Pursuant to Neb. Ct. R. Of Prac. 12 and 2E(3), the only official version of the opinions of the Nebraska Supreme Court and the Nebraska Court of Appeals appears in the bound volumes of the Nebraska Reports and the Nebraska Appellate Reports.
AILY, APPELLEE, V.
ALSO KNOWN AS
Filed February 5, 1999. No. S-97-933.
Schools and School Districts: Evidence: Appeal and Error.
of review in a proceeding in error from an order of a school board subjecting
a teacher to disciplinary action is whether the school board acted within
its jurisdiction and whether there is sufficient evidence as a matter of
law to support its decision.
2. ____: ____: ____. In a proceeding in error from an order of a school board
, the evidence is sufficient as a matter of law if the school board could
reasonably find the facts as it did on the basis of the testimony and exhibits
contained in the record before it; evidence is “substantial” or “sufficient
as a matter of law,” or constitutes “some competent evidence,” if a judge
could not, were the trial to a jury, direct a verdict.
Words and Phrases.
Corporal punishment, as prohibited in Neb. Rev. Stat
. § 79-295 (Reissue 1996), is reasonably understood to be the infliction
of bodily pain as a penalty for disapproved behavior.
4. ____. Both words of the term “corporal punishment” are commonly given
effect; the act must be corporal, in that it inflicts pain on the physical
body of the victim, and it must be punishment, such that the intent of the
actor is punitive.
Schools and School Districts.
Neb. Rev. Stat. § 79-258 (Reissue 1996),
while not authorizing corporal punishment, does provide authority for school
teachers and administrators to use physical contact short of corporal punishment
to the degree necessary to preserve order and control in the school environment
Constitutional Law: Statutes: Presumptions: Proof.
Statutes are afforded
a presumption of constitutionality, and the unconstitutionality of a statute
must be clearly established before it will be declared void.
Constitutional Law: Statutes.
Even when a law is constitutionally suspect
, a court will attempt to interpret that law in a manner such that it is
consistent with the Constitution.
Constitutional Law: Statutes: Proof.
The burden of establishing the unconstitutionality
of a statute is on the one attacking the statute;s validity.
Constitutional Law: Statutes: Due Process.
When a legislative enactment
is challenged on vagueness grounds, the issue is whether the two requirements
of procedural due process are met: (1) adequate notice to citizens and (
2) adequate standards to prevent arbitrary enforcement.
10. ____: ____: ____. Due process requires that a legislative enactment supply
(1) a person of ordinary intelligence a reasonable opportunity to know what
is prohibited and (2) explicit standards for those who apply it.
Words and Phrases.
Unprofessional conduct must be conduct directly related
to the fitness of the actor to act in his or her professional capacity.
12. ____. Unprofessional conduct is that conduct which breaches the rules
or ethical code of a profession or conduct which is unbecoming a member
in good standing of a profession.
Schools and School Districts.
The use of corporal punishment by a school
teacher, in violation of Neb. Rev. Stat. § 79-295 (Reissue 1996), may subject
the teacher to discipline for unprofessional conduct under Neb. Rev. Stat
. § 79-824 (Reissue 1996).
Attorney Fees: Appeal and Error.
Attorney fees can be awarded against
a party bringing an appeal that is without rational argument based on law
Attorney Fees: Words and Phrases.
The term “frivolous,” as used in Neb
. Rev. Stat. § 25-824(2) (Reissue 1995), connotes an improper motive or a
legal position so wholly without merit as to be ridiculous.
Any doubt whether a legal position is frivolous or taken in
bad faith should be resolved in favor of the one whose legal position is
Appeal from the District Court for Morrill County: B
, Judge. Reversed and remanded with
Richard A. Douglas, of Nichols, Douglas, Kelly, and Meade, for appellant
Mark D. McGuire, of McGuire & Norby, for appellee.
, and M
The Legislature, in 1988, mandated that “[c]orporal punishment shall
be prohibited in public schools.” Neb. Rev. Stat. §79-295 (Reissue 1996).
In the context of a disputed teacher-discipline case, we must determine
whether “corporal punishment” is a term that is commonly used and understood
, such that a person of ordinary sensibilities and intelligence should be
capable of ascertaining its meaning and abiding by its proscriptions. For
the reasons that follow, we determine that “corporal punishment” is a term
that is commonly understood to be the infliction of bodily pain as a penalty
for disapproved behavior and that there was sufficient evidence as a matter
of law to support the decision of the board of education of Morrill County
School District No. 62-0063, also known as School District of Bridgeport
(the District), to discipline Robert L. Daily for corporally punishing a
seventh grade student. We, therefore, reverse the judgment of the district
court and remand the cause with directions as set forth herein.
II. FACTUAL BACKGROUND
Daily, the plaintiff-in-error in the district court and the appellee
in this court, has been a teacher with the District for over 32 years. Daily
;s performance evaluations indicate that he has been a competent and effective
teacher during those years.
On December 12, 1996, Daily was involved in an incident in which he allegedly
struck a seventh grade student, identified as K.P. On January 6, 1997, Daily
received a letter from Lewis Shoff, superintendent of the Bridgeport Public
Schools, notifying Daily that Shoff had determined, because of the incident
, that it might be appropriate to cancel Daily;s contract. Daily responded
, through counsel, that he was requesting a hearing before the board pursuant
. §§79-12,107 through 79-12,121 (Reissue 1994).” A subsequent
notice by the District advised Daily that the superintendent would not only
recommend the cancellation of his contract, but also recommend that the
board consider the possible amendment of Daily;s contract to include, but
not be limited to, suspension without pay or a written reprimand. Based
upon such notice, a hearing was held on January 26 at the Bridgeport Public
The evidence adduced at the hearing showed that on Decem-ber 12, 1996
, Daily kept two students in his classroom after his third-period class.
Daily testified that the two seventh graders, K.P. and W.R., had been disrupting
the class. Daily specifically testified that W.R. had been talking to another
student during class and that K.P. had been attempting to draw attention
to himself by flexing his muscles for the class. Daily testified that during
the detention, after talking with W.R. about his misbehavior, Daily turned
to K.P. to talk about what K.P. had done during class.
The events that followed were disputed. Daily testified that as Daily
tried to talk to K.P., K.P. turned away from Daily toward W.R. and again
flexed his muscles, evidently in an attempt to draw W.R.;s attention. Daily
then, by his testimony, “tapped” K.P. on the head “to get his attention.
” Daily testified that K.P. responded by saying, “You hit me,” and then tried
to get up out of his seat. Daily, by his own account, grabbed K.P. by the
shoulders and made K.P. remain in the seat. Daily then said, “[K.P.], I
didn;t hurt you.” Daily testified that K.P. then asked if they could go to
the office. Daily said that he agreed and that they began to walk toward
the door. Daily then, by his account, turned back toward W.R., and K.P.
turned away from the door and returned to his seat. Daily specifically denied
blocking K.P.;s path to the door. Daily said that he then dismissed the
students. Daily testified that he followed K.P. to the locker area to try
to talk to him, but that K.P. was unresponsive. Daily said he then returned
to his classroom.
Daily also admitted that in “tapping” K.P., he had been acting out of
frustration. Daily denied, however, any intent to injure K.P. and stated
that his action had been involuntary in that he had acted “without even
thinking about it.” Daily admitted that in his opinion, he should not have
W.R.;s testimony at the board hearing gave a slightly different version
of events. W.R.;s testimony is similar to Daily;s until the point when Daily
turned his attention to K.P. At that point, W.R. testified that Daily “smacked
” K.P. with his open hand on the back of K.P.;s head. W.R. said that K.P.
then began to cry. According to W.R., K.P. tried to leave, but Daily said
, “[K.P.], sit back down,” and Daily then grabbed K.P. and “had to kind of
fight him to get him back to his seat.” W.R. testified that Daily then said
, “Oh, I barely tapped you,” to which K.P. replied, “Well, you;re not supposed
to hit a child anyways.” W.R. also testified that Daily had not blocked
K.P.;s route to the door.
The only other eyewitness to the incident to testify at the board hearing
was Bill Alvarez, a junior high school math teacher and 31-year employee
of the District. Alvarez occupied the classroom next to Daily;s. Alvarez
testified that at the time of the incident, he was standing out in the hall
to monitor students during the time between classes. Alvarez saw a group
of students standing outside Daily;s classroom, waiting for Daily to finish
talking to W.R. and K.P. so the students could enter the classroom for their
next class. Alvarez walked up next to one of the students who was looking
inside the classroom through the glass window in the classroom door. Alvarez
testified that although he could not hear what was occurring inside, he
“caught the tail end where [Daily] tapped [K.P.] on the head and then he,
you know, grabbed him by the arm . . . .”
Alvarez also testified that one “J.D.” was one of the students standing
outside the door, closer to the window than Alvarez himself had been. An
eyewitness account written by J.D. was offered into evidence, but was not
accepted into evidence by the hearing officer. This account was largely
consistent with W.R.;s account, but additionally related that according to
J.D., Daily had stood in front of the classroom door to prevent K.P. from
leaving. Also offered but not accepted into evidence was K.P.;s written
account of the incident. K.P.;s account was consistent with W.R.;s, except
that K.P. professed ignorance of what had prompted Daily to strike him and
K.P. also stated that Daily later “would not let [him] out the door.” J.
D. and K.P. did not testify at the hearing. Written statements by W.R., Daily
, and Alvarez were accepted into evidence; these accounts were consistent
with their testimony at the hearing.
Also testifying at the hearing for the District were Steve Jones, the
secondary principal of the Bridgeport Public Schools, and Shoff, the superintendent
for the District.
Jones testified regarding his investigation of the December 12, 1996,
incident. Jones testified that he was called into the guidance counselor
;s office, where K.P. told him what had happened. Jones; testimony regarding
K.P.;s statements was accepted by the hearing officer, not for the truth
asserted by the statements but as part of the investigation by Jones that
led to disciplinary action against Daily.
Jones testified that K.P. was disheveled and looked upset and that he
reported he had been struck in Daily;s class. Jones further testified that
he observed “considerable redness” on K.P.;s shoulder and arm where K.P.
reported that Daily had grabbed him. Jones then obtained a written statement
from K.P. and proceeded to interview and obtain written statements from
W.R., J.D., and Alvarez.
Jones stated that he then spoke to Daily and asked him to make a written
statement. Jones testified that Daily said, during the December 12, 1996
, interview, that Daily had “lost his temper, lost control,” and admitted
to striking K.P. and to restraining K.P. by holding K.P.;s arms. Daily,
by Jones; account, admitted to acting from frustration and conceded that
he should not have touched K.P. Jones testified that Daily also said that
he had not intended to hurt K.P. and that striking K.P. was “an involuntary
Jones was cross-examined by Daily;s counsel regarding the general definition
of corporal punishment. Jones testified that he believed “any discipline
that uses force is corporal punishment” and that losing one;s temper and
hitting a student should also be regarded as corporal punishment. Shoff
testified that he believed corporal punishment was “the use of physical force
Shoff also testified about his part in the investigation that led to
disciplinary action against Daily. Shoff testified that after reading the
written statements obtained by Jones, Shoff decided to suspend Daily without
pay. Shoff testified that he was told by K.P.;s mother that K.P. had a headache
and upset stomach after he came home from school on December 12, 1996. Shoff
said that after his review of the incident, he concluded that Daily should
be fired for using corporal punishment.
Daily called, as his first witness, Ardis Kisner, a fellow teacher for
the District. Daily attempted to adduce evidence that K.P. had spoken to
Kisner a couple of months before the incident and had said, “We;re going
to get Mr. Daily fired.” A hearsay objection to this testimony was sustained
by the hearing officer, and an offer of proof was made by Daily outside
the presence of the school board.
Daily then called the mother of C.H., a student at Bridgeport Junior
High. C.H.;s mother testified that on the day after the incident, she answered
a telephone call at her home from K.P., who wanted to speak to C.H. C.H.
;s mother testified that she told C.H. to pick up the telephone in the bedroom
and that when she went back into her kitchen to hang up the telephone she
had initially answered, she overheard a part of the conversation taking
place between K.P. and C.H.
C.H.;s mother testified that K.P. told C.H. that Daily had hit K.P. the
previous day. C.H.;s mother testified that when she picked up the phone,
she heard K.P. say, “[C.H.], I got Mr. Daily in trouble.” When C.H. asked
what happened, K.P. reportedly said, “[W.R.] and I got in trouble, Mr. Daily
had us stay after class and then he hit me.” According to C.H.;s mother,
C.H. asked K.P. if Daily had hurt him, and K.P. replied, “No, he just bopped
me on the head but I made it sound like he did.” C.H.;s mother said she
then went to the bedroom and told C.H. to hang up the telephone. This testimony
was received into evidence over objection.
Daily also presented the testimony of the school nurse for the Bridgeport
Public Schools, who was one of J.D.;s parents and herself a former student
of Daily;s. The school nurse testified generally about Daily;s teaching
skills. She also testified that her son J.D. claimed to have observed the
December 12, 1996, incident and that J.D. had told her that Daily struck
K.P. “to get his attention.” A fellow teacher also testified to Daily;s
good character and skill as a teacher.
Daily;s last witness, before his own testimony, was Peg Person, another
teacher for the District. Person testified at length regarding the “Boys
Town Model” of discipline, her training in that model, and her frustrations
regarding the discipline policy at the Bridgeport Junior High School.
After the hearing, the board moved to a closed session to deliberate.
Thereafter, the board, in open session, found that
- based solely upon the evidence at this formal due process hearing held
on January 23 [sic], 1997, that the actions of Robert L. Daily on December
12, 1996, were clearly inappropriate. The Board of Education further finds
that the use of physical force out of frustration to strike [K.P.] on the
head and restraining him by holding his arms constitute just cause within
the meaning of 79-12,112 and 79
12,107 (3) and are in violation of 79-4,140
; and thereby constitute insubordination and unprofessional conduct.
Daily filed a petition in error in the district court, and after hearing
, the district court entered a judgment in which it found that there was
sufficient evidence as a matter of law to show that Daily “tapped a student
,” K.P., on the back of the head and “held his arm so that Daily could talk
to [him] about his classroom behavior.” The district court found that these
actions did not constitute a third degree assault, nor did they constitute
corporal punishment, and that they “did not constitute insubordination or
unprofessional conduct under the circumstances of this case.”
- As a result of these findings the Board of Education amends the contract
of Robert L. Daily to provide for a suspension without pay for 30 working
days and a requirement that he obtain adequate professional counseling.
The district court further found that hearsay evidence had been introduced
at the hearing by the District and that “it must be assumed that the Board
of Education erroneously relied upon such evidence to support its findings
.” The court found that “‘just cause;” was lacking and that there was “not
sufficient evidence as a matter of law to support the decision of the Board
The District timely appealed, and upon Daily;s notice that the case challenged
the constitutionality of a statute, we removed the case to the Supreme Court
docket in compliance with Neb. Rev. Stat. § 24-1106(1) (Reissue 1995).
III. ASSIGNMENTS OF ERROR
The District assigns that the district court erred in (1) using an improper
standard of review, (2) making a determination that the board did not rely
on competent evidence, (3) making findings of fact contrary to those of
the board, (4) determining that the board relied solely on hearsay evidence
, (5) finding that “‘just cause;” was necessary in order to sustain the board
;s findings, (6) not finding sufficient evidence as a matter of law to sustain
the board;s decision, (7) ordering the board to pay Daily in full and overruling
the requirement for counseling, (8) making a decision contrary to the law
and unsupported by the evidence, and (9) not finding the appeal frivolous
and not awarding attorney fees and costs to the board.
Daily did not cross-appeal, but in his brief, Daily asserts as he did
in the district court that (1) the District lacked the statutory authority
to unilaterally order him to seek counseling, (2) § 79-295 is unconstitutionally
vague, and (3) there was insufficient evidence, as a matter of law, to sustain
the findings of the board.
IV. STANDARD OF REVIEW
This court has not directly addressed an error proceeding from a school
board ruling in which a teacher;s employment was not terminated, but was
instead subjected to some lesser disciplinary action. Consequently, there
is no prior case establishing a standard of review in such a situation.
The parties submit, and we agree, that the standard of review for an error
proceeding in a teacher employment-termination case would be appropriately
applied to a teacher-discipline case.
We hold, therefore, that the standard of review in a proceeding in error
from an order of a school board subjecting a teacher to disciplinary action
is whether the school board acted within its jurisdiction and whether there
is sufficient evidence as a matter of law to support its decision. See,
Boss v. Fillmore Cty. Sch. Dist. No. 19
, 251 Neb. 669, 559 N.W.2d 448 (1997
Drain v. Board of Ed. of Frontier Cty.
, 244 Neb. 551, 508 N.W.2d 255 (
1993). The evidence is sufficient as a matter of law if the school board
could reasonably find the facts as it did on the basis of the testimony and
exhibits contained in the record before it.
. “‘[T]he evidence is “substantial
” or “sufficient as a matter of law,” or constitutes “some competent evidence
,” if a judge could not, were the trial to a jury, direct a verdict . . .
Boss v. Fillmore Cty. Sch. Dist. No. 19
, 251 Neb. at 676, 559 N.W.2d
at 453 (quoting
Eshom v. Board of Ed. of Sch. Dist. No. 54
, 219 Neb. 467
, 364 N.W.2d 7 (1985)).
1. BOARD DETERMINATION
The District;s first, second, third, sixth, seventh, and eighth assignments
of error all generally advance the same argument: The board;s decision was
supported by the evidence, and the district court erred by not affirming
The basis for the board;s order, as contained in its findings, was that
Daily;s actions constituted “just cause within the meaning of 79-12,112
and 79-12,107 (3) and are in violation of 79-4,140; and thereby constitute
insubordination and unprofessional conduct.” We must therefore examine those
statutes and our prior cases governing unprofessional conduct or insubordination
to determine if there was competent evidence presented at the hearing that
would support the board;s findings.
The “79-12,107” referred to by the board was codified as Neb. Rev. Stat
. § 79-824 (Reissue 1996) effective July 19, 1996. Section 79-824(4) provides
, in relevant part, that “[j]ust cause means: (a) Incompetency . . . (b)
neglect of duty; (c) unprofessional conduct; (d) insubordination; (e) immorality
; (f) physical or mental incapacity; (g) failure to give evidence of professional
growth . . . (h) other conduct which interferes substantially with the continued
performance of duties.”
Section 79-12,112 was codified as Neb. Rev. Stat. § 79-829 (Reissue 1996
) effective July 19, 1996, which provides, in relevant part, that “[t]he
school board by a vote of the majority of its members may determine that
such permanent certificated employee;s contract shall be amended or terminated
for any of the following reasons: (1) Just cause as defined in section 79
(a) Corporal Punishment
Section 79-4,140, codified as § 79-295, effective July 19, 1996, simply
states that “[c]orporal punishment shall be prohibited in public schools
The Nebraska statutes do not define the term “corporal punishment.” The
primary effect of § 79-4,140, now § 79-295, was to partially repeal Neb.
Rev. Stat. § 28-1413 (Reissue 1985), which had provided in part:
This statute essentially stated the common-law rule regarding corporal
punishment, as it existed in the state before the adoption of § 79-4,140
, now § 79-295. See
Cornhusker Christian Ch. Home v. Dept. of Soc. Servs.
, 227 Neb. 94, 416 N.W.2d 551 (1987).
- The use of force upon or toward the person of another is justifiable
- . . . .
- . . . The actor is a teacher or a person otherwise entrusted with the
care or supervision for a special purpose of a minor and:
- . . . [t]he actor believes that the force used is necessary to further
such special purpose, including the maintenance of reasonable discipline
in a school, class or other group, and that the use of such force is consistent
with the welfare of the minor[.]
A brief examination of the legislative history of §79-4,140, now § 79
-295, helps shape our analytical framework. Section 79-4,140 was adopted
in 1988 as an amendment to L.B. 316, which added to that bill the full text
of what had previously been L.B. 955. The record of the Judiciary Committee
hearing on L.B. 955 contains the following exchange:
Judiciary Committee Hearing, L.B. 955, 90th Leg., 2d Sess. 7 (January
- SENATOR [JERRY] CONWAY: I was just going to ask you, is corporal punishment
that particular term, defined some...in the statutes elsewhere; or did you
purposely not define it or?
- SENATOR [ERNIE] CHAMBERS: It;s a term that is so well known in terms
of its meaning. There have been court cases dealing with this subject that
it doesn;t require a definition.
While it is true that there have been court cases defining corporal punishment
, none of those cases have been decided in Nebraska. Most cases from other
jurisdictions, in fact, define corporal punishment in the context of statutes
that permit “reasonable” corporal punishment. This provides definitions
that delineate the line between “reasonable” and “unreasonable” corporal
punishment, but are of little guidance in determining what is and is not
Generally, however, corporal punishment is reasonably understood to be
infliction of bodily pain
for disapproved behavior. See
, e.g., Nadine Block and Robert Fathman,
Convincing State Legislatures to
Ban Corporal Punishment
, 9 Children;s Legal Rts. J. 3:21 (1988). Both words
of the term “corporal punishment” are commonly given effect—the act must
be “corporal,” in that it inflicts pain on the physical body of the victim
, and it must be “punishment,” such that the intent of the actor is punitive
. The interpretation of corporal punishment includes not only striking, but
any action which seeks to induce bodily pain, for example, forcing a student
to stand on tiptoes with fingertips outstretched against the wall or to
crouch and bend over and remain in cramped, painful positions for a long
Most statutes from other jurisdictions that ban corporal punishment effectively
include the same elements as set forth above. See, e.g., Conn. Gen. Stat
. Ann. § 53a-18 (West 1994); Mass. Gen. Laws Ann. ch. 71, § 37G (West 1996
); Nev. Rev. Stat. § 392.465 (1997); N.J. Stat. Ann. § 18A:6-1 (West 1989
Other state statutes contain those elements, but also have exceptions
that provide, generally, for use of physical contact to maintain order and
control. For instance, Wisconsin law provides that corporal punishment does
not include “[u]sing incidental, minor or reasonable physical contact designed
to maintain order and control.” Wis. Stat. Ann. § 118.31(2)(h) (West 1991
). See, also, e.g., Cal. Educ. Code § 44807 (West 1993); Mont. Code. Ann.
§ 20-4-302 (1997); Va. Code Ann. §22.1-279.1 (Michie 1997).
Nebraska statutes do not deal with this issue in the specific context
of corporal punishment. The Legislature has provided, however, that “[a]
dministrative and teaching personnel may take actions regarding student behavior
, other than those specifically provided in the Student Discipline Act, which
are reasonably necessary to aid the student, further school purposes, or
prevent interference with the educational process.” Neb. Rev. Stat. § 79
-258 (Reissue 1996).
We determine that § 79-258, while obviously not authorizing corporal
punishment, does provide authority for school teachers and administrators
to use physical contact short of corporal punishment to the degree necessary
to preserve order and control in the school environment. Moreover, the statute
authorizes an acceptable level of incidental physical contact, as is necessary
for teachers to promote personal interaction with their students. A certain
amount of incidental physical contact is virtually unavoidable for people
working together in a social environment.
The key distinction between such reasonable and necessary physical contact
and “corporal punishment,” as commonly understood and prohibited by statute
, is to be found in the elements set forth above. Contact that does not cause
pain is simply not corporal punishment. Corporal punishment also does not
include physical contact that is not intended to punish a student for disapproved
behavior but is instead intended to preserve order in the schools or intended
to protect persons or property from harm.
Other jurisdictions, in addressing the issue of corporal punishment,
have consistently focused on the punitive intent of the teacher. In
, ___ Ga. App. ___, 503 S.E.2d 72 (1998), the appellate court found
that a teacher had grasped a student;s face and turned the student;s head
to face her. The court found that “not all physical contact instigated by
an educator amounts to corporal punishment.”
. at ___, 503 S.E.2d at 75.
The court found that “[i]n this case, [the teacher;s] actions were instituted
to regain control and supervise the classroom . . . . [Her] uncontroverted
testimony established that her grasping of [the student;s] face was meant
to get [his] attention and not to punish.” (Citation omitted.)
, the court found that the teacher;s actions did not constitute “corporal
punishment” under Georgia law.
Similarly, a Florida appellate court found that physical contact with
students did not constitute “corporal punishment” where the contact was
intended not to punish, but simply to restore order in the classroom.
, 346 So. 2d 1039 (Fla. App. 1977),
354 So. 2d 988.
The Florida court found that a Florida statute requiring teachers to “‘keep
good order; in [the] classroom necessarily implies the power to the teacher
to use reasonable physical force [not amounting to corporal punishment]
to do so.”
. at 1041. The court found that “[w]ithout such reasonably implied
power, the requirement to ‘keep good order; would be meaningless.”
Where the circumstances indicate a punitive intent, however, courts have
found corporal punishment. In
People v. McMillan
, 45 Cal. App. 2d Supp.
821, 114 P.2d 440 (1941), the court found that a supervisor in a juvenile
facility had committed corporal punishment when he slapped a student. Although
the defendant argued that he was merely attempting to preserve order, the
court found in the record “evidence tending to show .. . that such force
as defendant used was applied just after the objects of it had violated
some rule of the institution and apparently for the purpose of punishing
them for the violation and not to prevent one.”
. at 827, 114 P.2d at 444.
Under similar circumstances, a Pennsylvania court found that a teacher
who slapped a student on the face had committed corporal punishment.
v. Commonwealth Secretary of Ed.
, 29 Pa. Commw. 625, 372 A.2d 953 (1977)
. The court said that “[t]his Court does not consider slapping fourth graders
on the face on [sic] attention getting device. Considering the circumstances
of the incident, this Court finds that [the teacher] did administer corporal
punishment to [the student].”
. at 632, 372 A.2d at 956. The court found
, however, that the same teacher had not committed corporal punishment in
touching a student to remove a pencil from his hand.
Having reviewed and considered the relevant Nebraska statutes, as well
as decisions from other jurisdictions, we hold that corporal punishment,
as prohibited in § 79-295, is reasonably understood to be the infliction
of bodily pain as a penalty for disapproved behavior. One of Daily;s arguments
in the district court, and preserved in his brief on appeal, was that §79
295 is void for vagueness, thereby denying Daily his procedural due process
rights under article I, § 3, of the Nebraska Constitution and the 14th Amendment
to the Constitution of the United States. The district court, because of
its resolution of the case, had no cause to consider Daily;s constitutional
claim. For the sake of completeness, we find it necessary to address Daily
;s vagueness claim.
Daily presents a facial challenge to the constitutionality of §79-295
, claiming that the use of the term “corporal punishment” does not provide
adequate notice to teachers as to what conduct is prohibited or provide
adequate standards to prevent arbitrary enforcement by school boards. It
is axiomatic that statutes are afforded a presumption of constitutionality
, and the unconstitutionality of a statute must be clearly established before
it will be declared void.
Kwik Shop v. City of Lincoln
, 243 Neb. 178, 498
N.W.2d 102 (1993). Even when a law is constitutionally suspect, a court
will attempt to interpret that law in a manner such that it is consistent
with the Constitution.
. The burden of establishing the unconstitutionality
of a statute is on the one attacking the statute;s validity.
When a legislative enactment is challenged on vagueness grounds, the
issue is whether the two requirements of procedural due process are met:
(1) adequate notice to citizens and (2) adequate standards to prevent arbitrary
City of Lincoln v. ABC Books, Inc.
, 238 Neb. 378, 470
N.W.2d 760 (1991) (citing
Kolender v. Lawson
, 461 U.S. 352, 103 S. Ct. 1855
, 75 L. Ed. 2d 903 (1983)). In other words, due process requires that an
enactment supply (1) a person of ordinary intelligence a reasonable opportunity
to know what is prohibited and (2) explicit standards for those who apply
Kwik Shop v. City of Lincoln, supra
City of Lincoln v. ABC Books, Inc
Grayned v. City of Rockford
, 408 U.S. 104, 92 S. Ct. 2294
, 33 L. Ed. 2d 222 (1972)).
- A statute will not be deemed vague if it uses ordinary terms which find
adequate interpretation in common usage and understanding. . . .
State v. Sprague
, 213 Neb. 581, 587-88, 330 N.W.2d 739, 744 (1983).
- . . . The prohibition against vagueness does not invalidate a statute
simply because it could have been drafted with greater precision. The test
is whether the defendant could reasonably understand that his conduct was
proscribed by the statute.
The U.S. Supreme Court has held:
Rose v. Locke
, 423 U.S. 48, 49-50, 96 S. Ct. 243,
46 L. Ed. 2d 185 (1975).
- [The] prohibition against excessive vagueness does not invalidate every
statute which a reviewing court believes could have been drafted with greater
precision. Many statutes will have some inherent vagueness, for “[i]n most
English words and phrases there lurk uncertainties.” . . . Even trained
lawyers may find it necessary to consult legal dictionaries, treatises, and
judicial opinions before they may say with any certainty what some statutes
may compel or forbid.
While § 79-295 could have been drafted with greater precision, “we can
never expect mathematical certainty from our language.”
Grayned v. City
, 408 U.S. at 110. In
State v. Rogers
, 44 Ohio App. 2d 289, 337
N.E.2d 791 (1975), an Ohio appellate court rejected a vagueness challenge
to a corporal punishment statute. In that case, the defendant teacher challenged
the vagueness of the term “corporal punishment,” as applied by the Ohio
trial court to her alleged abuse of a pupil. The court found that the use
of the term did not make the statute “unconstitutionally vague or overbroad
since a person of ordinary sensibilities and intelligence should be capable
of ascertaining its meaning and abiding by its proscriptions.”
. at 291
, 337 N.E.2d at 793. Likewise, we conclude that a person of ordinary sensibilities
and intelligence should be capable of ascertaining the generally understood
meaning of corporal punishment and abide by the statute;s proscriptions.
Daily;s void for vagueness challenge to § 79-295 is without merit.
(b) Sufficiency of Evidence
Having held that corporal punishment is reasonably understood to be the
infliction of bodily pain as a penalty for disapproved behavior, we must
next consider whether the board acted within its jurisdiction and whether
there is sufficient evidence as a matter of law to support its decision.
We have held that the evidence is “sufficient as a matter of law” if
a judge could not, were the trial to a jury, direct a verdict.
Boss v. Fillmore
Cty. Sch. Dist. No. 19
, 251 Neb. 669, 559 N.W.2d 448 (1997). It is something
less than the weight of the evidence and can be such as to permit the drawing
of two inconsistent conclusions.
Stephens v. Board of Ed. of Sch. Dist.
, 230 Neb. 38, 429 N.W.2d 722 (1988);
Eshom v. Board of Ed. of Sch.
Dist. No. 54
, 219 Neb. 467, 364 N.W.2d 7 (1985). In order to support a school
board decision, the record must be such that on the basis of all the testimony
and exhibits, the school board could fairly and reasonably find the facts
as it did. See
Eshom v. Board of Ed. of Sch. Dist. No. 54, supra
The standard of review is crucial to our disposition of the instant case
. What some witnesses characterized as a “tap” on the student;s head “to
get [the student;s] attention,” other witnesses described as a “smack” on
the back of the student;s head (hard enough to make the student cry) after
the teacher had “lost his temper, lost control.” The board heard and observed
the testimony of numerous witnesses, on both sides of the issue, before
finding that Daily;s “use of physical force out of frustration to strike
[K.P.] on the head and restraining him by holding his arms” were “clearly
inappropriate.” The board had to make crucial credibility determinations
, and the board obviously accepted one version of the facts rather than another
on the critical issues in dispute. Rather than determining whether the board
“could fairly and reasonably find the facts as it did,”
. at 471, 364
N.W.2d at 11, and reviewing the record to ascertain whether there is evidence
“‘sufficient as a matter of law,;”
., to support the board;s decision,
the district court conducted what more closely resembled a de novo review
, substituting its own inferences for the findings and conclusions of the
board. In doing so, the district court erred.
In our review of the record to determine whether the board “could fairly
and reasonably find the facts as it did,”
., presuming the testimony of
W.R. to be true, as we must, there was sufficient evidence to conclude that
Daily “smacked” K.P. on the head, hard enough to make K.P. cry. This physical
contact was not necessary to control the classroom or to prevent misbehavior
, but was instead initiated responsively
K.P.;s misbehavior. Daily
himself admitted that his actions were based on his frustration with K.P.
;s disobedience. The characterization of the physical contact contained in
W.R.;s testimony is not that of a “tap” on the head, but is instead a descripti
on of a blow that inflicted pain on K.P. Jones testified that K.P. was disheveled
and looked upset when K.P. reported that he had been struck in Daily;s class
. In short, W.R.;s description of the incident does not relate the use of
physical contact as an attention-getting device, but instead depicts the
infliction of physical discomfort on K.P. as a penalty for K.P.;s disapproved
Regarding Daily;s restraint of K.P., however, the facts do not support
a finding of corporal punishment. The uncontroverted facts regarding this
portion of the incident show that Daily;s intent was to preserve order by
returning K.P. to his seat and preventing him from leaving the room prematurely
. Under §79
258, Daily was authorized to take actions that were reasonably
necessary to further school purposes and prevent interference with the educational
process. Therefore, we conclude that on the basis of all the testimony and
exhibits, the board could have “fairly and reasonably” concluded that Daily
had committed the act of corporal punishment, as prohibited by §79-295,
when Daily struck K.P. on the back of the head on December 12, 1996.
(c) Unprofessional Conduct
Having found that there was sufficient evidence as a matter of law to
support the board;s finding of corporal punishment, we must now decide whether
such a finding may constitute “unprofessional conduct” under § 79-824.
Unprofessional conduct is not defined in § 79-824. In construing the
statute at issue in this case, however, this court has held that unprofessional
conduct must be conduct directly related to the fitness of the actor to
act in his or her professional capacity.
Boss v. Fillmore Cty. Sch. Dist.
, 251 Neb. 669, 559 N.W.2d 448 (1997).
It is well established in several other jurisdictions that “unprofessional
conduct” is that conduct which breaches the rules or ethical code of a profession
or conduct which is unbecoming a member in good standing of a profession
. See, e.g.,
Board of Education v. Swan
, 41 Cal. 2d 546, 261 P.2d 261 (1953
347 U.S. 937, 74 S. Ct. 627, 98 L. Ed. 1087 (1954),
on other grounds, Bekiaris v. Board of Education
, 6 Cal. 3d 575, 493 P.2
d 480, 100 Cal. Rptr. 16 (1972);
In re Alschuler
, 388 Ill. 492, 58 N.E.2d
Morris v. Clarksville-Montgomery
, 867 S.W.2d 324 (Tenn. App.
Shea v. Board of Medical Examiners
, 81 Cal. App. 3d 564, 146 Cal.
Rptr. 653 (1978);
Pierstorff v. Board of Embalmers
, 68 Ohio App. 453, 41
N.E.2d 889 (1941),
, 138 Ohio St. 626, 37 N.E.2d 545. See
, also, generally, 68 Am. Jur. 2d
§ 161 (1993 & Supp. 1998). This
working definition is sensible, and we adopt the definition for use in teacher
While the ethical rules of the teaching profession are not in the record
, it is clear that the “rules” of the profession must necessarily encompass
the statutes enacted by the Legislature to govern the conduct of teachers
in the public schools. Furthermore, the violation of a state statute prohibiting
the use of corporal punishment in public schools constitutes conduct that
is unbecoming a member of the teaching profession. The infliction of corporal
punishment by a teacher on a student is clearly conduct directly related
to the fitness of that teacher to act in his or her professional capacity
Accordingly, we conclude that the use of corporal punishment by a teacher
, in violation of § 79-295, may subject the teacher to discipline for unprofessional
conduct under § 79-824. Since we have already concluded that the board;s
findings regarding corporal punishment in this case were supported by the
evidence, we also conclude that the board;s decision regarding unprofessional
conduct is supported by the evidence. The district court;s findings to the
contrary constitute reversible error.
Because the board;s findings regarding corporal punishment and unprofessional
conduct were supported by the evidence, an evaluation of Daily;s alleged
insubordination is unnecessary to our disposition of the case; therefore
, we will not consider the insubordination issue.
(d) Amendment of Contract
Finally, Daily asserts that the board lacked the statutory authority
to unilaterally order Daily to “obtain adequate professional counseling”
as a part of the amendment to his teaching contract.
Neb. Rev. Stat. § 79-826 (Reissue 1996) provides in relevant part:
The board;s power to order additional sanctions is set forth and limited
by Neb. Rev. Stat. § 79-836 (Reissue 1996), in part, as follows:
- The superintendent or the superintendent;s designee may take action with
regard to a certificated employee;s performance or conduct which is deemed
reasonably necessary to assist the certificated employee and further school
purposes, including: (1) Counseling; (2) oral reprimand; (3) written reprimand
; and (4) suspension without pay for not to exceed thirty working days.
- . . . .
- Prior to taking any action under subdivision (4) of this section, the
certificated employee shall be advised in writing of the alleged reasons
for the proposed action and provided the opportunity to present the certificated
employee;s version of the facts.
Daily claims that the record is devoid of any agreement by Daily that
he “obtain adequate professional counseling.” While there may be certain
additional or extraordinary sanctions that call for an agreement by the
parties, a school district has the authority, pursuant to § 79-826, to suspend
a certificated employee without pay for up to 30 working days and to order
counseling which is deemed reasonably necessary to assist the employee and
further school purposes, so long as the statutory notice and hearing requirements
- (1) After providing the opportunity for a hearing on cancellation, termination
, or nonrenewal as provided for in sections 79-828, 79-829, and 79-832, and
except when reduction in force is the reason given for possible termination
, and when just cause can be shown, the school board may impose such other
sanctions, other than termination, cancellation, or nonrenewal of the contract
, as may be agreed upon by the parties.
In the instant case, Daily received all necessary notice and due process
before his contract was amended, pursuant to §79
826; however, that portion
of the board;s order requiring that Daily “obtain adequate professional
counseling” is so vague as to be virtually unenforceable. Without a minimum
of objective standards setting forth the duration of the counseling, or
the payment provisions or nature of the mandatory counseling, this portion
of the order is subject to the most arbitrary kind of enforcement by the
Therefore, upon remand, the district court shall be directed to strike
that portion of the board;s order which amended Daily;s contract to provide
that he “obtain adequate professional counseling.” In all other respects
, the final order of the board amending Daily;s contract is proper and within
the board;s jurisdiction to act.
2. RELIANCE ON HEARSAY EVIDENCE
The district court based its decision, in part, on its assumption that
the board erroneously relied on hearsay evidence in making its determination
. The District claims that the district court erred in this assumption, and
we find it necessary to briefly address the assigned error because our sufficiency
of the evidence determination is based on a review of the properly admitted
testimony and exhibits.
Daily;s argument to the district court on this point was based on
v. Board of Education
, 208 Neb. 350, 303 N.W.2d 506 (1981). In that case
, we held: “Although strict adherence to the rules of evidence cannot be
demanded or even expected at a hearing before a school board, when a teacher
;s career hangs in the balance, the basic principles of due process demand
that hearsay statements of students be given little, if any, weight.”
. at 360, 303 N.W.2d at 512.
In this case, presumably, the district court was referring to the statements
of K.P. and J.D., who did not testify at the hearing. The written statements
of the two boys, however, were not accepted into evidence, and there is
no evidence that they were considered by the board. The most questionable
hearsay evidence admitted at the hearing, in fact, was offered by Daily,
through the testimony of C.H.;s mother regarding statements made by K.P.
that C.H.;s mother overheard.
Furthermore, there is no indication in the findings of the board that
the hearsay evidence, if considered, was given more than the “little, if
any, weight” accorded to such evidence under
Hollingsworth v. Board of Education
. The statements of J.D. and K.P. were almost entirely cumulative,
as the facts asserted by J.D. and K.P. were also contained in the testimony
of W.R., Alvarez, and Daily himself. The only fact unique to J.D.;s and
K.P.;s accounts is the allegation that Daily prevented K.P. from leaving
the room after K.P. was struck, and this allegation is entirely unnecessary
to support the board;s finding of corporal punishment.
Thus, there is no basis to conclude that the board erroneously relied
upon hearsay evidence to support its findings in violation of Daily;s due
3. ATTORNEY FEES
The only other assignment of error that we must address is the District
;s claim that the district court erred in not finding Daily;s appeal to be
Attorney fees can be awarded, of course, against a party bringing an
appeal that is without rational argument based on law and evidence. See,
Neb. Rev. Stat. § 25-824.01 (Reissue 1995);
U S West Communications v. Taborski
, 253 Neb. 770, 572 N.W.2d 81 (1998);
Surratt v. Watts Trucking
, 249 Neb.
35, 541 N.W.2d 41 (1995);
First Nat. Bank in Morrill v. Union Ins. Co.
246 Neb. 636, 522 N.W.2d 168 (1994). The term “frivolous,” as used in Neb
. Rev. Stat. § 25-824(2) (Reissue 1995), connotes an improper motive or legal
position so wholly without merit as to be ridiculous.
Behrens v. American
Stores Packing Co.
, 236 Neb. 279, 460 N.W.2d 671 (1990);
Peterson v. Don
Peterson & Assoc. Ins. Agency
, 234 Neb. 651, 452 N.W.2d 517 (1990). Any
doubt whether a legal position is frivolous or taken in bad faith should
be resolved in favor of the one whose legal position is in question.
v. Watts Trucking, supra
While Daily has only partially prevailed in this appeal, we conclude
that significant issues have been addressed and that Daily;s petition in
error in the district court was certainly not frivolous. The fact that Daily
prevailed in the district court is ample evidence of that fact. This assignment
of error is wholly without merit.
Based upon the foregoing analysis, we conclude that the board;s findings
regarding corporal punishment in this case were supported by the evidence
and that the use of corporal punishment by a teacher, in violation of §
79-295, may subject the teacher to discipline for unprofessional conduct
824. Therefore, we reverse the judgment of the district court and
remand this cause to the district court with directions to strike that portion
of the board;s order which amended Daily;s contract to provide that he “
obtain adequate professional counseling”; in all other respects, the order
of the board amending the contract of Robert L. Daily, including the suspension
without pay for 30 working days, shall be affirmed.
EVERSED AND REMANDED WITH DIRECTIONS.
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