Ross v. Robb

• Decision Date: 20 December 1983
• Docket Number: No. 81,R,No. 65037,81,65037
• Citation: Ross v. Robb, 662 S.W.2d 257 (Mo. 1983)
• Parties: 15 Ed. Law Rep. 606 Robert ROSS, Petitioner-Respondent, v. Tracy V. ROBB, Guy S. Wright, Howard Fleming, David B. Riley, Salim S. Tadrus, and Larry D. Zimmerman, as duly elected members of the Board of Education of Moberly Public School Districtespondents-Appellants.
• Court: Missouri Supreme Court

Page 257

662 S.W.2d 257

15 Ed. Law Rep. 606

Robert ROSS, Petitioner-Respondent, v. Tracy V. ROBB, Guy S. Wright, Howard Fleming, David B Riley, Salim S. Tadrus, and Larry D. Zimmerman, as duly elected members of the Board of Education of Moberly Public School District No. 81, Respondents-Appellants.

No. 65037.

Supreme Court of Missouri En Banc.

Dec. 20, 1983.

Rehearing Denied Jan. 17, 1984.

Anne W. Elsberry, Hunter, Chamier, Lee, Elsberry & Wright, Moberly, for respondents-appellants.

John L. Port, Windsor, for petitioner-respondent.

HIGGINS, Judge.

Robert Ross, after public hearing pursuant to section 168.118, RSMo 1978, was found by the Board of Education of the Moberly, Missouri, Public School District No. 81 to have engaged in "immoral conduct," section 168.114.1(2), and was dismissed from his position as a tenured teacher. The circuit court reversed the decision of the Board and ordered Ross reinstated on the ground that the procedures under which Ross was tried violated his constitutional right to a fair trial. The Court of Appeals, Western District, transferred the case after opinion, holding that it lacked jurisdiction to assess petitioner's allegation of constitutional infirmity of section 168.114, RSMo 1978. Ross v. Robb, 651 S.W.2d 680 (Mo.App.1983). The judgment is reversed for reinstatement of the decision of the Board of Education.

On appeal of administrative decisions, review is limited to a determination whether the decision was supported by competent and substantial evidence upon the whole record or whether it was arbitrary, capricious, unreasonable or an abuse of discretion. M.V. Marine Co. v. State Tax Commission, 606 S.W.2d 644, 647 (Mo. banc 1980); Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 894 (Mo. banc 1978).

The Board of Education filed formal charges against Robert Ross, then a teacher of building trades at the Moberly Area Vocational School, alleging that Ross had engaged in "immoral conduct." § 168.114.1(2), RSMo 1978. Ross requested a public hearing pursuant to section 168.116, RSMo 1978. After the hearing at which both the Board and Ross were represented by counsel, afforded the opportunity to examine and cross-examine witnesses, adduce evidence and submit written briefs, the Board found that five of the seven allegations of immoral conduct were true and dismissed Ross. He contends that section 168.114.1(2) is unconstitutionally vague and that it violates his right to due process of law. Article I, section 10, 1945 Missouri Constitution. He charges that the findings and decision of the Board are unsupported by competent and substantial evidence on the whole record, are arbitrary, capricious and unreasonable, and are an abuse of discretion. He also asserts that the procedures by which the Board reached its decision denied him a fair trial.

Ross's initial constitutional challenge is that the phrase "immoral conduct" is impermissibly vague and denies him due process. He argues that the phrase fails to provide a standard against which conduct can be judged and thus fails to give a person of ordinary intelligence a reasonable opportunity to know what acts are prohibited.

In Thompson v. Southwest School District et al., 483 F.Supp. 1170 (W.D.Mo.1980), the plaintiff, a teacher dismissed from service for engaging in "immoral conduct," alleged that section 168.114.1(2), RSMo 1978, was impermissibly vague and denied her due process of law. The court agreed that, in the abstract, the phrase "immoral conduct" was constitutionally suspect under the strict standards of construction to be employed in criminal and first amendment contexts. Id. at 1179. The court went on to say, however, that the phrase was part of a statutory scheme; that, construed with the other subsections of the statute, the phrase is "capable of being given a more precise judicial construction so as to avoid the vagueness issue." Id. at 1180. The court concluded that immoral conduct relates to conduct rendering a teacher unfit for the performance of his duties. Id. More precisely, the court found that immoral conduct means "conduct rendering plaintiff unfit to teach." Id. at 1181. This analysis persuades denial of Ross's constitutional challenge.

The Board found that Ross had generally permitted male members of the class to engage in sexual harassment of the only female member of the class; that while on a construction site with the class Ross suggestively embraced the female; that...