Collins v. Faith School Dist. No. 46-2

• Decision Date: 25 February 1998
• Docket Number: No. 19959,19959
• Parties: 124 Ed. Law Rep. 405, 13 IER Cases 1384, 1998 SD 17 RICHARD COLLINS, Petitioner and Appellant, v. FAITH SCHOOL DISTRICT # 46-2 and Faith Board of Education, Appellees.
• Court: South Dakota Supreme Court

Page 889

574 N.W.2d 889

124 Ed. Law Rep. 405, 13 IER Cases 1384,

1998 SD 17

RICHARD COLLINS, Petitioner and Appellant, v. FAITH SCHOOL DISTRICT # 46-2 and Faith Board of Education, Appellees.

No. 19959.

Supreme Court of South Dakota.

Argued Oct. 22, 1997.

Decided Feb. 25, 1998.

Linda Lea M. Viken of Viken, Viken, Pechota, Leach & Dewell Rapid City, and Robin J. Stroup, Pierre, for petitioner and appellant.

Thomas H. Harmon of Tieszen Law Office, Pierre, for appellees.

AMUNDSON, Justice.

¶1 Richard Collins' contract with Faith School District was terminated on the basis of incompetency after he held a question and answer session with elementary school boys who had just seen a sex education video. In response to a question as to how two men could have sex, Collins described oral and anal sex to the boys. The school board's decision to terminate Collins' employment was upheld by the circuit court. We reverse and remand for reinstatement of Collins' employment and a determination of appropriate back pay.

FACTS

¶2 Richard Collins was employed by the Faith School District for twenty-nine years prior to his termination. During most of those years he was a fifth-grade teacher. Although he was being reassigned to teach the fourth-grade class during the 1995-96 school year, Collins had a valid contract and was entitled to the protections of South Dakota's continuing contract law (SDCL 13-43-9.1 et seq.). ¹

¶3 The Faith School Board (Board) had not established any formal sex education curriculum for its elementary school students. However, Board had made it a practice to contract with the community health nurse to provide sex education for elementary students for approximately fifteen years prior to 1995. The makeup of this program was basically set by the community health nurse without any prescreening by Board or administration.

¶4 A video chosen by the community health nurse covering the topics of puberty, maturation, and reproduction was shown to fourth, fifth, and sixth grade boys on April 24, 1995. This was the first time this particular video had been used by the nurse and this was the first time fourth grade students were included in the program. At the end of the video, the nurse went through a worksheet with the boys, addressing such topics as circumcision, nocturnal emissions, and semen. An opportunity for the boys to ask the nurse questions was then provided, but none were asked. The school nurse attributed this to the fact she was a woman and the boys were not comfortable discussing the subject with her.

¶5 As in past years, following the sex education presentation, the boys then went to Collins' classroom for a question and answer session. Before starting the session, Collins excused one student from the room because the student's parents did not wish to have the child involved in the sex education program. Collins then proceeded to ask if the boys had any questions. Collins undertook this duty because he had been asked by a previous health nurse to solicit questions after sex education programs from the boys because the female nurse realized that the boys would be uncomfortable asking her questions. Collins was instructed to answer the boys' questions as honestly as possible and he continued to carry out what had been an established practice for fifteen years. Questions were raised by the boys about circumcision, masturbation, nocturnal emissions and other topics from the film and worksheet. During the session, one of the boys also related that he had heard that two men could have sex and asked how this was possible. Collins preceded his explanation with the disclaimers that this type of conduct is frowned upon, most people do not believe in it, and the boys would find it gross. Collins then described oral and anal sexual intercourse in explicit language.

¶6 On April 25, 1995, complaints from parents were received by the superintendent which were critical of what the grade school boys had heard from Collins during school the previous day. In essence, the complaining parents were concerned about the effect Collins' answer to the question about homosexual intercourse would have on the boys. An informal meeting was conducted, involving one boy's parents, the superintendent, the principal, and Collins. At the conclusion of the meeting, Collins was advised by the superintendent that the matter was not resolved. Later that day, the superintendent took the matter to Board. Board directed the superintendent to send notice to Collins that a termination hearing would be scheduled before Board to consider his dismissal.

¶7 A notice of hearing and charges was provided to Collins on April 28, 1995, which referenced the parental complaint as well as warnings by Collins' evaluators in regard to lesson plans, instruction, maintenance of records and personal hygiene since 1985 that could be relevant as to his competence. On May 17, 1995, the hearing was held before Board, at which time witnesses and evidence were presented.

¶8 Although the notice of hearing had made vague references to issues other than the parental complaints, the only evidence Board heard pertained to the question and answer session and Collins' inappropriate response. ² Debbie and Newton Brown were the only complaining parents to testify at the hearing. ³ Debbie Brown testified that she felt that homosexuality was "very immoral" and both parents were bothered by the reference to homosexual activity by Collins. Although the parents felt that they should be the ones presenting the information on these subjects to their kids, neither had seen the video or worksheet before they were shown to the boys, nor had they opted to remove their son from the presentation.

¶9 The high school principal testified that it was inappropriate and immoral for a teacher to discuss homosexual activities with fourth and fifth grade boys. However, she indicated that she did not have any evidence that the children had been harmed in any way by the activity. She also testified that there had been no increased absenteeism or discipline problems of any kind. Nor were there any complaints from the children about feeling uncomfortable around Collins.

¶10 The superintendent testified without elaboration that the incident adversely affected Collins' ability to perform his teaching duties. However, the superintendent also testified that there was no evidence of any adverse impact on the students. In fact, the superintendent had not even been in Collins' classroom since the question and answer session to monitor for problems that may have developed because of the incident. Furthermore, he acknowledged that he had no evidence whatsoever that the children had lost confidence in Collins as a teacher and agreed that they evidently had some level of trust in Collins or they would not have been comfortable in asking the questions of him in the first place. The superintendent also indicated that he had no reason to question Collins' character.

¶11 At the conclusion of the hearing, Board voted to terminate Collins' contract on the basis of incompetency. ⁴ The circuit court upheld this action. Appeal was brought, pursuant to SDCL 15-26A-3(2) and SDCL 13-46-7, seeking review of the trial court's affirmance of Board's decision to terminate Collins.

¶12 Collins raises the following issues:

I. Whether he received due process.

II. Whether the Faith School District had just cause for his dismissal and whether the dismissal was an abuse of discretion.

STANDARD OF REVIEW

¶13 SDCL 13-46-1 allows an aggrieved teacher an appeal to the circuit court for review of a school board's decision. See Riter v. Woonsocket, 504 N.W.2d 572, 574 (S.D.1993) (citing Jager v. Ramona Bd. of Educ., 444 N.W.2d 21, 25 (S.D.1989); Moran v. Rapid City Area Sch. Dist., 281 N.W.2d 595, 598 (S.D.1979)). SDCL 13-46-6 provides that the school board's decision is reviewed de novo by the circuit court. Sutera v. Sully Buttes School Dist., 1997 SD 27, p 7, 561 N.W.2d 20, 23. The limited review of school board decisions is well established:

[T]he circuit court's review is not a trial de novo in the ordinary sense of the phrase. Tschetter v. Doland Bd. of Educ., 302 N.W.2d 43, 45 (S.D.1981). School boards are creatures of the legislature and the judiciary may not interfere with their decisions unless the decision is made contrary to law. Id.; Moran v. Rapid City Area School Dist., 281 N.W.2d 595, 598 (S.D.1979). Therefore, "[a]s long as the school board is legitimately and legally exercising its administrative powers, the courts may not interfere with nor supplant the school board's decision making process." Sutera v. Sully Buttes Bd. of Educ., 351 N.W.2d 457, 458-59 (S.D.1984). Only the legality of the decision, not the propriety of the decision, may be reviewed by the courts. Moran, 281 N.W.2d at 599.

The legality of a school board's decision is determined by a two-prong review. First, the procedural regularity of the decision is reviewed. This review includes whether the school board was vested with the authority to act and whether all procedural requirements required by law were followed. Id. Second, the school board's decision is reviewed to determine whether the decision was arbitrary, capricious or an abuse of discretion. Tschetter, 302 N.W.2d at 45-46. The circuit court may reverse or modify the school board's decision only "if substantial rights of appellant have been prejudiced because the board's findings, inferences, conclusions, or decisions are clearly erroneous in light of the entire evidence in the record, or are arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Id. at 46.....

Under the clearly erroneous standard, the question is not whether the court would have made the same decision, but whether, after a review of the entire record, the court is left with a definite and firm conviction a mistake was committed. Strain v. Rapid City...