Everett v. Board of Education of the Hampton Community School District , 1983 Iowa App. LEXIS 1600 ( 1983 )

OXBERGER, Chief Judge

(dissenting).

I respectfully dissent.

The majority focuses almost exclusively upon those aspects of the record which tended to support the position of the school administration. However, the evidence on the other side, although it is acknowledged by the majority, strikes me as being overwhelming.

In this appeal at law, we review the whole record, according to the weight to the Board’s findings as measured by the seven statutory grounds upon which relief may be granted. Iowa Code § 279.18 (1983); Board of Education of Fort Madison Community School District v. Youel, 282 N.W.2d 677, 679-80, 684 (Iowa 1979).

The record contains a number of evaluations of the plaintiff’s performance made by principals under whom she had worked in the Hampton Community School District over a period of eleven consecutive school years. All of these evaluations (insofar as they are in the record before us) up to 1980 were more than satisfactory. A summary of her administrative evaluations for the school years 1974 through 1981 reveals that in each of the years prior to 1980 she received satisfactory or outstanding evaluations in each of the seventeen areas covered. During those years, she received an evaluation of “improvement needed” only once, in 1974, with regard to her relationship to parents. On the following evaluation, dated 1976, her performance in that area was marked “satisfactory,” and the evaluator wrote, “You have shown growth in your ability to gain the confidence of the parents. Keep working on it.” In 1977, another evaluator noted that she “uses many supplemental materials and techniques to reinforce concepts,” and that she was “showing growth in making provision for individual needs and weaknesses.” Keith Sersland, the principal who eventually recommended her termination, evaluated her performance in 1978. Her overall performance was' rated by Mr. Sersland as satisfactory. He cheeked lines on the form which said, with regard to parents, that she “communicates with understanding and tact,” “interprets school policies and practices in a positive manner,” “willingly seeks to confer with parents,” and “has difficulty establishing rapport with parents.” He wrote the following comment: “I do feel you are working to improve your communications with parents, especially in a more positive manner.” Mr. Sersland rated her initiative and enthusiasm as “outstanding,” and said that she “does more than is expected,” “arouses enthusiasm in students and colleagues,” is “creative in solving problems, has experimental attitude,” and wrote that she was “always eager to try new methods and materials.” Mr. Sersland also rated her voice, diction, and usage, her professionalism, her knowledge of her subject, and her use of various instructional techniques and methods as outstanding. In all other respects, she was found by Mr. Sers-land to be satisfactory. Mr. Sersland found that her motivation of students was satisfactory, and that she was “highly enthusiastic, incorporating student ideas and developing pride in achievement,” “occasionally uses new ideas to motivate students,” “strives to motivate every student to achieve to his maximum ability,” “uses numerous innovative practices to stimulate learning,” and “stimulates student interest and effort.” He wrote that there were “always lots of extra things in the room for students to look over and enjoy.” Mr. Sers-land found that her sensitivity to individual differences was satisfactory, noting that she showed insight into the developmental levels of all students, that she knew the individual strengths and weaknesses of each student, that she recognized learning disabilities and provided for individual differences. He commented: “You continue to provide more individual educational activities. Hope you continue to improve in this area.”

Mr. Sersland’s evaluation in 1979 was basically the same. He again found that she communicated with parents with understanding and tact, that she interpreted school policies and practices in a positive manner, and that she willingly sought to confer with parents. Her responsibility and reliability were found by Mr. Sersland to be outstanding as were her initiative and enthusiasm, her voice, diction, and usage, her professionalism, and her knowledge of the subject. With regard to motivation of students, Mr. Sersland continued to find that she was enthusiastic, that she incorporated student ideas into their work and helped to develop pride in their achievements, that she used new ideas to motivate them, that she was striving to motivate every student to achieve to his maximum ability, that she used numerous innovative practices to stimulate learning, and that she stimulated student interest and effort. • Mr. Sersland continued to find that she was sensitive to individual differences among the students, and commented favorably upon her instructional techniques and methods. He noted that she was very thorough in her evaluations of students, and he had not a single negative comment to make about the plaintiff or her methods.

In 1980, Mr. Sersland’s evaluations suddenly took a turn for the worse. He found that the plaintiff was not outstanding in any area. She needed improvement in a number of areas, even in her “voice, diction, and usage,” where he found that she had to “use a milder vocal tone when leading class discussions,” whereas in prior years, he had found that she was outstanding in this area, and had commented that her mastery of this area was a “strong tool in the classroom.” Mr. Sersland complained, in his evaluations of the plaintiff, that she relied too heavily on her own judgment of what was best for the student. The remainder of the evaluation follows the same pattern.

The 1981 evaluation was even worse. The most revealing comment made by Mr. Sersland was the following: “Your open criticism of new educational programs, students and administration has a very negative and demoralizing effect on fellow staff members.” Mr. Sersland expressed dissatisfaction with the plaintiff’s attitude toward the student self-concept program, and added: “Also, your criticism towards the training program and teaching of the new health program has been less than ideal.” In addition, in commenting on her professionalism, Mr. Sersland wrote: “Your informing fellow teachers of confidential evaluations and meetings concerning your teaching methods as well as your criticisms of the administration, are acts of poor professional ethics.”

The record contains numerous letters and notes from parents that are strongly supportive of the plaintiff. They indicate that at least some of her students thought that she was an excellent teacher. Some of the parents expressed a belief that her methods, though not identical with those of all other teachers in the school system, were nevertheless beneficial to their children. They indicated that the plaintiff had gone out of her way to contact them when their children were having problems, and that she was helpful in resolving those problems. One parent, whose daughter had a learning disability, expressed considerable satisfaction over the plaintiff’s treatment of her daughter. She wrote:

I personally feel that if the parents of today would be more concerned with the quality of their children’s education rather than whether the child thinks their teacher is really “great” because he or she plays the guitar or some such nonsensical thing, we would all be much better off.

Numerous parents expressed satisfaction over the fact that their children developed good study habits as a result of the plaintiff’s teaching methods, and indicated that their children had flourished as a result of being in her class.

Reviewing the record as a whole, I cannot help but conclude that the plaintiff, who had eleven years of experience and had been evaluated as being satisfactory or outstanding in every respect over all of those years by a number of different evaluators, including Mr. Sersland, could not have changed so radically between 1979 and 1980 as to deserve to be terminated. The comments made by Mr. Sersland on his evaluation of her work suggest that those evaluations may be motivated by his own pique at her criticisms of the philosophy of education which he evidently attempted to implement in the school rather than by any change in the plaintiff’s performance in the classroom.

Teacher tenure is too important for us to run roughshod over it. It is vital, not only for the well-being of the teachers themselves, but for the schools and the general public that the teaching profession be insulated from personal or political influence and from the malignant power of arbitrary administrators or school boards. The establishment of tenure laws was motivated by a public perception that “not infrequently the best teachers were discharged for inadequate reasons.” McSherry v. City of St. Paul, 202 Minn. 102, 277 N.W. 541, 544 (Minn.1938). The objective of a teacher tenure law is to protect teachers against unjust removal after they have undergone an adequate probationary period. This is not only for the protection of the teachers, but it is in the public interest, since it gives teachers a degree of security which they would not otherwise have and provides for continuity of the educational programs of the community. “It was enacted for the benefit and advantage of the school system, by providing such machinery as would tend to minimize the part that malice, political or partisan trends, or caprice might play. It established merit as the essential basis for the right of permanent employment.” Id., 277 N.W. at 544, emphasis in original.

Schulz v. Board of Education, 315 N.W.2d 633 (Neb.1982) is virtually identical with the instant case. There, too, a tenured teacher was terminated on the ground that she was allegedly incompetent. Her performance evaluation records from at least 1974 through 1980 indicated average or above average or superior performance in almost every category. From time to time, she apparently failed to receive complete approval from some of her students’ parents. The court noted that she seemed to be a teacher “who is serious and devoted to her teaching, though, because of an introverted personality, she does not smile as much as she might.” Her students, like those of the plaintiff in the instant case, complained that they had too much homework. As in the instant case, in which one parent complained that her child suffered from sleeplessness as a result of his contacts with the plaintiff, several parents in Schulz testified that their children became ill or suffered from nerves because of Mrs. Schulz’s teaching methods, but none of their claims were supported by any medical testimony. The court in Schulz held that “before a tenured teacher may now be terminated, the school board must meet its burden of establishing, as a matter of law, the existence of just cause, which, as defined by the statute, is more than dissatisfaction by school board members or parents.” Id. at 637.

More to the point, the court in Schulz concluded:

There is little doubt that Mrs. Schulz might do herself a favor by being less rigid. As Mr. Bechtel [her principal] testified, Mrs. Schulz is “an old-fashioned teacher.” Perhaps such teachers do not win popularity contests, but neither can they be said to be incompetent. Teachers are not required to entertain their students, only to teach them.

Id. at 638.

I agree. It is clear to me that the superintendent in the instant case has not met his burden of proving that the plaintiff was terminated for just cause. A preponderance of the evidence in the record does not establish that there was just cause for terminating her contract. Rather, the opposite is the case. There is ample evidence that the plaintiff is a highly competent, professional teacher who is deeply concerned for the education of the students who are placed in her charge. It is precisely for such teachers that the legislature enacted those provisions of Iowa Code sections 279.13-279.19 (1983) which conferred tenure upon teachers in this state. See Bruton v. Ames Community School District, 291 N.W.2d 351 (Iowa 1980).

The evidence in the record clearly points to the conclusion that the plaintiff is being punished by loss of her livelihood for her disagreement with the principal’s educational philosophy and her expression of such disagreement. Teachers do not lose their first amendment right of free expression when they undertake to educate our children. Moreover, even teachers in elementary schools are entitled to a reasonable degree of respect for their professionalism.

With respect to the academic freedom of teachers of high school students..., federal courts dealing with the subject have upheld two kinds of academic freedom: The substantive right of a teacher to choose a teaching method which in the court’s view served a demonstrated educational purpose; and the procedural right of a teacher not to be discharged for the use of a teaching method which was not proscribed by a regulation, and as to which it was not shown that the teacher should have had notice that its use was prohibited.

Webb v. Lake Mills Community School District, 344 F.Supp. 791, 799 (N.D.Iowa 1972).

Although this opinion was directed to a case having to do with high school students, the court noted that “the rationale must extend to high school and even elementary teachers.” Id. To be sure, the state interest in limiting the discretion of teachers grows stronger as the age of the students decreases, and teachers of younger students do not have the same “academic freedom” that teachers of college students or even high school students enjoy, but there can be no doubt that even in elementary schools, teachers are entitled to a degree of freedom of expression which must include reasonable flexibility in teaching methods. They ought not to be required to adhere rigidly to methods prescribed by each principal over a lifetime of service. We should take judicial notice of the fact that educational doctrines are subject to almost as many vicissitudes as are the fashions in the women’s garment industry, moving unpredictably from rote memorization to the theory that we should educate the “whole child”; from learning by doing to learning centers and modules; from emphasis on the three R’s and rigid discipline to experimentation with new curricula and “positive reinforcement.”

The legislature has recognized the professional status of the teachers of this state. Experienced teachers who have achieved tenure and have successfully educated a generation of our young citizens should not be subject to dismissal simply because they are applying teaching methods that have fallen out of fashion in the eyes of a new principal.

The defendants have not met their burden of proof. I would reverse and reinstate the plaintiff in her position.

JOHNSON, J., joins this dissent.