Widdoes v. Detroit Public Schools

• Decision Date: 16 August 1996
• Docket Number: Docket No. 173469
• Citation: 553 N.W.2d 688,218 Mich.App. 282
• Parties: , 113 Ed. Law Rep. 432 Paul WIDDOES, Petitioner-Appellee, v. DETROIT PUBLIC SCHOOLS, Respondent-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 688

553 N.W.2d 688

218 Mich.App. 282, 113 Ed. Law Rep. 432

Paul WIDDOES, Petitioner-Appellee, v. DETROIT PUBLIC SCHOOLS, Respondent-Appellant.

Docket No. 173469.

Court of Appeals of Michigan.

Submitted March 19, 1996, at Detroit.

Decided August 16, 1996, at 9:00 a.m.

Released for Publication: Sept. 27, 1996.

Coticchio, Zotter, Sullivan, Molter, Skupin & Turner, P.C. (by Joseph F. Lucas), Detroit, for petitioner.

Lynne M. Metty, Detroit, for respondent.

Before BANDSTRA, P.J., and MARKMAN and M.D. SCHWARTZ, ^* JJ.

MARKMAN, Judge.

Respondent appeals by leave granted a circuit court order reversing a State Tenure Commission decision terminating petitioner teacher's employment for excessive use of force. We affirm the circuit court's reversal, remand to the State Tenure Commission for further consideration, and reverse the circuit court's award of attorney fees to petitioner.

The incident at issue occurred in February 1990. An eighth grade student, who helped clean the gymnasium after it was used as a lunchroom, played dodgeball with several other students. A custodian had told them they could play, although the student knew that he should not be playing in the gym at that time. Petitioner entered the gym and told the students to leave. The student attempted to retrieve his shirt. Petitioner grabbed him by the arm and pulled him toward the door, telling him that he had to leave. The student tried to get away, called petitioner a "white bitch," threatened to hit him, and made an obscene gesture. The student later apologized to petitioner and testified that petitioner did not use "real bad force" or "hurt him in any way."

In June 1990, petitioner received written charges of using excessive force that stated in pertinent part:

On February 23, 1990, you used inappropriate and excessive force on a student....

This is at least the second incident in which you have used force on a student in an unprofessional manner.

These charges, if proven, constitute just and reasonable cause for disciplinary action. Therefore, accordingly, I am recommending that you be suspended without pay for three (3) weeks.

At the December 4, 1990, hearing regarding these charges, respondent's counsel requested termination. In a December 18, 1990, unanimous decision, the Detroit Board of Education stated that it found sufficient evidence to support the charge of excessive use of force and immediately terminated petitioner's employment.

Petitioner then appealed to the State Tenure Commission. The commission denied the petition by a three to two majority. It held:

Here the great weight of the evidence established that [petitioner] did ... unlawfully inflict corporal punishment on [the student] in violation of M.C.L. § 380.1312. [Petitioner's] response was totally out of proportion to [the student's] action, which consisted merely of walking across the gym to get his shirt instead of leaving the gym immediately as [petitioner] commanded.... As a teacher, [petitioner] was charged with the responsibility of controlling his temper and using appropriate methods of discipline. His use of corporal punishment violated not only the state statute but also the policy of [respondent] which was based on the statute.

The dissenting opinion noted that the student acknowledged that he was not hurt and concluded:

Based upon the record, particularly the account of the alleged victim himself, I am unable to find that [petitioner] used excessive force in this skirmish. At the most he exercised poor judgment.

Petitioner appealed to the circuit court. The circuit court reversed the decision of the commission and adopted the dissent. It found that the commission's decision was not supported by competent, material, and substantial evidence of excessive force. The court specifically stated, "It is not a close call that the teacher did not use excessive force." The court also awarded reasonable attorney fees to petitioner.

In Ferrario v. Escanaba Bd. of Ed., 426 Mich. 353, 367, 395 N.W.2d 195 (1986), the Court set forth the relevant standard of review:

Either party may appeal a decision of the Tenure Commission. The function of the reviewing courts is to determine from the record whether there is competent, material, and substantial evidence on the whole to support the Tenure Commission's findings. This review entails a degree of qualitative and quantitative evaluation of the evidence considered by the agency. Beebee v. Haslett Public Schools (After Remand), 406 Mich 224, 231; 278 NW2d 37 (1979).

The Beebee Court held, at 231, 278 N.W.2d 37, that the scope of such review is that set forth by Michigan Employment Relations Comm. v. Detroit Symphony Orchestra, Inc., 393 Mich. 116, 124, 223 N.W.2d 283 (1974):

The cross-fire of debate at the Constitutional Convention imports meaning to the "substantial evidence" standard in Michigan jurisprudence. What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record--that is, both sides of the record--not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency's choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review.

Here, the State Tenure Commission and the circuit court apparently interpreted "excessive force" in accordance with the corporal punishment statute of the Revised School Code, M.C.L. § 380.1312; M.S.A. § 15.41312. While it has since been amended, § 1312 stated in pertinent part at the time of the incident:

(1) As used in this section, "corporal punishment" means the deliberate infliction of physical pain by any means upon the whole or any part of a pupil's body as a penalty or punishment for a pupil's offense.

(2) A person employed by ... a local ... school board shall not threaten to inflict, inflict, or cause to be inflicted corporal punishment upon any pupil. However, the person, within the scope of his or her responsibilities, may use such reasonable physical force as may be necessary to:

(a) Protect himself, herself, the pupil, or others from immediate physical injury.

(b) Obtain possession of a weapon or other dangerous object upon or within the control of a pupil.

(c) Protect property from physical damage.

We agree with the circuit court that the discharge was not supported by competent, substantial, and material evidence of a violation of this statute. The student testified that petitioner did not "hurt him in any way." Thus, the evidence clearly contradicted the "infliction of physical pain" element of corporal punishment.

However, at the hearing before the circuit court, respondent stated:

[T]he charges state use of excessive force, your Honor. I don't know if we're really restrained to the language of the corporal punishment statute.

* * * * * *

I don't think we have to prove that it's corporal punishment under the statute to say that it was inappropriate, nonprofessional use of excessive force on a student.

We believe that, absent a contrary statutory provision, a local school board has the inherent power to define disciplinable acts and to sanction teachers for violating school board policy. " 'No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process.' " Durant v. State Bd. of Ed., 424 Mich. 364, 385, n. 14, 381 N.W.2d 662 (1985), quoting Milliken v. Bradley, 418 U.S. 717, 741-742, 94 S.Ct. 3112, 3125-3126, 41 L.Ed.2d 1069 (1974). See also Street v. Ferndale Bd. of Ed., 361 Mich. 82, 87-88, 104 N.W.2d 748 (1960); Rehberg v. Melvindale Bd. of Ed., 330 Mich. 541, 547-548, 48 N.W.2d 142 (1951); Irving Parents' & Landowners' Ass'n v. State Bd. of Ed., 45 Mich.App. 387, 394-395, 206 N.W.2d 503 (1973). Here, petitioner's actions may have violated an "excessive force" policy of respondent while not rising to the level of corporal punishment under the statute. Local school boards are free to develop and enforce policies as long as such policies are generally within the scope of the educational mission and are not prohibited by statute. That the Detroit Public Schools choose to adopt different policies concerning teacher discipline than the public schools of another...