Strain v. Rapid City School Bd. for Rapid City Area School Dist., 16405

CourtSupreme Court of South Dakota
Citation56 Ed.LawRep. 1032,447 N.W.2d 332
Docket NumberNo. 16405,16405
Parties56 Ed. Law Rep. 1032 David STRAIN, Plaintiff and Appellant, v. RAPID CITY SCHOOL BOARD FOR RAPID CITY AREA SCHOOL DISTRICT, Defendant and Appellee.
Decision Date11 October 1989

Wayne F. Gilbert of Banks, Johnson, Johnson, Colbath & Huffman, Robert P. LaFleur of LaFleur, LaFleur & LaFleur, Rapid City, for plaintiff and appellant.

Thomas E. Simmons of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellee.

TUCKER, Circuit Judge.


This is an appeal from a circuit court judgment affirming the Rapid City School Board's (Board) dismissal of David Strain (Strain). Strain appeals this judgment. We affirm.


On May 7, 1986, A.S., a sophomore student at Central High School in Rapid City, was contacted by a school counselor about attendance problems. The following morning, A.S., at the request of her parents, came in to visit the counselor. A.S. advised the counselor that her mother had been working overtime and consequently A.S. was not getting enough attention from her. Later that afternoon, A.S. came back and told the counselor that A.S. had to tell somebody that something was going on in her life that she could not handle. A.S. stated that she did not know whether to trust the counselor because she did not want anybody to know what she had to tell.

A.S. told the counselor that around November of 1985, Strain asked her and a friend to help him in the computer room and they did so. Soon after that Strain would put his hand on her knee. Although A.S. thought he was being overly friendly, it did not bother her. A.S. said that after a while Strain touched her in other places, including her breasts. One time Strain started to unbutton her top, but another teacher came along and A.S. hurriedly buttoned it up. On another occasion, Strain exposed himself, grabbed her hand and put it on his penis.

At the time of this conversation, A.S. asked the counselor to confront Strain so that he would know someone else knew, and maybe he would stop. A.S. asked the counselor not to tell anyone else, since A.S. did not want Strain to lose his job. That evening the counselor properly reported her conversation with A.S. to the Central High School principal.

The following morning, the principal had A.S. come into his office and relate the entire story. This conversation was tape- recorded. The principal reported the incident to the South Dakota Department of Social Services as required by law. The principal called Strain into his office and advised him that there were serious allegations about sexual problems with students. He advised Strain to get an attorney. Following the report from the principal to the Department of Social Services, the Pennington County Sheriff's office investigated. During the course of the investigation, tape-recorded statements were obtained from a number of individuals including A.S., some of her classmates, and some former students. No criminal prosecution was instituted.

The Board members were aware of the sheriff's investigation. On or about July 22, 1986, the Board was furnished with copies of the transcripts of statements obtained by the sheriff's department. The superintendent of schools then conducted his own investigation which consisted of speaking with Strain and another potential witness.

On August 27, 1986, Strain was notified by letter that the Board was contemplating his dismissal and that he was suspended with pay from his employment responsibilities effective immediately. The notice provided:

The reason for the contemplated dismissal is that allegations have been made against you by your former student, [A.S.], of improper sexual contact which is claimed to have occurred during last school year. If those allegations are found to be true, such conduct clearly would warrant your dismissal under the provisions of SDCL 13-43-15. 1

Strain was also furnished with a copy of Article XII of the negotiated agreement between the school district and the Rapid City Education Association which gave him the right to request a hearing before the Board within seven days after his receipt of the notice.

On September 2, 1986, Strain, through counsel he had retained in May 1986, requested a hearing, specifically requesting that it be set for September 17, 18 or 19, 1986. The Board consented and the hearing was held on September 18, 1986. The Board retained separate counsel to act as the hearing officer to preside over the hearing and rule on objections. Both sides were given the opportunity to present testimony and cross-examine witnesses. The Board also had a court reporter transcribe this hearing.

At the hearing A.S. related the incidents of indecent exposure and sexual contact by Strain. A.S. further testified that one day Strain asked that she run off some grades for him after school. She testified that Strain turned off the light in the computer room, pushed her against the wall, had her unbutton her jeans, pulled them down and then had intercourse with her.

A.S. acknowledged that she had not told the principal or the sheriff's department that Strain had intercourse with her. A.S. testified that she was afraid of what they would think of her, and she was afraid no one would believe her because of Strain's position. Strain was a tenured teacher at Rapid City Central High School with 25 years of teaching experience. While at Rapid City Central High School, he taught several subjects, and was a well-known and successful basketball coach. Additionally, Strain was active in involving Native Americans in athletics, academic and civic matters.

At the hearing, Strain claimed that A.S. was lying to avoid punishment for unexplained absences. However, the testimony before the Board showed substantial corroboration of A.S.'s version of events. A.S. had told some of her friends about the events taking place between her and Strain as early as December 1985, negating the claim of recent fabrication. A student testified that she definitely noticed that Strain would stare at A.S. from time to time. Strain told the sheriff's department that he had never been alone with A.S. in the computer room, but another teacher testified that there were many occasions when Strain and A.S. were alone in that room.

Pamela Gregory (Gregory), then a student at the University of Arkansas and a 1982 graduate of Central High School, also testified at the hearing. Gregory, an honors student who had been involved in numerous extracurricular activities in high school, testified that she had taken a biology course from Strain during the first semester of her junior year. She described that while she was Strain's student he began putting his arm around her, but she did not think anything of that. Then, instead of her shoulder, his arm was to her waist and then underneath her arm, and "he was kind of trying to--to slide over like in front." She described that when her lab partner was gone, Strain would come and sit beside her. He would put his hand on her knee and eventually he would slide it up as far as it could go, and "he would try to leave it there and he would try to move it around." Gregory also described that she would be called up to his desk, and he would place his hand between her legs at the highest level possible, and "he would move his hands around as if he was trying to sexually excite me."

Gregory testified that she told no one about these advances because Strain could be one of the nicest persons in the world, and Strain's daughter and Gregory were friends. Gregory also testified that she realized how important Strain was and she did not think anyone would believe her. Gregory further testified that this had bothered her since her days in high school, because she knew it was wrong and knew it was deliberate. After talking with a counselor and a friend, Gregory decided to call the South Dakota Child Protection Agency. At the time Gregory called the Child Protection Agency, she did not know about A.S.'s claims.

At the conclusion of the hearing on September 18, 1986, following nearly nine hours of testimony, the Board remained in executive session with its hearing officer and counsel. The Board came out of executive session and publicly voted unanimously to dismiss Strain from his employment. This vote was followed by an official written notification of the decision to dismiss which stated:

The reason for your dismissal is based upon evidence submitted during your hearing, which showed conduct by you that was grossly immoral, and proved your incompetency to teach in this school district. It was also concluded by the Board of Education that your conduct involved a flagrant neglect of duty as a teacher.

Within the time permitted by SDCL 13-46-1, Strain appealed the decision of the Board to circuit court.

The circuit court "de novo" hearing was held on March 8, 1988. After reviewing the Board's hearing transcript and receiving further evidence, the circuit court affirmed the Board's decision. Strain appeals on several grounds.



Strain asserts that the Board withheld exculpatory impeachment evidence consisting of statements from two students allegedly contradicting Gregory's testimony. Strain claims that the Board has a legal obligation to disclose exculpatory evidence, and the failure to disclose this evidence deprived Strain of his due process rights. The two statements in question were obtained by the Pennington County Sheriff's Department during its investigation and provided to the Board during the summer of 1986.

Exculpatory evidence is not a narrow term denoting alibi or other proof of innocence. Rather, it comprehends all evidence which tends to negate guilt of the accused. Stated affirmatively, exculpatory evidence supports the innocence of a defendant. Com. v. St....

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    ...but our system of 692 N.W.2d 206 law has always endeavored to prevent even the probability of unfairness. Strain v. Rapid City Sch. Bd., 447 N.W.2d 332, 336 (S.D.1989) (citations and quotations omitted). We have further stated that "the `very appearance of complete fairness' must be present......
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