clear" than her own instruction, the teacher changed the instructions on the practice worksheet to "solve for X."

Upon completion of the practice worksheet, the teacher distributed the worksheet to other teachers in her grade level, purportedly telling them to "not let the students take this home" and "destroy it when you are done." This made the other teachers uncomfortable and they did not believe that the distributing teacher was joking. Only one other teacher, besides the author, distributed the practice worksheet.

Later that same week, during the administration of the mathematics portion of the test, one of the teachers who had received the practice worksheet noticed similarities between some of the questions on the practice worksheet and some of the problems on the test. The teacher was questioned later by the school principal and the matter was picked up by the Ohio Department of Education.

The Ohio Department of Education gave the teacher notice that it intended to determine whether to suspend her teaching certificates. Pursuant to the Revised Code and the U.S. Constitution, the teacher elected to have a hearing on the matter.

As a result of the hearing, the hearing officer determined that the teacher violated R.C. 3319.151(A) by revealing to students a specific question known by the teacher to be part of an Ohio Achievement Test to be administered later that week. Specifically, the hearing officer found in his Report and Recommendation that three of ten questions on the practice worksheet were "significantly more similar" to, or almost identical, to questions on the actual Ohio Achievement Test. The hearing officer recommended the teacher's license be suspended for one year. The Ohio State Board of Education adopted, by resolution, the Report and Recommendation of the hearing officer.

The teacher appealed to the Court of Common Pleas, which found that there was substantial, reliable, and probative evidence to support the Board's decision to suspend the teacher's license.

The teacher appealed to the 11th District Court of Appeals, which upheld the decision of the trial court. The appeals court found that R.C. 3316.151(A) is violated not just by the verbatim revealing of specific questions, but also the revelation of questions "that the person knows is part of a test."

The Supreme Court's decision not to hear the case could signal that R.C. 3316.151(A) will be broadly construed. School teachers and administrators would be well-served by not looking at any portion of the Ohio Achievement Test and ensuring that any practice worksheets or tests that they create are made far in advance of the administration of the Ohio Achievement Test.