R. Brett Stirling v. North Slope Borough School DistrictR. Brett Stirling v. North Slope Borough School District
Appearances: Jennifer M. Coughlin, Landye Bennett Blumstein, LLP, Anchorage, for Appellant. Allen F. Clendaniel, Sedor, Wendlandt, Evans & Filippi, LLC, Anchorage, for Appellee.
Before: Maassen, Chief Justice, and Borghesan, Henderson, and Pate, Justices. [Carney, Justice, not participating.]
OPINION
HENDERSON, Justice.
I. INTRODUCTION
A school principal used the school‘s printer after hours to create a coaster as a retirement gift for a friend. The coaster design contained the School District‘s official logo, including the logo‘s illustration of Alaska Native children engaged in a traditional blanket toss, but changed the statement of the District‘s motto. A custodian working at the time took pictures of the coaster, and the pictures were subsequently shared on social media alongside commentary expressing that the coaster was disrespectful to Alaska Native peoples. The principal left the community the day after the social media posts.
The District thereafter notified the principal that it proposed to terminate him for incompetence and for violating the School Board‘s anti-harassment policies and related state regulations. Following a brief pretermination hearing, the District terminated the principal. The principal appealed, and the Board upheld the principal‘s termination following an additional hearing. The principal appealed to the superior court, which also affirmed his termination. The principal now appeals to us.
Given the principal‘s conceded inability to continue doing his job following the events in question, we affirm his termination. However, given the lack of process provided during the principal‘s pretermination hearing, which was then remedied at his post-termination hearing, we reverse the superior court‘s decision denying back pay through the date of the Board‘s on-record post-termination hearing decision.
II. FACTS AND PROCEEDINGS
A. Facts
From July 2020 through February 2022 R. Brett Stirling served as the principal of Kali School in Point Lay in the North Slope Borough School District (the District). In January 2022 Stirling sent a series of emails and a letter to District administrators about various challenges at his school. In these emails and letter, he asked for assistance related to a recent homicide by a staff member‘s brother in a school housing unit; criticized a new District policy related to charging long-term substitute teachers rent; expressed concerns about staff members smoking marijuana outside a classroom; identified problems with the school‘s phones; expressed concerns about rising COVID-19 cases; and complained of staffing shortages.
On January 26, around 7:00 or 8:00 p.m., Stirling went to Kali School and brought his own wood to use the school‘s laser printer to make some coasters for himself and as a retirement gift for his friend, a fellow principal in the District. The school was empty except for two custodians who were working that evening. The coasters Stirling made featured a modification of the District‘s official logo. The logo contains an illustration of Alaska Native children performing a traditional blanket toss and the motto “Striving for Excellence” along with the District‘s name. Around the District logo Stirling wrote the text “Congratulations You survived NSBSD” and “Time for a fucking drink,” and included an image of two beer mugs. Inside the logo he replaced the motto with “Striving for Excrement” and the District‘s name with “New Stupid Behaviors Starting Daily.” Stirling did not alter the illustration in the middle of the logo.
Later that evening a school teacher in Utqiaġvik posted pictures of the coasters on Facebook, along with a caption stating the
After the Facebook post was made, Stirling texted one of the custodians working that night, who he assumed had taken the photographs of the coasters and shared them with the teacher who posted them on social media. He asked the custodian why she shared the photographs. The custodian texted him, “Of all the things you could have made, you made that with the words—whatever you made with [the District‘s] logo. Do you really think that we‘re crap?” Stirling texted the custodian an apology and explained he did not think anyone in Point Lay was crap and was instead expressing frustration with District decisions. Stirling decided to leave Point Lay the next morning and fly to Utqiaġvik because he was concerned about his own safety. The District Assistant Superintendent approved of this decision.
The next day someone posted the photographs of the coasters on Twitter with the caption: “This is disgusting . . . Some of these administrators have no respect when it comes to our people and this is a prime example.” The tweet generated at least 48 retweets, 15 quote tweets,1 and 125 likes.
B. Proceedings
1. District investigation and pretermination hearing
On January 28 the District‘s Human Resources Director met with Stirling and a union representative. The Human Resources Director informed Stirling that the meeting was strictly confidential, but he recorded the meeting without Stirling‘s knowledge, and the recording was later admitted into evidence at the Board hearing without objection from Stirling. Stirling said he did not think he could return to Point Lay, stating that he did not believe he could “be an effective leader” if the majority of the community believed he was racist.
Later that day the Human Resources Director issued a report to the District recommending Stirling‘s employment be terminated because “Stirling willfully operated company property for personal use that unwittingly disparaged the good people and students of Point Lay.” The report concluded that “this disparagement and the public‘s use of social media makes it impossible for [Stirling] to return to the village and District to continue his work as School Administrator.” That day the Assistant Superintendent also sent Stirling a letter that informed him that he was “on paid administrative leave pending further investigation” and requested he report to the District office on January 31 for a meeting with her.
On January 31 the Superintendent sent Stirling a letter notifying him that the District proposed to terminate his employment because his conduct “constitute[d] (1) incompetence and (2) substantial noncompliance with applicable education laws and regulations.” The letter stated Stirling would receive administrative leave with pay through February 3. The letter explained that the District believed Stirling was incompetent to serve as a principal under
On February 2 the District held the pretermination hearing attended by the Superintendent, the Assistant Superintendent, a union representative, and Stirling. The Assistant Superintendent read the letter provided to Stirling on January 31 into the record. The Superintendent summarized the investigation, explained that the evidence the District had considered included the photographs of the coaster, and indicated that the District would provide Stirling the evidence along with the recording of the pretermination hearing the next day. The Superintendent concluded by stating that Stirling‘s use of District property to “willfully disparage[] the good people and students of Point Lay” made it “impossible for [him] to return to the village and the District to continue his work as a school administrator.”
Stirling read into the record a letter he had sent to the District. He stated that he did not create the design on a District computer and claimed that he created the coaster because he was expressing frustration about the District to his friend in a private message. He stated that he recognized that being placed back at Point Lay was “not an option,” and he offered to resign in April to allow him time to receive the health care he needed to recover from the stressors of the job.
2. Stirling‘s termination and Board hearing
The next day the Superintendent sent Stirling a letter notifying him that he was “dismiss[ed] for cause from employment” with the District for incompetence and “substantial noncompliance with school laws of the state” and Board policies. The letter largely repeated the points stated in the pretermination letter. It informed Stirling that he could contest the dismissal by notifying the Superintendent in writing that he wanted a formal hearing before the Board under
Before the hearing Stirling and the District submitted trial briefs, exhibit lists, and witness lists. Stirling‘s exhibits included his contracts with the District, the notice of termination, an administrative leave letter, emails and a letter he sent to District officials in January 2022 regarding difficulties in Point Lay, a copy of the District‘s COVID-19 mitigation plan, emails and documentation of a labor relations mediation in which Stirling was involved, and relevant excerpts of the Board‘s policies and code of ethics. The District‘s exhibits included the Twitter and Facebook posts about the coasters, the investigation summary, the notice of proposed termination, the notice of termination, the notice of non-retention, Stirling‘s employment contracts, the recording of the January 28 interview with Stirling, photos of the coasters, and Stirling‘s letter responding to the proposed termination.
The Board held an administrative hearing at the end of April.
The District called five witnesses: the teacher who had posted the photos of the coaster on Facebook, the Assistant Superintendent, the current principal at Kali School, the Human Resources Director, and the Superintendent. All of the District‘s witnesses testified that they found the coaster offensive and disrespectful to the people of Point Lay and the North Slope. For instance, the Assistant Superintendent testified that she felt the coaster was racist because it paired the words “excrement” and “stupid” with the illustration of Native children. The Superintendent testified that he had also heard from “many, many people” in the community who were outraged by the incident and perceived the coaster as racist.
A current Kali school teacher testified that she had worked as a teacher in Point Lay for five years and that Stirling was an easy principal to work with. She stated that earlier in January, before the coaster incident, the teacher who posted the photos to Facebook had stopped by her house for a social visit and mentioned that he wished Stirling would get fired. A life-long Point Lay resident testified that he had also heard from the same teacher that he wanted to get Stirling fired.
Several of Stirling‘s witnesses testified that the coaster seemed like an expression of frustration with the District rather than intentionally racist or directed at Alaska Native people, though two of those witnesses admitted that they could understand why people might have found it offensive. For instance, a long-time Point Lay resident said that the coaster may have elicited memories of the historical trauma of Alaska Native children being forced to attend boarding schools. That same resident testified that he did not think it would have been safe for Stirling to stay in the village after the community found out about the coaster, as he had seen social media posts by individuals who expressed a desire to harm Stirling. Another long-time resident testified that although she understood why people were offended, she believed Stirling had ultimately taken responsibility for the coaster and that he should not have been fired over it.
The retiring principal for whom the coaster was intended testified that he had worked for the District for two years and that he had recently returned from extended medical leave necessitated by a heart condition. He stated he understood the phrase “you survived NSBSD” meant literally he “made it through without having a heart attack.” The retiring principal explained that he and Stirling vented to each other about the problems they faced in their jobs and compared those problems to “crap” frequently. He stated that when he saw the word excrement on the coaster, he thought that it referred to stressful situations Stirling was dealing with and he knew that it was not a reference to the staff or students. The retiring principal testified that every time he and Stirling talked, Stirling was very clear that he was frustrated with these problems because they created obstacles to serving the children, which was always Stirling‘s primary focus.
Stirling testified on his own behalf, stating he never intended to insult Alaska Native people, he had worked in rural villages in Alaska for 17 years, and he had “nothing but respect and admiration for the people of The Slope and the Native peoples of Alaska.” Stirling acknowledged that during his January 28 interview with the Human Resources Director he had stated he did not think he could return to the community; however, he discounted this statement, explaining that he made that statement only 36 hours after the Facebook post about the coaster and when he had slept for only four of the prior 48 hours.
At the end of the hearing the Board unanimously found by a preponderance of the evidence that the District demonstrated it had cause to terminate Stirling. At the beginning of May the Board issued a written decision affirming the District‘s decision to terminate Stirling‘s employment. The Board explained that Alaska law governing termination of teachers also applies to principals. The Board concluded that Stirling‘s conduct constituted incompetency under
3. Superior court proceedings and appeal
Stirling appealed the Board‘s decision to the superior court. He argued that the District‘s grounds for his termination were not supported by substantial evidence, his coaster amounted to protected speech under
In August 2023 the court affirmed the Board‘s decision to terminate Stirling‘s employment. The court applied the substantial evidence test to questions of fact and applied the rational basis test to questions of law because the District was “interpreting fundamental policies within the scope of its own statutory functions.” It decided that there were grounds to terminate Stirling due to substantial noncompliance with District rules and regulations. The court concluded that “[w]hether or not . . . Stirling interpreted the coaster to promote any view about Alaska Natives, the facts at hand support that the community was reasonable to interpret the coaster as racially offensive.” It explained, “Stirling changed everything else about the design of the logo, so a bystander, not knowing the context of Mr. Stirling‘s anger about the School District might see that as an intentional choice rather than an oversight on his part.” The court concluded that the “District‘s finding of incompetence has a reasonable basis in law” because as “Stirling conceded at his pretermination hearing, he was unable to effectively perform his duties after the widespread sharing of his coaster design, and the negative public reaction to it.”
The court also rejected free speech arguments Stirling had raised, reasoning that “the right to openly critique a government employer without fear of punishment does not extend to offensive or inappropriate speech.” It also noted that “Stirling argues profusely that the coaster was private speech between himself and his friend — it was not public speech critical of his government employer,” which would be protected under the First Amendment.
Regarding Stirling‘s due process arguments, the court acknowledged that the District‘s pretermination letter “should have put . . . Stirling on notice of his right to call witnesses — should he have wanted to — at his pretermination hearing,” but concluded that “the District‘s failure to include information about . . . Stirling‘s right to call witnesses amounts to harmless error, particularly in light of the post-termination hearing he was afforded.” Ultimately the court affirmed the Board‘s decision and denied Stirling‘s requested relief.
Stirling appeals.
III. STANDARD OF REVIEW
“When a superior court acts as an intermediate court of appeals, we independently review the administrative decision.”3 Here, we therefore independently review the final administrative decision of the School Board.
“We review questions of fact under the ‘substantial evidence’ test. Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ We need only determine whether such evidence exists, and do not choose between competing inferences.”4
We review constitutional questions, including questions regarding the scope of an individual‘s due process rights and free speech rights, de novo.7
IV. DISCUSSION
A. The Board Had A Reasonable Basis To Terminate Stirling‘s Employment On Grounds Of Incompetency.
Stirling‘s first broad argument on appeal is that the District lacked a sufficient basis for terminating his employment. More specifically, Stirling contends that the evidence before the School Board was insufficient to demonstrate “incompetency” under
Alaska Statute 14.20.170(a) establishes that a principal may be dismissed at any time for “incompetency, which is defined as the inability or the unintentional or intentional failure to perform the [principal‘s customary duties] in a satisfactory manner.”9 Application of these statutory terms presents mixed questions of law and fact. To the extent we are called upon to interpret the terms of
Stirling contends that the Board lacked substantial evidence to find him incompetent under
Stirling‘s arguments, however, fail to account for both the statutory definition of incompetence that applies here and for the entirety of the evidence before the Board. Alaska Statute 14.20.170(a)(1) defines incompetency “as the inability or the unintentional or intentional failure to perform the teacher‘s customary teaching duties in a satisfactory manner.” Here the testimony presented to the Board constituted substantial evidence to terminate Stirling‘s employment for incompetence. The Superintendent testified that he thought Stirling could no longer serve as a principal because the community found the coaster racist and offensive. The District supported this assertion through testimony from the teacher who initially posted the photographs, the Assistant Superintendent, the current principal of Kali School, and the Human Resources Director. Additionally, one of Stirling‘s own witnesses, a life-long resident of Point Lay, testified that while he did not personally find the coaster offensive, he believed it was unsafe for Stirling to return to Point Lay because of other social media posts by individuals who may want to hurt Stirling and sentiment from community members who were offended by the coaster. Though some of the other witnesses testified that they were not personally offended by the coaster and viewed it as an expression of frustration with the District administration, there was substantial evidence to support the Board‘s finding that Stirling fundamentally lost the trust of the District administrators and community.11 The District‘s exhibits also tend to demonstrate that the social media posts criticizing Stirling‘s coasters were fairly widely shared, supporting the Board‘s finding regarding community sentiment.
Perhaps most importantly, the District presented statements from Stirling himself that support a finding of incompetency. Stirling indicated in his interview on January 28 that he did not think he could return to Point Lay if the majority of the community thought he was racist. This statement and Stirling‘s decision to leave Point Lay support the conclusion that Stirling himself did not think that he could competently perform his job after the events at issue. Stirling argues that his admission during the January 28 interview has limited import because it occurred shortly after initial social media posts about the coasters. But Stirling repeated the sentiment during his pretermination hearing several days later, stating that he did not believe being placed back at Point Lay was an option. Stirling then offered to resign effective two months later. Particularly in light of Stirling‘s own assessment of his inability to perform his customary duties as principal, the evidence and testimony support the Board‘s decision to terminate Stirling‘s employment under
B. The Board‘s Termination Of Stirling‘s Employment Violated Neither AS 14.20.095 Nor The First Amendment.
Stirling appears to contend that his termination was also improper because it violated his rights to free speech. While Stirling grounds his free speech claim in
We begin by analyzing the potential sources of protection for Stirling‘s speech:
Stirling argues that even if his speech is not protected by the First Amendment, as the superior court concluded, it is still protected by our state statute. But the context and limited precedent surrounding
rested on uncertain legal ground at the time. Just three years later, however, the United States Supreme Court held in Pickering v. Board of Education that the First Amendment similarly protects teachers’ right to “comment on matters of public interest in connection with the operation of the public schools in which they work.”18 That holding effectively rendered
Under a First Amendment analysis, Stirling‘s free speech rights were not without limit. In analyzing whether a public
efficiency of the public services it performs through its employees.”25 If the State‘s “legitimate countervailing interests are sufficiently strong,” the court will uphold the State‘s restriction.26
The second step of the inquiry is dispositive in this case. Assuming without deciding that Stirling‘s creation of the coasters amounted to private speech regarding a matter of public concern that would trigger First Amendment protection, we must still conduct “a fact-sensitive and deferential weighing of the government‘s legitimate interests” as an employer against Stirling‘s First Amendment rights.27 Here, any speech-related rights Stirling may have had were outweighed by the Board‘s legitimate interest in fulfilling its responsibilities to its students and to the public. The Ninth Circuit has explained that within the educational context a court may consider “whether students and parents have expressed concern that the plaintiff‘s conduct has disrupted the school‘s normal operations, or has eroded the public trust between the school and members of its community.”28 Here the Board determined Stirling‘s speech was especially disruptive to normal operations and damaging to the public trust because he served in a leadership role in the school community—a conclusion supported by Stirling‘s own testimony. The Board‘s concerns fell within its legitimate “interest[s] in the effective and efficient fulfillment of [its] responsibilities to the public, including promot[ing] efficiency and integrity in the discharge of official duties, and maintain[ing] proper discipline in public service.”29 We thus conclude that Stirling‘s
termination did not violate his free speech rights under
C. Stirling Was Not Provided Sufficient Process Prior To His Termination.
Stirling next argues that even if his termination is upheld, the District failed to provide him an adequate pretermination hearing, violating his procedural due process rights and its obligations under
Under the Alaska32 and the United States33 Constitutions the state may not “deprive individuals of property without due process of law.”34 As a public employee that could only be terminated for cause under
We conclude that although the District‘s pretermination process in this matter certainly provided Stirling with notice of his proposed termination and the District‘s reasons for seeking his termination, the District‘s notice and hearing procedures failed to meaningfully provide for Stirling‘s right to “present a defense by testimonial and other evidence.”40 Although due process does not strictly require that an employee be able to call and examine witnesses at a pretermination hearing in all circumstances, we have previously recognized that “the charge of teacher incompetency [is] sufficiently serious to warrant the heightened procedural protection that the right to call witnesses brings.”41 Here, where the District‘s proposed bases for termination included incompetency and other “substantial noncompliance with school laws of the state,” including alleged harassment and discrimination, due process required that Stirling be able to call and examine witnesses during the course of his pretermination hearing.42
informed of any opportunity to call witnesses during his pretermination hearing, the hearing process failed to comply with constitutional due process requirements.
Both parties agree, however, and we conclude, that Stirling was provided with adequate process in his post-termination hearing before the Board. Stirling is therefore entitled to back pay from the time of his termination on February 3 until the Board‘s on-record decision at the conclusion of its post-termination hearing on April 25.44
V. CONCLUSION
We AFFIRM the superior court‘s decision upholding the Board‘s decision terminating Stirling‘s employment. We REVERSE the superior court‘s holding affirming the Board‘s decision that the District‘s pretermination hearing complied with its due process obligations, and REMAND for calculation of back pay through the date of the Board‘s post-termination hearing and decision.