By: Teresa T. Combs KSBA Director of Legal & Administrative Training Services

By: Teresa T. CombsKSBA

Director of Legal & Administrative Training Services

Drummond v. Todd County Kentucky Court of Appeals – 2011 Tenured teacher charged with sexual misconduct

with students. Teacher was acquitted of the criminal charges and

returned to a teaching position. Teacher was fired.

Sexual conduct As conduct unbecoming a teacher.

No portion of this document is to be reproduced without the express permission of Teresa T. Combs

Hearing officer instructed the tribunal that if it determined the teacher had inappropriate sexual relationships with students it must determine whether that conduct constituted conduct unbecoming a teacher.

The tribunal answered both questions in the affirmative, terminating the teacher’s employment.

Circuit court affirmed tribunal decision. The teacher appealed the circuit court decision,

raising the following issues. Sufficiency of evidence Admissibility of evidence Matters of procedure


The court determined the tribunal based its decision on competent (reliable) and substantial evidence.

A) The court determined the hearing officer appropriately denied the teacher’s request to present evidence that he had been acquitted of criminal charges, finding it to be “irrelevant and potentially confusing to the tribunal”. Different standards proof

Beyond a reasonable doubt v. preponderance of the evidence (the civil court standard)

Factual inquiries before the jury in a criminal trial differ from those before the tribunal Criminal jury looked at whether teacher engaged in sexual

activity with the student before she reached the 16 years of age.


B) Teacher objected that the hearing officer did not allow his entire personnel file to be placed in the record.

Teacher was permitted to put portions of his personnel file into the record. These documents show teacher had been given

leadership role and had received positive performance evaluations.

Court said the hearing officer properly ruled none of the other personnel file evidence was relevant to the issue of sexual misconduct.

The hearing officer allowed the personnel file evidence in order to assist the tribunal in determining the appropriate sanction.


C) Other procedural issues raised: 1) Teacher contended he should have been allowed to

ask student witness whether any DNA evidence had been found on certain items of her clothing.

The hearing officer and the court pointed out that the student witness is not the proper witness for introduction of DNA evidence.

2) Teacher argued he was deprived of due process by being limited in time to present evidence to (11 hours for each party) and allowing only three days for presentation of evidence.

The allocation of time applied to both cross-examination of witnesses and presentation of the parties’ cases achieved.


The court held the most basic due process rights are notice and the opportunity to be heard.

The court stated this did not give the party the right to call an unlimited number of witnesses – allows some discretion to the hearing officer.

Teacher had been allowed to call six witnesses of his own and to conduct extensive cross-examination of the school board’s witnesses.

The court held this “constituted ample opportunity” for the teacher to present his case and point out any flaws in the school boards evidence.


D) Other alleged procedural errors: 1) Teacher argued his motion for a mistrial should have

been granted because the Superintendent was allowed to present testimony that should have been inadmissible and likely prejudiced the tribunal.

“Offending testimony” was about the Superintendent’s investigation

Teacher did not prevail on this argument. Teacher asserted a former Superintendent of the

school district should have been allowed to testify by telephone.

Court held the school board did not agree to telephone testimony and, in any event, the telephonic testimony did not meet the requirements for allowing such evidence in this case.


Ayers v. Board of Education of Allen CountyAyers appealed a tribunal’s order finding her guilty of

insubordination and conduct unbecoming a teacher.A tenured teacher who admitted she had referred to a

fellow teacher as a “bitch” and a “whore” in the hallway in the presence of students and other staff.

Admitted she sent an e-mail to the principal, explaining the incidents cited, in which she referred to yet another teacher as committing adultery.

Alleged her conduct was protected by the First Amendment and her religious beliefs.


Court of Appeals found she was not punished for religious convictions or First Amendment beliefs, but for the “time, place and manner in which she expressed herself.”

Court recognized the freedom to believe is absolute, while the freedom to act is not.

Court found her conduct constituted conduct unbecoming a teacher under KRS 161.790.

There is a difference in expressing religious beliefs & harassing others or disrupting the work environment


Appellate court affirmed the circuit court’s reversal of the tribunal finding that Ayers committed insubordination.

Court found no evidence that Ms. Ayers had defied or disobeyed any person in authority, or that there was an express rule or regulation promulgated by the Board forbidding such conduct.

Court rejected Board’s argument that Ayers committed insubordination by violating her obligation to perform in a professional manner as required by her continuing employment contract, holding that KRS 161.790 does not equate an employment contract with “rules and regulations” of the Board.


Macey v. Hopkins County Board of Education District terminated teacher for threatening to “kill”

nine students for misconduct. Teacher challenged the termination, alleging

violation of the ADA. Teacher said she had entered into a plan with the

school to accommodate her closed-head injury. Said symptoms from injury include irritability and anger


Court determined ADA doesn’t “require an employer to retain a potentially violent employee.”

Teacher not a “qualified employee” due to health and safety threat exception.


Jerrytone v. Musto Action filed by former public school teacher against

various school district employees and school board members.

Teacher alleged his due process rights were violated when he was suspended with pay after allegations that he allowed students to smoke marijuana and inhale fumes from disinfectant fluids in his classroom and made inappropriate sexual comments to students.


Court found: “Because of the strength of the state’s interest in

protecting students and maintaining public confidence in the public school system, it would have been impractical to provide pre-deprivation due process.”

Court quoted Gilbert v. Homar. Court also quoted Cleveland Board of Education v.

Loudermill for the proposition that:

“Employers may avoid due process concerns in cases in which immediate suspension of an employee is necessary by placing that employee on paid, rather than unpaid leave.”


Court stated: “The potential harm from a postponement in removal of a

teacher accused of misconduct in the classroom is simply intolerable.”

Eggers v. Moore Ohio teacher demanded presence of attorney in

heated conference with principal regarding teacher’s alleged threat to student.

When teacher refused to respond to questions, teacher was placed on paid administrative leave.

Teacher refused school’s request for later meetings and leave status was changed to unpaid medical leave based on teacher’s refusal to attend for medical reasons.


Teacher sued, claiming denial of due process and constructive discharge.

Held: 1) No due process claim was stated and no process was

“due” since placement on paid leave was not an adverse employment action

2) There was no constructive discharge without due process since the school had been continually willing to meet.


Bolden v. Chartiers Valley School District Court discussed that:

“A criminal conviction is not necessary to establish a violation of the school code....”

District’s Director of Transportation was suspended for four months without pay due to “incompetence and neglect of duty, bringing a loaded gun onto school property and hindering an investigation.”


Mayer v. Monroe County Community School Corporation Nontenured teacher-plaintiff expressed her opposition

to military operations in Iraq to elementary students during a current-events portion of her class and filed suit claiming she was impermissibly nonrenewed


Held: Pursuant to the Supreme Court’s ruling in Garcetti v.

Ceballos, when public employee makes statements as part of official duties she is not speaking as a citizen for First Amendment purposes.

The Seventh Circuit found extension of rule to teachers was compelling, given that teachers “hire out” speech and pupils are a captive audience.

Judgment in favor of the school district was affirmed because: “First Amendment does not entitle primary/secondary

teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system.”


Farhat v. Jopke This case discussed a school district custodian’s

speech, which the court held was highly disruptive to the point it interfered with effective operations of the school district.

Court held even if the speech was of public concern, the disruption outweighed the value of the speech.


Settlegoode v. Portland Public Schools Plaintiff was on a probationary teaching contract. She received positive evaluations for her first year

of teaching. After Settlegoode began writing letters to her

supervisor and other high-level administrators voicing her concerns about the district’s special education program, her evaluations, “became much less positive.”

Settlegoode’s supervisor, the supervisor’s supervisor, and the superintendent instructed her to cease writing the letters criticizing the district’s special education program.


The court of appeals held Settlegoode’s speech involved a matter of public concern, and the district was not able to show any injury to its programs as a result of her letters.

The court noted Settlegoode’s letters were written to people in the chain of command within the school district, and district was not able to show it would have fired Settlegoode but for the critical letters.

Thus, the court held her contract was non-renewed in retaliation for her criticism on a matter of public concern.


Finch v. Fort Bend Ind. School District Lawsuit filed by a former middle school principal

who had been reassigned to the position of, “Facilitator for Classified Staff Development.”

Notice of her reassignment indicated she had: Failed to maintain effective working relationships with other

administrators and colleagues within the district; Failed to cooperate in timely preparing documents needed

in connection with a special education matter; Failed to follow established policy and procedures; and Been insubordinate.

Plaintiff’s salary remained the same in the new position.


She alleged the reassignment amounted to a constructive discharge. (She had resigned from the new position in the

maintenance department, alleging, “Conditions there were intolerable.”)

Finch alleged the transfer was adverse employment action due to exercising her free speech rights.

Her allegation was that she had attempted to present her proposal about a school within a school concept to the superintendent and the school board, and that the school district officials were not happy with her promotion of her idea.

The court found the plaintiff had not been able to show any widespread community debate on the issue.


Melzer v. Board of Education Former high school teacher sued the district, alleging

his employment was terminated because he belonged to a group, NAMBLA, that, “advocated sexual relations between men and boys,” and advocated, “the abolition of laws governing the age of consent for such activity and the abolition of laws that limit freedom of expression, including child pornography laws.”

There was no evidence the plaintiff had engaged in inappropriate conduct with minors.


The plaintiff was co-founder of the group’s magazine, the Bulletin, contributed articles to it, and served as its editor.

Advice in that publication included such things as: “Never answer police questions, avoid keeping photos of

under-age boys where police may find them, never discuss the specifics of an illegal relationship with therapists or social workers, and secure legal representation before you need it.”

One edition of the Bulletin, “gave advice on how to identify susceptible children and how to lure them into sexual acts.”


When first confronted during the Board investigation, plaintiff would not confirm or deny that he was a member of NAMBLA.

While that investigation was ongoing, a local television station news story on public school teachers who were members of NAMBLA aired a secretly recorded video of a NAMBLA meeting with the plaintiff on screen.

During the time the news feature aired, the plaintiff was on sabbatical.

Parent groups urged the district not to allow the teacher to return to the classroom.


The investigator found the plaintiff’s actions had resulted in, “serious disruption, and that the district would permanently lose parental confidence if the plaintiff returned to the classroom.”

Plaintiff was terminated on the basis that he had “advanced the goals and activities of NAMBLA and assisted in publication of the NAMBLA Bulletin, including at times, editing, writing and raising funds for this publication, all of which promoted illegal sexual activity between male adults and male children under the age of consent.”

The Board also concluded the plaintiff’s activities had been widely reported and caused disruption in the school and in the community, and undermined his ability to serve as a teacher.


The court concluded, “The plaintiff’s freedom to associate with and advocate for NAMBLA is protected by the First Amendment.”

However, the court, after applying the Pickering balancing test, found the Board had met its burden of demonstrating that the plaintiff’s, “degree of active involvement in NAMBLA caused a disruption to the school’s mission and operations,” which justified the termination.

Konits v. Valley Stream Central High School District Tenured high school teacher filed Section 1983

action against the school district and district officials, alleging First Amendment retaliation.


She alleged she had previously assisted another school district employee with an employment discrimination case.

Court noted this was an issue of first impression in its jurisdiction.

Court held: “Any use of state authority to retaliate against those who

speak out against discrimination suffered by others, including witnesses or potential witnesses in proceedings addressing discrimination claims, can give rise to a cause of action under Section 1983 and the First Amendment.”


Lybrook v. Members of Farmington Mun. Schools Board Plaintiff resigned, alleging constructive discharge,

harassment and retaliation due to union affiliation. She filed suit, alleging free speech and due process

violations. The district court granted defendant’s motion to dismiss,

based on qualified immunity. Plaintiff appealed.


Appeals court affirmed and held the action taken against plaintiff (placing her on a professional development plan) was not adverse or detrimental employment action.

Although the plan and weekly meeting with the principal may have been unwelcomed by plaintiff, they were insufficient “retaliatory actions” upon which to premise a First Amendment retaliation claim.


The Supreme Court denied certiorari in Steubenville City Schools v. Barrett. Sixth Circuit held a superintendent was not entitled

to qualified immunity in a Section 1983 suit filed by a teacher, alleging his employment was conditioned upon sending his son to public school.

Sixth Circuit held teacher had fundamental right to send his child to private school, and this right was clearly established when the superintendent allegedly violated that right.


Barrow v. Greenville Ind. School District A public school teacher sued the school district

under Section 1983. She alleged she was denied an assistant principal

position in a public school district because her children were enrolled in private school.

She alleged this violated her constitutional rights. Barrow was told by the district superintendent that

children of all principals and administrators in that school district must attend public school.


The district would not consider her for the position when she informed the superintendent that she would not comply with that policy.

The trial court determined the plaintiff had not alleged violation of a clearly established constitutional right, i.e., the right to send her children to private school.

The appeals court found the public school teacher’s constitutional right to send her children to private schools was clearly established at the time she applied for the position, and that this overcame the school district superintendent’s claim of qualified immunity.


The court cited other legal cases for the proposition that this was well established, stating “Our decisions in Brantley and Fyfe leave no doubt that

public school employees like Barrow have a protected right to educate their children in private school. The state cannot take an adverse employment action against a public school employee for exercising this right, unless it can prove that the employee’s selection of private school materially and substantially affects the state’s educational mission.”


The court found the superintendent’s decision not to consider Barrow for the position was an adverse employment action.

The court found the superintendent, “failed to present a fact issue that Barrow’s children’s attendance at a private school would negatively impair district operations were Barrows selected for the assistant principal position.”

Thus, the court reversed the decision and remanded the case.


Behanon v. Cobb The court considered whistleblower and wrongful use of

civil proceeding claims which former principal successfully pursued at the trial level.

With respect to the whistleblower claim, the court affirmed a $500,000 punitive damages verdict against defendant school district, holding: 1) O.E.A. and K.D.E. were appropriate entities to receive a

protected disclosure; and 2) Whistleblower claim was not barred by earlier 161.790

case affirming discipline against principal.


Smith v. City of Salem, Ohio Plaintiff alleged violation of Title VII due to his,

“gender non-conforming behavior and transexualism.”

Sixth Circuit found he had suffered adverse employment action by being suspended for a twenty-four hour shift, and held he presented a prima facie case to maintain a sex discrimination action under Title VII and under 42 USC Section 1983.


Purvis v. Oest Female teacher was suspected of having sexual

relationship with 15 year old male student. Superintendent directed Dean of Students (“Dean”) and principal to investigate.

Unbeknownst to the Superintendent, same teacher had accused Dean of sexually harassing a student the previous year. The Dean told student that unless he confessed to the relationship he would be subject to possible expulsion or even jail time.


Student confessed to relationship with teacher and provided written statement to that effect. Superintendent reported to law enforcement and law enforcement advised state social services agency.

The circuit court refused to dismiss the case, holding the defendants did not have immunity and that a jury could find facts that amounted to denial of due process.

Teacher was ultimately acquitted of criminal charges and brought suit against school, superintendent, principal, Dean and law enforcement persons, alleging violations of due process against school administrators and false arrest against law enforcement.


The Seventh Circuit held: 1) Affirming the lower court, biased investigation which

included key role played by Dean who had previously been accused of harassment in a separate matter by the target of the investigation meant teacher’s claim of deprivation of a due process liberty interest could go to a jury. Court said the lower court properly denied summary judgment to the school district.

Purvis Continued


2) Reversing the lower court, this court found all individual defendants were entitled to qualified immunity. The superintendent had no knowledge of Dean’s potential bias. The principal (who was aware of the teacher’s prior accusation against the Dean) and the Dean also enjoyed qualified immunity since Seventh Circuit case law indicated subsequent investigations by law enforcement and social services agency undermined the teacher’s due process claim.

3) Reversing the lower court, this court found law enforcement had probable cause to arrest teacher as there was plentiful evidence gleaned through independent investigation to support probable cause that teacher engaged in inappropriate sexual relationship with student.


Documents

By: Teresa T. Combs KSBA Director of Legal & Administrative Training Services