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.
We do not agree that Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), overrules the Chadwick “nature of the container” test. The Robbins plurality opinion includes language rejecting the proposition that the Fourth Amendment protects only containers that commonly hold personal effects, stating, that if the Amendment protects people and their effects, it protects impersonal, as well as, personal effects. The Robbins plurality, however, relied on the specially sealed and opaque nature of the containers in Chadwick and Sanders as a source of any expectation of privacy. The Chadwick/Sanders reasoning was simply applied to the similar opaquely wrapped and specially sealed packages searched in Robbins.2
Justice Powell concurred in the result of Robbins but specifically rejected a new “bright line” rule because of the precedent established in Sanders. He effectively reiterated his belief in the reasonable expectation of privacy rationale of Chadwick and Sanders. Chief Justice Burger merely concurred in the judgment. Justices Blackmun, Rehnquist and Stephens dissented.
The lack of a clear-cut majority opinion overruling the precedent of Chadwick and Sanders leaves us to view the Robbins decision as dispositive of that case only, and accordingly we reject appellee‘s argument that it overrules Chadwick/Sanders. We reverse and remand for trial.
All the Justices concur.
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
The exemption of “any unit of local government” from the
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.
We noted in Mortweet that it was not error for the circuit court to apply the standards of review set forth in
What, then, is the proper scope of review by this court on an appeal from the circuit court pursuant to
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
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 knowledge of the facts that might make it advisable not to renew a teacher‘s contract and that they must have not discussed the matter and not have formed at least some tentative opinion that the teacher‘s contract not be renewed prior to the conference with the teacher, then as a practical matter the nonrenewal provisions of the continuing contract law are not available to a school board. We conclude that it is sufficient to meet the requirements of a fair tribunal that the board base its decision upon competent, credible evidence and that there be no evidence of actual bias toward the teacher whose contract is not being renewed. Any other holding would require that the post-notice conference be conducted by an independent hearing examiner or board. We agree with the Court of Appeals for the Second Circuit that such a constitutional rule is neither desirable nor necessary.
241 N.W.2d at 577.
Appellant next claims the circuit court should have found in his favor as a matter of law, pursuant to
Appellant asserts that he should have nevertheless been evaluated because the purpose of an evaluation is to provide teachers with ideas to improve their performance and the Board apparently thought he was not doing a good job. Appellant seemingly urges that until the 10.1 hearing he was ignorant of the causes of the Board‘s concern with his teaching performance. This is belied by the record.
Appellant next argues that the circuit court incorrectly found that he failed to teach biology in an adequate manner and in conformity with Board policies and guidelines. The circuit court found that the Board failed to renew appellant‘s contract for the above reasons and upheld the Board‘s decision because it did not violate the provisions of
Appellant next contends that the circuit court erred in concluding that the Board‘s nonrenewal of his contract was not arbitrary, capricious or an abuse of discretion. Appellant argues that there is nothing in the record except the complaints of a few students, some of whom changed their minds later, supporting the allegation that he did not teach basic biology.
The circuit court‘s findings of fact show more than student complaints as a basis for its conclusion. The circuit court found that beginning in 1974 complaints were received that appellant spent too much time discussing the theories of creation and evolution; that the Board and appellant met five times in 1979 and twice in 1980 to work out guidelines for the teaching of biology and to limit the time he spent on the conflict he perceived between the theories of creation and evolution; and that during these meetings the Board specifically identified chapters in the biology textbook which they wanted emphasized. The record shows that the Board wanted to insure that appellant covered the chapters on cell structure, plants, and genetics, among others, considering them basic to biology instruction. There is a further finding that the Board advised appellant several times in writing that they were concerned that the time he spent on the differences between the theories of creation and evolution was detrimental to his students as it diminished available basic biology instruction time. The circuit court further found that the Board did not forbid appellant from discussing the differences between the theories of creation and evolution, but that the Board objected to the excessive time he spent on that subject. The circuit court also found that at the 10.1 hearing appellant informed the Board that he would not follow its direction on how to teach biology. We hold that the circuit court‘s findings are not clearly erroneous and adequately support its conclusion that the Board‘s decision was not arbitrary, capricious or an abuse of discretion.
Appellant next contends that the circuit court erred by admitting and considering evidence of complaints about him made prior to the 1979-80 school year. The appellant argues that teachers’ contracts are either renewed or not renewed on an annual basis and therefore prior complaints are not relevant. This argument is without merit. See Busker v. Bd. of Ed. of Elk Point, 295 N.W.2d 1 (S.D.1980). There is a common thread to the complaints received about appellant‘s teaching from 1974 to the time of the 10.1 hearing in the Spring of 1980. The circuit court found that the Board considered prior complaints at the 10.1 hearing for the bearing they might have on appellant‘s ability to teach basic biology and to follow the Board‘s guidelines thereafter. We believe it was proper to consider such evidence for that purpose.
The final issue is whether appellant‘s discussion of the theories of creation and evolution were protected by constitutional guarantees of freedom of religion and speech. Counsel conceded in argument that this issue, as briefed, is “somewhat” abandoned but that he felt “there may be some underlying issue here” concerning freedom of religion. It is the responsibility of appellant to point out how his constitutional rights have been violated. It appears from his proposed finding of fact No. 14, supra, that he believed the reason for his nonrenewal was that the Board felt he was not teaching basic biology. We are especially at loss to follow appellant‘s position on this issue since he also contends the
Affirmed.
WOLLMAN, C. J., and DUNN and MORGAN, JJ., concur.
HENDERSON, J., concurs in part, dissents in part.
HENDERSON, Justice (concurring in part, dissenting in part).
CURRICULUM DETERMINATION
Finding of Fact IX entered by the circuit court specifies: “Mr. Dale at the final hearing informed the Board that their wishes would not be followed.” The school board is in charge of the curriculum---not the teacher.
This is not just a legal struggle between a teacher and a school board. The best interests of the students and patrons must be considered. Basic biology was the course of study and basic biology was to be taught. Although instructed to have lesson plans, Mr. Dale did not comply. The biology students were allowed to vote on subjects to be covered. After three quarters of instruction had ensued in 1980, Mr. Dale had not covered the basic biology subjects appearing in chapters 4, 5, 7, 8 and 9 through 20 of the text to which the school officials had directed him to teach. Mr. Dale admitted this. In an effort to assist Mr. Dale in meeting a joint obligation to the students and school patrons, the school board attempted with his cooperation to work out guidelines covering basic biology. These guidelines served an important purpose in assuming due process, fair play and notice of defects in teaching skills he needed to remedy. See Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970). Mr. Dale refused to improve himself as a teacher, and also refused to follow the guidelines. This was substantiated by the circuit court‘s Finding of Fact IX. See Fries v. Wessington School District No. 2-4, 307 N.W.2d 875 (S.D.1981). Therefore, I would uphold the board in its decision to not renew Mr. Dale‘s teaching contract.
CONSTITUTIONAL RESTRAINTS
Essentially, Mr. Dale wanted to be a preacher, not a teacher. This is intolerable in a classroom under our state law, state constitution, and federal constitution.
SCOPE OF REVIEW
A. CIRCUIT COURT
In spirit, and in verbiage, I adopt the language of the previous decisions of this Court on a circuit court‘s scope of review of a decision by a school board. I specifically allude to Mortweet, Busker, Tschetter and Moran. Obviously, if this Court previously blessed the usage of the APA standards by the circuit courts as a basis of review, then this Court believed such standards were “appropriate.” Therefore, the technical dissertation by the majority opinion (in an attempt towards scholastic refinement and differentiation) is legal folderol. I still believe the law to be: “Rather than a true trial de novo, however, the appeal [to the circuit court] has the limited function of receiving evidence solely for determining the legality, and not the propriety, of the school board‘s decision.” Busker at 2, citing Moran.
This Court has repeatedly held, in a series of school board cases, that the doctrine of separation of powers limits the scope of review under the APA. Thus, for this Court to now say “We specifically hold, etc.” this very same principle, as though it were a manifest declaration of a previously
B. SUPREME COURT
When a circuit court enters its findings of fact and conclusions of law based upon a de novo trial, they must be restricted to the legality of a school board‘s decision. Under the APA as now amended, the clearly erroneous test must be used by the circuit court when confronted with an evidentiary dispute. Further, I want it understood that this Justice still adheres to the following principle: “It should be noted that we [the Supreme Court] are not bound by the presumption that the circuit court was correct. Our proper scope of inquiry into the Board‘s decision has the same purview as the court below.” Busker at 3, citing Collins v. Wakonda Ind. School Dist. No. 1, 252 N.W.2d 646 (S.D.1977).
It is, indeed, difficult to determine if a given board was clearly erroneous when there is no transcript for a circuit court to review. Although the circuit court, in all probability, will not have a verbatim record of the board‘s proceedings, it will have papers, documents, evaluations, exhibits, and written evidence to consider. Thus, it receives evidence to reconstruct the record which was before the board for the limited purpose of determining the legality of the board‘s decision.
The majority decision would require a circuit court to enter findings of fact and conclusions of law. I have no quarrel with such edict. However, I want my viewpoint understood: a circuit court‘s findings of fact and conclusions of law must be restricted to the legality of a school board‘s decision. And the basic question before the circuit court would be: was the board‘s action legal? This Court cannot, in my opinion, then say: was the circuit court‘s action “clearly erroneous?” Rather, it must likewise confront itself with the very same question as the circuit court: was the board‘s action legal?
I dissent on the scope of review as I fear that the South Dakota judiciary will go into uncharted, unwanted, and unconstitutional waters concerning the propriety of a school board‘s decision. The majority opinion is a radical departure from the settled law of this state on teacher-school board decisions. It shatters previous precedent. I fear this evolution of change, which seems spasmodic, in these teacher-school board cases. When will we ever be able to assure trial counsel, school boards, and teachers of this state that, indeed, here is the law? I yearn for stability in this area of the law.
The majority opinion adopts the APA standards, yet expresses that this case does not fall under the APA. A theoretical inconsistency exists. Above all, I fear a judicial invasion into the doctrine of separation of powers and the province of a school board to make a decision, providing it is done in accordance with law. A school board‘s good judgment is not in question. Only the legality of the school board‘s decision is in question. I would not permit a circuit court nor the Supreme Court to run the schoolhouse. The majority opinion on the scope of review vests too much power in the judicial branch of government. Less than one year ago in Tschetter at 46, this Court held with regard to the very same statutes herein involved: “The proper scope of review for this court is the same as that of the trial court. We are not bound by a presumption that the trial court‘s decision is correct.” I agree with what we said then and not with what we say now.
Reference is made to Busker at 3, n. 2. Busker was decided under the “substantial evidence” test and not the “clearly erroneous” test as the clearly erroneous test was not in effect at the time the circuit court therein conducted its de novo trial. Busker was decided correctly and under the very test then applicable. If the majority opinion is saying in footnote 4 that the clearly erroneous test should have been used in Busker, then I disagree with said footnote.