Terra Extraneus

The decision issued by the Supreme Court of Oklahoma on April 3 in Hagen v Watts Public Schools (Adair County), 2007 OK 19 at www.oscn.net, left me unsettled. I served as a member of the board of a public school district for four years and I have represented school districts as legal counsel in several instances. The Supreme Court should never have been involved in this and the opinion, especially the dissent, should never have been published. The statute that made it all happen, the Teacher Due Process Act, should never have been passed. The Teacher Due Process Act is going to make Oklahoma look bad and the courts that try to administer it are, in the long run will find themselves in a no win situation. This opinion is a perfect example of it all.

In this case, Hagen was a special education teacher. He slapped one of his special needs students. This slapping incident reminded me of the silliness during the Second World War that landed atop General George A. Patton. The school district fired Hagen. Hagen appealed the firing to the district court, although he admitted the facts of the incident, and the trial court ordered him reinstated. The school district appealed, why that was a priority in their budget will forever remain unknown, and the Oklahoma Supreme Court affirmed the trial court. The Supreme Court was not unified, however, and there was a written dissent.

The slapping of any student by a teacher or school official is not a good thing. But, in all likelihood, it does not rank as a heinous crime. It most likely can and should be dealt with in the confines of professional discipline, counseling, and training. What loss of perspective, what loss of emotional control, caused the school district to turn it into a firing and then into an appeal to the Supreme Court of Oklahoma? The dissent in the Supreme Court’s opinion suffered from the same loss of perspective and emotional control as the school board. It is rare to see such an emotional outburst from a Justice of any Supreme Court escape out into the public sector. The dissent defined the slapping incident as “assault and battery,” “ugly facts,” “mental and physical abuse” and “this teacher’s conduct was abusive.”

According to the dissent, the child’s brother and grandmother both testified they would have no trouble returning the child to the teacher’s classroom and admitted under oath that was sometimes the only to break up a tantrum. Apparently, somebody still had some perspective, even if it was not the Supreme Court dissenter or the school board. But, wait!! The Supreme Court dissenter did not like those folks either because he demanded to know why state child abuse authorities had not been called out to investigate their admitted willingness to use a slap now and then to control this child’s behavior. That such a comment was a bit of a foul ball should have seemed obvious to the Justice. For all the Justice knew, child abuse authorities had investigated and with a sense of perspective agreed a slap might be better than letting the kid run out into traffic in the middle of a tantrum.

Indeed, the dissent wanted to define “abuse,” even though it was not defined in the Teacher Due Process Act, in the same manner as in the “child abuse” statutes. The “child abuse” statutes of Oklahoma were endowed with a sense of perspective because “abuse” under those statutes must include, according to the footnotes of the dissent, an “injury.” The “injury” can be physical or mental. What is the “injury” that results from a slap? Either the word “injury” has no meaning, or it has to mean clinically observable and treatable damage. Clearly, a mere slap does not result in clinically observable and treatable damage. But, it does not matter to the dissent that there was no actual “injury,” because to the dissent, all harm no matter how slight is abuse and thereby damnable.

The trial court tried to re-inject perspective that had been lost by the school board and the majority of the Supreme Court did the same. But, neither will be thanked for that by those with no perspective, and ultimately, both will be asked to decide every personnel issue that arises in a school district under that silly statute.

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Karen Barrows, a public school teacher, sent her children to a private Christian school. When she applied for the job of Assistant Principal, at the suggestion of the Superintendent, her boss, the Superintendent subverted her application because her children were in still in a private school. The Superintendent denied the reason was religious, but there seemed to be little doubt that the Superintendent made it clear that Ms. Barrows had no future in the school district as long as her children were enrolled in a private school.

The United States Court of Appeals for the 5th Circuit held, in an opinion you can find here, that Barrows could not state a §1983 claim for violation of her property rights in her governmental employment because an essential element of the claim, that the Superintendent was a policymaker and that his policy violated her rights, was not legally possible. The court held that the Superintendent was not a policymaker because under the laws of Texas, the policy making function was vested solely in the school board and the Superintendent was merely an agent of the Board.

There is absolutely no doubt the Circuit Court was right, the Superintendent was not the policymaker under Texas law. However, the Circuit Court was absolutely wrong. Clearly, under the facts both the trial court and the Circuit Court should have considered questions of fact for a trial, the Superintendent had usurped some policymaking authority, implemented it ultra vires, and in violation of the property rights of Ms. Barrows, added a job requirement that precluded her application. Also, the teacher, Ms. Barrows wanted her children to have a religious education. She told the Superintendent that was her motive. Nevertheless, the Superintendent imposed his policy anyway and the school board turned a blind eye.

Also, the Circuit Court was being intentionally obtuse. It is the rare school board that controls the Superintendent. That the school board can legally rein in the Superintendent is technically true but usually irrelevant. Ignoring reality, such as who was actually setting policy and implementing policy, harms the credibility of the Courts and in this case, denied the right of a school teacher to make a lawful parental choice about schooling her children without sabotaging her own career.

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Should a parent be able to represent offspring in court proceedings without the aid of a lawyer? Apparently several parents are attempting to represent their disabled children against school districts and others required, but refusing, to provide educational and other support services by federal law. Some of these parents have had good success. So far, I’ve not heard of any disabled kids that were disadvantaged by their parents’ zealous but uninformed advocacy.

The United States Court of Appeals for the 6th Circuit, in an opinion that you can find here, but that is not marked for full text publication, ordered an appeal dismissed in thirty days, because the parents were representing their child and not a lawyer, and unless the parents obtained a lawyer.

Setting aside for a moment whether in a United States court a parent should have a right to speak for their child, why would a parent want that job? Not only are their non-profit organizations that provide lawyers for such situations, the Legal Services Corporation, www.lsc.gov, will represent disabled kids. Admittedly, I emailed a buddy inside LSC and got that information; it was not easy to find it on either LSC’s website or even the website of “legal aid” in my own state.

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Brian Stone writes, “I’m Gonna Get Me A Lawyer.” Pretty funny — another good post at An Audience of One. I can’t begin to imagine what school administrators like Brian must put up with dealing with parents.

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Le Moyne College is a Roman Catholic institution of higher learning governed by the Jesuits and in its mission statement, claims to be called to “promote a more just society.” Even as a non-Catholic, I have always been intrigued by the Jesuits and not a little awed by their history and accomplishments. That makes the present controversy impossible to fathom.

CNSNews.com reported that LeMoyne College dismissed a graduate student from the graduate school of education because he wrote a paper favoring corporal punishment, spanking, as part of a program of discipline in an “ideal learning environment.” Litigation followed and a New York state court held that LeMoyne College violated its own handbook by failing to allow the student to appeal from the adverse decision. LeMoyne College has decided to appeal, according to the news report. By the way, the paper earned an “A-“ and the student’s grade point average was above 3.7, so the dismissal could not be cloaked as academic failure.

The Foundation for Individual Rights in Education (“FIRE”) has posted the results of their work in the matter to their website, which included the decision of the NY court in favor of the student and ordering the school to follow its own handbook. The opinion is only three pages long and does not mention the separation of church and state or distinguish LeMoyne College as a private religious institution, but merely ruled on generic contract principles. FIRE’s letters and the college’s original dismissal letter are also posted.

This is my first chance to review FIRE’s work and it was impressive in this case to this point. For many years I have followed the work of Jay Sekulow, Esq. and even his opponents publicly recognize the quality of his work. FIRE may be playing a niche role with similar competence.

The private church run school was clearly wrong. But, are we happy to see a successful intervention by a secular court, even on secular contract grounds? However, without seeing the briefing filed by the college, it is impossible to know whether the school claimed its decision was based on religious views.

Equally troubling is that UCLA, clearly a leading educational institution in this nation supported by taxpayer funds, plans legal action against an alumnus that founded an organization targeting “political radicalism on campus,” according to CNSNews.com, and presses its views through a website that identified “radical professors” and then rated them according to their views and efforts to convert their students to those views. UCLA’s cease and desist letter was based on trade mark violations. The website dropped all trade marks and disclaimed official affiliation with UCLA, but a UCLA spokesperson indicated legal action was still being designed to silence the website. The lesson to be learned here is that even in California, where First Amendment freedoms have historically been cherished, there is a certain amount of hypocrisy about academic freedom. The professors have it, the students are the unwilling victims, and even a graduate of the school must not speak of it.

In both of these instances, the institutions of higher learning have become so afraid of the written word, even an unpublished term paper, that they have felt compelled to lash out and destroy the authors. Or worse, are these institutions so flush with cash that arrogance has replaced intellectual honesty? Oklahoma institutions of higher learning would never consider such ridiculous actions, and I suspect it is because they are too busy making ends meet to waste time or energy, or highly paid personnel and legal fees, on such. Insofar as the public record yet demonstrates, there has been no accusation of defamation or violence against the authors to be silenced.

On both coasts, it appears, academic freedom and intellectual debate of some persons, but not those in some privileged class such as the professors, can be attacked consistent with the mission statement of these institutions. This is sad and frightening if it is a representative trend.

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