DOCKET NO. 047-R2-1197

BOWDEN HARRIES§ BEFORE THE

§

§

V.§ COMMISSIONER OF EDUCATION

§

BURKEVILLE INDEPENDENT§

SCHOOL DISTRICT§ THE STATE OF TEXAS

DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner, Bowden Harries, appeals Respondent’s, Boyd Independent School District’s, decision to terminate his term contract.

Christopher Maska was the Administrative Law Judge appointed by the Commissioner of Education to preside over this cause. Petitioner appeared pro se. Respondent was represented by Ms. Marla A. Moore, Attorney at Law, Houston, Texas.

Findings of Fact

1.On November 4, 1997, Respondent, Boyd Independent School District, announced its decision terminating Petitioner’s, Bowden Harries’, term contract.

  1. Petitioner filed his Petition for Review on November 18, 1997.
  2. Respondent’s findings of fact are incorporated and adopted as if set out at length.

Discussion

Petitioner contends that he is entitled to prevail because of procedural irregularities and because there is not substantial evidence to support the board’s decision.

Procedural Irregularities

Petitioner contends that Respondent held a meeting to discuss the certified hearing examiner’s recommendation without notice to him or his counsel. Respondent’s board of trustees held a meeting on October 28, 1997, in order to consider the recommendation of the certified hearing examiner. Neither Petitioner nor his counsel attended this meeting. No notice had been given. These events are of some concern. Both parties should have an opportunity to present argument before the board of trustees. Texas Education Code §21.258(b). In this case, notice was probably not sent due to a mistake. The board held another hearing on November 4, 1997, to which notice was given to Petitioner. Petitioner did not attend this hearing. In order to prevail on this claim, Petitioner must show that there was a procedural error that was likely to lead to an erroneous decision. Texas Education Code §21.3039(c).

As the Commissioner pointed out in McGilvery v. Boyd Independent School District, Docket No. 185-R2-597, (Comm’r Educ. 1997), in many cases procedural irregularities before a board of trustees cannot lead to an erroneous decision when the board does not change the certified hearing examiner’s recommendation. A board of trustees has significant limitations in changing findings of fact. Texas Education Code §21.259. If findings of fact are supported by substantial evidence, they cannot be changed. In such a case, a board of trustees has no ability to change findings of fact. In this case, as will be pointed out below, the findings of fact were not changed and are supported by substantial evidence. Respondent could not have changed the findings of fact. Boards do have more latitude to change conclusions of law. However, whether a conclusion of law is correct is decided by determining if the conclusion of law correctly states the law. In reviewing a conclusion of law, no deference is given to a board of trustees’ interpretation of the law. Since in this case, no change was made to the recommendation, any procedural error by the board could not have led to an erroneous decision.

Petitioner contends that the transcript before the certified hearing examiner is incorrect. However, even if the changes suggested by Petitioner are made, it does not effect the outcome of the case.

Petitioner contends that subpoenas that were properly requested by his attorney were not issued. Petitioner, however, has failed to preserve this point of error. If this did occur, Petitioner would have to call the failure to issue subpoenas to the attention of the certified hearing examiner and obtain a ruling. This was not done. Likewise, Petitioner cannot point to a ruling excluding evidence.

Good Cause

The Texas courts have defined “good cause”:

Good cause for discharging an employee is defined as the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship.”

Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 580 (Tex. App.--Houston [1st Dist.] 1992, no writ). Good cause is a high standard. An employee must not only fail to perform as an ordinary employee would, but the failure must be of a serious nature. There is good cause to terminate a contract if a teacher failed to perform as an ordinary employee would and this failing is of a serious nature.

Respondent found that Petitioner had failed to follow an administrative directive in dealing with a racial slur. There having been a number or racial incidents on campus, the principal called a faculty meeting. A policy was established that any student who made a racial slur would be immediately sent to the office. Petitioner was assigned to teach at the on-campus, Alternative Education Center. On April 3, 1997, three students were assigned to the Alternative Education Center. One of the students wanted to post a cartoon. Petitioner allowed the student to post the cartoon inside his cubicle. The cartoon was not introduced as evidence. It is described as follows:

It was a picture with four Klansmen behind a curtain. One had a rope, and one had a gun, and there was a curtain, and they had a talk show, like “Let’s Make a Deal,” and then it had a black man standing up. He was excited, you know, because he wanted to know what was behind the curtain.

Williams Depo., pp. 12-13. Just what this cartoon, which came from a magazine, was meant to convey is not clear. However, even Petitioner admits that the cartoon was racially derogatory. A teacher’s aide who was delivering lunch to the students saw the cartoon and tried to get the student to take it down. Petitioner intervened and allowed the cartoon to remain posted. The teacher’s aide, who was upset by the cartoon, brought the incident to the administration’s attention. Petitioner, however, contends that he was not aware of the directive about racial slurs and that he wished to use the cartoon to teach the student that racism is wrong. If Petitioner’s contentions were correct, there would not be good cause to terminate Petitioner’s contract. A teacher cannot be expected to follow directives he has not received and a reasonable teacher might make use of a racially derogatory cartoon to teach the evils of racism.

In determining whether the facts are as Petitioner contends, the substantial evidence standard of review is used. Texas Education Code §21.303(b)(1). Under this standard of review, the district’s action will be sustained if it is determined that a reasonable finder of fact could, after reviewing the record, make the findings of fact that the board made. It is not for the Commissioner to decide the case anew but to determine if the board’s decision is reasonable.

As to the issue of whether Petitioner had notice of the policy, it is concluded that he did. Petitioner’s principal testified that Petitioner stated that he had forgot what was said in the faculty meeting. (Tr. p. 56) One can only forget something that one once knew. It is concluded that Petitioner was at the meeting and was aware of the procedures to be followed concerning derogatory racial comments.

Whether Petitioner’s actions amount to good cause needs to be further examined. Not every failing constitutes good cause. The failing needs to be serious. In this case, there were significant racial conflicts at the school. Racist graffiti was found on the grounds and fights had broken out. It was very important that racial antagonism be controlled. The principal, by instituting a zero tolerance policy, took a reasonable step to deal with the problem. While Petitioner may have wished to use the cartoon as an educational tool, he violated policy. Applying the substantial evidence standard, it is concluded that Petitioner’s failing was a serious failing. If Petitioner had followed policy, the situation could have been quickly dealt with. There would not be the suspicion that a teacher had condoned racism by violating policy. While Petitioner is not a racist and intended to use the cartoon as a teaching tool, his actions served to increase racial tension. For this reason, Respondent had good cause to terminate his contract.

Petitioner contends that Respondent violated his academic freedom, which he is entitled to under the freedom of speech and rule. 19 TAC 177.1. What constitutes academic freedom in primary and secondary public education has not been well defined by the courts. Petitioner contends that Respondent violated his academic freedom by not allowing him to teach about racism in the manner of his choosing. While Petitioner is correct that the disciplinary policy precluded his chosen method for teaching about racism, there is no violation of academic freedom. Schools clearly have the right to set up disciplinary policies. These policies are not overridden every time a teacher decides to teach in a manner inconsistent with the disciplinary policy. Further, Petitioner was not assigned to teach the student a course on racism. All interactions between student and teacher are not covered under the heading of academic freedom.

Conclusions Of Law

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as Commissioner of Education, I make the following Conclusions of Law:

1.The Commissioner of Education has jurisdiction of this appeal pursuant to Texas Education Code §21.301.

  1. The “record of the hearing examiner” under Texas Education Code §21.258 (a) is the transcript and exhibits from the hearing on the merits, along with all correspondence and interlocutory orders issued by the hearing examiner.
  2. Petitioner has not preserved error on his contentions that subpoenas were not issued and that evidence was wrongly excluded.
  3. Petitioner has not shown good cause for an evidentiary hearing before the Commissioner. Texas Education Code §21.302.
  4. The Commissioner may not reverse the decision of a board of trustees for a procedural error unless the error was likely to have led to an erroneous decision. Texas Education Code §21.303 (c).
  5. There is substantial evidence to support the recommendation of the certified hearing examiner.
  6. Since there is substantial evidence to support the certified hearing examiner’s recommendation, Respondent could not change the findings of fact. Texas Education Code §21.259( c).
  7. Not giving Petitioner notice of the October 28, 1997 meeting was not an error likely to have led to an erroneous decision because Respondent could not change the findings of fact, which are supported by substantial evidence.
  8. Good cause for discharging an employee is defined as the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship.
  9. Respondent had good cause to terminate Petitioner’s contract for his actions in failing to follow administrative policy concerning racially derogatory statements.
  10. School districts have the authority to set disciplinary policies.
  11. Academic freedom does not allow a teacher to override a disciplinary policy because the disciplinary policy is in conflict with the teacher’s idea of how something should be taught.

13.Respondent’s decision to terminate Petitioner’s contract is affirmed.

14.Petitioner’s appeal is denied.

O R D E R

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and Conclusions of Law, in my capacity as Commissioner of Education, it is hereby

ORDERED that Petitioner’s appeal be, and is hereby, DENIED.

SIGNED AND ISSUED this ______day of ______, 19___.

______

MIKE MOSES

COMMISSIONER OF EDUCATION

#047-R2-1197-1-