Clarke v. Board of Educ. of School Dist. of Omaha, in Douglas County, in State of Neb.

• Decision Date: 02 September 1983
• Docket Number: No. 44537,44537
• Citation: 215 Neb. 250,338 N.W.2d 272
• Parties: , 13 Ed. Law Rep. 505 James CLARKE, Appellee, v. The BOARD OF EDUCATION OF the SCHOOL DISTRICT OF OMAHA, IN the COUNTY OF DOUGLAS, IN the STATE OF NEBRASKA, a political subdivision of the State of Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 272

338 N.W.2d 272

215 Neb. 250, 13 Ed. Law Rep. 505

James CLARKE, Appellee, v. The BOARD OF EDUCATION OF the SCHOOL DISTRICT OF OMAHA, IN the COUNTY OF DOUGLAS, IN the STATE OF NEBRASKA, a political subdivision of the State of Nebraska, Appellant.

No. 44537.

Supreme Court of Nebraska.

Sept. 2, 1983.

Syllabus by the Court

1. Schools and School Districts: Words and Phrases. An act of "immorality" within the meaning of Neb.Rev.Stat. § 79-1260 (Reissue 1981) must be an act which directly relates to a teacher's fitness to teach.

2. Words and Phrases. "Immorality" is not necessarily confined to matters sexual in their nature. In a given context the word may be construed to encircle acts which are contra bonos mores, inconsistent with rectitude and the standards of conscience and good morals. Its synonyms are: corrupt, indecent, depraved, dissolute; and its antonyms are: decent, upright, good, right.

3. Words and Phrases. The term "immoral" has been defined generally as that which is hostile to the welfare of the general public and contrary to good morals. Immorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of corruption indecency, depravity, and dissoluteness; or as willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and the public welfare.

4. Schools and School Districts: Words and Phrases. A teacher commits an immoral act within the meaning of Neb.Rev.Stat. § 79-1260 (Reissue 1981) when he calls several black students in a racially mixed class "dumb niggers."

David M. Pedersen of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, for appellant.

Theodore L. Kessner of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, and SHANAHAN, JJ.

KRIVOSHA, Chief Justice.

Appellant, Board of Education of the School District of Omaha (Board), a Class V school district, appeals from an order entered by the District Court for Douglas County, Nebraska, reversing the action of the Board in terminating the employment of one of its permanent teachers, James Clarke. In determining the propriety of the Board's action in terminating Clarke, we must determine whether the act of a teacher calling black students in a racially mixed class "dumb niggers" constitutes "immorality" within the meaning of Neb.Rev.Stat. § 79-1260 (Reissue 1981). The trial court, in reversing the action of the Board, found that Clarke's conduct was insensitive, intemperate, and deplorable, but did not descend to the level of immorality. While we agree completely with the trial court that Clarke's conduct was indeed insensitive, intemperate, and deplorable, we likewise believe that it was immoral within the meaning of § 79-1260, and therefore we must reverse the action of the trial court.

The facts in the case are without dispute. Clarke admitted in writing that while conducting a racially mixed class at McMillan Junior High School on February 24, 1981, he said to several of his black students, who admittedly had been disruptive, "How many times a day do I have to ask you dumb niggers to stop playing around, stop talking and get to work?" Clarke obviously recognized that his statements were inappropriate because, again according to his own written statement, at the conclusion of the class he apologized to the rest of the class, saying, "I am sorry that the rest of the class, especially the three young ladies present, had to listen to this." The following day, Clarke had a further altercation with one of the black students, in which he kicked the chair out from under the student and invited the student to take a swing at him, saying, again according to his written statement, "I wish you would swing at me because then I would have to defent [sic] myself and I would just love to make a black grease spot out of him [sic] on the floor." Both of these events were brought to the attention of the school administration, which confronted Clarke about the events. Clarke admitted to the principal that he had in fact made the statements alleged by the students. In his written statement Clarke conceded that his conduct and comments were inappropriate.

On March 2, 1981, Dr. Ronald Anderson, the assistant superintendent in charge of personnel, suspended Clarke with pay, pending a complete review of the situation. On March 6, 1981, Dr. Anderson, by letter, informed Clarke that he would recommend to the Board the termination of Clarke's teaching contract. Clarke requested a hearing by the Board, which was granted and which took place on March 27, 1981. At that hearing the superintendent of schools took the position that Clarke should be terminated immediately on the ground of immorality. The Board agreed and voted to terminate Clarke's employment immediately for "immorality."

The controversy exists because of restrictions the Legislature has imposed upon the immediate discharge of permanent teachers such as Clarke. Section 79-1260 provides as follows: "Nothing contained in this section shall prevent the suspension from duty of a permanent teacher in a fourth or fifth class school district, pending a decision on the cancellation of his contract. Cancellation of an indefinite contract may be made for (1) incompetency; (2) physical disability or sickness of any type which interferes with the performance of duty; (3) insubordination, which shall be deemed to mean a willful refusal to obey the school laws of this state, the rulings of the State Board of Education, or reasonable rules and regulations prescribed for the government of the schools of the district by the school board; (4) neglect of duty; (5) immorality; (6) failure to give evidence of professional growth; or (7) justifiable decrease in the number of teaching positions or other good and just cause, but may not be made for political or personal reasons. When the cause of cancellation of an indefinite contract is for immorality or insubordination, the cancellation shall go into effect immediately. For all other causes cancellation shall take effect at the end of the current school term. The decision of a school board to cancel an indefinite contract shall be final."

Under the statute the Board could terminate Clarke's contract for a variety of reasons at the end of his current school year but would be required to pay him for the balance of the year even if he did not teach. An immediate termination, however, could be made only for "immorality" or "insubordination." The Board chose not to rely upon "insubordination" but, rather, upon "immorality," and therefore the sole issue presented to us is whether Clarke's actions were "immoral" within the meaning of the statute in question so as to justify immediate termination.

The Board argues that this being an error proceeding, the District Court, in reversing the Board's action, failed to give appropriate weight to the Board's determination that Clarke's conduct was immoral. Generally, in a proceeding in error such as this the order of the administrative body must be affirmed if it acted within its jurisdiction and there is some competent evidence to support its findings. Kennedy v. Board of Education, 210 Neb. 274, 314 N.W.2d 14 (1981); Caniglia v. City of Omaha, 210 Neb. 404, 315 N.W.2d 241 (1982). However, the District Court was required to determine whether the action of the Board was taken in accordance with law. Hollingsworth v. Board of Education, 208 Neb. 350, 303 N.W.2d 506 (1981). In this case the interpretation of the statutory term "immorality" presented a question of law which the District Court was required to determine. See The 20's, Inc. v. Nebraska Liquor Control Commission, 190 Neb. 761, 212 N.W.2d 344 (1973). On appeal, therefore, we are still required to determine whether Clarke's actions in the classroom constituted "immorality" within the meaning of § 79-1260.

In attempting to undertake this task we are not unmindful that we move out into dangerous and uncharted waters. Attempting to determine the limits of a term such as "immoral" is not an easy one. It may be suggested by some that no one, not even a court, should attempt to impose upon others his definition of what is moral or immoral. To accept such an argument would make our task perhaps easier, but would result in this court refusing to accept its responsibility. That we cannot do. In a large measure the task presented to us here is somewhat similar to that which courts have faced when called upon to determine the meaning of the term "obscene." Therefore, the process by which we must determine what is immoral in a given situation is very much like the process we use to determine what is obscene in a given situation, and, as noted by Mr. Justice Stewart in his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), may be difficult to define but is obvious on sight.

There is no question that the task presented to us would be made much easier if the Legislature had defined "immorality" as it did "insubordination," when it adopted § 79-1260. Undoubtedly, it did not define the term because, as we have difficulty, so too did it have difficulty in prescribing a limited definition. It is for that reason that we wish to make it clear that our decision here today is not intended to provide an all-inclusive, broad, and general definition of the term "immorality," either generally or within the meaning of § 79-1260, but, rather, only to determine whether, under the facts in this case, Clarke's action was in fact immoral within the meaning of § 79-1260. In attempting to arrive at that answer we must take into account the specific facts presented to us in this case. We must take into account the fact that the school district involved in this case was under a court order to desegregate,...