Thompson v. Wake County Bd. of Ed.

• Decision Date: 14 April 1977
• Docket Number: No. 29,29
• Citation: 233 S.E.2d 538,292 N.C. 406
• Court: North Carolina Supreme Court
• Parties: Leonard K. THOMPSON v. WAKE COUNTY BOARD OF EDUCATION.

Page 538

233 S.E.2d 538

292 N.C. 406

Leonard K. THOMPSON v. WAKE COUNTY BOARD OF EDUCATION.

No. 29.

Supreme Court of North Carolina.

April 14, 1977.

Chambers, Stein, Ferguson & Becton by Charles L. Becton and Adam Stein, Chapel Hill, for plaintiff.

Boyce, Mitchell, Burns & Smith by James M. Day and G. Eugene Boyce, Raleigh, for defendant.

COPELAND, Justice.

G.S. 115-142 provides greater job security for career public school teachers, as defined, than existed under prior law. Taylor v. Crisp, 286 N.C. 488, 212 S.E.2d 381 (1975). G.S. 115-142(e)(1) lists the only twelve grounds upon which a career teacher may be dismissed, demoted or employed on a part-time basis. In this case, defendant Wake County School Board relied on four charges in dismissing the plaintiff immorality, insubordination, neglect of duty and mental incapacity. G.S. 115-142(e)(1)(b), (c), (d) and (e). In support of these charges, the Board reached seven conclusions of law based on seven findings of fact.

The trial judge found that "the Board did not reach a single conclusion of law, supported by competent evidence, which gave lawful support to its order of dismissal." The Court of Appeals held that Judge Alvis properly overruled all the Board's conclusions of law except for Conclusion of Law No. 5 relating to neglect of duty in the encouragement of order and discipline. The Court of Appeals felt this conclusion was supported by a finding based on sufficient competent evidence.

Suffice it to say, that after careful scrutiny of the record, we concur in the result reached by the Court of Appeals on the charges of immorality, insubordination and mental incapacity for the reasons stated in the opinion below. As pointed out by the Court of Appeals, several of the Board's findings of fact were supported by substantial, competent and material evidence in the light of the entire record. However, these findings while they paint a portrait of a teacher whose conduct was at times imprudent and ill-advised, do not, as a matter of law, constitute immorality, insubordination or mental incapacity so as to justify the dismissal of a career teacher. The majority opinion below has dealt with these issues in detail. We believe it would serve no useful purpose for us to plow again the same ground.

Before turning to the charge of neglect of duty sustained by the Court of Appeals, we need to examine the applicable scope of judicial review. At the time of the plaintiff's hearing before Judge Alvis, the scope of judicial review of the Board's actions was set out in G.S. 143-315 (now G.S. 150A-51). This general judicial review statute allows a court to reverse a school board decision if:

"(t)he substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

"(5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted ; . . ." (Emphasis added.)

This standard of judicial review is known as the "whole record" test and must be distinguished from both de novo review and the "any competent evidence" standard of review. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Underwood v. Board of Alcoholic Control, 278 N.C. 623, 181 S.E.2d 1 (1971); Hanft, Some Aspects of Evidence in Adjudications by Administrative Agencies in North Carolina, 49 N.C.L.Rev. 635, 668-74 (1971); Hanft, Administrative Law, 45 N.C.L.Rev. 816, 816-19 (1967). The "whole record" test does not allow the reviewing court to replace the Board's judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo. Universal Camera Corp., supra. On the other hand, the " whole record" rule requires the court, in determining the substantiality of evidence supporting the Board's decision, to take into account whatever in the record fairly detracts from the weight of the Board's evidence. Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the Board's result, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn. Universal Camera Corp., supra.

The Wake County Board of Education concluded as a matter of law that plaintiff's "actions in allowing his students to fight with each other and with him constituted neglect of duty insofar as encouragement of discipline and good order in accordance with N.C. G.S. 115-146 is concerned." The Court of Appeals felt this conclusion was supported by a portion of the Board's Finding of Fact No. 7 which states, "(o)n occasion during the 1973-74 school year Mr. Thompson allowed students under his supervision to settle disputes by fighting among themselves, . . ." Arguably this finding, if supported by substantial evidence in light of the entire record, would, as a matter of law, constitute neglect of the teacher's duty imposed by G.S. 115-146 to "maintain good order and discipline."

The evidence in the record supporting this finding is limited to testimony concerning a fight between students Mike Novick and Eddie Barker. Several witnesses testified before the Board on the subject of this fight. Joe Jungers had physical education, a health class and a study hall under Mr. Thompson. He testified: "I know Mick Novick and Eddie Barker. I recall an occasion when they fight with each other. Mr. Thompson saw the fight. He did not stop it. Mike and Eddie were fighting and Mr. Thompson called to Mike and as he turned around he said 'beat the hell out of Eddie' and Eddie hit and Mike turned around and bashed the mess out of Eddie." Viewed in isolation, this testimony may constitute "substantial" evidence, but a reviewing court is not permitted to stop here under the whole record rule.

On cross examination the witness testified: "I came in the class a bit late. I was sitting over there playing chess and they started fighting for some reason. From what I had heard Mike had been sitting in Eddie's chair and Eddie got mad at him about it. As to whether I heard Mr. Thompson say 'if you are going to act like animals, well, go ahead and beat the hell out of each other,' I did not hear those exact words. I do not recall he said anything about acting like animals. I do recall Mr. Thompson saying: 'beat the hell out of him, Eddie.' That's all I I heard said. He said, 'you are making such a ruckus,' making such a big amount of noise fighting. I thought that Mr. Thompson was in the class when the fighting started. I was over there playing chess, but I don't know whether or not he was, but he was in there when I looked up there when he started talking." On redirect examination Joe Jungers added: "I do not know whether the two boys that were fighting were reprimanded or punished in any way. This occurrence was a rarity you might say in class . . . . In the classes which I am in Mr. Thompson's room, it's usually quiet and orderly." (Emphasis added.)

Obviously Joe Jungers was not in a position to hear Mr. Thompson's entire statement on this occasion. He was apparently preoccupied by his chess game until at some point the noise of the fight attracted his attention.

The other witness called by the Board to substantiate the neglect of duty charge was Johnette Smith, a student under Mr. Thompson who offered the following testimony on the subject of the fight: "Two guys were fighting, started fighting. One was picking at the other, and this guy, they didn't like each other. It was Eddie Barker and Mike Novick. They would be fighting. He (apparently Mr. Thompson) would probably be out of the room and they would be fighting. He would come in and more than likely he would look at them and he would probably tell them more than likely, say, 'Go ahead and beat the hell out of each other! He didn't care. It was in a class." (Emphasis added.)

At best, Johnette Smith presented an inconclusive and incomplete picture of what transpired on this occasion. Johnette also indicated that there "was only one fight in our class last year."

Plaintiff Leonard K. Thompson had a different recollection of the fight between Eddie Barker and Mike Novick. Mr. Thompson testified: "I arrived at that study hall and there was something going on, a scuffle. It was stopping. I did not stop it because it was somebody else there at that moment, a student. The two boys had been hitting each other. And it was stopped, but they were still angry. One of them was very angry. He was crying. He was...