Dale v. Board of Ed., Lemmon Independent School Dist. 52-2

• Decision Date: 17 February 1982
• Docket Number: No. 13369,13369
• Citation: 316 N.W.2d 108
• Parties: 2 Ed. Law Rep. 865 Lloyd DALE, Appellant, v. BOARD OF EDUCATION, LEMMON INDEPENDENT SCHOOL DISTRICT 52-2, Appellee.
• Court: South Dakota Supreme Court

Page 108

316 N.W.2d 108

2 Ed. Law Rep. 865

Lloyd DALE, Appellant, v. BOARD OF EDUCATION, LEMMON INDEPENDENT SCHOOL DISTRICT 52-2, Appellee.

No. 13369.

Supreme Court of South Dakota.

Argued Sept. 29, 1981.

Decided Feb. 17, 1982.

Dennis W. Finch of Finch & Viken, Rapid City, for appellant.

Ronald R. Johnson of Johnson & Kelley, Lemmon, for appellee.

FOSHEIM, Justice.

Mr. Lloyd Dale appeals from a circuit court judgment affirming the Lemmon School Board's (Board) decision not to renew his teaching contract. We affirm.

Appellant taught biology and other science subjects for the Lemmon School system for seventeen years prior to the refusal to renew. From 1974 through the Spring of 1980, the Board received written and verbal complaints from parents and students about appellant's teaching, i.e., objections to his introduction of creationism or religion into his biology class and failure to cover basic biology principles. The year the complaints started coincides with the time appellant began to introduce the creationist theory of the origin of life into his biology teaching. It is undisputed that the Board regarded appellant as an outstanding science teacher up to that time.

The Board was concerned that in the past few years appellant's discussion of the theories of creation and evolution had taken away from time available for teaching basic biology; that the theories of creation and evolution were not really necessary course content in a sophomore high school biology class; and that there was a danger of violating the Establishment Clause because of the religious overtones and basis of the creationist materials appellant had introduced into his class. In the Spring of 1979, in an attempt to correct this situation, the Board established a textbook committee which selected a biology text for appellant to use in the coming school year and in August of 1979 the Board established guidelines for appellant to follow in teaching his biology class. The guidelines specifically allowed the appellant up to one week of class time to teach the theories of evolution or creation. The guidelines also allowed appellant, throughout the school year, to contrast evolutionary theories presented in the biology text with an explanation, in a summary manner, of the creationist viewpoint on the subject. Appellant was notified by the attorney for the Board that failure to comply with the guidelines was grounds for nonrenewal of his teaching contract. The Board met a number of times with appellant before and during the 1979-80 school year to explain the guidelines and to insure that appellant taught what they considered to be basic biology.

In the Spring of 1980, the Board decided not to renew appellant's contract after determining that he violated the guidelines by failing to spend enough time teaching basic biology and by persisting in spending too much time discussing the theories of creation and evolution. Appellant disputes these charges, asserting that his teaching did not violate the guidelines.

All statutory procedural requirements for the nonrenewal proceedings were met.

Appellant claims the circuit court failed to apply the correct standards of review, as listed in SDCL 1-26-36 ¹ of South Dakota's Administrative Procedure Act (APA), to the Board's decision not to renew his contract. The Board counters that the circuit court correctly applied the APA standards, which standards are commonly used by circuit courts in reviewing school board decisions in appeals de novo. The Board notes, however, that this court has never expressly ruled whether their use is appropriate. The Board prays for direction in the matter since a school board is a unit of local government and thus excluded from the APA's definition of "agency." SDCL 1-26-1(1). ² We accede to that request.

The exemption of "any unit of local government" from the SDCL 1-26-1(1) "agency" definition and a specific statutory procedure for school boards to follow in contract nonrenewal cases indicates a legislative intent that the procedural requirements of the APA do not apply to school board matters. Such nonrenewal procedures are governed by SDCL ch. 13-43 and an aggrieved teacher has a right to appeal a school board's decision to the circuit court pursuant to SDCL ch. 13-46. SDCL 13-46-7 provides for appeal from the circuit court to this court.

This court recognizes that the "power to contract with teachers is vested in the school board and the decision to renew or not renew a teacher's contract is not one for the judiciary." Moran v. Rapid City Area Sch. Dist., 281 N.W.2d 595, 598 (S.D.1979). The type of de novo hearing in the circuit court is thus limited in nature, for this court has stated:

The constitutional separation of powers cannot be done away with by legislative action. (citations omitted). Consequently, SDC 1960 Supp. 15.2023 and 15.2344 (which is now SDCL 13-46-6), providing for de novo trials when county school board matters are appealed to the circuit court may not be given a literal construction. To do so would be to presume that the legislature intended to confer upon the courts powers inconsistent with the discharge of their inherent judicial functions. This we may not do.

Mortweet v. Ethan Bd. of Ed., Davison City, 90 S.D. 368, 241 N.W.2d 580, 582 (1976) (quoting Dunker v. Brown Co. Bd. of Ed., 80 S.D. 193, 203-204, 121 N.W.2d 10, 17 (1963); Tschetter v. Doland Bd. of Ed., 302 N.W.2d 43 (S.D.1981); Moran, supra.

In Mortweet, supra, we held:

(T)he trial de novo required by SDCL 13-46-6 permits an independent inquiry into the facts, but only for the purpose of passing on the legality of the board's decision. It does not mean that the court may substitute its judgment for that of the board or that the court must justify its decision by a preponderance of the evidence received in the trial de novo.

Id. 241 N.W.2d at 582-83.

We noted in Mortweet that it was not error for the circuit court to apply the standards of review set forth in SDCL 1-26-36 of the APA, and as recently as the Tschetter case, supra, we have applied them, albeit without discussing the propriety of doing so. While the procedural requirements of the APA do not apply to school board decisions, we now specifically hold that on an appeal to the circuit court, pursuant to SDCL 13-46-6, the doctrine of separation of powers limits the scope of review to that provided in SDCL 1-26-36.

What, then, is the proper scope of review by this court on an appeal from the circuit court pursuant to SDCL 13-46-7? ³ That statute allows: "An appeal from any such final judgment or order (of the circuit court) may be taken to the Supreme Court within sixty days after written notice thereof shall have been given to the party desiring to appeal, which appeal shall be perfected, heard, and determined as other appeals in civil cases." (Emphasis supplied.) In civil cases, SDCL 15-6-52(a) limits our determination to whether the circuit court's findings are clearly erroneous and thus defines our scope of review under SDCL 13-46-7. Schneider v. McLaughlin Ind. Sch. Dist., 90 S.D. 356, 241 N.W.2d 574 (1976). ⁴ Although the circuit court's scope of review is limited to the standards enumerated in SDCL 1-26-36, the last paragraph of that statute, ⁵ excusing the trial court from entering its own findings of fact and conclusions of law, cannot apply to appeals heard pursuant to SDCL 13-46-6 as the school board enters no findings of fact or conclusions of law for the trial court to affirm, modify, or reverse. It therefore remains necessary for the circuit court to enter findings of fact and conclusions of law in cases appealed under SDCL 13-46-6, ⁶ since we must have the circuit court's findings in order to apply the SDCL 15-6-52(a) clearly erroneous test.

Returning to appellant's first issue, he specifically argues that the circuit court in its memorandum decision erroneously used the substantial evidence standard of review. Appellant argues this was the standard stated in SDCL 1-26-36(5) prior to its amendment in July 1978, and that now "clearly erroneous" is the correct standard. Appellant's argument is without merit as " '(i)t is now well settled in this state that the memorandum opinion is not material and is of no binding force and effect as a matter of law either upon the trial judge himself or anyone else.' " ⁷ Sneesby v. Davis, 308 N.W.2d 565, 567 (S.D.1981) (quoting Christiansen v. Strand, 82 S.D. 416, 420, 147 N.W.2d 415, 417 (1966)). Furthermore the trial court's third Conclusion of Law specifically states that "(t)he Board's decision was not clearly erroneous."

The next issue is whether appellant's right to a fair hearing before the Board was violated because Ms. Berg, the school board president throughout the nonrenewal process, testified at the final Board hearing. The circuit court found no evidence of bias in the Board's proceedings and concluded the appellant's substantive due process rights were not violated. Appellant refers to the hearing held pursuant to SDCL 13-43-10.1, and contends that by testifying at the 10.1 hearing Ms. Berg showed an actual bias against the appellant which influenced the other Board members' decision not to renew his contract. We note that Ms. Berg stepped down as presiding officer for the 10.1 hearing and took no part in the final discussion or vote not to renew appellant's contract.

Appellant has a due process right to a fair hearing before the school board, but he must "prove the existence of actual bias in contravention of (his) constitutional due process rights before this court will be willing to tamper with the decision of the school board, a duly elected body with the statutory authority and responsibility to govern the affairs of the school district." Moran, 281 N.W.2d at 600 (citations omitted). In Schneider, supra, we said:

If the requirements of a fair tribunal include the condition that the members of the board must have had absolutely no prior...