Litigating Education – Must We?
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.







