Thursday, January 20, 2011

The Scoop on Silberman v Hurley-Richards

Teacher Disciplined for
Conduct Unbecoming a Teacher

Related to alleged Mishandling
of a 2nd Grade Child in 2009

Circuit Court Reverses

District's Appeal Set for April

Court records reveal that on-going legal action between Rosalind Hurley-Richards and Fayette County School Superintendent Stu Silberman is a disciplinary matter where Hurley-Richards was accused of, and disciplined for, conduct unbecoming a teacher. It has to do with the alleged mishandling of a child.

Rosalind Hurley-Richards was on bus duty at Cardinal Valley Elementary school on February 3, 2009 when she got into a fuss with a second grader identified as ZK.

Hurley-Richards observed three siblings in the hallway and the two youngest were running. The kids ignored her instructions to walk until the eldest child told the siblings to walk. To correct the misbehavior, Hurley-Richards asked the children to go back up the hall and walk back down properly, but ZK, ran yet again. When Hurley-Richards fussed at the youngster, he delivered that infamous line all teachers love to hear, "You can't tell me what to do!"

The teacher instructed the other two children to go on to breakfast while she spoke to ZK, but the kids got into some kind of fight which involved ZK pulling his little sister's (EK) hair while elder sister MK pulled EK by the hand. Hurley-Richard then put her hand around ZK's waist to separate him. As instructed, the girls EK & MK began to move toward the office but not ZK. He refused, squirming and twisting such that the teacher had to physically propel him up the hallway. As ZK resisted, Hurley-Richards' arm was "across the student's front in a manner that may have been perceived as choking." ZK protested that Hurley-Richards was choking him, which she disavowed. When they reached the office the physical contact ended. Hurley-Richards passed the matter off to the principal Yvonne Beegle. (In the interest of full disclosure, Beagle was a student of mine at UK, of whom I think highly.) An examination by officer David Collins revealed no injury.

But there was an eyewitness who saw things differently. Kindergarten assistant Sheri Jones Hall would later testify that it appeared to her that Hurley-Richards had the child around the neck. But she did not feel compelled to intervene.

Superintendent Silberman determined that Hurley-Richards conduct was inappropriate and he charged her with conduct unbecoming a teacher. On the afternoon of the incident, Hurley-Richards was informed that she was suspended without pay. She was notified on February 27th that her contract was terminated.

Hurley-Richards exercised her right to a hearing before an Administrative Tribunal. The Tribunal met April 23 & 24 and on September 1, 2009. The members were Deborah DeHoag a JCPS teacher; Marilyn Hafley a Lincoln Co administrator, and Franklin County layperson Jane Kelly. The hearing was held in private and took testimony from seventeen witnesses including Hurley-Richards and Silberman.

The Tribunal determined that Hurley-Richards had no intent to harm ZK and that he, indeed, suffered no harm. But they remarked that they found the eyewitness testimony "particularly reliable" and Hurley-Richards to be "generally truthful and reliable" but "influenced by self-interest and later events." The Tribunal rejected the notion that she was delicately guiding ZK forward with a gentle hand on his backpack, as she testified, but found no intent to harm. Still, the Tribunal found that Hurley-Richards exercised poor judgment in continuing to apply force after ZK complained about choking, and ordered her into safe physical management training.

The Tribunal also rejected Silberman's disciplinary action, modifying it to suspension without pay through June 30, 2009.

Hurley-Richards appealed to the Fayette County Circuit Court on grounds that her conduct did not constitute conduct unbecoming a teacher and that her punishment was excessive and beyond the authority of the Tribunal.

On April 20, 2010, Judge Ernesto Scorsone's trial court ruled that the conclusions of the Tribunal were "without support of substantial evidence on the whole record" and provided "no evidentairy basis on which to support any suspension without pay." The court found Hurley-Richards' conduct reasonable, and the Tribunal's conclusions incorrect. Scorsone reasoned that Hurley-Richards was maintaining order in the hallway following ZK's attack on his sister and that she had reason to believe ZK posed a risk which would justify physical restraint.

The district is now appealing the Circuit Court ruling citing KRS 13B.150(2), which reads, "The court shall not substitute its judgement 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.

Joellen McComb and Arthur Brooks represent Ms. Hurley-Richards. Bob Chenoweth represents the district.


Anonymous said...

Do you think Hurley-Richards acted inappropriately?

Why the increased litigation under Silberman? How many teachers are suing him?

How many judges are starting to see the light?

Whom does one need to contact to file an Open Records Request to find the costs paid to Chenoweth to represent the District?

Anonymous said...

Dear Dr. Day---

Is this teacher still working for the district? If Dr. Silberman wins, does this mean she will be terminated? What is her recourse if this happens?

Richard Day said...

January 20, 2011 10:07 PM: I have no idea if Ms Hurley-Richards acted appropriately. I wasn't there.

If she scooted the child down the hallway from behind, clearly there should be no problem. If she drug him by his neck, there is. The facts seem to indicate something in between.

I do know that handling disruptive children can be very tricky and whenever possible teachers ought to work together to handle such situations. I'm wondering why the kindergarten aide observed but did not step in to assist. I'm wondering if Ms Hurley-Richards is a team-player, or perhaps more of a loner who keeps others at arms length, and thus, might discourage others from intervening in her affairs. But that's just me wondering.

It is paramount that teachers resist taking anything a child does or says personally. If a child can hook an adult emotionally, the chance of mistakes being made goes up. Teachers must always be aware of the potential for unintended harm shoud a child be handled improperly. Care must be taken to avoid the head, neck, eyes,ears, groin...any area that is more vulnerable. If her arm slipped up to ZK's neck, it should not have remained there more than a second. If it did, one must wonder.

I'm quite certain that I did not always follow the prescribed methods for handling children, but then, I had some advantages most teachers did not have. At 6'3" and 230 lbs (back then) it was nothing for me to lay a second grade boy over my shoulder and cary him to the SAFE room or office. I had better control than a smaller person trying to drag or push a child. I also had a great staff and we helped each other. If a staff member ever got frustrated, another teacher who was not so emotionally involved would step in and take over.

We also trained each other on how to talk to a disruptive child so as to de-escalate the situation, and we involved the child's parent as completely as possible, without blanming the parent for the child's bad acts. That kept communications open.

Plus, the courts have always recognized how difficult disciplinary situations are, and have given schools broad latitude when they act with restraint; and even some times when schools have not.

Is there increased litigation under Silberman, or just better reporting? I don't know.

It does seem that Stu has been willing to push issues at times. If he's standing up for proper treatment of children in the district, I say good for him. But if it's really a demonstration of how far he will go to enforce his own decisions, then I'm more concerned.

Silberman is the district's custodian of records and all requests go through him.

January 20, 2011 10:15 PM: According to district website, Hurley-Richards teaches at Liberty Elementary.

I'm not an attorney, so I'm not sure what happens if FCPS wins. In most cases, I suppose, the issues would be referred back to the lower court for re-hearing with whatever direction the court of appeals might provide. In this case however, where the lower court acted on an appeal from an administrative Tribunal, maybe the district is free to reinstate its disciplinary decision, and terminate her. But, I'm not sure at all.

If that happens, I'm not sure what recourse Hurley-Richard would have. On its face, this case doesn't seem like the kind of issue that would be picked up by the Supreme Court. But I thnk there is a constitutional issue here.

Maybe I can write something later about what I'm thinking.

Anonymous said...

You have written well and, as always, you have answered many questions.

Did you obtain your information about this case by failing a freedom of information request through Mr. Silberman?

Richard Day said...


Nothing fancy. Basic library research.

On excellent advice from an attorney who reads KSN&C (No. Not the one you're thinking...this time) I contacted Sam at the court. The source of information for these pieces (this and two others so far) is the Appellant's brief,Tribunal's Final action, and Circuit Court decision obtained from the Ky Court of Appeals, plus LRC v Brown; Rose v Council, a little KRS, a little Constitution. That told me the district's point of view. I put in a call to JoEllen McComb (a former Cassidy Mom) for her brief.

I have a couple of ORRs in mind for future pieces on FCPS but nothing from them on this story. Lisa Deffendall directed me to Bob Chenoweth, which is proforma.

Anonymous said...

Looks like being teacher of the year is a "liability" in FCPS.

Richard Day said...

Yeah, Penney Sanders was commenting on that recently with me. I thought it was the Miliken that was the kiss of death.

Somebody ought to make a list of fallen stars and settle the issue.

Anonymous said...

But the real question is how long can Silberman continue on course. And how much longer can Jim Warren refuse to print anything negative about Stu Silberman?

Funny thing. Day after this story broke, teachers were told they would be getting lists of African American students to mentor. Teachers were told Stu is very concerned about the achivement gap with black students.

Richard Day said...

How long can Silberman continue? Well, 'til 2014 by contract. Although some in central office wonder if he'll complete his contract. I don't know what those opinions are based on. So far, he's on track to get hihs ten years in.

I'm fairly certain the road block at the Herald-leader is over Jim's head.

Somebody else mentioned Stu's new mentoring initiative. I haven't checked (yet) with any of my administration sources to find out if principals saw this coming, or if it came up that suddenly.

Some are suspicious of the timing.

Anonymous said...

The new mentoring initiative comes as a result of the district missing NCLB targets for AA students... this has been an on-going hot button issue for the past couple of years.