*1
Jerry HAGEN, Plaintiff/Appellee,
INDEPENDENT SCHOOL DISTRICT NO.
1-004, Cоunty, of Adair Watts Pub- a/k/a Schools, lic Defendant/Appellant. 102,482.
No.
Supreme Court of Oklahoma.
April3,2007.
789
1990
ACT OF
PROCESS
DUE
TEACHER
Act of
¶ 2
Due Process
The Teacher
that
seq. provides
et.
§ 6-101.20
70 0.8.2001
set out
procedure
board,
after
a school
if
it must
therein,
a career
dismisses
for
petition
right
of the
notify the
of the
court
district
in the
novo
de
a trial
is located.
district
school
county where
6-101.26(C).
places
Act
0.$.2001
The
§
70
or
superintendent
on the district
the burden
of
by
preponderance
prove
designee
Sec
is warranted.
that dismissal
6-101.27(D).
tion
judge shall
trial
that
Act
The
find-
board's
the school
no deference
give
all
de novo
determine
shall
but instead
ings,
Burk, and
R.
Cryan, Jana
P.
Matthew
full
necessary for the
law
fact and
of
issues
Rosenstein,
Rin-
Fist &
Richardson,
Jerry A.
Id.
the trial.
dispute at
of
adjudication
OK,
Tulsa,
Appellant.
for
gold,
provided,
spеcifically
otherwise
Unless
filed
suits
to civil
applicable
generally
law
O'Carrol,
O'Carroll,
Sharisse
Richard
proceedings
apply to
court shall
district
OK,
Tulsa,
Appel-
O'Carroll,
for
&
O'Carroll
and the
the section
under
novo
trial de
for
lee.
non-jury trial before
as a
proceed
trial shall
Id.
the court.
HARGRAVE,J.
trial,
judge
of
conclusion
4 At the
I
of fact
written
prepare
appeal
¶
district's
appellant/school
This is
1
direct-
judgment
and enter
lawof
conclusions
reinstating ca
order
judge's
trial
of edu-
1)
local board
ing either:
Appellant's
Hagan.1
Jerry
reer
full
career
reinstate
cation
Hagan under
terminated
of education
board
2)
benefits;
status
employment
6-101.22(A)(8)
the Teacher
of
§
70 0.8.2001
of education
local board
of the
the decisiоn
"physical
Act,
alleged
Due Process
the career
of
dismissal
demanded
Hagan
child."
aof
6-101.27(D).
70 0.8.2001
sustained.
sought
court
in district
novo
trial de
and benefits
pay
novo review"
full back
"De
reinstatement
file,
complete
must be
there
personnel
of
means
court
expungement
well as
as
fact and
issues,
of
both
de
all
trial
of
After
costs.
examination
attorney fees
plus
never
it has
if
stands
law,
the cause
school
ruled that
novo,
trial
does
proof
of
burden
resolved.
been
preponderance
by a
prove
failed
party
on the
shift,
rests
§ 6-
but
violated
Hagan
Adjust
Board
tribunal.
lower
Bankoff
Act.
Due Process
101.22(A)(3)
Teacher
1138,1148-1144.
P.2d
ment,
OK
reinstated
Hagan
ordered
trial
unlim
is
review
seope of
court's
attorney
awarded
pay and
back
Com
Estate
Real
v. Oklahoma
Abel
ited.
is
the Court
before
only question
fees.
1007, 1009.
mission, 453 P.2d
ruling is
whether
taken,
decision
appeal
is
T6 If
find We
competent
upon
binding
is final
affirm
teaching contract."
written
under
trict
plaintiff's
us
informs
brief
1. Plaintiff's
6-101.3(4).
©.$.2001 §
Hagen. A
Hagan
instead
spelled
name
com-
who has
"a teacher
means
career
codified
statute
version
current
complete
2. The
consecutive
more
pleted three
§ 10-101.22.
dis-
one school
70 O.S. Supp.2006
capacity in
years
such
the teacher and the board of education. A
ok
losing party
appeal
can
the decision in the
"Mental or
abuse to a child" is not
provided
manner
by law for
appeal
defined in the Act.
civil cases from the district court. 70 0.8.
Jerry
was a
6-101.27(F).
teacher at Watts Public Schools. KH. was а
*3
sixth-grade
student
STANDARD OF REVIEW ON APPEAL Watts School and
pupil
was a
Hagan's.
An incident occurred at the school on Octo-
T7 In a non-jury trial
19,
ber
2004 that
Hagan
resulted in
slapping
judge acts as the trier of fact and those
K.H. on the cheek twice.
findings
made
findings are entitled to the
weight
and
by the trial judge in the order of reinstate-
consideration that
given
would be
jury's
to a
ment were:
Video,
verdict. Soldan v. Stone
Robert L.
Scott,
95,
Inc. v.
1991 OK
-School District was alleging that Hagen
475,
Thus,
818 P.2d
480.
appeal,
on
we must
committed an
physical
act of
and/or
accept
findings
by
fact made
the trier
abuse of a
pursuant
child
§
no injury and that K.H. often was a discipline problem. T9 The teacher in She this case testified that was dis KH. problems had missed for students, violation of other O0.S8.2001 6- 101.22(A)(3): very had a quick temper and very could be explosive. A. Subject of the Teach- elementary -The secretary, Janice er Due Process Act of a career teach- Noblin, testified that slaps two were er be dismissed or re-employed not very not hard and that there physi- was no for: injury. cal She also testified that K.H. had presented discipline problems, that KH. #ooseook was often a disciplinary problem for the Mental or child; ato school and was "getting out of control." Hagan imme- account took likewise Brad- Martin principal high school -The deny that event, diately reported very short had K.H. testified ford KH., honest small angry over get often would tеmper, events, ex- reporting if he straightforward his fists clench would things all con- apologized remorse pressed you. to strike going were unblem- an otherwise noted He cerned. guardian, brother, KH.'s who -K.H.'s Order, Hagan. record ished fully apprised he was 18, 19. had discussed circumstances facts believed brother K.H. given event judge concluded he bore event isolated be an cireumstances, including the facts all Hagan felt He grudge. Hagan trying to that he was testimony Hagan's be satisfied would fired not be should get trying child, rather but harm again. K.H.'s were if superin- fit, including stop *4 testi- caretaker and grandmother a com- -K.H.'s after even that admission tendent's ail of fully apprised was that she fied undecided still was investigation she plete fully discussed had she that and events Hagan, the schoоl to dismiss whether Hagan not want did KH. She with matter proof. its burden not met had Hagan if be satisfied would and terminated and the evidence have reviewed We tes- grandmother again. KH. taught ruling was judge's find that we on K.H. slapped has she that tified The evi- by competent throwing fits." him stop "to occasion judge, the trial and conflicting was dence M.D., testified Taylor, Jimmie -Doctor and witnesses observe able to was who and years for 18 Hagan known has he that weight to evidence, more accorded weigh the for of character out was event that Hagan. Whether to favorable histo- a full he had that He stated Hagan. have might other Court that and and KH. Hagan ry from both on based conclusion a different reached this event. for being counseled was Hagan immaterial. the event opinion in his that testified He the evi- recite necessary to It is not T 14 intervention that, and isolated was Hagan testified Mr. detail. great attitude, dence would be Hagan's remorseful the word typing K.H. of had accused he that repeated. unlikely ever KH. de- computer, his "jackass" his intention that Hagan testified -Jerry working he was that Hagan testified nied. He K.H. to control but harm not to was hap- after kids other some remorseful, that he was that testified that K.H. told kids and one pened his and that repeated not be would event permitted was KH. the classroom. left was and others Taylor by Dr. counseling permission asked he the classroom leave to if working. permission. not ask so, he but do to co-worker, friend Teague, a -Roy K.H., to look went that he Hagan testified Hagan for known he has that testified down was I looked place first "The stating, through years ten approximately the school left he's street a coach and as church, a teacher the office before, toward I went then grounds has Hagan that testified He school. Ha- in the office." already there he was and is honesty, truthfulness reputation injure to intend he did that testified gan children. who loves man peaceful in- him, his but slapped he KH. when account ¶ 11 also took attention K.H.'s try get to to was tention courtroom of K.H. own observation his Hagan testified wrong. was what out find he obser Specifically, trial. throughout apolo- home K.H.'s to later went he the courtroom KH. was that when vation brother. H., grandmother his to K. gized machine, he reportеr's the court looking at Den- Gerrie Special Education I 15 and exhibited Hagan very near was disabilities has K.H. ton totally at ease while concerns fear stating problems, interaction social The trial Hagan. proximity in close 7A2 on medication and he problems cheek, has just onee, "Thle's maybe twice, but
getting along others, understanding really how wasn't hard." other gets kids-he very mad easily." She testimony 17 The K.H.'s testified that factors taken into account when and brother is as recited in judge's dealing with K.H. trying keep included They order. both Hagan bore no ill-will and him calm when upset he is letting him sit would be having comfortable Hagan teach by himself for a while letting go him talk again. KH. grandmother, who is KH.'s principal. Denton and Mr. Hagan had caregiver, testified that she has had oсcasion classroom the same building with a slap KH. and that she felt it approp partition between the rooms. She heard a riate.3 commotion in Mr. Hagan's classroom and she 118 School argues the evi- heard the door slam and Singlet- heard Mr. dence Hagan shows that began pushing KH. erry come in and she assumed it was to through the front doors of elementary watch Hagan's Mr. class. She testified: "I building, yelling he was at KH. and knew that gone K.H. had out the door when using body push K.H. pin him in the door slammed." Denton did not see the front of the secretary's window, at which altercation, but testified that Mr. said time K.H. cheek, twice on his left got KH. in his face and started mouth- leaving it reddened. School argues ing him and that he slapped him twice. that the trial rulings clearly are erro- *5 neous, contrary to weight the of the evidence Noblin, 116 Janice Watts Public Schools and erroneous as a matter of law. elementary school secretary, testified that K.H. came through the door with 119 A Hagan Mr. teacher has the rights aas following him. parent KH. guardian was mad and had head- to control discipline a office; ed for the Hagan attending child apparently public school, was a according to policies. local trying stop Supp.2006 § O.8. him. 24- She testified that KH. 100.4(A). had started toward the judge office The trial Hagan and Mr. took into account was behind him the law that both that a of them were use very upset. ordinary She force as testified that they got including "as but not to, through the door limited they switching, spanking had a or paddling. verbal ... well there O.S. language was by What used K.H. constitutes ordinary toward Mr. Hagan foree would jury and Mr. be a Hagan question. Here, wanted me to call the the judge trial grandmother; performing was jury's the needed fact help some KH." She finding and, Hagan function in physically got considering all the evidence, ruled that hold of KH. and school district took him into the office not met its burden lounge/workroom to show that and that dismissal he physically put was warranted on the statutory KH. ground down in a testified, chair. She "KH. physical or mental really abuse a child. was getting kind of out of control." When asked to describe how she knew that T20 School argues that the trial KH. upset was when office, he came into the ruling court's wrongly required them to she testified eyes that his twitching, were prove specific a by intent the teacher to harm that he was backing up toward the outer wall the child. court, The trial however, merely in hallway and that Mr. Hagan right determined school district failed to behind every him step. She they said that prove that the teacher's actions constituted turned and came back towards her office and "physical or mental abuse of a child" within that was when Hagan Mr. slapped KH., meaning of the Teacher Protection Act. testifying, "He KH. right on his legislature The have, not, could but did de- 3. K.H.'s testified: A: Yes. Q: you Q: Why? Have ever had slap occasion to KH. yourself? A: having "Because he was one of his little A. "Yes, I have." tantrums, as I call temper them-and scream- Q: you time, Did feel at you ing hollering. feel that it only way That's the I could appropriate? get p. him to hush." Tr. legislative This indicates party. prevailing in child" aof abuse "mental fine both. awarded can be intent permissive uses The statute Act. say that dismissal, Hence, im- cannot we regard "may" with it. allowing by his discretion abused finds board if the school even plies child, may or aof abuse mental AFFIRMED. teacher, its discretion. may not dismiss however, giving C.J., has, WINCHESTER, legislature 1 24 CONCUR: novo, a trial de LAVENDER, right V.C.J., EDMONDSON, dismissed trial COLBERT, WATT, discretion OPALA, final HARGRAVE, placed on the judge, based JJ. light evidence Having reviewed (BY KAUGER, TAYLOR 125 DISSENT: trial that the standard, find we review of our WRITING), JJ. SEPARATE evi- competent was based decision
judge's TAYLOR, dissenting. find- J. made detailed judge trial dence. him. before recapping ings, reasons. three dissent respectfully 'I 1 I at least testimony from heard trial finding that First, court's evidentiary reviewed witnesses nine prove failed board weight gave more The trial materials. Hagen, Jerry testimony of credibility to physi inflicted plaintiff/appellee, credibility weight and Giving his witnesses. clearly erroneous. on a cal abuse trial is one before this Court's Second, the district the trier sitting as when duties judge's require harm intent injection of Court, cireumstances, these fact. Under of child the definition ment judge, reviewing the decision Pre Reporting Abuse Child Oklahoma we would just as accept those terms of plain contrary to the Act vention jury. findings of accept criminal inconsistent Act and competent ruling was judge's Third, battery statutes.2 assault *6 affirmed. be therefore and the construction Court's 3 placing Act Process Due Teacher FEES ATTORNEY discretionary authori final the courts district contrary the a career ty fire judge awarded The trial 122 Act. the terms plain 0.$.2001 § 6- Title attorney fees. his may 101.27(D) the Evidence The I. party prevailing awarding the order an enter District School costs. and attorneys fees bat- and an assault is about case T2 This attorney fees was to award argues education special sixth-grade upon a tery the part of the on of discretion The bot- teacher. student's by that student financially impaired Hagan was education special career that a line is tom during paid was since his dismissal after his stu- knowledge of full teacher, who District School trial. the pendency con- challenges, the emotional and dent's and a vacation" "paid this as eventually refers and his student fronted windfall. matter No twice. face on the student the Court, the this polish shine kind of what pro- Act Process Due Teacher The put on wants court, the teacher continue shall the vides sup- does facts, the evidence ugly these completed. novo trial de the paid until conduct this than other any conclusion port 6-101.26(C). very next section The 0.8. teach- of this dismissal the clearly warranted the attorney fees award for the allows 6-101.22(A) (enumerates the §§ 0.$.2001, 0.S.2001, seq. 3. 70 §§ et 1. dis- a career grounds for de 6-101.27(D) a trial (provides for missed 0.$.2001, §§ 2. See legal raised issues the factual on novo teacher)). a career dismissal school er. The district court should have sustained child's request the school district board's dismissal. teacher. She also telephoned the child's brother and high principal. school ¶ 3 When clearly established that high school principal arrived from the as well as other teachers and building street, across the the child was sit- school, administrators at the well knew that ting in the chair and the teacher was stand- emotionally mentally challenged ing over the child. high principal school particularly child was sensitive to confronta began to calm the child. The child asked to tion and had been go princi instructed to superintendent. see the secretary tele- pal's office to cool down when he became phoned superintendent. The teacher re- upset. exactly This is what the child did go fused to superintendent's to the office and when this teacher confronted him. The evi left the grounds. dence clearly established this teacher's conduct was abusive and the abuse was the T6 The principal and the secretary testi- basis for the teacher's dismissal. fied that confrontation the teacher made the upset child more than ever. The 4 The teacher admitted that the following teacher did not dispute testimony of ei- facts occurred at school on October ther principal secretary. When The teacher accused this typing child of asked, agreed the teacher the secre- "jackass" word computer monitor, tary's testimony was truthful. Neither the child denied it. The argued teacher nor other witness testified that the child typed word, over who and the disciplining this child. Rath- child left the classroom. The teacher went to er, the teacher testified that he angry look for the child and located him in the superintеndent. with the hallway going to elementary building. child, teacher.confronted they T7 The school brought forth four were exchanging teacher:; they words as entered the 1) witnesses in addition to the an- elementary building. The teacher followed special other education teacher 22 years yelled child and at the child: "You want teaching experience who testified about me to my job? lose I don't if I my care lose individualized program job." The forcefully backed 2) child; instructions for this secretary down hallway, bodily him, slammed who witnessed the incident in the elementary pinned against him wall, verbally building hallway office; 8) high berated him. The child, teacher said to the school principal with years teaching expe- you me, "If slap I slap you," will and slapped rience who testified about calming the child the child on twice, the face leaving red taking superintendent; 4) *7 marks. The then physically moved superintendent the who testified teacher about her child into the elementary school office investigation and spe- recommendation. The the and put him into a chair. The child very was cial teacher, education the principal, and the upset, red-faced, trembling, twitching, and superintendent, one, each testified that there screaming at the is never a situation where it would but at no time did appro- the child take physical action against priate the for a teacher to slap a student on the teacher. face. 1 5 The teacher testified that at the time of T8 The brought teacher forth four wit- incident, this he angry was over unrelated 1) nesses besides himself: personal phy- his issues with the school superintendent 2) sician, 3) resident, a local the child's
referred to incident with the 4) child as grandmother, "the the and. the child's brother. straw that broke the camel's back." The physician The testified about the teacher's incident occurred around 11:00 a.m. The ele- stress and seeking help his after this inci- mentary school secretary witnessed the con- physician dent. The testified that he was frontation that took place in hallway the and counseling with the teacher and that the office in the elementary building. She testi- teacher also had a counselor in Talequah to fied that it lasted thirty about minutes. Dur- help with his stress issues. physician The ing incident, the the secrеtary telephoned the further testified that this slapping of a child proximity in fear when concern not exhibit not he could and that "inappropriate" was These courtroom. slap not teacher would this teacher that guarantee the from verbatim almost lifted findings were testified resident local The child. another and con- fact findings of years, proposed for ten teacher's known that observation personal he would These law. boys, of his clusions coached by this taught troublesome being particularly are boys findings his of approve that indicates and broth- the record nothing in is The child's there teacher. no trial. have at they appeared would ever that child testified that both er to this returning problem finding as in [ judge erred trial The teacher's of the None classroom. teacher's that, admission Superintendent's "the fact testimony any of contradicted witnesses was she investigation, complete after even dis- by the school presented the evidence of Mr. Ha- to dismiss to whether as undecided trict. irrelevant best finding is at This gen." documentary contains record The that in intentionally erroneous at worst this teacher's of evidence, including several superinten- misrepresents completely 70 0.8. See evaluations. statutorily-required that shows record testimony. The dent's The evaluations 2001, 6-101.10. mind was "my open said superintendent satisfactory. as performance his rated story." his side give him to extended his rated evaluation February of superintendent is clear The evidence improvement need of as performance by the conduct found lessons, delivery of areas-plans multiple suspension warranting immediate wrong, objec- teaching topics, interrelating lesson superintendent ultimately dismissal. learning interrelating directions tives, Again, undecided. was testify that she not criteria, and grading identifying objectives, the teach- finding lifted is another It tasks. mastery of demonstrating students' facts. finding of proposed er's communication and his plans his lesson rated unsatisfactory. as objectives of instructional "a conclusion judge's trial finding the district regard, In this ordinary force may use unremarkable was record teacher's switching, to, limited not but including, record his observation Court's tit[.] Stat. Okla. paddling. spanking not are unblemished do with nothing to absolutely has 844" presented fаcts child; of evidentiary stage disciplining close At the 1 10 judge novo, abusively to reacted de superintendent. at the anger independent out made student apparently ordinary Rather, trial face is law. a child Slapping conclusions fact or basis, witness every educator wholesale discipline; adopted, on force as con- a student slapping fact findings of proposed teacher's spank switching, Plus, the teacher's adopting In appropriate. law. clusions never slap completely than different findings, the much paddling proposed ing or allegation done here, typically district's Slapping, ignored ping. *8 emotionally switching, spanking of this abuse physical anger. Whereas mental fit of find- made no setting trial child. fragile in a sсhool done when paddling or disposed in properly witness a solicited or conclusions ings done typically Also, allegations. abuse physical fashion. controlled, methodical may con paddling spanking, switching, regard- made trial emotion on an if administered stitute observations, upon his courtroom ing an abusive in child or fragile mentally findings, ally and According to relies. this Court ner.4 man did this judge observed commit anyone to misdemeanor it a makes impunity in the find can 4. Neither during a upon student battery an assault O.S. battery statutes. assault criminal the student during when a time activity or school 650.7(B) Section 650.7. 642, 643, §§ 641, TAG 1 14 There is no evidence that excuses or and the evidence of this case demands that
mitigates the assault battery this the school district board's dismissal be sus- child suffered at thе hands of this teacher. tained and that this protected. child be There is no evidence that supports the dis- There is no competent evidence to support trict court's failure to sustain the school dis- the order of the district court. This emotion- trict board's decision to dismiss the teacher ally and mentally challenged child was protect the school students. Under the slapped in by the face special his education district court's order and this opin- Court's teacher. That wrong and should never be ion, a teacher slaps who any student by condoned law or manner and many times as the teacher wishes but without a intent to harm II. Definition of Child Abuse student not be dismissed for such conduct. 18 According to this opinion, Court's "only question before the Court is whether 1 15 Sаdly, this child is left only not with- ruling court's is supported by com out support of his petent evidence." I disagree. The trial de teacher but also without the support of his novo proceeding below, by statute, family. own involved His own grandmother, who re- question ferred to of whether herself as the child's "care-keeper," board's dismissal freely for mental or physical admitted that slaps she also this child when abuse to a child he has his temper "little warranted. ques tantrums." This tion raises only She went issues not on to explain, about the only "That's the sufficien way cy I get could evidence but hush." about The district the mean ing relied "mental this slapping by abuse to a child" ground as a for dismissal as if it 0.8.2001, justifies somehow mitigates 6- 101.22(A)5 teacher's conduct. It Although does not. this Court observes " '[mJental or abuse to a child' T 16 We are sending this child back to the is not defined in the Act [Teacher Due Pro classroom with this teacher who slapped him Act]," cess opinion does attempt not and then home to his "care-keeper" who define phrase. slaps him to "hush" good him. A question might be: "Why wasn't Department 1 19 The school district urged that we re- Human Services called to investigate tain appeal to address impression first home of this child?" questions as to what conduct rises to the 117 Having carefully reviewed the evi- level of "physical abuse" of a student and dence, an overwhelming part of which sup- what conduct rises to the level of "mental ports the dismissal I must abuse" of a student. We retained appeal myself disassociate with all of this. The law but this Court has not directly addressed attending battery classes. "A is a willful and Indeed, the evidence. several unlawful use of force or upon violence per- regarding Order the incident on October son of another." Id. pro- 642. Section 643 (namely, Hagen's context of actions vides that force is not unlawful when thereof) committed and the results are by by a lawfully Instead, restrain or correct a the record at all. they copy verbatim child if the action by was necessitated language proposed child's from the findings of fact misconduct or disobedience to a by lawful com- submitted opposing are, counsel which fact, mand when the force or violence is absent "reasonable from the trial record. in manner and degree." moderate in In The trial ruling Hаgen case, slaps protective were not physically nor mentally corrective and/or abuse a child action, not necessitated erroneous as a matter of law. child's miscon- duct, and were not 3. The reasonable in manner. court's decision to reinstate Ha- gen teaching position was erroneous as a matter of law. 5. Exhibit C to the petition amended in error 4. The trial court's decision to reinstate Ha- following enumerates the issues which were ar- *9 gen teaching to his position clearly errone- gued parties' in the briefs: contrary ous and to weight the clear of the 1. The trial ruling court's Hagen did not physically mentally and/or abuse a child is 5. The district court erred awarding in Ha- clearly contrary erroneous and weight to thе gen of attorney fees. ordinary may use "a teacher ception undis- Under questions. legal core these not limited including, but spe- career foree case-a in facts basic puted citing a paddling," or spanking to, switching, knowledge of teacher, full with cial education then 0.98.2001, § It 844. statute, 21 criminal emotional and mental sixth-grade student's a harm to not intend did that the found confront- physically verbally and challenges, not did district that the and child in the the student and the student ed proof. of burden carry its teacher, was he, the twice, all because face superintendent- the school order, with frustrated court district affirming the In and physical is both conduct teacher's opinion reiterates this Court's student. of the abuse so, opinion mental doing By findings. court's to harm intent injects a implicitly a like a jurisdiction, T20 In abuse of child the definition requirement a child discipline and may control parent, and Reporting Abuse Child in the Oklahoma 0.8.2001, § 24- school. public attending a of terms plain contrary to Act Prevention cor- and may restrain 100.4(A). A teacher the criminal inconsistent and statute of force, in the exercise child a rect writing IWere battery statutes.7 or assault correction or if the restraint authority, lawful engraft Court, expressly I would for the miscon- necessary by the rendered been has Re Abuse the Child of provisions pertinent obey to refusal child's or the child of duct perti onto Act8 Prevention and porting used force command lawful a Due Process Teacher provisions nent in de- moderate manner in reasonable reject the district expressly case, Act9 648(4). In this 0.98.2001, § gree. finding that irrelevant slapping confrontation thirty-minute harm. to intent child's occur incident com- obey a lawful to refusal or misconduct definition Reading the discipline attempt to it an nor mand due into the statute reporting abuse the teacher's unleashing of an It was child. mandated. legislatively statute process this emotion- superintendent statutory anger a has directed Legislature student, the school ally frail word applied should be definition ter- child abuse considered board unless statute in another it is used when 0.8.2001, career minated expressed. intention contrary abuse. mental Act neither Process Due Teacher § 2. The re- nor otherwise child" to a "abuse dismissal, defines reversing the 21 In in a child to "abusе" the definition jects "harm abuse defined order Prevention Reporting Abuse Child health, safety a child's to harm threatened or "abuse" Accordingly, the definition Act. responsible person by a welfare or Prevention Reporting Abuse Child Abuse the Child a section same," citing "abuse" to define applied ex- Act, 6 an Act should Prevention Reporting 6-101.22(A) 70, reads: Title 0.$.2001, seq. 9. et §§ 7101 6. the Teacher Subject A. 641, 0.$.2001,§§ 642. 21See
7. career ofAct Process Due reemployed for: (2) 7102(B)(1) read: or be dismissed Title 8. duty; neglect of Willful 1. threatened or harm means "Abuse" 1. performance health, negligence safety Repeated welfare or 2. a child's harm health, safe- the child's responsible for person duty; child; and sexu- welfare, abuse including sexual ty or or Mental 3. exploitation; Incompetency; al 4. a or "Harm 2. ineffectiveness; Instructional 5. to: limited is not or includes, but teaching performance; Unsatisfactory safety"" health injury, physical or nonaccidental turpitude. a. involving moral Any reason abuse, b. sexual added.) (Bold exploitation, c.. sexual neglect, d. protection provide or omission e. failure harm, threatened harm added.) (Bold abandonment. £.. *10 the Teacher Due Process Act."10This defini to hire and to fire a career teacher in accor- tion, however, must take into account dance with the Teacher Due Process Act. authority vested in control, teachers to cor 126 The Teacher Due Process Act creates rect, restrain, or discipline pursuant a child special procеedings protection for the of ca- 0.9$.2001, 24-100.4(A) to 70 § and 21 0.8. reer teachers from arbitrary dismissal. 2001, 648(4) §§ But, and 844.11 it should not 0.8.2001, § 6-101.26. The statute include a "intent to harm" element superintendent that a may recommend that a Legislature did not include an career teacher be dismissed and that before "intent to harm" element in the child abuse dismissal, the school district board must con- erred, laws. The district court as a matter of pretermination duct a hearing. At pre- law, in using a lack of intent to harm as a termination hearing, the superintendent for reversing basis the school district board's specify must the statutory ground for the ° dismissal. recommended dismissal and the underlying explain
facts and
the evidentiary support for
III. Trial
recommendation.
De
Id. The
Novo
teacher must
given
a meaningful opportunity to re-
T24 I
disagree
with the Court's con
spond and
present
why
reasons
super-
6-101.27(D)
struction
§of
of the Teacher
intendent's
recommendation should not be
Due Process Act as placing "the final discere
approved.
Id.
superintendent
has the
tion with the trial judge" as to whether a
burden
proof by
preponderance
should be dismissed "even if the
6-101.26(E).
§
Id.
school board
finds
or mental abuse
127 When the school district board dis-
of a child." The trial de novo proceeding in
misses a career
§ 6-101.27 does not
plenary juris
invoke the
challenge the dismissal in a trial de novo in
diction of the
Rather,
district court.
§ 6-
0.8.2001,
§ 6-
101.27(D)
jurisdiction
restricts the
of the dis
101.27(A).
novo,
At the trial de
"the stan-
trict court "to determine de novo all issues of
proof
dard of
shall be
preponderance
fact and law" and either sustain the school
of the evidence and the
proof
burden of
shall
district board's dismissal or direct reinstateme
be on the district superintendent
designee,
words,
nt.12
In other
the district court's
representative
of the local school board of
jurisdiction can reach no further
than to
education,
to establish de novo that
serutinize whether the school district board's
teacher's dismissal or nonreemployment
dismissal was warranted.
This is
only
6-101.27(D).
§
warranted."
Id.
The evi-
application that can be
made of
6-101.27
dence and
presented
facts
to the school dis-
within the framework of Article VI of trict board in
pretermination
hearing
School Code.
have no value in the trial de novo in the
1 25 The board of education of each sсhool
district court. The district court must hear
is vested with
authority
to enter
parties,
admit
the evidence and deter-
employment
written
contracts with mine de novo all issues of fact and law that
0.98.2001, 6-101(A).
teachers.
Career
are "necessary to determine
adequacy
teachers under contract may be dismissed
the dismissal" of the teacher.
Id. The dis-
for specified reasons.
O.S8.2001,
§ 6-
trict court
prepare
written findings of
101.22(A).
It
is the local school district
fact and
law, id.,
conclusions of
and enter
board that has the authority,
discretion,
in its
judgment either directing the school district
City
10.
Muskogee
See
Landry,
127,
v.
1977 OK
referred to
as House Bill 1017. 1989 Okla.Sess.
¶13,
567 P.2d 988, 990; Sommer
Laws,
Ex.Sess., ch.2,
v. Sommer,
1st
§§
prior
75-85.
Just
¶¶
cal abuse authority out set statutory its exceeded decided, in its 6-101.27(D), and 0.S$.2001, § not be should
discretion, incident
dismissed teach- to decide That discretion child. only in the school is vested fire hire or er to in the district board Const. 1, Okla. Art.