93-473 La.App. 3 Cir. 12/14/94, Rubin v. Lafayette Parish School Bd.

• Decision Date: 14 December 1994
• Citation: 649 So.2d 1003
• Parties: 93-473 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1003

649 So.2d 1003

93-473 La.App. 3 Cir. 12/14/94, 97 Ed. Law Rep. 965

Bernadette RUBIN, Plaintiff-Appellant, v. LAFAYETTE PARISH SCHOOL BOARD, Defendant-Appellee.

No. 93-473.

Court of Appeal of Louisiana Third Circuit.

Dec. 14, 1994.

Rehearing Denied March 1, 1995.

Writ Denied May 12, 1995.

James Isaac Funderburk, Abbeville, for Bernadette F. Rubin.

L. Lane Roy, Lafayette, for Lafayette Parish School Bd., et al.

Before LABORDE, YELVERTON, COOKS, SAUNDERS and WOODARD, JJ.

[93-473 La.App. 3 Cir. 1] COOKS, Judge.

This case involves the appeal of a teacher dismissed from her position for willful neglect of duty. Numerous charges were lodged against Bernadette Rubin after she was transferred and assigned to teach 7th graders Life Science at Acadian Middle School. Mrs. Rubin's prior eighteen-year employment history was without blemish. ¹ Mr. John Lee, Assistant Principal at Acadian Middle School, testified from his examination of school records and conversations with Mrs. Rubin's superior at J.W. Faulk Elementary School there was nothing which remotely suggested she was unskilled or morally unfit to teach the assigned course. Her record, as a whole, demonstrated she was a "good teacher" who had not displayed any prior problems with following school policies or other guidelines. Mr. Mouton, the Principal at Acadian Middle School, also examined Mrs. Rubin's personnel records and accepted the Assistant Principal's recommendation favoring her appointment. He too confirmed nothing in her long employment history warned against her continued service as an elementary teacher. Her family background militated against such negative assessment as well.

Though qualified to teach all subjects in elementary education, Bernadette Rubin's experience as a teacher was limited to instructing third graders. ² She arrived at Acadian Middle School without any experience teaching 7th graders or instructional familiarity teaching Life Science.

Paul Long, math and science supervisor for the Parish's school system, was [93-473 La.App. 3 Cir. 2] assigned to review Rubin's progress and to offer his advice in improving her instructional skills. His duties entailed "in-service training" of Rubin. Long also chaired the Sex Education Committee, formed to assist the Lafayette Parish School Board in developing policies and regulations for future sex education instructions if approved by a majority of its members. ³

Noting Rubin initially experienced adjustment difficulties teaching 7th grade classes, Long explained "there is a world of difference" in teaching students who are eight (8) years of age as opposed to thirteen (13) "not only in content but [facing] what's happening to the student[s], emotionally, socially." In his words, "the genes are flying" and a teacher may experience unanticipated problems not only in delivering sensitive information to the students but in managing their classroom conduct. He also stated:

"The main thing is a complete change going from middle school to an elementary school or vice versa. The whole philosophy of the school might be a little different. There's more responsibility put on student's behavior, there's individual contact that must be made with each student, and new teachers don't always understand the procedure that must be followed for them to get the help that they need on disciplining different students."

COURSE MATERIAL AND PREPARATION

The text approved for use in Rubin's class included a section which specifically dealt with the reproduction of animals. Other chapters in the book covered the development of the human body including human heredity, the development of the human child, and the systems of the human body with detailed references to the human female's menstrual cycle. The vocabulary terms used in Chapter 6 included such words as: asexual reproduction, colostrum, egg, embryo, estrus, fertilization, fetus, gestation, ovary, placenta, regeneration, sexual reproduction, sperm, testes, umbilical cord, uterus, vagina, zygote, and mating. In the section relating to the estrus cycle of cows, the text focuses on the process humans normally understand as ovulation which entails the release of an egg from an ovary followed by the discharge of blood through the vaginal canal. In the section discussing the life cycle of frogs, the text explains "the female frog [deposits] her eggs outside of her body and the male frog [swims] over [them] and [excretes] the sperm that fertilizes the eggs." Another section contains photographs depicting a ewe with her baby sheep suckling (breast feeding) with references to the mammillary glands. Other references to the mating practices of mammals are even more sexually explicit. The text also contains specific references to human sex organs, including the vagina and penis. On a counter in the rear of the classroom were various charts depicting portions of the human body including the entire excretory system of [93-473 La.App. 3 Cir. 3] the male and female with specific references to their sexual parts.

It is undisputed Rubin expressed, at the outset, reluctancy and concern to her supervisors about teaching the information contained in the approved text. She was aware and cautioned by other educators that Life Science is a difficult area of study to teach adolescents themselves undergoing sexual changes, i.e., "puberty." Oftentimes, as explained in the record, these students are naturally inquisitive when terms more familiarly related to human sexuality are defined and added to their still maturing vocabulary.

Rubin requested a curriculum guide to aid her in determining what information from the text she was expected to relate to the students. Initially, she was unable to locate a course guide. She then sought instructional guidance from the Principal and Mrs. Borel, the previous life science instructor. On one occasion, she specifically recalled approaching the Principal and Mrs. Borel to inquire whether it was mandatory that she teach Chapter 6 in the text. As mentioned, this Chapter contained sexually explicit terms which, Rubin explained, were sure to arouse the students' curiosity. The Principal and Mrs. Borel advised Rubin the approved course curriculum required coverage of the sensitive matters contained in Chapter 6.

RUBIN'S CLASSROOM PERFORMANCE: SUPERVISOR'S OBSERVATIONS

On the day Paul Long visited Rubin's class, he stated she was progressing well and it appeared she was not having any discipline problems. In fact, he recalled complimenting her on "bringing students back on task that day." When questioned regarding the selection and use of the approved text book, Long stated the book was selected seven (7) years prior; and he admitted it contained several sections which specifically related to human anatomy and sexual happenings. Even though teachers were instructed by him not to answer "sex education questions," he recognized it was very difficult to teach Life Science to 7th graders "full of natural curiosity." Specifically, he stated:

"Q. Isn't it reasonable to believe that students, especially children who are going through puberty, would relate what they are learning in animal reproduction to human development and human reproductive processes?

A. I'm sure they would.

Q. And isn't it correct that the teachers who are called upon to teach this material are more or less thrown out there in the fray to fend for themselves when kids come up with these types of questions?

A. It's very hard on the teachers at this time--

Q. Thank you.

A. --to teach.

[93-473 La.App. 3 Cir. 4] Q. And they just try to do the best that they can with whatever it is they have to work with?

A. That's correct."

RUBIN'S VERSION OF CLASSROOM EVENTS

Rubin admitted, for the first two months of the school year, she imposed mass punishment as a disciplinary measure. As we appreciate, mass punishment is simply holding the entire class or a group of students responsible for the misbehavior of a few or one student. According to the record evidence, mass punishment was generally employed by other teachers in the system as a disciplinary measure without Board objection. All agree, Rubin imposed mass punishment at J.W. Faulk, without complaint or contrary instructions from her superiors. Shortly after her arrival at Acadian Middle School, however, several students complained about Rubin's use of mass punishment to the principal. She was instructed by him to punish only those students who were guilty of violating school rules or who were otherwise disruptive in class. Rubin testified she immediately discontinued this practice. Instead, as she stated, students were punished only if individually guilty of violating school rules. Although she admitted such punishment was still imposed by her on groups of students thereafter, she insisted each student in the group was individually responsible for the discovered infraction.

As the course progressed, the students acknowledged they questioned Rubin concerning the terms discussed in class. Rubin recalled, for example, a student asked "how a sperm gets up into the cow." In response, she stated the sperm "got into the female cow through the vaginal canal." When a student inquired whether the estrus cycle of the cows was the same as the menstrual cycle in females, Rubin stated she instructed the student to read the section dealing with the estrus cycle. The student proceeded by reading aloud in class. Rubin stated she attempted to avoid answering the student's question by expressing uncertainty regarding the similarities between the estrus cycle and the menstrual cycle. She also recalled one of the students questioned what mating meant; and, she replied it was the same as cohabitation and occurred when the male and female animal had sex. Though her attempts to explain the terminology used in the text were often awkward and difficult, she maintained on many occasions she simply instructed the students to refer to the text's...