Steve White



and State Department of Education #2006-123



Limestone County Board of Education



DECISION



ISSUE



This is an appeal by Steve White from a decision of the Limestone County Board of Education to cancel his employment contract as a Teacher at West Limestone County High School pursuant to the Teacher Tenure Act, Code of Alabama, 1975, sections 16-24-1, et. seq. The Teacher is currently on a paid leave of absence, pending the outcome of his Teacher Tenure Act Hearing. A de novo Hearing was held in this case in Athens, Alabama, on July 27, 2006. At the Hearing, the Teacher was represented by Attorneys Bill Dawson, Jimmy Corder and John Plunk and the Board was represented by Attorney J. R. Brooks.



The substantive issue in this case is whether the Board properly terminated the Teacher for “…incompetence, insubordination, neglect of duty, immorality, failure to perform duties in a satisfactory manner…or other good and just cause, but…not for political or personal reasons.” (Code of Alabama 1975, section 16-24-8). Prior to the Board conference, the Board gave the Teacher notice that

“…the cancellation is taken for one or more of the reasons listed in Alabama Code section 16-24-8…as follows:

1. Mr. White lets students watch videos and computer images in his classroom rather than engage in teaching.

2. Mr. White shows videos and computer images to his students which are inappropriate for the age of the students.

3. Mr. White has shown students in his class videos and computer images with sexual themes.

4. Mr. White has shown students in his class computer images purporting to show a former President and his wife engaged in sexual activity.

5. Mr. White has shown members of his class computer and video images showing an older lady answering questions relating to sex and other subjects using profanity.

6. Mr. White has shown students in his class a computer image of a girl exposing her breasts.

7. Rather than teach science, Mr. White shows students videos and computer images.

8. In violation of board policy 1FBG-A, Mr. White has used his computer to access Internet sites or programs which are offensive and otherwise not suitable or proper for use in the Limestone County school system.

9. Mr. White, in violation of school board policy, has pornographic images on his computer.

10. Mr. White has shown students computer images of a girl with a can of beer and a cigarette.”



After the Board’s Conference with the Teacher on May 16, 2006, there was a

motion for

“…the Board to uphold the recommendation of the Superintendent to cancel the

contract of Steve White, and that the Board determine that such cancellation shall

be effectuated.”

The motion passed with one dissenting vote. Prior to the Hearing on July 27, 2006, the same ten charges that were relied on by the Superintendent at the Board Conference were sent to the Teacher as charges to be relied upon by the Board at the Hearing.





CLOSED HEARING AND UNPUBLISHED DECISION



Prior to the Hearing, by e-mails dated July 18, 2006, and July 26, 2006, and again at the Hearing, the Board’s Attorney requested that the Hearing be closed as to each student witness unless the student’s parent consented to the hearing being open. No parent made such a request at the Hearing. Prior to the Hearing, by e-mail dated June 27, 2006, and again at the Hearing, the Teacher’s Attorney requested that the entire Hearing be closed. The Hearing was closed based on the Teacher’s request and on the following rationale.



Although a Tenure Act Hearing Officer is not technically an Arbitrator, the Alabama Department of Education has published at its website the “Alabama Tenure and Fair Dismissal Guidelines for Arbitrators.” They are exactly the same as the Federal Mediation and Conciliation Service website publication “Hearing Officers in Alabama Education Legislation.” Moreover, the Teacher Tenure Act utilizes FMCS Arbitrators as Hearing Officers. Code of Alabama, 1975, section 16-24-20 provides that the Board and Teacher “shall …submit a joint request for a panel of arbitrators to…FMCS” if they do not “…mutually agree on a person to hear the teacher’s contest….” Although I was chosen by the parties as a Hearing Officer, other Hearing Officers are chosen through the FMCS. To bring consistency to the process, I have chosen to apply the FMCS Rules and Code. I note that the Preamble of the FMCS Arbitrator and Hearing Rules and Regulations states that

“Arbitrators who are members of the FMCS Roster of Arbitrators must adhere

to FMCS Arbitration Policies and Procedures and The Code of Professional

Responsibility for Arbitrators of Labor-Management Disputes.”

The Preamble to the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes notes that

“Arbitrators of labor-management disputes are sometimes asked to serve as impartial third parties under a variety of arbitration and related procedures

dealing with the rights and interests of employees in connection with their

employment and/or representation by a union…Some of these procedures



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…may be designed to resolve disputes over wrongful termination or other

employment issues arising under the law…. In some such cases, the

arbitrator may be referred to as an Appeal Examiner, Hearing Officer,

Referee, or other like titles…. The standards of professional responsibility set forth in this Code are intended to guide the impartial third party serving in all of these diverse procedures….The word ‘arbitrator,’ as used hereinafter in the Code, is intended to apply to any impartial person, irrespective of specific title, who serves in a covered arbitration dispute procedure in which there is conferred authority to decide issues or to make formal recommendations.”

Federal Mediation and Conciliation Rule 1404.13 (Conduct of Hearings) provides that

“…[t]he conduct of the hearing is under the arbitrator’s jurisdiction and control… [t]he arbitrator determines the manner in which the hearing will be conducted and is totally responsible for determining evidentiary and other matters relating to the hearing….”

The Code of Professional Responsibility for Arbitrators of Labor Management Disputes of the Federal Mediation and Conciliation Service, the National Academy of Arbitrators, and the American Arbitration Association at 2.C (Privacy of Arbitration) provides as follows:

“All significant aspects of an arbitration proceeding must be treated by the arbitrator as confidential unless this requirement is waived by both parties or disclosure is required or permitted by law. Attendance at hearings by persons not invited by either or both of them shall be permitted only when the parties agree or when applicable law requires or permits.”

The Teacher Tenure Act is silent as to whether the hearing is to be open or closed, although it does provide for an open or closed initial Conference before the Board, at the option of the Teacher (Code of Alabama, 1975, section 16-24-9). The Alabama Open Meetings Act does not apply since it involves a “governmental body” (Code of Alabama, 1975, section 36-25A-1, et. seq.). The Board’s Attorney agreed in e-mails dated June 19, 2006, and July 26, 2006, “…since [the hearing] is not a board meeting….” Prior to the hearing, the Board Attorney furnished an article at 39 ALR 5th 103 which collects cases, at the 56th to 69th pages thereof, on the “Propriety of Exclusion of Press in Administrative Proceedings.” Those cases balance the Public’s right to know with the Teacher’s privacy interest. In one case cited in the article, Johnson Newspaper Corp. v. Melino, 564 NE 2d 1046 ( N. Y. 1990), the Court closed a disciplinary hearing to prevent possible irreparable harm to a professional’s reputation from what could turn out to be unfounded allegations. As to the students, the Board’s Attorney, in an e-mail dated July 26, 2006, claimed that the students’ testimony would be based on statements that are “education records” protected by the Family Educational Rights and Privacy Act (20 U. S. Code 1232g and 34 Code of Federal Regulations Subtitle A, Part 99.3). Concerning closing the hearing as to the students because their statements are private, I note cases collected at 112 ALR Fed1, that include Baker v. Mitchell-Waters, 826 NE 2d 894 (Ohio 2005); Ellis v. Cleveland Municipal School District, 309 F. Supp. 2d 1019 (N. D. Ohio, 2004); and Brouillet v. Cowles Publishing Company, 791 P. 2d 526 (Wash. 1990).. These cases hold that documents relating to alleged teacher misconduct contain information directly related



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to the teacher and only tangentially related to the student. The cases note that FERPA

provides, at 20 U. S. Code 1232g (a) (4) (B) (iii), that

“…the term ‘education records’ does not include…in the case of persons who are

employed by an educational agency or institution, but who are not in attendance at

such agency or institution, records made and maintained in the normal course of

business which relate exclusively to such person in the person’s capacity as an

employee and are not available for use for any other purpose.”

See also, Code of Alabama, 1975, section 16-22-14 and a related case, Ex Parte Jackson, 881 So. 2d 450 (Ala. 2003). In any event, in the cases cited at 112 ALR Fed 1, the names of the students were redacted from their statements to protect the privacy of the students. As noted by the Teacher’s Attorney at the hearing, closing the hearing to protect the students’ privacy or to protect references by other witnesses to the students’ statements, and then opening the hearing as to any other aspects, presents a practical, disruptive problem for the witnesses and attorneys. Thus, based on the Students’ privacy rights, the Teacher’s liberty interest, the need for consistency in applicable hearing rules, and the impracticability of a bifurcated Hearing that is sometimes open and sometimes closed, the Hearing was closed.

As to whether the Hearing Officer’s decision is public, Section 2.C of the Code of Professional Responsibility for Arbitrators of Labor Management Disputes of the Federal Mediation and Conciliation Service, National Academy of Arbitrators and American Arbitration Association provides at section 2.C that

“[i]t is a violation of professional responsibility for an arbitrator to make public

an award without the consent of the parties….[i]f such question is

asked at the hearing, is should be asked in writing as follows: ‘Do you consent

to the submission of the award in this matter for publication? ( )Yes ( ) No

If you consent, you have the right to notify the arbitrator within 30 days after the

Date of the award that you revoke you consent.'”

At the hearing, the Teacher’s Attorney answered “( x ) No” to the foregoing written question and the Board’s Attorney answered “( x) Yes”. To maintain consistency in hearings with FMCS arbitrators and hearings with arbitrators chosen by the parties, I applied the FMCS Code to this case. Since the Teacher did not consent to publish this Decision, the Decision in this case is not to be made public at the Hearing Officer level, pursuant to Section 2.C of the FMCS Code.



EVIDENTIARY MATTERS



Prior to the July 27, 2006, Hearing, and pursuant to Code of Alabama, 1975, section 16-24-10, the Board’s Attorney gave the Teacher’s Attorney a transcript and exhibits from the Board’s Conference of May 16, 2006. These were not reviewed by the Hearing Officer because the July 27, 2006, hearing was de novo pursuant to Code of Alabama, 1975, section 16-24-10. Also furnished were unsworn written statements of students in the Teacher’s classes with the students’ names redacted. These statements



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may have been admissible as an official records exception to the hearsay rule (Alabama Rules of Evidence, Rule 803 (8), Jenkins v. Avery, 59 So. 2d 671 (Ala. 1952); and cases collected at 57 ALR 4th 1111, “Admissibility of school records under hearsay exceptions,” section 11) if they did not contravene the Teacher’s constitutional right to confront and cross examine adverse witnesses (See, for example, Ohio Association of Public School Employees, AFSCME v. Lakewood City School District Board of Education, 624 NE 2d 1043 (Ohio, 1994); McNeill v. Butz, 480 F. 2d 314 (4th Cir. 1973); In Re Vora, 582 SE 2d 413 (S.C., 2003); Milwaukee District Council 48 v. Milwaukee County, 627 NW 2d 866 (Wis., 2001); Forman v. Creighton School District No. 14, 351 P. 2d 165 (Ariz., 1960); Nevels v. Hanlon, 656 F. 2d 372 (8th Cir., 1981); Thomas v. Ward, 374 F. Supp. 206 (M.D.N.C., 1974), aff’d in pertinent part, 529 F. 2d 916 (4th Cir., 1975); and Massie v. East St. Louis School District No. 189, 561 NE 2d 246 (Ill. App., 1990). The objection to the admissibility of the students’ statements was withdrawn by the Teacher’s Attorney at the July 27, 2006, Hearing, but I have given such statements no weight because of constitutional considerations. In addition, the Board’s Attorney gave the Teacher’s Attorney copies of documents taken from the Teacher’s computer, together with the affidavit of the computer expert who retrieved the documents. The affidavit and exhibits were admitted into evidence since the affiant swore to tell the truth and since the witness was in Virginia at the time of the hearing. Any objection to the affidavit was withdrawn by a letter from the Teacher’s Attorney dated July 10, 2006. Limestone County Board of Education Policy IFBG-A was furnished and admitted at the July 27, 2006, Hearing without objection. The Board’s Attorney furnished to the Teacher’s Attorney, prior to the July 27, 2006, Hearing, the same Notice that formed the basis of the Board’s decision to terminate the Teacher’s contract of employment on May 16, 2006. In his letter to the Board’s Attorney dated July 21, 2006, the Teacher’s Attorney sought “The depiction of any computer animation subjects allegedly shown on the computer of respondent at school.” Only those images attached to the Virginia computer expert’s affidavit were furnished. From this, it appears that no other images were available. Grade books and standardized SAT scores were requested, furnished and admitted into evidence. The agenda sheet and attendance roll for the faculty meeting at West Limestone County High School at which Board Policy IFBG-A was discussed, was requested, produced and admitted into evidence.



FINDINGS OF FACT



Five Eighth Grade Science students of the Teacher, a parent, the Principal, and the Superintendent of Education for Limestone County testified on behalf of the Board. Five Eighth Grade Science students of the Teacher, an Eighth Grade Science student from the prior year, a teacher’s aide, a political ally, a friend, a computer expert, the Teacher’s Alabama Education Association Representative and the Teacher testified on behalf of the Teacher. Based on the testimony and exhibits introduced at trial, I make the following findings of fact.



The Teacher has taught Eighth Grade Science for the Limestone County Board of



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Education for the past 10 years. He has a Master of Education degree in Secondary Education, a Master’s Degree in Guidance and Counseling, and a Master’s Degree and a AA Degree in Administration. His wife has worked for the State of Alabama for 30 years and is a Judicial Assistant to a Limestone County Circuit Judge. His son is a Senior at Vanderbilt in pre-med and his daughter is a Sophomore at the University of North Alabama in pre-law. The Teacher has been recognized by the Limestone County Board of Education for successfully spearheading a one cent sales’ tax for the City and County Schools systems. He was recognized by the Alabama Education Association as Parent of the Year.

In 1994 he came with 18 votes of winning a seat in the State House of Representatives. When he ran again (unsuccessfully) in 1998 he favored letting the people vote as to whether the Superintendent should be elected rather than appointed. Currently, he is the Democratic candidate running against a Republican incumbent for a seat in the State House of Representatives. He has been President twice of the local chapter of the Alabama Education Association. He has applied for 25 to 30 other jobs in the School System to no avail.



On November 15, 2004, the Teacher was present at a faculty meeting where the Principal discussed the “Acceptable Use Policy” (IFBG-A). The policy was amended by the Board on October 7, 2004, (Emergency Passage) and on December 6, 2004, (Formal Passage) to address issues involving inappropriate content on classroom computers in the Limestone County School System. It provides that violation of the policy may result in “…disciplinary action including but not limited to warning; denied access; reprimands; suspension; termination; and/or legal action….” The Teacher indicated in writing on November 16, 2004, that he read and understood the Policy and that he preferred internet access filtered by the Central Office of the Board. The policy provides that

“All use of computers must be in support of education, research or business applications consistent with the purposes of Limestone County Schools…. Employees are to report any…problems with the security of any technology resources to their immediate supervisor and Director of Technology…. Computers are to be used only by the authorized owner of the account for the authorized purpose…. Use of the internet for personal activities is prohibited during school hours…. The computer will not be used to access Internet sites or programs which are offensive, illegal, or otherwise not suitable or proper for use in the Limestone County School System…. Electronic mail is provided for all employees for educational and instructional business purposes. Personal use of electronic mail is permitted as long as it does not violate the Limestone County School’s policy or adversely affect others. Employees are encouraged to read or respond to electronic mail during non-instructional time…. Limestone County Schools’ employees are responsible to ensure that students adhere to the Student Internet Acceptable Use Policy…. Use of non-educational games is prohibited…. Intentional wasting limited resources is prohibited.”



On Tuesday, March 28, 2006, the Teacher received a reprimand for using his



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classroom computer to show some of his students a video cartoon in which President George W. Bush was referred to in a song as an “asshole.” The Teacher testified that the volume was turned down when the “asshole” song was sung. The Superintendent began an investigation after the mother of a student complained. During the investigation, the Teacher received local, statewide and national attention. The Superintendent, the Republican Governor and the State School Superintendent each held a press conference. The State Republican Chairperson and the Teacher’s Republican legislative opponent appeared on Fox News. Teachers told the students not to talk about the Teacher being on the news about the Bush video because that would just cause more trouble. Eventually, the Teacher did not contest a reprimand by the Principal that said that

“…you may criticize public figures…without fear of reprimand [but]…a filmstrip which uses profanity to make the point…is not appropriate for a middle school classroom…. If the conduct occurs again, you run the risk of more serious disciplinary measures.”

After the reprimand, five or six hundred members of the American Family Association contacted the Superintendent about the matter. At the Hearing on July 27, 2006, the Attorneys for the Board and Teacher stipulated that the Bush video was not a part of the charges in this case.



About the time of the reprimand of Tuesday, March 28, 2006, a student’s father was asked by the media about the Bush video. The father asked the student’s mother to ask the student about videos shown in the Teacher’s classroom. The Teacher gave the Stanford Achievement Test to Eighth Graders from Monday, April 3, 2006, to Friday, April 7, 2006. After school on, April 7, 2006, the Limestone County Sheriff called the Superintendent to say that the Teacher had shown inappropriate things on his computer, other than the Bush video. The Teacher’s computer was confiscated the night of April 7, 2006. On Sunday, April 9, 2006, the Superintendent received a telephone call from the father of the student who, “a couple of weeks” earlier had been asked by her mother about videos in the Teacher’s classroom.



On Sunday, April 9, 2006, the Principal again received a telephone call from the Superintendent informing him that the Teacher possibly had shown an inappropriate video to his students. Two students in the same classroom were mentioned by name. These two students ultimately testified for the Board at the July 27, 2006, Hearing. The following day, Monday, April 10, 2006, the Teacher was placed on Administrative Leave. Thirty students were randomly selected from the Teacher’s classes including the two students whose names had been mentioned to the Principal. The Principal interviewed seventeen of these students and the two named students, on Monday, April, 10, 2006. The Principal asked the students whether they had witnessed inappropriate videos in the Teacher’s classroom and to tell what they knew. A short summary of what each student said was written by the Principal and read to the student. Each student was asked if the statement written by the Principal was correct and was told to change it, if it was not. Each student then signed the summary statement. The same process was followed on Tuesday, April 11, 2006, with the eleven remaining students who had not



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been reached on Monday. On Wednesday, April 12, 2006, two Assistant Principals gave each of the Teacher’s students a blank sheet of paper and asked them to write down in their own handwriting anything inappropriate that they observed in the Teacher’s classroom. Students were told that if they observed nothing improper to just sign the blank sheet of paper and turn it in. About half of the students did that. Statements that were collected included what students had heard from others. At the Hearing on July 27, 2006, the students’ statements, with the names redacted by the Board, were received into evidence without objection. The statements from all of the Teacher’s classes were consistent with the earlier summary statements that the Principal took from the 30 students. After the statements were processed, on Wednesday, April 12, 2006, a conference was held with the Teacher and his Alabama Education Association Representative. The Teacher was continued on Administrative Leave. Ultimately, a recommendation was made by the Superintendent to cancel the Teacher’s employment contract for the reasons in the notice to the Teacher which are set forth on pages 1 and 2 of this Decision.



At the Hearing on July 27, 2006, five of the Teacher’s Eighth Grade Science students from his first, third, fourth and sixth period classes testified for the Board. Each of the Board’s student witnesses appeared with one or both of their parents. Six Eighth Grade Science students from the Teacher’s first, third, fifth, and sixth period classes testified for the Teacher. One student from the prior school year testified. A Ninth Grade aide to the Teacher appeared by subpoena. The Eighth Grade Students were thirteen or fourteen years old while in the Teacher’s Science Class. The Ninth Grade aide was fifteen or sixteen years old. In the Teacher’s Science classroom, there were debates about evolution. As a part of his annual evaluation, the Teacher was observed for two days a year by an Assistant Principal. According to students who testified for the Board, the Teacher only lectured when he was being observed. Most of the time, he sat at the back of the classroom by the computer. The students learned by reading their Science book and completing worksheets. Sometimes, students would grade the worksheets, as they did in other teachers’ classes, but periodic standardized tests were graded electronically by Scantron. A student entered grades into the Teacher’s gradebook for one class. Half of the time, one student testified, the Teacher would be distracted by students’ questions and would talk about subjects other than Science. Other teachers would spend ten percent of their time talking about non-related subject matter, one student said. A student who testified for the Teacher said that the Teacher talked about politics on his “free time,” but that he did so to the point that the student was “sick and tired of it.” Several of the students who testified for the Teacher said that he stayed at the front of the classroom and read from the book. In the opinion of these students, the Teacher “taught like any other teacher,” was “a good teacher,” or a “better than average teacher” who “deserves to keep his job.”



According to a student witness for the Board, e-mail attachments from videos were shown by the Teacher two or three times a week. However, another student witness



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for the Board testified that “altogether [the Teacher] showed four or five videos. Sometimes students, who finished their worksheet, were invited to stand behind the Teacher at the computer. Sometimes, the Teacher would turn the computer screen toward the class. The e-mail clips were totally unrelated to Science. The Teacher asked the students, more than once, not to tell their parents about the e-mail attachments because that would get him in trouble.



A student witness for the Board testified that during the Teacher’s third period class, the student saw a video clip in which Hillary Clinton whipped Bill Clinton while he was strapped in a chair. “White stuff” was on his hand and on her face. In the bedroom “a different girl” was singing a song about cheating on Hillary. Bill Clinton put his hand inside her vagina. This student was caught cheating by the Teacher. This is the student whose father called the Superintendent on Sunday, April 9, 2006, before the students were questioned on April 10, 2006. This student talked to other students before she gave her statement to the principal, but “no one told [her] what to write down.” In the same classroom another student plus an additional classmate saw part of the video where Bill was “playing with himself” and Bill Clinton “fingered” Hillary (put his finger in her vagina). This student thought that the video characters were real people. This occurred around Christmas of 2005. The first student’s parents had talked with this student’s parents about the video a “couple of weeks” before the Principal’s investigation on April 10, 2006. Prior to giving her statement to the principal, this student did not talk with any other students about the video “except the ones that already knew about it.” Another student testified that in the Teacher’s sixth period classroom, before Thanksgiving, a student was invited back to the computer by the Teacher to watch the Bill Clinton video clip. Some of the rest of the class turned to see it. He saw Bill Clinton “playing with himself while he was strapped down…and Monica Lewinsky and Hillary Clinton whipping him with whips.” Hillary Clinton had “semen on her mouth.” Bill Clinton put his hand under Monica Lewinsky’s skirt and “pulled out his hand which showed green smoke and flies.” Before he gave his statement to the Principal, the student saw the first student who testified about the Bill Clinton video in the hallway, but didn’t talk to anyone before he wrote his statement. The Teacher lost some of this student’s tests, so the student ended up with a bad grade, but “the Principal took care of it.”



In the Teacher’s first period classroom, a student testified that other students were invited by the Teacher to look at a video clip of a woman on the beach in a sheer bathing suit with “all of her body parts visible… a cartoon version of her private parts.” This student walked by the computer while other students were viewing the video. This same student testified that around Christmas time, a video was shown to her class in which a “redneck” woman was called a “slut” and a “bitch.” She noted that the Teacher did not curse. She testified that the Teacher is a “good guy as far as his personality is concerned” and that she “likes [him] personally.” In the Teacher’s fourth period class, another student testified she had seen a “sexual bondage” video with “leather straps and chains”





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about a female cartoon character in a bikini who was making reference to “sexual contact.” This student had seen many “vulgar videos” using “vulgar words” with “sexual

content” in the Teacher’s classroom. She told her grandfather that this didn’t offend her because she did not want her grandfather, a political ally of the Teacher, to worry.



Two of the five students, in the Teacher’s third and sixth period classes, described a “topless cars” video seen on the Teacher’s computer from America’s Funniest Home Videos. Scantily clad fat men were washing convertibles while women in bikinis watched. In the sixth period class, a student hit the icon on the Teacher’s computer and the video appeared. Both students who were in the Teacher’s third period class saw a “fruit cake lady” video from the Jay Leno show. An “old woman” drinking beer and smoking cigarettes answered questions about sex using curse words such as “shit,” “damn,” and “the F word.” One of these students also testified about seeing people on the Teacher’s computer “passing around a joint, telling each other to take hits off of the joint,” although the Teacher “did not encourage his students to smoke or to smoke marijuana.” One of the five students from the fourth period class saw a joke from David Letterman’s show on the Teacher’s computer that didn’t have vulgar words. One of the students from the third period class saw a video about a mouse in a maze that surprised the viewer at the end. It was also seen on another teacher’s classroom computer. Several students saw a full length videotape of the movie Troy in another teacher’s classroom. Part of the videotape with “sexual content” was fast forwarded through in one classroom. In another classroom, the other teacher turned the screen away from the class for a part of the movie and then turned it back.



The Teacher’s student witnesses were contrary to the student witnesses for the Board. A student from the Teacher’s sixth period class testified that the Eighth Grade Science students watched video clips on the Teacher’s computer, just like they did in other classrooms. A student in the Teacher’s third period class never saw or heard anyone invited to watch a video or “anything vulgar.” A student in the first period class “never saw inappropriate videos,” nor “naked cartoon people,” nor “people doing bad things to each other.” A student in the Teacher’s first period class testified that the Teacher was on task about the same amount of time as his other teachers and that he was never invited back to watch a video. A student from the fifth period class of the Teacher saw nothing inappropriate.



At the Hearing on July 27, 2006, the Board offered, by affidavit the testimony of a Fairfax, Virginia, expert certified in En Case computer data recovery. The expert, who has examined more than one hundred computers for law enforcement agencies, examined the hard drive from the computer used by the Teacher in his classroom. Exhibits to the expert’s affidavit show that a jpeg temporary internet file was created on February 28, 2006, at 10:33:44 a.m. within a thumbs database file. It shows a computerized image of a woman with enlarged breasts. The affidavit also shows that two gif advertisements, or banner images, were created one second apart on March 2, 2006, at 10:42:53 a.m. and at



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10:42:54 a.m. One has no image but has the words “Animerape” and “Just Too Violent To Be True.” The other has a drawing of a woman on her back with a bare breast with the website shown as “Massive Anime.com.” On March 8, 2006, at 10:10 a.m.; four jpeg banner images were created. At 10:10:34 a.m. a banner image appears entitled “Asian Tease.” It has a woman in a bikini with other pictures that I cannot discern. One second later, at 10:10:35 a.m. two more banner images appeared. One is entitled “See Asians” and has small images that I cannot discern. The other is entitled “Kunt Fu” and shows the breast of a woman with smaller images that I cannot discern. Twenty-three seconds later, a fourth banner image appears at 10:10:58 a.m. entitled “Asia Porno.” It appears to show the breasts and vagina of a woman with other smaller images that I cannot discern. Two days later, on March 10, 2006, at 12:39:45 p.m., a jpeg banner image was created entitled “Eat the School Girl.” It shows a woman with her arms covering her bare breasts. Three days later, on March 13, 2006, at 10:07:02 a.m., a jpeg temporary internet file was created entitled “bedspread.” It shows a naked lady lying on her back with her legs up in the air and spread apart. All of the images were created on school days on the Teacher’s classroom computer. All except one image was created between 10:07 a.m. and 10:42 a.m. The other image was created at 12:39 p.m. The first image chronologically, a temporary internet jpeg file, does not have the date it was “first created,” but it was “last written on February 28, 2005.” All of the banner images were “first created” and “last written” at exactly the same time, as was the last image, the temporary internet jpeg file entitled “bedspread.” The Board’s computer expert concluded that all of the “…images occur in the path to the user [Teacher] in his temporary Internet files and, therefore, presumptively were the result of his Internet activity unless someone else was given access to his user ID.” On March 13, 2006, at 9:46:37 a.m., twenty minutes before the “bedspread” image was created, a Google search on the Teacher’s computer was made for the term “marijuana,” and the computer hard drive revealed that the website “marijuana world.com” was found in the jpeg temporary internet path of the Teacher’s computer. There is no “last written” date for this activity. The Board’s expert again concluded that, presumptively, the Teacher performed the marijuana computer activity since the searches were completed under his user name.



A computer expert testified for the Teacher. The expert tests software and hardware for Adtran, where he has been employed since 1997. He worked with computers at Intergraph and in a self-owned company for 13 years before Adtran. The Teacher’s expert did not examine the hard drive of the Teacher’s computer. According to the Teacher’s expert, the information stored on the hard drive of the Teacher’s computer could have come from several different sources. The banner images could have come from pop-up ads. A website could have been opened with evidence of the files recorded on to the hard drive of the computer when the files were intercepted by the School System’s filter. The files could have been saved to the hard drive, but most people would try to hide the file rather than save it. The files could be saved to an Ipod or Flash Memory (such as a “Thumb”Drive) or Zip Drive, but if there was a double click on the



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computer to view the image, it would be recorded on to the hard drive. The files could also come through e-mail, but they would be filtered out unless a “savvy user” changed the file name.



A sixteen year old ninth grader was either a first or third period aide to the Teacher when the aide was not in Driver’s Education class. The aide, who was subpoenaed to the Hearing by the Teacher, testified that he and another aide in the Ninth Grade used the Teacher’s computer without the Teacher’s consent when the Teacher was out of the classroom. The class would last for forty-five minutes, but the aides were there for an hour. The two aides “looked at pornography four or five times during the school year ” for “five, ten, fifteen or twenty minutes at the most.” Computer images that “he got from other students” were “pulled up on [the Teacher’s] computer.” The images were “possibly cartoons and real women without clothes.” In his words “If there was any porn on the computer, it was probably from me.” He “knew how to find the computer images of porn” looked at by him and the other aide. “Anything that has to involve porn, you know, all you had to do was type it in and push enter, and it would bring it right to you,” he said. He never saw anybody else on the computer except the Teacher, and the other aide.



Also testifying for the Teacher was a political ally. For some time now, the ally has been fighting the City of Decatur’s and the City of Madison’s annexation of part of Limestone County. He has been an unsuccessful candidate for the County Commission twice and for the State Legislature once. He thinks that the Teacher’s current situation started because the Teacher, who is the Democratic candidate for the State House of Representatives, favors an elected Superintendent of Education and de-annexation. Another witness testified as a character witness for the Teacher. Knowing the Teacher and his family since he was six months old, the witness never saw the Teacher get angry, curse or use inappropriate language. He tells the truth. Before the current Superintendent was appointed, the Teacher led an unsuccessful fight to keep longevity pay for Limestone County Board employees. The Teacher’s Alabama Education Association Representative also testified that, as a candidate for the State House of Representatives, the Teacher favors a vote of the people as to whether the Superintendent of Education is elected or remains an appointed position. The Alabama Republican Party announced that a primary focus of its 2006 campaign strategy is to take control of the Alabama Legislature from the Democrats. As to the Bush reprimand, the Superintendent announced that it was an administrative issue that was resolved and “over and done with.” The current situation should have been handled in the same way with progressive discipline. The issue was generated and “fanned” by the Republicans. The politics of it all affect the Superintendent, the Board, and the community. A majority of the School Board are Democrats. If the Bill and Hillary video was shown to students, that may have been in poor taste or an exercise of bad judgment and a decision would have to be made as to whether this caused irreparable harm or damage. Vulgar words like “hell, damn and shit” are in books in the library. He cannot stop spam messages and banner ads on his own computer. He gets about forty a day. Since the Teacher stands in place of the parents,



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the investigation should also have included what the parents allow the students to see in their own homes, the AEA Representative said. In the AEA Representative’s opinion, this matter “never should have gotten outside of the School System.” He was disappointed that progressive discipline was not followed in the Teacher’s case.



The Principal who testified has been the Teacher’s principal at West Limestone High School for the past four years. The Principal’s evaluations of the Teacher were 2’s and 3’s on a scale of 1 to 4, consistent with those done by the former Principal. The evaluations were based partially on classroom visits for two days per school year. The Principal was not aware of any videos being shown by the Teacher to his students when the Teacher’s evaluations were made. No other classroom teacher had their computer checked. In the past, the Teacher had been counseled about classroom management and time on task. A number of students thought that the Teacher was being blasphemous when he taught that, by evolution, man was derived from apes. However, the Principal received no complaints about this from parents. A review of the SAT scores for the students of the Teacher from the past four school years was admitted into evidence at the July 27, 2006, Hearing. From 2003 through 2006, the Teacher’s Science students scored in the 56th, 54th, 42nd, and 47th national percentiles. In the total battery of tests, the West Limestone Eighth Graders scored in the 56th, 55th, 44th, and 52nd national percentiles. The Teacher was not at West Limestone for the last two months of the 2006 school year, having been placed on Administrative leave on April 10, 2006.



The Principal’s goal every day is to be fair and consistent. He doesn’t work by threat or intimidation as an authority figure. The students can speak to him freely without fear of repercussion. The Governor and State Superintendent of Education had a press conference before the Teacher was investigated, but the Principal started out to try to find out if the accusations made were true or not. He “received heat” when the Teacher showed the Bush video and after the Teacher received a reprimand for that, but the politicians and the press didn’t have anything to do with the subsequent investigation involving the other videos. He just followed the necessary steps to bring the matter to the Board for their decision. His opinion as Principal is that the Teacher should not be returned to West Limestone County High School. The Superintendent made a recommendation that he agrees with because the Teacher allowed his students to view inappropriate videos and thereby showed poor judgment or a “lack of judgment…that would not change in the future.” The Principal knows nothing about another teacher showing the movie Troy in her classroom. In any event, the Eighth Grade Science Teacher cannot be trusted to make good decisions to be the teacher in the classroom and his situation has disrupted students, faculty, and the community. A parent of one of the Board’s student witnesses testified that she was extremely upset that the Teacher had betrayed her trust by showing pornographic material in the schools. “Most people know what this is about,” she said.



The Superintendent has held that position for the past four years. The Superintendent testified that students are instructed that they are not to be on a teacher’s



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classroom computer, that the computer lab is for students’ use. By allowing students to use his classroom computer, the Teacher violated the Board’s Employee Acceptable Use Policy (IFBG-A) as follows: The computer was not used by the Teacher for an “authorized purpose.” It was used for “…personal activities…during school hours.” The computer was used to “…access Internet sites or programs which are offensive, illegal or otherwise not suitable or proper for use in the Limestone County School System.” Even if a student rather than the Teacher created the images found on the Teacher’s computer, and even if the Teacher did not know about the images, the Policy would still be violated, because the Teacher is responsible for his classroom computer. It is true that Limestone County Schools have firewalls that filter and purge spyware on a daily basis, but some inappropriate material still gets around the firewall. In any event, the Superintendent relied on the students’ statements concerning inappropriate videos shown by the Teacher. The Superintendent does not know if some students embellished their statements, but, in his opinion, they told the truth. He trusts the students. The Superintendent is not aware of any other misconduct of the Teacher between the time of the Bush video reprimand on March 28, 2006, and the time the Teacher was placed on administrative leave for the other videos on April 10, 2006. The Superintendent concluded that the Teacher’s contract should be cancelled and that progressive discipline was not appropriate. In the Superintendent’s opinion, the Teacher’s conduct was “absolutely appalling,” conduct that “will not be tolerated in the [Limestone County] School System.” No other teachers’ computers were examined because the Superintendent had no “reasonable suspicion” to question others. As to the Teacher, the Superintendent addressed the issue, investigated it and made a recommendation without regard to “public pressure…what the Governor says… [or] the media.” In fact the Superintendent called the Governor and told him that the case was being processed pursuant to amendments to the Teacher Tenure Act passed during the Governor’s administration.



The Teacher’s grade book for the 2005-2006 school year shows that he had 151 Eighth Grade Science students in six Eighth Grade Science classes, distributed as follows: 1st period = 26, 3rd period = 22, 4th period = 25, 5th period = 26, 6th period = 29, and 7th period = 23. For each of the Eighth Grade Science classes, the Teacher’s grade book has grades for a vocabulary test and a chapter test for 15 chapters of the Eighth Grade Science Book, a vocabulary test and chapter test for two chapters together. Two nine weeks tests were given each semester. Three reports were graded each semester. Credit for Science articles was given each semester. Homework grades were recorded twice. One quiz grade and a computer lab grade were given. By contrast, for the 2004-2005 school year, the Teacher had 150 students in a Basic Skills and five Eighth Grade Science classes. In the first period Basic Skills class, the Teacher’s grade book has grades for 29 students for Writing Assignments or Reports, an English worksheet grade, grades for 2 Math Multipliers, Solving Equations, 7 Math Worksheets, Math Addition, Measurements, Exponents, Squares, Decimals, Comparisons, Punctuation grades, Verbs, Nouns, Capitalization, Letter Writing, a Report on the President and 4 Nine Week Test Grades. For each of the 121 Eighth Grade Science classes during the 2004-2005 school year, the Teacher’s grade book has grades for a vocabulary test and Science chapter test



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for 13 chapters of the Eighth Grade Science book, a grade for 2 chapters tested together, and a grade for a single chapter test. The grade book also shows 4 Nine Week Test Grades. Grades are entered for reports on Neutrons, Elements, Ozone, Endotherms and Exotherms, Planets, the Universe, the Solar System, the Sun, the Hubble Telescope, Cancer, Food, Calories, Heart, Arthritis, Disease, Cloning, Acid Rain, Radiation, and the Atmosphere. Three grades are for Cell Drawings and three grades are for Science Articles. The Teacher testified that during the 2005-2006 school year he lectured, that the students completed worksheets, and that the Nine Weeks standardized test and Standard Achievement tests were graded by Scantron. Teaching evolution was controversial. He “believes in God the creator of everything,” he testified.



Every school day, the Teacher logged on to his computer and left it running while he was out of the classroom on Hall Duty. He is computer illiterate and does not own an Ipod, a flash drive or a mini-flash. There is a computer lab for students at West Limestone County High School. Students have their own Internet Acceptable Use Policy which is referenced in Board Policy IFBG-A. Other teachers let students use their computers. He let students see “humorous” e-mails with 15 to 30 second video attachments sent to him by teachers or former teachers. This occurred no more than a total of 10 to 15 minutes during class time for the 2005-2006 school year. Other teachers have the “maze,” the “fruit cake lady” and the “topless carwash” videos on their computers. A teacher in another classroom showed an R rated, sexually explicit, movie, Troy, to her classes.



The Teacher has Ninth Graders who served as his student aides during Planning Period, which began at 9:36 or 9:41 a.m. The aides were sometimes alone in the Teacher’s classroom when he was on Hall Duty. After the Teacher was on Hall Duty, he would find the aides on “funnyshit.com,” but he would “get on to them.” He “would not let them be on [his] computer unless [the students] asked him.” The Teacher knew nothing about student aides using his computer for accessing pornography, but this could have been prevented by not letting the students use his computer, in accordance with Board Policy. He never saw banner advertisements that were on his computer hard drive until the Conference with the Board. He does not know how to find banner ads on the computer or how to “call them up.” He encourages students not to smoke or use drugs. He would not promote the use of marijuana or the “F” word. He disagrees with what some of the student witnesses for the Board said. Some of the students’ statements are “just an attack” because “they may not like me.” “A parent get together” could explain this, the Teacher testified. He did no show inappropriate videos or let students go by his computer at the back of the classroom. He does not recall showing any sexually explicit videos or showing any student images, such as the Bill and Hillary video, or a woman in a sheer bathing suit. In the words of the Teacher,

“I have never gone to porn. I don’t even go to it at my home. Why would I do it in a school system where I know that they monitor it? And any of this that came





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in , why wouldn’t I think it’s not inappropriate if the school system didn’t filter it out and other teachers are passing it around to one another?”





APPLICABLE LAW



The Teacher Tenure Act, Code of Alabama, 1975, at section 16-24-8, provides that a teacher’s contract of employment may be cancelled for “…incompetence, insubordination, neglect of duty, immorality, failure to perform duties in a satisfactory manner…or other good and just cause, but…not for political or personal reasons.” These terms have been defined by the Appellate Courts of Alabama. Incompetency means disqualification, inability or incapacity. Pratt v. Alabama State Tenure Commission, 394 So. 2d 18 (Ala. Civ. App., 1908), cert. denied, 394 So.2d 22 (Ala. 1981); Pinion v. Alabama State Tenure Commission, 415 So.2d 1091 (Ala. Civ. App., 1982). Incompetency can refer to lack of legal qualifications or fitness to discharge the required duty. It may mean lack of physical or intellectual or moral fitness. County Board of Education of Clarke County v. Oliver, 116 So.2d 566 (Ala.1959). Insubordination is the refusal to obey some order which a superior officer is entitled to give and entitled to have obeyed so long as such order is reasonably related to the duties of the employee. Heath v. Alabama State Tenure Commission, 401 So.2d 72 (Ala.1981); Jones v. Alabama State Tenure Commission, 408 So.2d 145 (Ala. Civ. App.,1981). Insubordination on the part of a teacher may be evidenced by failure to comply with the rules of the Board of Education. Pinion v. Alabama State Tenure Commission, 415 So.2d 1091 (Ala. Civ. App.,1982). The willful refusal of a teacher to obey an order given to him by a school principal is insubordination. Heath v. Alabama State Tenure Commission, 401 So. 2d 68 (Ala. Civ. App., 1981), writ denied 401 So.2d 72. Insubordination may require some willful action or failure to act by a teacher while neglect of duty describes a failure to do what one is required by law or contract to do. Franklin v. Alabama State Tenure Commission, 482 So. 2d 1214 (Ala. Civ. App.,1985); Pratt v. Alabama State Tenure Commission, 394 So. 2d 18 (Ala. Civ. App., 1980), cert. denied 394 So.2d 22). There is no basis for dismissal under section 16-24-8 of the Teacher Tenure Act where the Board makes no finding that a teacher’s claimed immorality had affected his competency or fitness a teacher. Drake v. Covington County Board of Education, 371 F.Supp. 974 (M. D.Ala.1974). I find no Alabama cases defining “failure to perform duties in a satisfactory manner.” Other good and just cause includes any cause which bears a reasonable relation to the teacher’s fitness or capacity to discharge the duties of his position. Alabama State Tenure Commission v. Madison County Board of Education, 213 So.2d 823 (Ala. 1968). Good cause is not limited to some form of inefficiency or misconduct on the part of the teacher, but includes any ground put forth in good faith which is not arbitrary, irrational, unreasonable or irrelevant to building up and maintaining an efficient school system. Rogers v. Alabama State Tenure Commission, 372 So. 2d 1313 (Ala.Civ.App., 1979). A tenured teacher’s employment cannot be terminated for political or personal reasons. Berry v. Pike County Board of Education, 448 So. 2d 315 (Ala.1984);





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Ellenburg v.Hartselle City Board of Education, 349 So. 2d 605 (Ala. Civ. App.,1977).



Pursuant to section 16-24-10 of the Teacher Tenure Act,

“…[t]he Hearing officer shall determine which of the following actions should be taken relative to the employee: Cancellation of the employment contract, a suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action against the employee.”



It has been said that

“…academic freedom does not give carte blanche to conduct which can reasonably be deemed both offensive and unnecessary to the accomplishment of educational objectives, and…such questions are a matter of degree involving judgment on such factors as the age and sophistication of the students, the relevance of the educational purpose, and the context and manner of presentation.” (78 ALR 3d 19 “Sexual Conduct as ground for dismissal of teacher,” at section 13 [b] “Assignment, distribution, or classroom discussion of objectionable writings – Violation of curriculum regulation,” citing Brubaker v. Board of Education, 502 F 2d 973 (C.A. 7, Ill. 1974), cert. denied 421 U.S. 965, and clarified 527 F 2d 611 (C.A. 7, Ill. 1975), involving Eighth Graders and advertising brochures for the movie “Woodstock”).



As to incompetency, it has been held that a teacher’s remarks to a classroom of mixed boys and girls, relating to sex, virginity and premarital sex relations were

factors, among others, affecting competency, (4 ALR 3d 1090, “What constitutes ‘incompetency’ or ‘inefficiency’ as a ground for dismissal or demotion of public school teacher,” at section 7 “Personal conduct and beliefs of teacher or principal,” citing Pyle v. Washington County School Board, 238 So. 2d 121 (Fla. App. 1, 1970)).



As to insubordination, it has been said

“…in…cases in which insubordination was held not to have been sufficiently alleged or established,…one or more of the following circumstances was present: (1) the alleged misconduct was not proved; (2) the existence of a pertinent school rule or a superior’s order was not proved; (3) the pertinent rule or order was not violated; (4) the teacher tried, although unsuccessfully, to comply with the rule or order; (5) the teacher’s motive for violating the rule or order was admirable; (6) no harm resulted from the violation; (7) the rule or order was unreasonable; (8) the rule or order was invalid as beyond the authority of its maker; (9) the enforcement of the rule or order revealed possible bias or discrimination against the teacher; or (10) the enforcement of the rule or order violated the First Amendment right to free speech or academic freedom….[I]n most…cases decided against the teacher on the insubordination issue, the court emphasized the teacher’s negative attitude by characterizing the misconduct in such terms as willful, deliberate, fraudulent,





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evasive, defiant, persistent, chronic, continual, prolonged, or repeated. Often the misconduct continued after a warning to cease.” (78 ALR 3rd 83 “What constitutes ‘insubordination’ as grounds for dismissal of public school teacher,” at section 4, “Factors affecting determination).



As to neglect of duty, it has been said that

“Neglect by a teacher of his…duties is…a ground for discharge. Dismissal for persistent negligence is warranted when a teacher fails to comply with a directive of supervisors on numerous occasions. In fact, a single act continued for a period of time may support dismissal for persistent negligence. A neglect of duty is also shown where a teacher fails to …comply with school rules and directives. Willful neglect of duty may be shown where a teacher uses profanity in class and reads sexually explicit materials to [his] students.” (16 B McQuillin Municipal Corporations 46:14.40 (3rd ed.) “incompetence; neglect of duties,” (citations omitted).



As to immorality, a teacher has been dismissed for unseemly conduct including knowingly exhibiting in a photography class an unauthorized film of a pornographic nature. (Shurgin v. Ambach, 442 NYS 2d 212 (N.Y. 1981, aff’d 451 NYS 2d 700 (1982)), cited at 16 B McQuillin Municipal Corporations 46:14.75 (3rd ed.), “Incompetence, neglect of duties – Miscellaneous grounds.”)



An article at 17 Causes of Action 335, “Cause of Action to Challenge Discharge of Public School Teacher on Grounds of Immoral or Criminal Condcut,” sets out matters to be considered in cases where immorality of a teacher is alleged. The article states in pertinent part that

“Two steps may be involved in showing that the [teacher’s] conduct justified his…discharge. First, the [teacher] may have to establish the fact that the conduct occurred….Second, it may be necessary to show that the conduct rose to the level of ‘immorality,’ ‘conduct unbecoming at teacher,’ or other similar standards established as grounds for the discharge of teachers….Whether conduct is immoral may depend, at least, in part, on whether there is a nexus between the conduct and the teacher’s fitness to teach, i.e., on whether a teacher’s conduct has an adverse effect on students, faculty, or school….immorality on the part of a teacher, is sometimes defined as conduct which offends the morals of the community and is a bad example to children whose ideals a teacher is supposed to foster and elevate….In some jurisdictions, the [Board] may be able to justify the discharge of a teacher by showing that the teacher’s conduct lacked any positive educational aspect or legitimate professional purpose.” (17 Causes of Action 335, at Section 14, “Conduct Justifying Discharge, Generally,” citations omitted)….The discharge of a teacher on grounds of immoral conduct may be justifiable where the teacher exposed students…to obscene or profane language, or to pornography….Thus, discharges have been upheld where…a teacher



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permitted obscene jokes or profanity in the classroom. See, e.g.,Katz v. Ambach, 442 NYS 2d 212, (1981), aff’d 436 NE 2d 1324 (1982).” (17 Causes of Action 335, at Section 15, “Conduct Justifying Discharge,Generally…Obscenity, Profanity, or Pornography,” some citations omitted.)



The article continues:

“[i]t generally will be necessary for the [Board] to show that the [teacher’s] conduct on which the discharge was based had an adverse effect on students, other teachers, or the school, i.e., that there was a nexus between the [teacher’s] conduct and his…ability to perform the duties of a teacher….The existence of an adverse effect is the primary factor in determining whether the required nexus is present….Ordinarily, it will be sufficient for the [Board] to show that the [teacher’s] conduct was substantially likely to cause harm in the ordinary course of events; it is not necessary to show that harm actually occurred….In some circumstances…the conduct is evidence of a character flaw which poses a direct potential threat to students who might associate with the [teacher] in the future….Students are generally inclined to emulate their teachers….The age and maturity of the teacher’s students may be relevant since the potential for harm may be greater with young and impressionable students than with older students who may have established their own values to a greater degree. See, e.g., Lile v

Hancock Place School District, 701 SW 2d 500 (Mo. App. 1985) [students aged 14 to 16]; Board of Education v. Jennings, 651 P 2d 1037 (N.M. App. 1982), later proceeding 701 P 2d 361 (1985)…[W]here the [teacher’s] immoral conduct was ongoing, the [Board] may be able to show that failure to discharge the [Teacher] would have been a breach of the [Board’s] own duty to teach moral values because the retention of the [teacher] could have been construed as approval of the [teacher’s] conduct. A showing that the continued employment of a Teacher would have an adverse effect on students, other teachers, or the school will not necessarily be precluded merely because the teacher has come to regret the conduct in which he…engaged, has been rehabilitated or is unlikely to repeat the conduct” (17 Causes of Action 335, at section 16, “Nexus or Adverse Effect,” some citations omitted; see also 38 Am Jur Proof of Facts 3d 63, “Defense of a Teacher Charged with Unfitness to Teach,” at sections 5 and 6, “Likelihood that teacher’s retention would pose a danger of harm.”)

The article further states that

“Assuming that the [teacher] can show that his…conduct did not have an adverse effect on students, other teachers, or the school, the [teacher] may be …likely to succeed in establishing remediability where it also is possible to show that the conduct did not occur frequently and is not likely to recur. This is because while a single incident of relatively harmless conduct may be remediable, a continuing pattern of conduct may not be. For example, Beranek v. Joint Independent School

District, 395 N.W. 2d 123 (Minn. App. 1986)….a teacher’s overall record…may be important to support a claim of remediability by showing that the [teacher] had on the whole a satisfactory record and that any misconduct was



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uncharacteristic. See In re Shelton, 408 NW 2d 594 (Minn. App. 1987); Beranek, above; Downie v. Independent School District, 367 NW 2d 913 (Minn. App. 1985); …and State ex rel Wasilewski v. Board of School Directors, 111 NW 2d (1961), cert. denied 370 U.S. 720 (1962). (17 Causes of Action 335, at section 9, “Remediable Conduct,” some citations omitted)…”[A] warning requirement may be appropriate in the case of teaching, administrative, or disciplinary deficiencies which are likely to cause little immediate harm and can often be corrected….By contrast…emotional damage to…students or the damage to a school’s ability to maintain order and discipline which would result from the continued employment of a teacher who failed to adhere to accepted standards of conduct would not be remedied by a warning, even if the warning was effective in preventing the conduct from recurring. See Fadler [v.State Board of Education, 506 NE 2d 640 (Ill. 1987)]…; McBroom [v. Board of Education, 494 NE 2d 1191 (Ill., 1986)]….Requiring a warning in a case of immoral or criminal conduct may also be inappropriate on the ground that a teacher generally should not need a warning to know that such conduct is wrong, and because the requirement would be meaningless insofar as a teacher would be able merely to promise not to repeat the conduct. See McBroom, above.” (17 Causes of Action 335, at section 17,

“Conduct Not Remediable”.



It is said that a

“…teacher may be immediately dismissed for irremediable deficiencies or actions…conduct is irremediable if it (1) causes damage to the students, faculty or school and (2) could not have been corrected if the teacher’s superiors had warned here…[The] second prong of this test is not applicable if the conduct in question is ‘immoral conduct’ that has no legitimate basis in school policy or society….

Board of Education of Joliet Tp. High School District No. 204 v. Illinois State

Department of Education, 770 NE 2d 711 (3rd District Ill. 2002), appeal denied. (cited at 38 Am Jur Proof of Fact, 3d 63, “Defense of a Teacher Charged with Unfitness to Teach,” section 1, “Introduction.”)



Federal law prohibits federal internet access or eligibility for internet services at discount rates for school districts that do not have an internet safety policy. This policy must include the operation of a “technology protection measure” that prohibits minor’s access to sites that are obscene, contain child pornography, or are harmful to minors. A school district must certify that it has complied with theses requirements when it applies for federal funds or eligibility for services at discount rates. (Enhancing Education Through Technology Act of 2001, 20 U.S. Code 6777 (a) (1) (A) and (B), and 6777 (a) (2) (A) and (B); Children’s Internet Protection Act, 47 U.S. Code 254 (h) (1) (B) and (h) (5) (A), (B), (C); 47 U.S. Code 254 (l) (1) (A), (i) through (v); cited at Am Jur 2d NTS, Computers and the Internet, section 4, “Requirements for Certain Schools for Purchase of Computers or with Computers Having Internet Access”; 1 Education Law 2:26,





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“Computer Use, Internet Access, E-Mail, Instant Messaging Issues – Generally.”and see U.S. v. American Library Association, Inc., 539 U.S. 194 (2003), upholding similar requirements for public libraries).



The Enhancing Education Through Technology Act defines a minor as “…an individual who has not attained the age of 17” (20 U.S. Code 6777 (e) (4)). “Harmful to minors” is defined as

“…any picture, image, graphic image file, or other visual depiction that – (A) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion; (B) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and (C) taken as a whole lacks serious literary, artistic, political, or scientific value as to minors.” (20 U.S. Code 677 (e) (6)). “The terms ‘sexual act’ and ‘sexual contact’ on the Enhancing Education Through Technology Act have the meanings given those terms in section 2246 of Title 18” (20 U.S. Code 6777 (e) (8)) [“The term ‘sexual act’ means’ (A) contact between the penis and the vulva…however slight; (B) contact between the mouth and the penis, [or] the mouth and the vulva…; (C) the penetration, however slight, of…the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or (D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” (18 U.S. Code 2246 (2)). “[T]he term ‘sexual contact’ means the intentional touching, either directly or through the clothing of the genitalia…, groin, breast, [or] inner thigh…of any person with an intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person.” (18 U.S. Code 2246 (3)].



In the Enhancing Education Through Technology Act,

“The term ‘obscene’ has the meaning applicable to that term under section 1460 of Title 18.” (20 U.S. Code 6777 (e) (7).

Although 18 U.S. Code 1460 does not seem to contain a definition of “obscenity,” one is found in Miller v. California, 413 U.S. 15 (1973). The Miller definition of obscenity is the same as the “harmful to minors” definition, supra, found at 20 U.S. Code 6777 (e) (6), except that the U.S. Code section adds the word “minors.”



As to the geographical area determining community standards of obscenity,

“The authorities are not yet in agreement…. The question has not yet been decided by the United States Supreme Court. The answer may depend upon the nature – federal or state- of the statute under which the issue of obscenity arises.”





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(5 ALR 3d 1158, “Modern Concept of Obscenity,” section 9 (a), citations

omitted).

See Pierce v. State, 296 So 2d 218 (Ala., 1994), cert. denied 419 U.S. 1130 (Ala., 1975); and Gilbert v. Montgomery, 337 So 2d 140, (Ala. Crim. App., 1976), applying a statewide standard. But see Ashcroft v. American Civil Liberties Union, 535 U.S. 564 1700 (2000), where

“…the Court…made clear that the community standard prong [of the first, prurient interest, element] was determined by reference to the local community; thus obviating disputes about whether a jury correctly had its finger on the pulse of the contemporary ‘national’ community. The First Amendment does not, the Court concluded, ‘require that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City’,”(2 Internet Law and Practice 24:21, “Limitations on Free Speech – Sexually Oriented Speech – Obscenity”).

And see 16 B CJS Constitutional Law 826, where Ashcroft, supra, is cited for the proposition that

“Speech or writing is obscene when, and only when, as viewed by an average person applying contemporary community standards, and taken as a whole, it appeals to the prurient interest in sex, portrays sexual content in a patently offensive manner, and has no serious literary, artistic, political, or scientific value.”

Ashcroft, supra, was written by Justice Thomas with two Justices joining and five Justices concurring in the judgment. See also 50 Am Jur 2d Lewdness, Indecency, and Obscenity 7, “Contemporary Community Standard; ‘average person’ ” which, with citations omitted, states that:

“As used in the Miller test, the term ‘average person’ is comparable to the ‘reasonable person’ often referred to in tort litigation…. The determination of obscenity is for the juror or judge, not on the basis of his or her personal upbringing or restricted reflection or particular experience in life, but on the basis of ‘contemporary community standards.’ The determination whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value is not made on the basis of ‘contemporary community standards’ but by using uniform and objective national standards, since the value of the work does not vary from community to community based on the degree of local acceptance it has won.”



A summary of other Federal laws concerning computer technology and internet communications is found at Am Jur 2d NTS Computers and the Internet – Summary; 13 Temple Political and Civil Rights Law Review 253, “Hear No Evil, Speak No Evil, See No Evil: Protecting the Nation’s Children from Sexually Explicit Material on the Internet”; 153 Education Law Reporter 469, “Protecting Children From Internet Harm (Again): Will the Children’s Internet Protection Act Survive Judicial Scrutiny?”; 26 Seattle University Law Review 125, “The Indecency of Unsolicited Sexually Explicit

E-mail: A Comment on the Protection of Free Speech v. the Protection of Children;” 65



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Ohio State Law Journal 451; “Finding the Right Approach: a Constitutional Alternative for Shielding Kids from Harmful Materials Online;” 7 ALR Fed 2d 1, “Validity, Construction, and Application of Federal Enactments Proscribing Obscenity and Child Pornography or Access Thereto on the Internet;” 61 Am Jur Proof of Fact 3d 51, “Cyberporn: Transmission of Images by Computer as Obscene, Harmful to Minors or Child Pornography.”



Concerning state laws, it has been said, with citations omitted, that

“[T]he states have the power to prohibit the…distribution of obscene literature to minors, based on the state’s interest in protecting the welfare of children…. Statutes which prohibit the…distribution of obscene materials to children are not unconstitutionally vague where they contain both a definition of ‘obscene materials’ as well as well-drawn standards for judging obscenity that are readily determinable by persons of reasonable intelligence….[T]o be valid, such statutes must be construed to require direct presentation to a specific…group of juveniles rather than merely presentation to a general public which includes juveniles.” (50 Am Jur 2d Lewdness, Indecency, and Obscenity 30, “Sale, distribution, or presentation of obscene material to children.”)



Alabama has an Anti-Obscenity Enforcement Act, Code of Alabama, 1975, section 13A-12-200.5, that is consistent with the foregoing. It provides that

“It shall be unlawful for any person to knowingly or recklessly distribute to a minor…any material which is harmful to minors.”

Definitions are found at Code of Alabama, 1975, section 13A-12-200.1 as follows:

“MINOR. Any unmarried person under the age of 18 years….

DISTRIBUTE. To…display, exhibit, show, present, provide, broadcast, transmit…play….

KNOWINGLY….means knowingly, as defined by Section 13A-2-2(2), “doing an act involving a material when the person knows the nature of the material…. [Section 13A-2-2(2) provides that “A person acts knowingly…when he is aware that his conduct is of that nature or that the circumstances exist”]

RECKLESSLY…means, recklessly, as defined by Section 13A-2-2(3), doing an act involving a material when the person knows the nature of the material. [Section 13A-2-2(3) provides that “A person acts recklessly…when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation….”]

MATERIAL. Any…picture, drawing, animation, photograph,…video tape, pictorial representation, depiction, image, electrical or electronic [or] reproduction….

HARMFUL TO MINORS….means: a. The average person, applying contemporary standards, would find that the material, taken as a whole, appeals to the prurient interest of minors; and b. The material depicts or describes sexual



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conduct, breast, nudity or genital nudity, in a way which is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors; and c. A reasonable person would find the material, taken as a whole, lacks serious literary, artistic, political or scientific value for minors.”



As to political parody, the First Amendment of the U.S. Constitution may protect cartoons that [are] important expressive mediums.” See 118 ALR 5th 213, “First Amendment Protection Afforded to Comic Books, Comic Strips, and Cartoons.” As to Freedom of Speech Constitutional considerations involving a teacher, it is said, at 146 Education Law Reporter 21, “School Districts and the Internet: Practice and Model Policy,” at footnote 142, with some citations omitted, that

“[T]he Supreme Court has affirmed the right of school districts to reserve the public school’s internal mail system for district purposes, as long as the regulation on expression is reasonable and not an attempt to suppress expression merely because school authorities disagree with the speaker’s views.” See Perry

Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 46…(1983).

The same footnote 142 at 146 Education Law Reporter 21, supra, continues concerning Constitutional privacy issues:

“[W]hile all employer’s, private and public, must honor statutory guarantees of employee privacy, public school employers must also observe the Constitution’s Fourth Amendment prohibition against unreasonable searches and seizures. However, the public employers’ need for supervision, control, and efficiency in the workplace outweighs even reasonable expectations of privacy by employees. See…United States v. Simons, 29 F. Supp. 2d 324, 328 (E.D. Va., 1998); where the Court ruled that the defendant, a state employee, had no reasonable expectation of privacy with regard to any Internet use at work.” (Some citations omitted).

See also United States v. Simons, 206 F 3d 392, 398 (4th Cir., 2000), affirmed after remand, where the Court upheld the computer policy that permitted routine, regular audits of computers. This case is cited at 191 Education Law Reporter 557, “Teacher Expectation of Privacy and Classroom Searches in Public Schools.”



As to Freedom of Speech, speech which takes place in the context of state employees using state computers does not involve matters of public concern implicating protection by the First Amendment Freedom of Speech provisions. Urofsky v. Gilmore, 167 F 3d 191 (4th Cir., 1999). There, state university professors challenged a state law that restricted state employees from accessing sexually explicit material on computers that are owned or leased by the state, unless relating to “a bona fide, agency-approved research project, or other agency-approved undertaking.” The Court noted that

“The challenged aspect of the Act does not regulate the speech of the citizenry in general, but rather the speech of state employees in their capacity as employees. It cannot be doubted that in order to pursue its legitimate goals effectively, the Commonwealth must retain the ability to control the manner in which its



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employees discharge their duties and to direct its employees to undertake the responsibilities of their positions in a specified way. The essence of Plaintiffs’ claim is that they are entitled to access sexually explicit material in their capacity as state employees. Because Plaintiffs assert only an infringement on the manner in which they perform their work as state employees, they cannot demonstrate that the speech to which they claim entitlement would be made in their capacity as citizens speaking on matters of public concern.”

This case is cited at 15 Number 24 Legal Notes for Education l, “Legal Issues in Cyberspace, Part II”; 8 Number 21, Private Education Law Report 1, “Issues Faced by Schools in the Digital Age: Part II”; 1 Education Law 2:26, “Computer Use, Internet Access, E-mail and Instant Messaging Issues – Generally”; 2 Smolla and Nimmer on Freedom of Speech 27:23, “Restricting access to sexually explicit material via government computers”; and 5 Boston University Journal of Science and Technology Law 14, “Internet Access: Constitutional Rights of State Employees.”



As to potential liability of the school system,

“[I]f student exposure [to harmful or offensive information via the web] occurs because of inadequate supervision by responsible staff, or because the school district failed in its loco parentis role, a cause of action for negligent supervision may result in district liability, especially if the actual harm is substantial. Teachers who supervise students…should continuously and assiduously monitor all students’ computer screens during student use. In addition, a district technology professional with access to all school-supported Internet accounts should routinely track web sites visited by student[s] and follow up on inappropriate web activity or objectionable site visits according to established district policies.” (146 Education Law Reporter 1, “Legal Aspects of Internet Accessibility and Use in K-12 Public Schools: What Do School Districts Need to Know?” at section VI, citations omitted).



Concerning the Teacher’s aide, he may be subject to sanctions for violating the Limestone County Board of Education’s Policy as to Student Use of school computers. He may also be disciplined if his conduct substantially and materially disrupted school operations -Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (U.S., 1969) or is lewd conduct contrary to the educational mission of the school. (Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). Both cases are cited at 1 Education Law 2:27, “Freedom of Expression and Violence at School.” See also 179 Education Law Reporter 1, “Student Misconduct Involving the Misuse of Technology.” As to the banner ads observed by the aide

“… ‘pop-up’ windows are windows continuing advertisements that appear on the screen, usually without any triggering action by the computer user…[and] only when [the] host website is called up by the user. ‘Pop-up ads,’ which are created when [the] host website directs [the] internet browser to open another window and display particular content, are not sent to specifically predefined destinations, as is





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e-mail and are similar to newspaper advertisement[s].” (Am Jur 2d NTS Computers and the Internet 83, “Pop-up ads.”)

Concerning the banner ads and two images found on the hard drive of the Teacher’s computer, electronic mail data that has been deleted, lost, or otherwise eliminated from a computer system can nevertheless be recovered and reconstructed by an expert for evidentiary purposes. (41 Am Jur Proof of Facts 3d 1, “Recovery and Reconstruction of Electronic Mail as Evidence.”) A forensic report on the contents of a computer, known as an En Case Report, may be admissible. An En Case Report “…is a forensic program sold to law enforcement…[t]hat’s used for obtaining images of hard-drives.” (State v. Levie, 695 NW 2d 619) (Minn. App. , 2005).



If misconduct is found, appropriate discipline becomes an issue. Arbitrators consider such factors as (1) the fairness of the employer’s investigation, (2) the extent of the employee’s misconduct, (3) whether the employee knew that the misconduct was prohibited, (4) whether the employer had tolerated such misconduct, (5) whether the employer is potentially liable for the employee’s misconduct, (6) whether the misconduct is serious enough to warrant serious discipline, and (7) whether there is court precedent that applies to the misconduct. 77 Chicago-Kent Law Review 823, “Disciplining Sexual Harassers in the Unionized Workplace: Judicial Precedent Is Influencing Arbitrator Attitudes, Awards.”



An arbitrator has upheld a company’s decision to terminate an employee who was viewing pornography on the internet and sending pornographic e-mails. In State of Minnesota Department of Administration, 117 Labor Arbitration Reports (BNA) 1569 (2002), the employee repeatedly accessed at least 30 internet web sites and more than 100 internet web pages showing acts of violence against naked women. This was discovered after an employee saw the picture of a naked woman on a co-worker’s computer. An investigation of the company’s 30 employees resulted. The arbitrator upheld termination of the employee in question because of the violent and pornographic nature of the material and because the employee’s discharge was consistent with company discipline as to other of its employees. The company had terminated another employee for spending excessive time on the internet accessing adult content and other non-work related internet web sites. The arbitrator relied on an expert’s opinion who considered it more serious to send rather than receive the offensive e-mails and even more serious to search out the offensive material on the internet. Degrees of inappropriateness were ranked by the expert on the following scale, from bad to worse:

“(1) sexual jokes and cartoons with nudity, (2) more sexually explicit materials, including nude pictures and stories or jokes about sexual acts; (3) much more sexually explicit and violent pictures and stories, and (4) child pornography.”

This case is cited at 59 APR Dispute Resolution Journal 26, “Inappropriate Use of E-mail and the Internet in the Workplace: The Arbitration Picture.” This case is also cited at 1 Employment Privacy Law 8A:42. In that article, the author noted that the arbitrator expressed no privacy concerns over the employer’s extensive investigation of its employees.



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Arbitrators have reduced terminations to suspensions in several cases involving misconduct on the internet. An article at 77 Chicago-Kent Law Review 823, supra, at “X. Discipline Is Reduced for Less Serious Conduct,” describes two such cases. In the first case, PPG Industries, Inc. v. Brotherhood of Painters, Local 579, 113 Labor Arbitration Reports (BNA) 833 (1999), an employee downloaded hard core pornographic material from the Internet onto his work computer and sent it to co-workers. This was discovered after a sexually related e-mail message was left open on one of the computers provided for common use by a number of employees. An investigation of the e-mail messages of over 100 employees resulted. The investigation revealed that 25 percent of the employee’s e-mail files contained material of a sexual nature, including sexual jokes sent to other employees, and sexually graphic pictures. The employer terminated the employee for violating the company’s sexual harassment and electronic communications policies and for lying about his conduct. The employee had worked for the company for nine years. The arbitrator reinstated the employee with loss of nine months back pay. The arbitrator noted that the recipients of the e-mails welcomed it, that others, who were not disciplined, lied in the investigation, and that the employee previously had an unblemished record. The arbitrator concluded that

“This Arbitrator must do what he believes to be fair under the circumstances while not doing anything that could be considered as condoning the abhorrent behavior by the grievant. This is a fine line to walk.”

This case is also noted at 59 APR Dispute Resolution Journal 26, “Inappropriate Use of E-mail and the Internet in the Workplace: The Arbitration Picture.” At page 29 thereof, the author notes that “[v]iewing or e-mailing pornographic content does not necessarily justify discharge.” Moreover, this case is noted at 680 Practising Law Institute/Litigation 657,” He said What? About Whom? To How Many People? Employer Responses to Employee Misuse of the Internet.” There, at page 677, it is said that the arbitrator ordered reinstatement without back pay in the PPG case “…due primarily to length of service and lack of prior discipline in the grievant’s file.” This case was also noted at 1 Employment Privacy Law 8A:42, “Challenges to Employer discipline based on electronic surveillance and monitoring,” for the proposition that the employee has no right of privacy as to the contents of the computer since the company owns it.



The second arbitration case wherein discharge was overturned or converted is Chevron Products Company v. International Union of Operating Engineers, Local 351, 116 Labor Arbitration Reports (BNA) 272 (2001), also cited at page 677 of 680 PLI/Lit 657. There, the employee transmitted, by e-mail, a pornographic video involving a sexual episode between a man and a donkey. Pursuant to the company’s written policy prohibiting inappropriate use of company e-mail, the employee was discharged. To find the source of the video clip, all employee computers were searched. The arbitrator reduced the termination to a three-day suspension because the employee had been with the company for 19 years with good performance and because other employees had used the e-mail system to send sexually related jokes without being disciplined. This case, cited at 1 Employment Privacy Law 8A:42, supra, notes that the arbitrator suggested that



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“…by spot checking the e-mail messages sent over the Company computers, from time to time, the Company could determine whether anyone was violating the Company’s e-mail policy. In that way, the Company would not have to wait for someone to complain before doing something about violations of its said Policy. The fact that it chose not to do so might have been a signal to the employees that so long as no one complained, they were not guilty of violating said policy.” (116 Labor Arbitration Reports at 279.)

As to this, the author of the article, at 1 Employment Privacy Law 8A:42, supra, opined that

“[a]pparently it did not occur to the arbitrator that the message that may have been sent by the employer in not routinely monitoring the e-mail messages or computer usage of its employees was that it respected their privacy interests.”



Employees in several cases have been suspended for searching out pornography at work. In the three cases that follow, the arbitrator upheld suspension as a remedy for misconduct. These three cases are noted in an article at 59 APR Dispute Resolution Journal 26, “Inappropriate Use of E-mail and the Internet in the Workplace: The Arbitration picture.” In the first case, Farm Service Agency, U.S. Department of Agriculture and American Federation of Government Employees, Local 3354, 118 Labor Arbitration Reports 1212 (BNA) (2003), the employee, who was president of the union, looked at 34 sexually oriented web sites over 1,325 times. He claimed that he was doing research to challenge the company’s new policy which was more restrictive as to certain web sites. The arbitrator upheld the employee’s disciplinary suspension, finding that the employee did not have to look at so many web sites to do the research. In the second case, City of Madison and AFSCME, Local 60, 2001 WL1922775 (2001), the employee spent about 25 percent of his normal work time visiting a pornographic web site. The employer suspended him for 45 days for the violation of work rules that explicitly prohibited “…the use of computer resources including internet and/or e-mail.” The employer also made it a work rule violation “…to access, view, or obtain any ‘adult entertainment,’ pornographic or obscene material….” The arbitrator reduced the suspension to 30 days. In a third case, Mobil Oil Corporation and Oil, Chemical and Atomic Workers International Union, OCAW Local 1-675, 27 Labor Arbitration Information System 3263 (1999), an employee viewed pornographic images on his work computer that could be viewed by anyone who “happened on the scene.” The employer’s sexual harassment policy banned the “display” of sexually suggestive material at the workplace. The employer’s 3 day suspension of the employee was upheld by the arbitrator. In the article at 59 APR Dispute Resolution Journal 26, supra., the author concludes that when

“…discipline…becomes a real possibility…. The arbitrator should consider, among other things, whether the employer had disseminated work rules limiting employee use or access to e-mail and the Internet, the employer’s past practice regarding enforcement of these rules, whether the employer had a sexual harassment policy, the employee’s prior work record, and the effect of the misuse on the employer and its employees.”



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Various factors have been relied upon by arbitrators to support their decisions concerning computer misuse by a teacher. Three such arbitration cases are cited at 31 William Mitchell Law Review 303, “Terminating Public School Teachers for Cause Under Minnesota Law.” In the first case, Gillson v. Independent School District number 116, Case 98-TD-13 (1998), a teacher spent late nights at the school on his computer visiting sites with pictures of nude and partially undressed women, some of which he downloaded along with two short pornographic movie clips. The school had no policy on computer use. The arbitrator found that the teacher’s misconduct was “incredibly stupid,” but “does not rise to a level that sustains immediate discharge.” Neither party had proposed a lesser penalty, so the arbitrator found that she lacked the authority to issue a lesser penalty than discharge. In the second case, Education Minnesota v. Special School District No. 1; Minneapolis, BMS Case No. OO-TD-4 (2000), the arbitrator upheld the discharge of a high school instructor who downloaded approximately seventy-five to eighty pages of pornographic material from his computer at school during preparation time. The arbitrator noted that some conduct is so clearly objectionable that specific directives and warnings of consequences are unnecessary. “A teacher viewing and downloading pornography in a high school setting, while ‘on the job’ would know, or should have known, that accessing such materials was highly inappropriate and not without serious consequences if discovered,” the arbitrator said. In the third case, Education Minnesota v. Independent School District No. 622, North St. Paul-Maplewood-Oakdale, BMS Case No. 02-TD-8 (2002), an arbitrator ordered a one-semester suspension without pay and a psychological evaluation with counseling by a qualified professional of the school district’s choosing and at the teacher’s expense. In that case, the teacher had shown one objectionable computer image to young students and kept other inappropriate images on a district computer. The arbitrator itemized the evidence that had been important to her decision as follows:

“I consider this teacher’s audience of vulnerable adolescents and their emerging response to sexuality; the teacher’s admission that he was familiar with the two relevant District policies and knew his computer images would violate them; the possibility of unwanted and unexpected intrusion of sexual images on District staff whose duties are to monitor the District’s computers; the apparent appeal of vulgar sexual images for the teacher; his lack of understanding, even at hearing of his misconduct; parental concerns about returning this teacher to the classroom…. Balanced against those matters are these facts: only one student complained about the cactus pictures and then only to her friends, not to the District; the four images found on his computer were not seen by the students; no witness refuted his denial about the cartoons; the teacher’s ten-year record of service without incident; the relative ease with which the teacher’s inappropriate computer use can be rectified; the reluctance of the courts to uphold termination if behavior can be changed; the willingness of the District to propose a lesser penalty than discharge.”



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On review of an arbitrator’s decision involving teacher misuse of a school computer, Courts have upheld the arbitrator’s decision or vacated the decision and remanded the case to the arbitrator. In Board of Education, Peru Central School District v. Stephney, 800 NYS 2d 811, (Supreme Court of Clinton County New York, 2005), an “excellent” and “popular” second grade teacher, who had been teaching for 5 years, used one or more classroom computers to search the internet for pornographic images, “…using terms too offensive [for the Court] to repeat….” Computer searches were made by the teacher on six different days during school time for eight periods of time ranging from 1 minute to 50 minutes. Students were not present in the classroom when the computer searches were made. The security software installed on the computer finally ended the teacher’s computer searches. The school’s computer policy prohibited the use of the internet to view images that were “obscene” or “immoral” and stated that an employee could lose network privileges for a violation. The teacher signed a statement regarding appropriate use of the computers, as did all employees of the school district. An arbitrator found the teacher guilty of insubordination and neglect of duty as a result of his searching for and viewing inappropriate, immoral and obscene images on the internet in violation of the school district’s internet policy. By statute, the arbitrator could impose a written reprimand, fine, suspension for a fixed time without pay, and dismissal. The arbitrator could also direct that the teacher participate in remedial action such as a leave of absence with or without pay, continuing education, counseling, or medical treatment. The arbitrator imposed a penalty of suspension without pay for the remainder of the school year and “retained jurisdiction” for two years. The arbitrator warned the teacher that, should the teacher violate the policies of the school district in a similar manner during the two year period, the arbitrator would impose the penalty of termination. On appeal, the Supreme Court of Clinton County, New York, vacated the arbitrator’s decision because it violated public policy. The Court noted that

“…while the internet provides a wonderful addition to the teaching tools available in schools, its presence also presents the possibility for damaging and far-reaching abuse. For precisely that reason, the federal legislature passed the Child Internet Protection Act which aims to protect children from pornography available on the internet. The hammer to ensure this event is avoided is the federal government’s control of the purse strings. This case involves a guardian, custodial and role model for seven and eight-year old children placing pornography on computers the children access on a regular basis. The [teacher’s] illicit use of the computer continued, became more frequent and lengthened in time as he was not found out and even started to occur while the children were still in the school building. It is undisputed the [teacher] did not report his inappropriate use of the computer until he was caught by the blocking software.”

Based on the foregoing, the Court concluded that the teacher

“…neglected his responsibilities as a teacher while placing pornography within the easy reach of young children, behavior that is explicitly forbidden. Since the hearing officer not only exceeded his authority [by reserving jurisdiction for two years]…but also violated public policy with the penalty portion of the award, that portion must be vacated and the matter remanded for a determination of an



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appropriate penalty…in light of the findings before the previously agreed-upon hearing officer.”



Board of Education, Peru Central School District v. Stepheny, 800 NYS 2d 811 (2005), is cited at 35 Journal of Law and Education 229, “Recent Developments in the Law, Recent Decision, Primary and Secondary Education”; 56 Syracuse Law Review 931,” 2004-2005 Survey of New York Law, Local Government,”…IV. Education”; 5 New York Arbitration 200, “Effect of partial invalidity of award,” and 209, “Award violates public policy”; 94 New York Jurisprudence 2d Schools, Universities and Colleges. 325, “Penalties,” and 328 “Review”; and 23A Carmody-Wait 2d 141:233, “Award violates public policy,” and 264, “Province of court and arbitrator,” and 1084, “Disciplinary determinations”.



In Bertolini v. Whitehall City School District Board of Education, 744 NE 2d 1245 (Ohio App., 2000), discretionary appeal not allowed 742 NE 2d 146 (Ohio, 2001), the Court reversed and remanded a School Board’s decision to terminate an Associate Superintendent who violated the Board’s computer use policy regarding e-mail. Suggestive e-mails were sent to a co-worker. The Court reasoned that

“(1) the recipient of the e-mails ignored them; (2) the school board’s computer policy allowed the use of the e-mail system for personal use; and (3) the board never instructed the teacher to stop using the e-mail system in an unauthorized manner.” (SF 12 American Law Institute-American Bar Association 541, “Taming the Cyberspace Workplace: Legal Issues for Employers Re: E-mail, Voicemail, and the Internet,” at VII.)

In Steuber v. Gallagher, 812 So 2d 454 (Fla. 5th D. Ct. App., 2002), the Court affirmed, on procedural grounds, the decision of the State Education Practices Commission to revoke a high school teacher’s certificate. The teacher admitted that he accessed “inappropriate web sites” on a school computer but denied accessing “teenage pornography.” He also admitted that he battered his wife, adversely affecting her ability to work.



Other Court cases tangentially mention teacher discipline for computer misuse. In Fisher v. Wellington Exempted Village Schools Board of Education, 223 F Supp 2d 833, (N.D. Ohio, 2001), a principal was allowed to bring a retaliation claim for criticizing a school board. The Board gave a three day suspension to a high school teacher who downloaded a pornographic web site depicting teenage girls onto a school computer. At the same time the Board issued the teacher a contract to coach junior varsity girls’ softball. In Wagner v. Tuscarora School District, 2006 WL 167731 (M.D. Pa., 2006), the Court ruled in favor of the Board on a tenured high school band director’s claims that included conspiracy, defamation, tortuous interference with contract, and breach of contract. The teacher had been terminated for sexual harassment of a co-worker, accessing pornographic material via a school computer, telling sexually suggestive and obscene jokes in the presence of students, inappropriately touching female students and making inappropriate comments of a sexual nature about students. The teacher did not



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seek a hearing to contest his dismissal. In Ex Parte Pitts, 822 So 2d 418 (Ala., 2001), an elementary school principal was terminated after the Board of Education was given an affidavit by two officers of a Parent-Teacher Organization. The affidavit accused the principal of engaging in sexual misconduct on school premises with school employees, of stealing money from the school and the PTO, of punishing students excessively, of using school computers to log on to internet pornography sites, and of encouraging one affiant to embezzle money. The two PTO officers were sued for libel. The Alabama Supreme Court allowed the principal’s attorney to depose Board members as to the impact of the affidavits, if any, on the Board’s decision to terminate the principal. Millslagle v. Rapid City Area Schools, Number 50711, (Unemployment Insurance 7/01), is cited at 6 Number 9 South Dakota Employment Law Letter 3 (2001). There, a high school computer teacher, who had taught for 25 years, was terminated. A pornographic site was displayed on one of the computer screens in the teacher’s classroom one morning when he arrived at school. Unable to close the site before the students arrived, the teacher turned off the monitor. During class, he as able to close the site without the students seeing the screen. Pornographic sites were also found after the teacher no longer had access to school computers. Because the School District did not prove that the teacher intentionally accessed pornographic material, the teacher was allowed to draw unemployment compensation benefits. Compare Autoliv ASP, Inc. v. Department of Workforce Services, 29 P 3d 7 (Utah Ct. App., 2001), in which two private sector employees were denied unemployment compensation benefits. The Court noted that both employees violated company policy:

“…[One employee] sent eleven non-business related messages containing jokes, photos, and short videos that were sexually explicit and clearly offensive in nature. [The other]…sent approximately twenty-five non-business related messages containing the same type of sexually explicit and offensive conduct.”

…FN3…The potential for liability is increased by the fact that this material can be viewed inadvertently by others as it is displayed on a computer screen, see Board of Educ. V. Grandfest, 2000 NJAGEN LEXIS, 1 at *5 (involving teacher who allowed pornographic images on his computer screen to be viewed by a student.”

The Court concluded that

“E-mail transmission of sexually explicit and offensive material such as jokes, pictures, and videos, exposes the employer to sexual harassment and sex discrimination lawsuits….Our society has ceased seeing sexual harassment in the workplace as a playful inevitability that should be taken in good spirits and has awakened to the fact that sexual harassment has a corrosive effect on those who engage in it , as well as those who are subjected to it….In today’s workplace, the e-mail transmission of sexually explicit and offensive jokes, pictures, and videos constitutes a flagrant violation of a universal standard of behavior.”

Based on the foregoing, the Court reversed an administrative board’s decision. A similar result was reached in Fugate v. State Department of Industrial Relations, 612 So 2d 1226 (Ala. Civ. App.; 1992), cert. denied, Ala. 1993. In that case an employee was denied unemployment compensation benefits for causing profane and sexually suggestive



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remarks to be transmitted to the computer screen of a co-worker. Because the employee had been disciplined before for sending sexually explicit photographs over office computer screens after work and for making a derogatory racial remark to a co-worker, his most recent misconduct constituted “repeated misconduct” that disqualified him from unemployment compensation benefits. See also Deutsch v. Kroll Associates, Inc., 2003 WL 22203740 (S.D.N.Y., 2003), involving COBRA benefits. There, the Court held that genuine issues of material fact precluded summary judgment on claims for failure to provide notification of COBRA benefits. The Court noted that

“I]n particular, defendants have adduced competent evidence that [the employee] was terminated not just for violating the terms of his administrative leave, but also for assaulting a co-worker, sending and receiving pornographic material via the Internet from his office computer, and other such behavior that a reasonable fact finder could conclude constituted ‘gross misconduct’.”



CONCLUSIONS OF LAW



This case is not about deprivation of due process, privacy, freedom of speech or equal protection. The Teacher had the right to confront and cross examine adverse witnesses. There was no objection to the affidavit of the Board’s computer expert. Unsworn statements were not considered. Because the School System owns the computer used by the Teacher, privacy is not involved. Free speech is not involved because the School Board, through its technology protection measures and its computer use policy, lawfully regulates material that is harmful to minors in compliance with federal and state law. No other teachers were investigated by the Superintendent because there was no reasonable suspicion as to any other teacher.



This case is about material that is harmful to minors being displayed on a Teacher’s classroom computer. Contemporary community standards for the State of Alabama do not permit such display. The Bill and Hillary video clip was seen on the Teacher’s classroom computer by at least three students in the Teacher’s third period class and by at least one student in the sixth period class. A student in the Teacher’s first period class walked by while other students were watching a video clip of a cartoon version of a woman on a beach in a sheer bathing suit with all of her body parts visible. In the Teacher’s fourth period class, a student saw a sexual bondage video clip with leather straps and chains and a cartoon character in a bikini making reference to sexual contact. A reasonable person in Alabama would find that the foregoing material; taken as a whole, (1) appeals to the prurient interest of minors, (2) depicts sexual conduct or nudity in a way that is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors, and (3) lacks serious literary, artistic, political or scientific value for minors.



I have not considered obscene material found on the hard drive of the Teacher’s classroom computer because the Teacher’s student aide took the blame for that. I have not considered video clips from the Jay Leno show, from America’s Funniest Home



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Videos or about a “redneck woman” since the content of these is in dispute. I have not considered a video clip about people smoking marijuana since the student’s original statement as to smoking made no reference to marijuana. The video clip about a mouse in a maze is not obscene.



I find no political or personal reason for the Board’s decision to cancel the contract of the Teacher. His involvement with trying to keep longevity pay for teachers predated the current Superintendent. His efforts to have an elected rather than appointed Superintendent are apparently a part of his current campaign as a Democratic candidate for the State House of Representatives. However, a majority of the School Board that cancelled his contract are Democrats. I also note the credible testimony of the Superintendent, that his recommendation to the Board was made without regard to the media, the Governor, or public pressure, after a fair and a thorough investigation.



Based on the foregoing, I conclude that the Board has proved, more likely than not, allegations numbered 1, 8 and 9 in the Board’s notice to the Teacher, set forth at pages 1 and 2 of this Decision. That is to say, I find that

1. The Teacher lets students watch videos and computer images in his classroom rather than engage in teaching.

8. In violation of Board Policy IFBG-A [the Teacher] has used his computer to access Internet sites or programs which are offensive and otherwise not suitable or proper for use in the Limestone County School System.

9. The Teacher in violation of school board policy, has pornographic images on his computer.

The remaining charges allege that the Teacher “shows” or “has shown” videos or computer images. From the testimony, it is unclear that the Teacher actively showed offensive video clips or computer images. Instead, it appears that the Teacher exchanged e-mails with other teachers and allowed an aide access to his computer that resulted in pornographic material being downloaded onto the school computer. In any event, it is not disputed that the Teacher asked his students not to tell their parents about the e-mail attachments, that they had seen in his classroom, because that would get him in trouble.



A teacher who lets students watch videos and computer images in his classroom rather than engage in teaching could have his contract cancelled for incompetence, neglect of duty or failure to perform duties in a satisfactory manner, pursuant to the Teacher Tenure Act. However, I am convinced that the Teacher has done an adequate job of teaching Eighth Grade Science, based on a review of the Teacher’s lesson plans, grade books, evaluation and testimony of the Teacher’s student witnesses. I note a decline in SAT scores for Eighth Grade Science for the 2005-2006 school year. However, I also note that the SAT tests were given just after distractions surrounding the investigation and the reprimand involving the Bush video.



The Teacher violated lawful Board Policy as to computer use 1) by using his computer to access Internet sites which are offensive and 2) by having pornographic



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images on his computer (as a result of failing to properly monitor a student aide). For this, the Teacher can have his contract cancelled pursuant to the Teacher Tenure Act for incompetency (lack of moral fitness), insubordination (willful failure to comply with Board policy), neglect of duty (failure to do what one is required by law or contract to do), or immorality (affecting competency or fitness as a teacher). Based on the evidence in this case, I do not find that the conduct of the Teacher was immoral. Nor do I find that the Teacher lacks moral fitness so as to be incompetent or unfit as a teacher. As the Principal testified, the Teacher’s conduct exhibits poor judgment or lack of judgment.



The Teacher’s conduct does exhibit insubordination by a willful failure to comply with the Board’s Acceptable Use Policy as to computers. The Teacher acknowledged the policy in writing and was briefed on the Policy at a Faculty Meeting. The Policy warns of specific disciplinary action for its violation, including termination. Use of the computer to access Internet sites of programs which are offensive, illegal or otherwise not suitable or proper for use in the Limestone County School System is specifically forbidden by the Policy. As noted by the Superintendent, even if a student rather than the Teacher created the images found on the Teacher’s computer, and even if the Teacher did not know about the images, the Policy was still violated when the Teacher allowed his student aide or other students to use the classroom computer for personal activities during school hours. The Teacher is responsible for his classroom computer.



The Teacher’s conduct also exhibits neglect of duty, that is, failure to do what a teacher is required by law or contract to do. Implicit in a teacher’s contract is the fact that a teacher is a role model by which young and impressionable students establish their own values. By repeatedly failing to properly monitor his classroom computer, the Teacher allowed his students to access material harmful to minors. Instead of adhering to acceptable standards of conduct, the Teacher told the students not to tell their parents about what they had seen on the video clips, because that would get him in trouble. This is directly contrary to the role a teacher undertakes when a student is entrusted by a parent to a teacher’s care. This conduct also subjects the School System to a possible belief on the part of students, parents, faculty and the community that such conduct, if not acted upon, is condoned by the School Board, thereby resulting in potential liability.



I have considered the possibility of progressive discipline in this case based on the following factors: 1) the Teacher is well-qualified, by education and experience; 2) the Teacher has taught for 10 years with only a reprimand (that is irrelevant to this case by agreement of the Attorneys; 3) the Teacher has been recognized by the School Board for successfully leading a campaign to gain an increase in school funding; 4) the Teacher has been President of the local chapter of the Alabama Education Association; 5) the Teacher has been recognized by the AEA as Parent of the Year; 6) the Teacher’s conduct is uncharacteristic with the rest of his record; 7) the Teacher’s misconduct is characterized as a lack of judgment; 8) Counseling may remedy poor judgment; (9) under the Board’s agreement as to Computer Use, a teacher could choose not to have a classroom computer;



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and 10) suspension with loss of pay sends a message to the students, parents, faculty and community that material harmful to children will not be tolerated on the classroom computers of the Limestone County School System.



I have also considered cancellation of the Teacher’s employment contract, based on the following factors: 1) parents entrust a Teacher with the care of a student, expecting the teacher to be a role model; 2) eighth grade students, ages thirteen to fourteen, are involved; 3) the students are at an impressionable age as to matters of sexuality; 4) the Teacher acknowledged the Board’s lawful computer usage policy; 5) the Teacher impliedly knew that images on his computer would violate the Policy since he told students not to tell their parents about them; 6) the Teacher did not dispute the Bill and Hillary obscene video, but instead merely did not recall showing it; 7) the video clips in question were seen in several class periods by a number of students; 8) the material in question was viewed during class time, but none of it related to Eighth Grade Science; 9) parents and the community have concerns about returning the Teacher to the classroom; and 10) continuing the Teacher as a classroom teacher subjects the School Board to potential liability.



I find that the reasons for the cancellation of the Teacher’s contract outweigh the reasons for the Teacher’s suspension without back pay.



Accordingly, I find that the action of the Board in canceling the Teacher’s contract is due to be upheld based on evidence presented at the July 27, 2006, Hearing and applicable law. This the 16th day of August, 2006.



__________________________

Joseph L. Battle

Hearing Officer



































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