Dismissing Rosalind

In his letter dismissing Rosalind Hurley-Richards from her teaching position, Fayette County Schools Superintendent Stu Silberman accused her of outrageous conduct that should shock the sensibilities of any parent, teacher, or school administrator. He alleged that Hurley-Richards,

"physically attacked a student who you had scolded for running down the hall, by grabbing the student, placing your arm around his neck and choking him. You then dragged the student to the principal's office while continuing to keep the student's neck in a choke hold and berating and yelling at him."

KSN&C backstory, here, here and here.

But according to Hurley-Richards’ appellee’s brief, the evidence did not support that claim, and that is why Fayette County Circuit Court Judge Ernesto Scorsone determined that the Tribunal's lengthy suspension of Ms. Richards was not based upon substantial evidence.

Teachers are required to hold students to strict account for their behavior.

"Each teacher ... shall in accordance with the rules, regulations, and bylaws of the board of education made and adopted pursuant to KRS 160.290 for the conduct of pupils, hold students to strict account for their conduct on school premises ... " KRS 161.180(1).

The Tribunal had made findings of fact which were not challenged by Hurley-Richards on appeal, nor by the trial court in its order. The Tribunal found that ZK, the 2nd grade boy in question, "squirmed and twisted. Richards propelled him forward. She was still holding paper and markers in her left arm and hand. . . they proceeded up the office hall with ZK moving under protest. ZK was protesting that she was choking him, and Richards was saying that she was not hurting him."

The Tribunal found that the factual charges against Richards were inaccurate and overstated.
Rosalind Hurley Richards,

“physically restrained a student whom she had scolded for running down the hall. As the student was being guided to the office, he resisted and turned to go back toward the cafeteria. At this point, Richards' arm was across ZK's front, sliding up and around the neck/shoulder area as she physically directed him toward the office. This may have been perceived as choking. She continued to speak loudly to the student."

Although the student was "protesting" that he was being choked as he proceeded down the hall, the Tribunal specifically found that "the adults who were at the situation did not react as if the child was in harm's way."

So, the Tribunal threw out the Superintendent's termination of Hurley-Richards, downgrading it to a suspension without pay.

Turns out, earlier Tribunals have done this sort of thing before – and in Fayette County. Remember Fankhauser v. Cobb, 163 S.W.3d 389 (Ky. 2005). There a Tribunal issued a suspension instead of termination. The court held that "the superintendent's proposed sanction is not binding” on the Tribunal.

Scorsone did not find evidence to support the Tribunal’s suspension either- and particularly not a suspension without pay from February 3, 2009 through June 30, 2010.

As he saw it, Hurley-Richards was exercising her duty as a teacher when she attempted to discipline the little scamp. It was her duty to maintain order in the hallway. ZK was insubordinate and unwilling to walk on his own to the office. Prior to escorting him to the office, Hurley-Richards had to physically separate ZK from his sister, whom ZK was physically harming. The teacher had reason to believe ZK posed a risk to those around him. The school district agreed that the presence of risk to others was a permissible reason for physical restraint.

But Judge Scorsone found that the facts were insufficient and provided “no evidentiary basis on which to support any suspension without pay,” much less one of such duration. Essentially, the Tribunal concluded that the Plaintiff did not choke the child but suspended her anyway. Thus, Scorsone concluded, “the actions of [Hurley-Richards] were reasonable given the circumstances and the conclusions made by the Tribunal were not based on the facts of the situation.”

Whenever the facts of a case do not support the conclusions of the Tribunal, they may be seen by the court as arbitrary. The Kentucky Court of Appeals previously held that, “Unless the action taken by the tribunal was supported by substantial evidence, it is arbitrary and must be set aside.”

The case was headed back to the Tribunal when the district appealed.

Some school district personnel have argued to KSN&C that a different standard of review must be applied to Tribunals because of the language in KRS 13B.150(2), which reads,

"The court shall not substitute its judgment for that of the agency as to the weight of evidence on questions of fact." So the primary question under review is whether the trial court misapplied the standard of review called for in the law.

But when previously asked to rule on this question the Kentucky Supreme Court declined “to depart from the 'substantial evidence' standard.” Thus, the same standard of review would seem to apply to Tribunals.

The district’s appeal is slated for April.