Daily v. Board of Educ. of Morrill County School Dist. No. 62-0063
| Decision Date | 05 February 1999 |
| Docket Number | No. S-97-933,S-97-933 |
| Citation | 588 N.W.2d 813,256 Neb. 73 |
| Parties | , 132 Ed. Law Rep. 183 Robert L. DAILY, appellee, v. BOARD OF EDUCATION OF MORRILL COUNTY SCHOOL DISTRICT NO. 62-0063, also known as School District of Bridgeport, appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Schools and School Districts: Evidence: Appeal and Error. The standard of review in a proceeding in error from an order of a school board subjecting a teacher to disciplinary action is whether the school board acted within its jurisdiction and whether there is sufficient evidence as a matter of law to support its decision.
2. Schools and School Districts: Evidence: Appeal and Error. In a proceeding in error from an order of a school board, the evidence is sufficient as a matter of law if the school board could reasonably find the facts as it did on the basis of the testimony and exhibits contained in the record before it; evidence is "substantial" or "sufficient as a matter of law," or constitutes "some competent evidence," if a judge could not, were the trial to a jury, direct a verdict.
3. Words and Phrases. Corporal punishment, as prohibited in Neb.Rev.Stat. § 79-295 (Reissue 1996), is reasonably understood to be the infliction of bodily pain as a penalty for disapproved behavior.
4. Words and Phrases. Both words of the term "corporal punishment" are commonly given effect; the act must be corporal, in that it inflicts pain on the physical body of the victim, and it must be punishment, such that the intent of the actor is punitive.
5. Schools and School Districts. Neb.Rev.Stat. § 79-258 (Reissue 1996), while not authorizing corporal punishment, does provide authority for school teachers and administrators to use physical contact short of corporal punishment to the degree necessary to preserve order and control in the school environment.
6. Constitutional Law: Statutes: Presumptions: Proof. Statutes are afforded a presumption of constitutionality, and the unconstitutionality of a statute must be clearly established before it will be declared void.
7. Constitutional Law: Statutes. Even when a law is constitutionally suspect, a court will attempt to interpret that law in a manner such that it is consistent with the Constitution.
8. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitutionality of a statute is on the one attacking the statute's validity.
9. Constitutional Law: Statutes: Due Process. When a legislative enactment is challenged on vagueness grounds, the issue is whether the two requirements of procedural due process are met: (1) adequate notice to citizens and (2) adequate standards to prevent arbitrary enforcement.
10. Constitutional Law: Statutes: Due Process. Due process requires that a legislative enactment supply (1) a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (2) explicit standards for those who apply it.
11. Words and Phrases. Unprofessional conduct must be conduct directly related to the fitness of the actor to act in his or her professional capacity.
12. Words and Phrases. Unprofessional conduct is that conduct which breaches the rules or ethical code of a profession or conduct which is unbecoming a member in good standing of a profession.
13. Schools and School Districts. The use of corporal punishment by a school teacher, in violation of Neb.Rev.Stat. § 79-295 (Reissue 1996), may subject the teacher to discipline for unprofessional conduct under Neb.Rev.Stat. § 79-824 (Reissue 1996).
14. Attorney Fees: Appeal and Error. Attorney fees can be awarded against a party bringing an appeal that is without rational argument based on law and evidence.
15. Attorney Fees: Words and Phrases. The term "frivolous," as used in Neb.Rev.Stat. § 25-824(2) (Reissue 1995), connotes an improper motive or a legal position so wholly without merit as to be ridiculous.
16. Actions. Any doubt whether a legal position is frivolous or taken in bad faith should be resolved in favor of the one whose legal position is in question.
Richard A. Douglas, of Nichols, Douglas, Kelly, and Meade, Scottsbluff, for appellant.
Mark D. McGuire, of McGuire & Norby, Lincoln, for appellee.
The Legislature, in 1988, mandated that "[c]orporal punishment shall be prohibited in public schools." Neb.Rev.Stat. § 79-295 (Reissue 1996). In the context of a disputed teacher-discipline case, we must determine whether "corporal punishment" is a term that is commonly used and understood, such that a person of ordinary sensibilities and intelligence should be capable of ascertaining its meaning and abiding by its proscriptions. For the reasons that follow, we determine that "corporal punishment" is a term that is commonly understood to be the infliction of bodily pain as a penalty for disapproved behavior and that there was sufficient evidence as a matter of law to support the decision of the board of education of Morrill County School District No. 62-0063, also known as School District of Bridgeport (the District), to discipline Robert L. Daily for corporally punishing a seventh grade student. We, therefore, reverse the judgment of the district court and remand the cause with directions as set forth herein.
Daily, the plaintiff-in-error in the district court and the appellee in this court, has been a teacher with the District for over 32 years. Daily's performance evaluations indicate that he has been a competent and effective teacher during those years.
On December 12, 1996, Daily was involved in an incident in which he allegedly struck a seventh grade student, identified as K.P. On January 6, 1997, Daily received a letter from Lewis Shoff, superintendent of the Bridgeport Public Schools, notifying Daily that Shoff had determined, because of the incident, that it might be appropriate to cancel Daily's contract. Daily responded, through counsel, that he was requesting a hearing before the board pursuant to " Neb.Rev.Stat. §§ 79-12,107 [256 Neb. 76] through 79-12,121 (Reissue 1994)." A subsequent notice by the District advised Daily that the superintendent would not only recommend the cancellation of his contract, but also recommend that the board consider the possible amendment of Daily's contract to include, but not be limited to, suspension without pay or a written reprimand. Based upon such notice, a hearing was held on January 26 at the Bridgeport Public High School.
The evidence adduced at the hearing showed that on December 12, 1996, Daily kept two students in his classroom after his third-period class. Daily testified that the two seventh graders, K.P. and W.R., had been disrupting the class. Daily specifically testified that W.R. had been talking to another student during class and that K.P. had been attempting to draw attention to himself by flexing his muscles for the class. Daily testified that during the detention, after talking with W.R. about his misbehavior, Daily turned to K.P. to talk about what K.P. had done during class.
The events that followed were disputed. Daily testified that as Daily tried to talk to K.P., K.P. turned away from Daily toward W.R. and again flexed his muscles, evidently in an attempt to draw W.R.'s attention. Daily then, by his testimony, "tapped" K.P. on the head "to get his attention." Daily testified that K.P. responded by saying, "You hit me," and then tried to get up out of his seat. Daily, by his own account, grabbed K.P. by the shoulders and made K.P. remain in the seat. Daily then said, "[K.P.], I didn't hurt you." Daily testified that K.P. then asked if they could go to the office. Daily said that he agreed and that they began to walk toward the door. Daily then, by his account, turned back toward W.R., and K.P. turned away from the door and returned to his seat. Daily specifically denied blocking K.P.'s path to the door. Daily said that he then dismissed the students. Daily testified that he followed K.P. to the locker area to try to talk to him, but that K.P. was unresponsive. Daily said he then returned to his classroom.
Daily also admitted that in "tapping" K.P., he had been acting out of frustration. Daily denied, however, any intent to injure K.P. and stated that his action had been involuntary in that he had acted "without even thinking about it." Daily admitted that in his opinion, he should not have touched K.P.
W.R.'s testimony at the board hearing gave a slightly different version of events. W.R.'s testimony is similar to Daily's until the point when Daily turned his attention to K.P. At that point, W.R. testified that Daily "smacked" K.P. with his open hand on the back of K.P.'s head. W.R. said that K.P. then began to cry. According to W.R., K.P. tried to leave, but Daily said, "[K.P.], sit back down," and Daily then grabbed K.P. and "had to kind of fight him to get him back to his seat." W.R. testified that Daily then said, "Oh, I barely tapped you," to which K.P. replied, "Well, you're not supposed to hit a child anyways." W.R. also testified that Daily had not blocked K.P.'s route to the door.
The only other eyewitness to the incident to testify at the board hearing was Bill Alvarez, a junior high school math teacher and 31-year employee of the District. Alvarez occupied the classroom next to Daily's. Alvarez testified that at the time of the incident, he was standing out in the hall to monitor students during the time between classes. Alvarez saw a group of students standing outside Daily's classroom, waiting for Daily to finish talking to W.R. and K.P. so the students could enter the classroom for their next class. Alvarez walked up next to one of the students who was looking inside the classroom through the glass window in the classroom door. Alvarez testified that although he could not hear what was occurring inside, he "caught the tail end where [Da...
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