Saturday, February 26, 2011

Bad Libertarian Would Permit Verbal Abuse of School Children

Remember the days when libertarians stood for individual liberty?

The part of libertarianism I love is the part that protects and even celebrates freedom of expression and action, always with a protective eye toward anyone who might be subjected to oppression based on the conflicting ideas of another person.

Libertarianism has always included diverse philosophies and organizations, all of which advocate the goal of maximizing individual liberty and freedom.

But these days it's hard to tell the libertarians from the neo-cons.

A Republican state senator now wants to allow students to be verbally bullied in school so long as it is part of their tormenter's religious belief to do so. And he doesn't seem to mind if theyhave access to a gun when they do it.

So my "right" to oppress a weaker kid outweighs the right of that person to live in peace? Where's the liberty in that?

This from H-L, Photo by Pablo Alcala:

A bill that aims to better protect children from being bullied because of their sexual orientation, race or religion may not get another vote despite near unanimous approval from a House committee earlier this week.

Two Republican lawmakers have added three floor amendments to the bill, one of which would allow those with concealed weapons permits to carry guns at the state's public universities and trade schools and keep those guns in their cars. Two other
amendments would make clear that students who are stating their religious beliefs about gays and lesbians would not be punished for bullying.

"I'm favorably inclined toward the bill, but the amendments may cause it not to be considered," said House Speaker Greg Stumbo, D-Prestonsburg...

The sponsor of two of the amendments, Republican Rep. Mike Harmon of Danville, who is running for lieutenant governor under the Tea Party banner, told H-L, "This is a bill about bullying. It should not be about silencing someone's religious beliefs."

One of his amendments would clarify that a school's code of conduct "shall not prohibit any student from expressing their personal religious beliefs as long as that expression does not include physically harming a student or damaging a student's property."

So physical abuse is not OK, but psychological abuse is? Where's the liberty in that?

Women Rule FCPS Superintendent Screening Committee

One parent representative and four employee representatives were selected by the vote of their respective constituencies to help select the next superintendent of the Fayette County Schools.

And the winners are...
  • 16th district PTA President Jessica Berry, Parent Representative
  • Fayette County Education Association President Jessica Hiler, Teacher Representative
  • Henry Clay High School Librarian Amanda Hurley, Teacher Representative
  • Veterans Park Elementary Principal Amy McVey, Principal Representative
  • Transportation Department Manager Kim Webb, Classified Representative
They wil be joined by one member of the board to be selected by the board Monday night.

The committee is charged with the responsibility of screening all applicants for the position and recommending a list of finalists to the board of education. They have about three months (2 1/2 really) to complete their work if the district is going to meet its self-imposed July 1st deadline.

Friday, February 25, 2011

Rally for held for new anti-bullying bill that includes sexual orientation

This from WAVE 3 News:

People from all over Kentucky headed to Frankfort Feb. 23 in an effort to make kids safer. They say they are supporting fairness and celebrating a major victory against bullying.

Kentucky already has anti-bullying laws, but this one is aimed at protecting kids who are being harassed because of their sexual orientation.

The Fairness Campaign took its message to the Capitol, thanking 14 state legislators, all Democratic representatives, nine of whom are from Louisville, for being champions of fairness. The rally comes one day after House Bill 370 passed out of the Education Committee.

Meghan Lampe, now a sophomore at the University of Louisville, testified that she was harassed and called names when she went to Butler High School because she was gay. Lampe said that at the end of her freshman year, she tried to kill herself. Now she has dedicated her life to stop bullying.

"We need fairness to have everyone be equal. We need fairness to push our society forward and I know it will happen because history is on our side," said Lampe to the cheering crowd.

Rep. Mary Lou Marzian (D-District 34/Louisville) sponsored the bill that passed out of committee 21-1. When asked about the difference between this and the existing anti-bullying law, Marzian said this one is more specific which she hopes will make it easier to identify bullying and stop it.

This from H-L:

Panel OKs measure to ban bullying of gay students
Bullitt Central High School freshman Aye Jay Long, 14, told a panel of lawmakers on Tuesday that he was continually harassed by his classmates, who called him a "fag" after he told them he was gay earlier this school year.
"I was getting shoved and pushed into lockers," Long said.

He said he once received straight As but now is getting Cs, Ds, and Fs because of the harassment.
His and other students' testimony helped persuade the House Education Committee to approve a bill that would require Kentucky schools to enhance their bullying policies, prohibiting harassment based on sexual orientation, race or religion. The proposal now heads to the House floor for a possible vote...

School News from Around Kentucky

Can schools sustain early turnaround momentum?: A persistently low-performing high school in Louisville, Ky., has made significant changes in just one year as part of a federally sanctioned school turnaround. The school's principal wants to ensure continued momentum by turning the school into a K-12 campus and allowing educators more time to work with students and parents. However, district officials say such a plan may not be feasible and that strengthening the school's engineering and aviation magnet programs will help attract a broad mix of students who will build on the school's successes. (Education Week)

EXPLORE and PLAN Results Show Improvement: Kentucky’s 8th- and 10th-grade public school students participated in a statewide administration of the EXPLORE and PLAN assessments in the fall of 2010, and overall school scores moved up slightly in nearly all subject areas tested. (KDE)

Preparing for life: There's no worse surprise for a college freshman than to not be ready for college, especially if they have gotten good grades in high school. But it's happening quite often today. More and more college students are finding they must enroll in remedial classes before they can even start their credit courses. We're glad the state Department of Education is revamping the Kentucky Education Reform Act. The fact that certain test scores are being tied to student - and school - achievement often results in inaccurate projections. (Central Kentukcy News Journal)

Ky. school districts must cut administrative costs, commissioner says: Kentucky school districts — which have higher-than-average administrative costs in the country — are being asked to trim overhead costs to free up money that will be used to implement new learning standards and testing, said Kentucky’s education commissioner. Terry Holliday, who has served as education commissioner since June 2009, said on Pure Politics Tuesday that he has asked the 174 Kentucky school district superintendents to “do more with less.” They are being asked to squeeze money through energy management and efficiencies, as well as looking at their personnel ranks, Holliday said. (CN2Politics)

Sheldon Berman: 'I was surprised' when contract wasn't renewed: Sheldon Berman knew that his support on the school board was slipping in November when politician after politician publicly questioned the Jefferson County district's controversial busing policy. But he didn't think his tenure as superintendent of the nation's 31st-largest school district would end so abruptly when on Nov. 25 the same school board that unanimously hired him in 2007 voted 5-2 not to renew his contract. “I thought I actually had much more support than that,” Berman said, speaking publicly Wednesday for the first time about the decision not to retain him. “I was surprised by the result.” (C-J)

Erlanger, Shepherdsville legislators gain KSBA KIDS First Advocacy Awards: Two state lawmakers with an extensive background in education are the recipients of the 2011 KIDS First Advocacy Award from the Kentucky School Boards Association. Rep. Linda Belcher (D-Shepherdsville) and Sen. Jack Westwood (R-Erlanger) were honored Feb. 23 in Frankfort during the opening session of KSBA’s two-day KIDS First Advocacy Days in Frankfort lobbying conference. Today, several dozen school board members and superintendents are at the Capitol meeting with their legislators, attend committee meetings and sessions of the House and Senate. (KSBA)

Bible politics: Why is it that the Kentucky General Assembly wastes so much time on religion-oriented bills when so many serious problems are ignored or even ridiculed? It's political pandering. Consider Senate Bill 56, which would permit Kentucky public schools to teach the Bible as an elective social studies course. Constitutional scholars and civil liberties advocates can, and should, question such a blatant effort to scoff at the time-tested separation of church and state in America. But this bill has nothing to do with that, strictly speaking...Rather than pass this law, perhaps a few districts ought to be selected to produce model courses that prove the bill's proponents are right, that the Bible can be taught in a non-proselytizing manner. No legislation is necessary to do that. Just the courage to say no to political grandstanding in a highly partisan year. (C-J)

Can Bible be taught objectively in public schools? Senate Bill 56 calls for development of curriculum: Whether it is taught now in any Kentucky public schools is unclear. The Kentucky Department of Education does not keep tabs on elective courses being taught at each school, which are determined by each school's site-based council. (

Ky. to map digital-content site to align with common standards: The Kentucky Learning Depot, which houses online K-12 and post-secondary academic content, will be reorganized in alignment with new common core standards in math and language arts. Editors and librarians will add tags to new and existing digital materials -- ranging from audio documents to multimedia presentations -- that will link to the standards they address. Kentucky, the first state to adopt the common standards, does not allow nationwide access to the depot but shares content with other states in the region. (Digital Education blog)

Education task force makes 35 recommendations: Kentucky needs to make preschool and full-day kindergarten available to more children, boost family literacy, improve career and technical education, and give high schoolers more opportunities to earn college credit early.
Those are among 35 recommendations offered Monday by a state task force that has worked for more than a year to come up with a plan for improving education in the state. At a Capitol news conference to unveil the recommendations from his Task Force on Transforming Education in Kentucky, Gov. Steve Beshear acknowledged that some of them will be costly. (C-J)

Fayette schools try to cut suspension rates for disabled, minorities: Fayette County Public Schools and the Equity Council are joining with a legal advocacy group to try to cut high rates of suspensions and disciplinary actions involving African-American students and students with disabilities. The agreement with the non-profit Children's Law Center requires steps to "significantly reduce" disproportionate suspensions among such students, keep the students out of alternative education programs and return them to regular classrooms if they're in alternative classes. (H-L)

Voting begins to select committee to help pick Fayette superintendent: Eligible groups [began voting this week] to select members of the screening committee that will help choose a new superintendent for Fayette County Public Schools. The screening committee is required by state law to consist of two teachers elected by teachers in the district; a classified employee elected by district classified workers; a principal elected by principals in the district; and a parent elected by the PTA presidents of each school. (H-L)

Quick Hits

New nonprofit seeks to harness technology for education innovation, social change: Biz Stone, a co-founder of Twitter, has joined forces with advocacy group TechNet to create ConvergeUS, a coalition of business leaders, educators and technology innovators determined to effect social change through meaningful engagement with technology. ConvergeUS will partner with two groups on two campaigns to improve education -- one focused on improving literacy and the other on improving math and science learning. (PC World)

Unions are facing unprecedented challenges: Public-service unions are clashing with lawmakers about pay, benefits and collective-bargaining rights across the Midwest as they fight the biggest challenge to their power since President Ronald Reagan fired striking air traffic controllers in 1981. Republicans are aiming to limit the bargaining and dues-collecting power of unions for autoworkers and carpenters in states such as Michigan, where they have proposed making it a right-to-work state. (The Wall Street Journal)

iPad is part of the school-supply list at Tennessee private school: A private school in Tennessee is requiring that all students in grades 4-12 buy or lease an iPad for the 2011-12 school year. "The device comes with an easy price, is simple to use and support, and handles the vast majority of what our teachers need it to do in the classroom," the school's technology director said. The devices will be used to store digital textbooks, conduct classroom research and create interactive lessons, among other things. (T.H.E. Journal)

Survey shows many students are coming to class hungry: About two-thirds of public-school teachers who participated in a recent nationwide survey say many students are coming to school hungry. Of those surveyed, 61% said they purchase food for students and spend about $25 a month to do so. One instructional coach said that when she was a classroom teacher, she noticed that hungry students could not focus. "All they could think about was wanting food," she said. "They would ask, 'What time is lunch? Is it lunchtime yet?'" (USA TODAY) (The Sun)

New ideas surface in Wake County, N.C., school-assignment debate: The Wake County, N.C., school board has put a controversial debate over school assignments in the hands of the district's new superintendent, Anthony J. Tata. The move is expected to diffuse some of the yearlong tension that began when the board voted to end a student-assignment policy, which was based on socioeconomic diversity, in favor of neighborhood schools. Among the ideas Tata and a committee are expected to consider is one proposed by local business leaders that would aim for diversity but would restore some school choice. (Education Week)

Think Before You Tweet (or Blog or Update a Status): Earlier this week, Miriam Posner, Stewart Varner, and Brian Croxall wrote “Creating Your Web Presence: A Primer for Academics.” They had some terrific recommendations about how to establish an online presence and how to keep that presence active and positive. (ProfHacker at the Chronicle)

Report finds many schools are not effectively using technology: Many schools that use technology in the classroom are not maximizing its potential to improve student achievement or cut costs, according to a new report by Project RED and the One-to-One Institute. The report advocates that schools use more technology in intervention classes, encourage students and teachers to use technology for collaboration and integrate technology into the core curriculum on a weekly basis. The report also makes the case that technology, when properly used, can lower operational costs for schools. (Education Week)

Supreme Court will not hear Connecticut challenge to NCLB: The U.S. Supreme Court ended a six-year lawsuit over the cost of implementing the No Child Left Behind law in Connecticut, ruling that it would not hear the state's challenge. The state was the first to object to the law's testing rules, which mandated yearly exams at a cost of millions of dollars to the state. (The Boston Globe)

Understanding the formative-assessment process: The formative-assessment process can greatly improve student learning if teachers clearly understand it, writes the author of an upcoming ASCD book on the subject. W. James Popham explains in this article that testing is only one part of the process, which also should include decisions on how and what to test and whether adjustments to the curriculum should be made based on the findings. By misconstruing formative assessments as a particular type of test, teachers may diminish the potential impact of the process, he writes. (Education Week)

Protests continue in Wis., as fight spreads to Ohio and Indiana: Weeklong protests against a budget bill that would reduce the rights and benefits of state workers in Wisconsin are continuing in local communities statewide, as many teachers who returned to work Tuesday staged rallies after school. New protests also are under way in Ohio, where legislators are considering a bill that would drastically weaken collective-bargaining rights for state workers, while Democratic legislators in Indiana attempted to run down the clock on a bill that would reduce workers' rights. (The New York Times) (Milwaukee Journal Sentinel) (State EdWatch)

How will Blackboard's new products affect schools?: E-learning company Blackboard has succeeded in helping spread the use of learning-management systems in post-secondary schools, and is now turning its focus to new products in data analytics, mobile learning and synchronous communication. Experts say the move could be a boon to schools that use Blackboard Learn, which stand to benefit from continuity and potential flexibility in pricing if they choose to purchase the new Blackboard applications. (InsideHigherEd)

Obama: Investing in education, technology good for the economy: President Barack Obama, during a visit to Intel Corp. facilities Friday, promoted his education and economic agendas and praised the company for its efforts to interest more students in science and technology. Intel has trained 7,000 teachers in Oregon over the past 10 years in how to incorporate technology into classroom learning, and the company sponsors numerous other education initiatives. "You are a company that understands that investing in education is a good business model," Obama said. (American City Business Journal) (The Associated Press)

Sunday, February 20, 2011

Ed. Dept. Creates Commission on School Finance Equity

This from Education Week:

Twenty-eight advocates, researchers, corporate leaders, and lawyers have been asked to serve on a commission that will "examine the impact of school finance on educational opportunity," the U.S. Department of Education announced today.

This commission marks the first time the department has created a commission to focus on issues of state and local finance, and one of its first questions will be determining just what the federal role should be in the issue, considering that most education funding comes from state and local dollars, said Russlynn H. Ali, the assistant secretary for civil rights. The commission will be housed in the department's civil rights division for administrative purposes, but its charge is not to ferret out funding issues for potential enforcement action, Ali said...

Friday, February 18, 2011

An Efficient System

The Center for American Progress recently finished a yearlong effort to study the efficiency of the nation’s public education system.

Efficiency is a term used to describe a system that is productive without waste. Just as a highly efficient furnace delivers adequate heat safely with a minimum of loss and at low cost, an efficient school system is one that meets the goals of the state without a lot of wasted effort. In the business world, the notion of productivity describes the benefit received in exchange for effort or money expended.

The center claims to present the first-ever evaluation of the productivity of almost every major school district in the country. The project comes with a big disclaimer...

We ...ask that you interpret individual district evaluations with caution. The connection between spending and educational achievement is a complex one, and our data does not capture everything that goes into creating an effective school system. We're also aware that some of the data reported by states and districts have reliability issues. Nevertheless, we believe that our calculations are the best available given existing research methods.

...but attempts to measure the academic achievement a school district produces relative to its educational spending, while controlling for factors outside a district’s control, such as cost of living and students in poverty.

Tuesday, February 15, 2011

Henderson Supt says State Miscalculations Costly

Cuts "gut the quality" of the school system

This from WFIE:

Officials in Henderson County are scrambling to cut more than $500,000 from this year's school budget. School officials say the state miscalculated enrollment rates, and now the new cuts are on the fast track.

What is urgent about this situation is that the state is not warning schools that their budget will be cut next year, instead the cuts are coming this school year.

It appears education officials in Frankfort may have made a very costly mistake, and now Dr. Richey says school systems statewide will pay the price.

"For Henderson County, it represented a cut of $531,000," said Dr. Thomas Richey, Henderson County Schools Superintendent.

Richey says the cuts will actually be much deeper, probably close to $800,000. He says there will probably be more cuts announced after the legislature gets through with this session.

It seems like a never ending story, cuts after cuts being made in Frankfort, leaving the individual school systems to decide how they'll survive.

"I use the word gut because that's exactly what it is," said Richey. "You begin to gut the quality you've built into your system."...

Fayette superintendent search will be open, not replicate past mistakes, board chair said

This from Jim Warren at the Herald-Leader:

Fayette County School Board Chairman John Price says the board intends to conduct an open and transparent superintendent search, with community involvement, while avoiding the kind of glitches that plagued some previous searches.

Past problems included rapid turnover, with two superintendents and two interims in the five years before Stu Silberman was hired; superintendent search firms that didn't do their homework, and conflicts between openness and confidentiality.

The board, now gearing up its search to replace Silberman, is reviewing some earlier searches, hoping to use things that worked well...

"We'd like the process to be as smooth as possible and as transparent as possible," Price said. "It's very important that the community be involved because the community has to have a relationship with the superintendent and the superintendent has to have a relationship with the community. If it's a good relationship, we can move forward." ...

"We need to get absolutely the best person we can," Price said. "The district is large and attractive enough that I think we'll have candidates from across the country, as we have in the past."

A few in-state names have been mentioned in education circles as possible candidates, including Jessamine County Superintendent Lu Young and Daviess County Superintendent Tom Shelton, whom Silberman mentored when he was
Daviess superintendent before coming to Lexington. ...
Clark County Superintendent and former Deputy Commissioner Elaine Farris's name has also been mentioned along with that of Tim Hanner from Kenton County.

Crouch Reacts to Reports of Racial Slurs at Gtown

This from the Herald-Leader:
Georgetown College officials called a campus-wide assembly Monday afternoon to address tension related to allegations that racial slurs were directed toward a black student.

Tevin Lloyd, a freshman from Texas, has alleged that students associated with Kappa Alpha Order fraternity yelled racial slurs at him as he and other members of the President's House Association held the annual Boxer Run on campus.

There also have been complaints that a Confederate flag was displayed in the common area of the dormitory that Kappa Alpha members share with other students and that photos were posted on the fraternity's Web site depicting members wearing Confederate uniforms, said Jim Allison, associate vice president for college relations.

Racially charged graffiti was found on the walls in the men's restroom in another building, he said.

President William Crouch said during Monday's assembly of about 800 that the college has increased security and set up a hot line for students to report disrespectful behavior and that it will add a clause to its student handbook outlining penalties for students who make racial slurs. Crouch said he is setting up a task force to "examine our current campus culture and climate." ...

JCPS Superintendent Sheldon Berman says it's time to 'move on'

Board wisely avoids Ray & Associates

This from Toni Konz at the Courier-Journal:

Superintendent Sheldon Berman’s contract to head Jefferson County schools won’t be extended.

Shortly before the school board was scheduled to discuss a potential extension Monday night, Berman asked it to drop the discussion from its agenda. Board chairman Steve Imhoff complied, and the board voted 7-0 later in the meeting to hire a Nebraska executive search firm to help it find a successor to the embattled superintendent.

“At this point, I think it’s time for all of us to move on,” Berman told the board.

Afterward, he told reporters that “working with either a divided board or a board that has some concerns – it may be better to move on and let them select a new superintendent.” ...

After setting aside the Berman issue, board members voted to hire McPherson and Jacobson of Omaha, Neb., to help them find a new superintendent. The board has not yet approved a contract, but according to a proposal the firm submitted to the board last week the search is expected to cost the district $36,500 plus travel, office and advertising expenses.

Imhoff said he will negotiate an agreement and should have a contract ready for approval by the end of the month.

Two other search firms – Greenwood/Asher & Associates of Miramar Beach, Fla., and Ray and Associates of Cedar Rapids, Iowa – had interviewed before the board last week, along with the Omaha firm...

Monday, February 14, 2011

Schooling Aspiring Principals in Clark

This from the Winchester Sun:

Clark County Schools Superintendent Elaine Farris has had many mentors as she has progressed through the educational system at the school, district and state level.

Because of that, she said, she knows the importance of grooming individuals who are looking to move up and someday become administrators...

Farris started an Aspiring Principals Cadre this year for individuals within the school system who want to someday become principals.

Ten teachers and district personnel responded to her call and have been meeting with Farris, Barbara Disney, a former principal and Providence Elementary School principal Brenda Considine once a month since August.

One of their first tasks was to review the Interstate School Leaders Licensure Consortium (ISSLC) standards for school administrators, then assess where they were on those standards and create a professional growth plan to work toward...

“Principals are no longer building managers. The ones who are more instructionally focused and have the expertise and knowledge and can improve student performance are the ones who are being hired now,” Farris said.

The training and experience the class members are gaining will serve them well whether they decide to go on and become a principal or not, Farris said.

“I don’t care whether it’s high school, middle or elementary school, being a principal in the 21st century is a tough job. Maybe some of them might decide after this that they don’t want to be a principal,” Farris said. “But when these individuals go back into their schools and have developed these skills, even if they don’t become principals, they can take those leadership skills and that perspective back to their schools and be even better leaders in their buildings.” ...

King Clarifies Stance on ACT and College Admissions

Council on Postsecondary Education President Bob King recently offered his opinions on college admissions saying,

Historically, parents are often directed to focus on graduation rates and average GPAs as evidence of how their high school is performing. Our reports allow parents and educators to look more deeply into actual performance measured by an external, unbiased resource — the ACT exam — now required of all Kentucky students.
That drew a response from KSN&C's Skip Kifer.

Bob King, president of Kentucky's Council on Postsecondary Education applies the council's arbitrary standard of using a single test score to determine whether a student is ready for regular course work in Kentucky's public universities.

He implies a test score is a better predictor of grades in college than is a high school record. He then presents results from one high school that lump higher performing students (those with above-average high school records) with lower performing ones in a misguided approach to justify his position. A test score, however, does not make or break a student's readiness for higher education.

Today, King clairifed his stance in the Herald-Leader.

...Please allow me to clarify that Kentucky's colleges and universities do not rely exclusively on the ACT to make college admission or placement judgments, nor does the Council on Postsecondary Education encourage such determinations.

A student's entire record, including GPA, extracurricular activities, and other placement exams form a portfolio that allows campuses to make informed decisions on admission and placement.

The ACT serves as an important element in this consideration, but more importantly, it serves as an alarm bell in the student's secondary experience about preparation for life after high school.

This might have been a good place to stop. It acknowledges Kifer's concerns and clarifies King's stance. But King then makes allusions to "certain thresholds" in the ACT which serve to warn us if a student is not on track.

It warns of the need to take a deeper look at a student's college readiness if the scores fall below certain thresholds, but it is not the sole determinant when placing students in developmental courses... Far from arbitrary cutoff scores, there is a great deal of data from tens of millions of ACT score results upon which policy makers in Kentucky rely to set the scores used to indicate college readiness in key entry-level courses.

If the thresholds King has in mind are, in fact, a reference to ACT's benchmarks, which are inappropriately modeled, one wonders if King's effort to lay the issue to rest might draw yet another response from Kifer.

We'll see.

Saturday, February 12, 2011

From the Nation's Cartoonists

This from Dick Locher in Slate:

This from Drew Scheneman:

This from Steve Sack:

This from Ben Sargent:

This from Chan Lowe:

This from Signe Wilkinson:

This from Steve Sack:

This from Steve Kelly:

This from Clay Jones:

This from Bob Gorrell:

This from Lisa Benson:

This from Steve Kelly:

This from Clay Bennett:

This from Chan Lowe:

This from Don Wright:

This from Chris Britt:

This from Jim Morin:

This from Chris Britt

FCPS Appellee's Brief and Cross Appeal

Appellate review in Petrilli v Silberman, and whether former Booker T Washington Principal Peggy Petrilli is granted a new trial, hangs on the question of Judge James Ishmael’s threshold jury instruction:
“Do you believe from the evidence that the Plaintiff, Peggy Petrilli, voluntarily resigned from her position as principal of Booker T. Washington Academy on August 2, 2007?”
Juries have tremendous power over people's lives. Granting them such power directly expresses our faith in the system of justice, democratic governance, and whether the public has faith that jury verdicts can be fair, unbiased, and accurate.

In recent years, however, concerns have been raised about the quality and integrity of the outcomes reached by juries. Some believe that jurors are too frequently biased, or incompetent to render just verdicts. Jurors can misunderstand instructions from the judge on legal issues, fail to recall critical evidence, or suffer from boredom during trials - particularly in complex trials.
For these reasons, and perhaps others, the quality of jury instructions is critical to guiding the jury toward a result that is based on sound legal principles rather than biased, arbitrary or sloppy reasoning.

The central question under review in Petrilli v Silberman is whether a fair set of jury instructions existed, but there's some other stuff too. The district wants the Court of Appeals to agree that Petrilli voluntarily resigned and leave Fayette County Circuit Court Judge James Ishmael's ruling undisturbed. They request the court to confirm the trial jury or alternatively grant the district's cross appeal for a directed verdict on all issues, which would pretty much do the same thing.

KSN&C had hoped to present the district’s arguments alongside those of Appellant Peggy Petrilli, but we were unable to secure the cooperation of counsel for the school district. KSN&C thanks Sam Givens at the Kentucky Court of Appeals and Judge Ishmael for their assistance.

The following is a summary of the district’s point of view.

District arguments in Petrilli v Silberman:

· The threshold jury instruction was not preserved for review. This is a procedural argument and I won’t pretend to understand its subtleties. Apparently, in order to “preserve” an issue for appellate review, the attorney must …do something…like object. Objections are preserved for appellate review only if those objections are made and ruled on in the trial court. And McNeil argues that Dale Golden’s objections came during a preliminary hearing, as KSN&C has reported. See: Nebraska Law Review for a discussion. So, if I’ve got this argument right, McNeill says Golden objected to the jury instruction during a preliminary hearing, but not in the trial court, and therefore, it was not properly preserved. I would only note that during oral argument, the judges were aware of this argument but at least two of the judges did not appear to be buying it.

· McNeill says the threshold jury instruction was proper. Golden seeks what is called a de novo review of Judge Ishmael’s threshold jury instruction and McNeill says that’s not the correct way for the court to look at it. “The threshold jury instruction was proper because once the jury found that Petrilli voluntarily resigned, she could no longer meet the essential elements necessary to prove her claims of an adverse employment action.” McNeill pins his position on the argument that Petrilli was not under any time pressure (which might give rise to a constructive discharge) because she first brought up the idea of resignation, did so with advice from counsel, negotiated her separation, and had been given options to avoid resignation, including suspension with pay, which McNeill told the court was not an adverse employment action. Again, it is not clear that the appellate judges bought this argument.

· The district argues that Petrilli had no right to a constructive discharge jury instruction because it was not properly preserved, Petrilli’s arguments are misleading, and that during the pre-trial stage of the case, Golden had argued that they were not making a constructive discharge claim.

· McNeill argues that the court erred in not granting the district a directed verdict on the reverse discrimination claim and that Petrilli did not suffer an adverse employment action. McNeill says Petrilli confuses not wanting to resign with choosing to voluntarily resign once confronted with substantial complaints about her running of the school.

· McNeill states that Petrilli was qualified to serve as principal…

· ..but that she was replaced by a white man, Jock Gum. Gum had served as an interim principal, finishing out the year. However, the hiring of Wendy Brown, a black woman, was at the core of the case, and here McNeill argues that Silberman and the board could not be held responsible because it was the school council who hired Brown.

· The district says that the court improperly failed to grant their motion for a directed verdict on retaliation claims, whistleblower claims.

· …that the trial court was correct to excuse Brenda Allen from any claims.

· …that the court properly handled jury selection.

· …that the trial court was correct to disallow testimony from Allen.

· …that the court was correct to overrule complaints from Golden against McNeill, and a requested second deposition of Doug Adams. During oral argument, one judge made statements inferring that the misconduct claim would likely go nowhere.

· …that the court was correct to overrule Petrilli’s Motion in Limine on prior bad acts when it allowed testimony on related issues at BTWA.

· …some lawyerly something about how McNeill used depositions to impeach and rehabilitate witnesses…

· That the court erred by refusing to dismiss Silberman as officially and as an individual.

Friday, February 11, 2011

Hey, Ludlow Schools: Turns Out You're 15 Years Older Than You Think You Are

Public schooling for the children of Ludlow, Kentucky, began in the 1848-1849 school year – fifteen years earlier than the starting date of 1864, as has been previously reported.

In Judge Hunnicut’s History of the City of Ludlow, the initial date is set at 1864. However, a brief reference is made to an earlier “state operated school” that predated what the citizens thought of as the Ludlow School.

I would typically insert the quote here, but my book is at the office and I'm not. : (
The first reference to a school in Ludlow, Kentucky, actually occurs in the Report of the Superintendent in 1849.

Beginning with Superintendent Rev J J Bullock, in 1838, every state superintendent of schools presented an annual report to the legislature listing the counties that had built schools, and outlining the census for each district within the county, pursuant to the Kentucky Act of 1830. Typically, the report was made on or about the month of June, at the end of the academic year.

At that time, Ludlow was part of Campbell County. Campbell, unlike some other counties, showed an interest in building schools and reporting their progress faithfully, beginning in the first year of the common school system, 1837-1838. By 1842, there were eleven district schools in Campbell, but there are no details referencing any school in the area that became Ludlow.
In 1843, Kenton County was formed.

During the term of Superintendent Robert J Breckinridge, Kenton County reported a school in District 24 in the 1849 census report. But District 24 is otherwise unidentified.

The record is not specific as to the location of most of the county’s districts, except where cities had formed. So in northern Kentucky, schools could be confirmed in Newport and Covington, but as many as 40 districts existed in the two northern counties in unincorporated, relatively remote, locations. At that time a county school existed within its own district. A single one-room school typically equaled one district.

Following Ludlow’s incorporation as a city in 1864, the name Ludlow was added to the record for Kenton County District 24, beginning in 1865. Having established the school in Ludlow as District 24, and working backwards, I discovered that each of the intervening Reports of the Superintendent showed Kenton County District 24 in operation all the way back to 1849. No report was made for District 24 in 1848.

Thus it is derived that the operation of the first public school in Ludlow, Kentucky, likely began in the fall of 1848, concluding in the spring of 1849 when the first district census was reported by Superintendent Breckinridge.
In that year, 29 scholars (out of 100 children in the city) attended school for 5 months. The school spent roughly $2.50 per pupil from a total school fund of $58.33 - $33.33 from the school fund and $25.00 collected from a 2-cent tax.

There you have it. So Curtis, take your arthritis medicine and lay down. You're older than you think.

Hat tip to the Department of Libraries and Archives in Frankfort, Bridgette at the Kenton County Public Library, my ol' classmate Lynn Alig and Ludlow High School Librarian Ms Millar for your research assistance.

Wednesday, February 09, 2011

Blogging from Under the Bus

"A blogger is likened to the rail bird
that hasn't been anywhere,
hasn't done anything,
and is contemptuous of anyone who is
waging the day-to-day battles of life."

---from John Kiser's weekly communication

Clearly bloggers are defective. Everybody knows that. We're all unemployed, living in our mother's basements - just lounging around in our pajamas all day sucking up beer and hogging the doritos. So it came as a surprise to learn that FCPS bus honcho John Kiser fired a little volley at us lowly pitiful souls in his most recent transportation communication. Anyone know what prompted that?

As is our custom, KSN&C followed up on and earlier allegation we received. I wrote to district spokeswoman Lisa Deffendall to see if she could now confirm and comment on the following allegation?

That a bus driver was passed over for a position. That the employee grieved. After that, the employee was disciplined for not following in line during a field trip (or something like that) and was removed from the trip list, reducing the employees ability to earn wages. And that, by the time of Mary's ruling, 90-days had passed, rather than the 10 days required by policy, by which time, the disputed position had gone to another driver.

(NOTE: Careful KSN&C readers will note that any inuendo regarding racial motivations related to the alleged action has been dropped from the above description. Additional information from our transportation moles make that initial claim more doubtful.).

Deffendall responded,

I spoke with Stu about this and he said that he has looked into the situation, but because it is a personnel matter, he is not able to comment on it.
OK so before, the district had to look into it, and now it's a "personnel matter." We did some more investigating and it seems like that's not all it is.

Turns out the bus driver found his or her way to Frankfort and is now being represented by a certain former FCPS in-house counsel - indeed claiming that his or her grievance was buried for 90-days while the job the driver was seeking went elsewhere.

So, now Fayette County Superintendent Stu Silberman has another reason not to comment, since this matter appears to be under litigation.

Wait. It gets better.

Silberman had his outside counsel, Bob Chenoweth, send Brenda Allen a formal request to withdraw from representing the bus driver. The district is claiming that Allen's representation constitutes a conflict of interest because she would only have known about "problems with John Kiser" from being Counsel to the Board.

But get this.

When Allen was a law student in the 1990s, her job, while working for JoEllen McComb (who represents Rosalind Hurley-Richards), was "to receive all of the complaints from Fayette County School bus drivers, many of whom ultimately sued Kiser, for retaliation, harassment etc."

Allen reminded Chenoweth that he was the attorney on the other side of one of those cases.
I told them I would not be withdrawing from representing her or any of my Fayette County employee clients and that I carefully review the rules to ensure that there is no conflict before I accept their request to be their attorney. I told him it was ironic that 14 years later I have bus drivers coming to me about Kiser.
Allen told KSN&C that she was delighted to be working with Chenoweth again (even as opposing counsel) and Allen sent her regards to his wife and invited the couple to the grand opening of her restaurant.

I'm pretty sure the Hanna Report glossed over the potential fallout from outsourcing legal services in Fayette County. I'm also starting to understand why Kiser's day-to-day life is full of battles.

Our sources joked that, to them, Kiser was the true "blogger" since he doesn't have a CDL and can't drive a bus.

Apologies to BARBEE for abusing a perfectly good cartoon.

School Board to School Council Members: "Sue You"

Imagine that you are a member of your local board of education. Ponder your responsibilities. Think about how you are going to enlist all of the help you are going to need in order for your school district to be successful. You can generally count on all of the principals and most of the teachers being on board, if for no other reason than it is their job. Most will be strong supporters of improving the schools.

But what about the parents?

When schools and parents work closely together we get the best results for the kids. We see that over and over again. It is an important attribute comon to the best public schools, charter schools, and private schools.

Think about what kind of message you'd want your school board to send to the parents who serve at the school council level. Are you all partners on the same team? Or do we only want parent involvement when its convenient? And what's the board's message to the parent and teacher council members when things go wrong?

Believe it or not, this issue was touched on yesterday in the Kentucky Court of Appeals during oral arguments. It was a question of who should be held responsible if a personnel matter at the school level brought allegations of wrong doing, such as the racial discrimination claim in Petrilli v Silberman.

While representing his clients, Fayette County Schools Superintendent Stu Silberman and the Board of Education, attorney John McNeill argued yesterday that it was inappropriate to sue the superintendent or board. Instead, he suggested to the court that an aggreived person should sue ... individual school council members!?

Now, as I'm sure KSN&C readers know, school council members select their school's principal from a list of qualified candidates provided by the superintendent. In the case of teachers, council members are consulted before the principal selects. In both cases, the superintendent completes the hiring process. After that, the personnel responsibilities of school council members are a big honkin' ZERO. Nothing. School council members do not consult, advise, observe (formally), evaluate, or discipline any teacher or principal who gets out of line. They have no authority to do so whatsoever. So the suggestion that these are the folks who should be sued in such cases left me bewildered.

Wondering if I was the only person who found McNeill's argument to be stunning, I went looking for a second opinion from another attorney. I happened to find one who used to run the Kentucky Association of School Councils, Susan Weston.

Weston opines,
The school-based decision making statute, KRS 160.345(2)(f), says in so many words that school councils "shall not have the authority to recommend transfers or dismissals/" School councils have a specific role in hiring: they select principals and are consulted on other vacancies. They have no role with individual personnel once they are hired. They do not evaluate, do not set evaluation rules, do not discipline, and do not terminate. And, as the law I just quoted makes clear, they don't even get to recommend that employees be removed from their current positions. Since a council has no legal role at all in a process that leads to a principal ceasing to be principal, I am mystified about how a council could be sued over activity it could not

Yeah. What she said.

Now I'm betting that neither the superintendent or board of education got together to make this suggestion their unofficial policy or their legal gameplan. Tempting as it might be, I doubt our board members would really want council members to be held responsible for things beyond their control. Still, it is troubling to think that this argument is out there, before the Kentucky Court of Appeals.

What if the court agrees with McNeill? Who would want to serve on a school council then?

Tuesday, February 08, 2011

Appeals Court Signals Remand of Petrilli Case

School District Attorney Argues
Plaintiffs should Sue School Councils
Rather than Superintendents
in School-based
Racial Discrimination Claims

Ruling Expected in Mid march

During Oral Argument before the Kentucky Court of Appeals today, two judges openly and repeatedly expressed doubts about Fayette County Circuit Court Judge James Ishmael’s threshold instruction to the jury in Petrilli v Silberman.

In deliberation during the trial, jurors were only allowed to consider whether they thought former Booker T Washington Principal Peggy Petrilli had resigned voluntarily. The jury made their decision while looking at a handwritten resignation letter from Petrilli that read, in its entirety, “I hereby resign my position in the Fayette County Schools” with no effective date.

None of the other issues related to civil rights, retaliation, or whistleblower claims were considered by the jury since they found her resignation to be voluntary.

That result undermined J Dale Golden’s constructive discharge claim and exonerated Fayette County Schools Superintendent Stu Silberman and the Fayette County Board of Education.

Responding to an argument from Golden, Judge Kelly Thompson said, “I don’t agree with that threshold instruction either…” Later during John McNeill’s argument, Judge Glenn Acree said, “I, too, have a problem with this instruction…I’m not sure a jury understands [everything that goes into making a resignation] voluntary.”

McNeill argued that the superintendent and board weren’t guilty of anything, that the jury instruction was proper because it contained the word “voluntary,” and that Golden’s assertion of constructive discharge was made “without evidence.”

Judge James Lambert made no specific assertions during questioning but only two judges are needed to prevail on any particular point of law.

The only clue about the court's leaning on the central issue of whether Petrilli voluntarily resigned came from Judge Acree who said at one point, “It sounds like she didn’t want to leave.”

I'm no attorney but it sounds like this case may be headed back to Fayette County. But we won’t know for sure until sometime in mid March. A ruling is expected in 30 to 45 days.

Each side was given 15 minutes to argue points of law and procedures before the court. Golden, representing Appellant Peggy Petrilli, chose to argue for 10-minutes and reserve 5-minutes for rebuttal. John McNeill, representing Stu Silberman and the Board of Education used all 15-minutes for argument – thus allowing Golden to speak first and last.

Most of the court’s attention was on the threshold jury instruction, and the question of whether Kentucky’s school council laws have the effect of insulating superintendents and school boards from discrimination claims.

What did the school board do wrong? one judge asked. You tell us about the Clarks and Ms Berry but what about the board?

“If there is a racial discrimination claim, who would you sue?” Acree asked repeatedly. McNeill opined that one must sue individual school council members. Golden argued that it was appropriate to sue the superintendent who is ultimately in charge of everything.

The district filed a Cross Appeal claiming that Judge Ishmael should have issued a directed verdict on all of Petrilli’s claims because they all lacked evidence. During a pretrial hearing, Judge James Ishmael had rejected the district's request for summary judgment saying,

"Right now, I’m not comfortable that the facts are so undisputed, that I feel comfortable making a ruling as a matter of law."
Golden argued that all of Petrilli’s other claims should have survived any resignation. For example, if a woman is raped at work, she does not have to keep working there to have a case, Golden said.


Reday000 Adjourned. Court indicates it will respond in 30 to 45 days.
Reday000 when asked...says Buddy Clark was disbarred in Chicago.
Reday000 Golden: Voluntary was not defined. Threshhold question was inappropriate.
Reday000 Golden rebuttal begins. Thompson demures on sanction question.
Reday000 McNeill denies sanctionable conduct.
Reday000 McNeill defending jury instruction because it contained the word voluntary.
Reday000 Acree: I, too, have a problem with this instruction...not sure jury understands what voluntary means...
Reday000 Acree: If there was a racial discrimination claim, who would you sue?
Reday000 District filed cross appeal saying there should have been a directed verdict on all of Petrill's claims.
Reday000 Acree: "It sounds like she didn't want to leave."
Reday000 McNeill says constructive discharge claim was without evidence.
Reday000 McNeill is up.
Reday000 Golden: "This was a hatchet job."
Reday000 Golden goes after McNeill's conduct during trial.
Reday000 Golden argues whistleblower & civil rights claims should survive any resignation.
Reday000 Brenda Allen is in attendance.
Reday000 ...what did the school board do?
Reday000 Thompson: "I don't agree with that threshhold instruction either. That's not my problem...
Reday000 Each side gets 15 minutes. Golden goes first.
Reday000 Lambert presiding. Welcomes and introduces.

Monday, February 07, 2011

Where We're Coming From

Over the weekend a reader lamented that it was difficult for them to figure out what side KSN&C was on when it came to several issues.

[Edited] Richard, you were quoted as saying you would give Mr. Silberman a 95% approval rating (in the Herald-Leader last week). If you feel this way, why would you continue to print these posts about Mr. Silberman?

Or are you meaning to say the treatment of Goodin, Hurley-Richards, and Petrilli (which you clearly disapprove of) amounted to the 5% of Mr. Silberman's actions you disagreed with?

Or am I misreading the the posts? Perhaps you feel that Petrilli needed to be forced out of Booker T, Goodin needed to be escorted from Jesse Clark by security guards after she filed an civil rights complaint, and Hurley-Richards needed to fired after her altercation with a student at Cardinal Valley? From a confused reader.....

Yeah, I can see how that’s confusing. But maybe that’s a good sign. When KSN&C reports something, there is a sincere effort to tell both sides of the story.

Public debate is so “partisan” these days that everyone expects a writer to be “for” or “against” each person. This is a news and commentary site that tries to shoot down the middle. We report facts related to news stories with source citations or links, and distinguish the reporting from the opinions. As time permits, we do original reporting.

KSN&C does not allow flaming, but readers are invited to share their opinions as well. We even print reader’s anonymous comments (which we are not in love with, but understand the position some folks are in) even when those comments are critical of KSN&C.

When Jim Warren asked my opinion of Fayette county Schools Superintendent Stu Silberman’s administration, I considered his administration in total. And KSN&C readers may recall, I have argued that he is most likely Fayette County’s third most effective (best) superintendent in history, behind M. A. Cassidy and Guy Potts. I say likely, because although I have studied the history of the schools extensively, I have not completed the work that would have to be done to say that definitively. Cassidy, Potts and Silberman share a crucial characteristic. They were strong leaders. Cassidy and Silberman were also leaders during transitional periods in educational history.

I hope readers know that I have a deep respect for the job today’s superintendents are called to do. Love him or hate him; Stu Silberman took a rudderless district of 33,000 students or so, and charted a clear course. He advocated, pushed and shoved, to move the district in a unified direction. He set high goals, fixed the buildings and was effective in the community. He worked tirelessly, made countless decisions, managed a huge budget and motivated lots of people. Despite claims made elsewhere that FCPS was a district in trouble (due to NCLB results) we have maintained Silberman’s student achievement data are rather good. If a superintendent can do all that over a seven-year period and come out without too many dings, that person has performed way above average. The fact that he may have performed with his ego intact bothers me not at all. At times it has appeared to be too much about the man, and some have thought him thin-skinned, but I don’t know a strong leader who doesn’t believe in their own abilities to make change occur.

Had Warren asked me to rate Silberman on personnel matters alone, I would have had a harder time quantifying. As one reader pointed out recently, with Stu, sometimes it became a question of whether the ends justify the means.

I first became concerned about Silberman’s potential for snap judgments in personnel matters early in his tenure when a close associate was demoted - reportedly for failing to prevent her faculty from speaking at a board meeting; arguably their constitutional right. But that individual chose not to complain, I certainly did not investigate and it did not become a news story (and that was pre KSN&C, anyway). The objective data showed that the demoted principal’s scores jumped 12 points that year and I think it was a bad call.

When Peggy Petrilli jumped ship (or was pushed overboard – we’ll see what the appeals court says) it was a news story. We didn’t invent it. But we did pick it up; investigated, and reported. Heck, we even tweeted. For those of us who study school administration, this was an important story. Here you had the modern version of school leadership on trial. Petrilli was Silberman’s highly touted gap warrior and his “Sophie’s Choice” moment dealt him a blow. KSN&C explored both sides’ legal briefs and the testimony. We expressed surprise over the judge’s jury instructions the minute he gave them and printed material that was surely uncomfortable to both sides. Neither Petrilli nor Silberman wanted their dirty laundry aired, but the alternative was to not report. As a direct result of our reporting, I believe, FCPS began truly evaluating its principals. The district had been giving everyone high marks previously, as was revealed in testimony from district administration.

Readers and confidential sources pointed us to the Jill Cowan, Rosalind Hurley-Richards and transportation department stories along with a few more. Some things we print. Some we don’t. We don’t swing at every pitch and try to verify (through triangulation) stories before we print anything. When an allegation is unconfirmed, we say so.

It's too soon for me to know if the transportation department allegations are true or where the story may go.

I'm not sure Cowan deserved an interview, but I was always taught that when interviewing a woman (or any individual in a protected class), the last thing you wanted to tell them was that you were going hire someone from a different class - because of that class. Plus, suspending someone on the day they made a civil rights complaint takes balls the size of Alpha Centauri. If that's what happened, the district deserves to lose, but there won't be anything to celebrate. However it goes, we'll report it.

Teachers deserve the court's consideration when handling situations with tough students. On the other hand, nobody should support the manhandling of students and Silberman apparently believed Hurley-Richards drug the child down the hallway by his neck. The lower court didn't buy the evidence against the teacher and I'm guessing the appeals court won't either. However it goes, we'll report it.

KSN&C was not paying attention when board member Amanda Ferguson asked for a second opinion on the Hanna Report that Silberman had purchased in support of out-sourcing all FCPS legal services. The report stunk to high heaven, and we said so. Then we followed the story all the way to its conclusion when the Herald-Leader revealed the $200,000 payoff to keep Allen quiet. We did not print everything we knew.

KSN&C has no vote on any boards, does not hold public office, and makes no decisions regarding any school personnel or policies - but many of our readers are such persons. We do ask tough questions, second-guess the decision makers, and challenge popular narratives.

KSN&C is a place where discerning readers may come to think about the issues. It is written at the graduate level. We intend to be factual and thought-provoking. What you think is up to you.

Saturday, February 05, 2011

Petrilli's Appeal

The Kentucky Court of Appeals takes up the case of Petrilli v Silberman Tuesday.

In preparation for the hearing KSN&C asked both sides for a copy of their appellate briefs, which are essentially public records. Only one side (attorney J Dale Golden) complied with our request. In a conversation with FCPS attorney John McNeill, KSN&C was told that he didn't see any problem giving us a copy - that is until he realized who we were. Once he recalled, he declined. Go figure.

The central issue on appeal is a threshold jury instruction that boiled the entire case down to the question of whether Appellant Peggy Petrilli, the former principal of Booker T Washington Academy, voluntarily resigned - period. Covering the trial, I recall being stunned by that instruction at the time.

Jurors deliberated for about 3 1/2 hours before concluding that Petrilli "voluntarily resigned from her position as principal of Booker T. Washington Academy on August 27, 2007."

Petrilli claims the jury instruction was inappropriate since she was actually forced out by Fayette County Schools Superintendent Stu Silberman in what is known as a constructive discharge.

KSN&C Timeline of the events here

Golden throws a lot of spaghetti at the wall arguing:

· Federal law is applicable in interpreting the Kentucky Civil Rights Act.

· The trial court erred in creating a threshold jury instruction that superseded the elements for reverse discrimination, retaliation, and whistleblower.

· Petrilli Was Entitled to a Directed Verdict on Her Reverse Race Discrimination Claim.

· Petrilli’s Motion For a Directed Verdict On Her Retaliation Claim Should Be Granted AND THE THRESHOLD INSTRUCTION WAS ERRONEOUS.

· the trial court erred in failing to give a separate instruction on whistleblower, failing to direct a verdict, and failing to give a punitive damages instruction.

· It was Error to Dismiss Petrilli’s Constitutional Claims and the Trial Court Erred in Failing to Direct a Verdict on Behalf of Petrilli on her Constitutional Claims.


· The trial Court erred in its handling of the Batson issue.





Petrilli is asking the Court of Appeals to :

1. Reverse the trial court for use of a threshold instruction;

2. A directed verdict for Petrilli on the issues of protected class, being qualified for her position, and being replaced by a person of a different race;

3. A directed verdict for Petrilli on the adverse employment issue or, at the very least, a jury instruction setting forth the elements of constructive discharge as tendered by Petrilli;

4. Reverse the trial court and find that Petrilli is entitled to a punitive damages instruction regarding the whistleblower claim;

5. Reverse the trial court’s directed verdict on Petrilli’s constitutional claim;

6. Reverse the trial court’s dismissal of the defamation claim against Allen and the other Defendants;

7. Reverse the trial court’s arbitrary discovery deadline of August 27, 2007;

8. Allow Petrilli to take the discovery deposition of Allen;

9. Reverse the trial court’s ruling on the motions in limine regarding character evidence;

10. Allow Petrilli to retake Adams’ deposition, sanction opposing counsel for his misconduct and award costs and attorneys’ fees; and

11. Direct a verdict in favor of Petrilli on all constitutional claims;

12. Permit Petrilli to test the sufficiency of the “advice of counsel” defense;

13. Reverse the trial court’s erroneous ruling which allowed for improper impeachment and rehabilitation; and,

14. Remand this matter for a new trial.

The crux of the appellant's brief is...

B. The trial court erred in creating a threshold jury instruction that superseded the elements for reverse discrimination, retaliation, and whistleblower. (Preserved at 7/28/09, 08:05:20—09:20:00 a.m., tape 22/3/09/CD/108-8).

This Court uses a de novo standard of review for erroneous jury instructions.[1] The jury was given the following improper threshold jury instruction:

Do you believe from the evidence that the Plaintiff, Peggy Petrilli, voluntarily resigned from her position as principal of Booker T. Washington Academy on August 2, 2007?[2]

The jury marked “yes” and returned to the courtroom where the trial judge discharged them from further duties. The threshold instruction was given in error because it is completely different from the elements of Petrilli’s claims for reverse discrimination, retaliation, and whistleblower, as demonstrated by the jury instructions given by the court.[3]

Petrilli was entitled to a jury instruction regarding her claim of constructive discharge. The standard for constructive discharge is whether the “conditions created by the employer’s action are so intolerable that a reasonable person would feel compelled to resign.”[4] Thus, what may appear to a layman on the jury to be a voluntary resignation may in fact have been compelled by an employer’s conduct. Petrilli was entitled to a jury instruction explaining the difference. In addition, proof of a constructive discharge is but one of a myriad of things that satisfy the requirement of an adverse employment action that is necessary for a reverse discrimination instruction[5] and a retaliation jury instruction.[6]

In Brooks, the court noted: “While constructive discharge may constitute an adverse employment action within the meaning of the KCRA, not all adverse employment actions constitute constructive discharge.”[7] Although Petrilli submitted a constructive discharge instruction, none was given.[8] Constructive discharge instructions are submitted to the jury in these types of cases because a constructive discharge is a type of adverse employment action.[9] The pivotal issue is whether the employee felt compelled to resign. However, the act of resignation as a part of a constructive discharge is but one of many potential adverse employment actions available to support a jury verdict.

(1) The Elements of a reverse discrimination claim are as follows:

(a) Petrilli is a member of a protected class;

(b) She experienced an adverse employment action;

(c) She was qualified for her position of employment; and

(d) She was replaced by a person of a different race.[10]

(2) The elements of a retaliation claim are as follows:

(a) She engaged in a protected activity under KRS 344.040;

(b) This activity was known to the Defendants;

(c) Defendants took an adverse employment action against Petrilli; and

(d) A causal connection exists between that adverse employment action and the Petrilli’s exercise of the protected activity.[11]

(3) The elements for a whistleblower claim are as follows:

(a) She reported actual or suspected violations of law, mandates, rules or policies;

(b) The Defendants caused her to be subjected to reprisal or directly or indirectly used official authority or influence against her as a result of her report.[12]

The trial court specifically found that Petrilli waived all of her claims against the Defendants when she resigned.[13] This rationale on the part of the trial court was erroneous because employers cannot absolve themselves of liability by successfully compelling employees to resign. If Petrilli resigned on a Wednesday, it does not negate retaliation exercised against her in violation of the whistleblower statute that occurred on the prior Tuesday or any day prior to that. In fact, it is not uncommon for employees to resign from their employment when employers act in an unlawful manner.

The discrimination and retaliation claims share a common element of an “adverse employment action.” Thus, if Petrilli resigns on a Wednesday, it does not negate retaliation, or discrimination, or reprisal that occurred on the prior Tuesday or any day prior to that. Again, it is not uncommon for employees to resign from their employment when employees act in an unlawful manner. Petrilli’s resignation is not dispositive because constructive discharge is but one of a myriad of potential adverse employment actions that satisfy the prima facie elements of discrimination and retaliation.

[W]hile constructive discharge may constitute an adverse employment action within the meaning of the KCRA, not all adverse employment actions constitute constructive discharge.[14]

Thus, an adverse employment action includes, but is not limited to, “constructive discharge.” Violations of the law can occur prior to, during, or even after an employee attempts to resign.

Voluntariness is but one component of the larger issue of constructive discharge. Along the same vein, Parker v. Board of Regents of Tulsa Junior College, held that a “resignation is involuntary and coerced when the totality of the circumstances indicates the employee did not have the opportunity to make a free choice.”[15] Scharf v. Dept. of Air Force advises that, in order “to determine whether a resignation or retirement is voluntary, a court must examine the surrounding circumstances to test the ability of the employee to exercise free choice.”[16] Furthermore, “voluntariness is vitiated when one” of the following occurs:

· Employee resigns under duress;

· Employee unsuccessfully tries to withdraw resignation before its effective date;

· Employee submits a resignation under time pressure;

· Employee fails to understand the situation due to mental incompetence; or

· Resignation obtained by misrepresentation or deception.[17]

There was ample evidence presented concerning the strict time constraints imposed on Petrilli. This is important, because a true, voluntary resignation is done when the employee wants to do it, not when the employer orders it done by a certain time.

In Commonwealth of Kentucky v. Stosberg, the Plaintiff signed a resignation letter after her employer attempted to force her to transfer to another location.[18] In effect, the circumstances her employer placed her in left her with no other option. The court thus determined that a constructive discharge occurs where the “conditions created by the employer’s actions” compel the Plaintiff to resign.[19] Northeast Health Management, Inc. v. Cotton, et al. also deals with a situation in which two employees tendered resignation letters.[20] In that case, the employees resigned after their supervisor stopped speaking to them and began assigning their lunch and break times. The jury ultimately found that the employees had been constructively discharged. The Court of Appeals upheld the jury’s decision. In doing so, the Court of Appeals stated that, “while the conditions alleged may not have been the most egregious imaginable, they surely rise to the level that the jury had sufficient evidence to find a constructive discharge.”[21]

Walther testified at length about Petrilli’s financial constraints due to the fact that, unlike teachers, administrators are not covered by the KEA insurance and, therefore, administrators have to pay for their own attorneys.[22] Thus, Petrilli would have paid $25,000.00 at a minimum to go through the tribunal process, while having no money coming in from the school, and while having to care for her adult son, who resides with her and has the mind of a 5-year-old.[23] Certainly, this Court can see that Petrilli recognized that she had no choice and that Silberman was not going to follow the due-process procedures set out in the KAR, KRS, and the Board’s policies. Therefore, the only option Petrilli had was to resign and try to obtain employment elsewhere. She attempted to do this and part ways with Silberman; however, Silberman and Allen manufactured the “investigative memorandum” some 8 months later as an insurance policy against the lawsuit Petrilli was about to file. Having successfully tarred and feathered Petrilli, despite the subsequent finding by the Kentucky Department of Education that there was not enough evidence to support the charges, Petrilli is unemployable in her chosen profession.

In Schultz v. U.S. Navy, the court concluded that “an ostensibly voluntary resignation which was submitted as a result of agency coercion…must be treated the same as an adverse action.”[24] Furthermore, a

resignation is not voluntary where an agency imposes the terms of an employee’s resignation, the employee’s circumstances permit no alternative but to accept, and those circumstances were the result of improper acts of the agency.[25]

The fact that Petrilli’s resignation was not voluntary is demonstrated by the correspondence between Walther and Allen.[26] It was Allen who added on to the correspondence that Petrilli would not reapply in the future for a position with Fayette County Public Schools.[27] It is clear that, if Petrilli had truly voluntarily resigned, she would have simply walked away. It is unconscionable that she had to try and negotiate with Silberman that she be able to leave her employment without mudslinging.

Silberman’s article in the Herald-Leader, stating that Petrilli was not going back to BTWA; his offer of the Northern principalship, followed by a vindictive decision to threaten Petrilli with suspension; and Silberman’s refusal to comply with the evaluation instrument, due process, and evaluation requirements mandated by the KAR and KRS are all indicative of a constructive discharge. “Constructive discharge presents a question of fact that, in jury trials, should be decided by the jury and not the trial court.”[28] The court’s threshold instruction was thus erroneous.
KSN&C will report from the hearing on Tuesday.

[1] Hamilton v. CSX Trans., 208 S.W.3d 272 (Ky.App. 2006).

[2] Record at 2162.

[3] Record at 2163-2167.

[4] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[5] Record 2163.

[6] Record 2165.

[7] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[8] Record at 2053-2070.

[9] See, e.g., Irving v. Dubuque Packing Co., 689 F.2d 170, 173 (10th Cir. 1982).

[10] Fuelling v. New Vision, 2008 U.S.App. LEXIS 13915 (6th Cir, 2008) at 14; see also Logan v. Denny’s, 259 F.3d 558 (6th Cir. 2001) Further, according to Harding v. Gray, 9 F.3d 150, 152 (D.C., 1993), the burden for proving these prima facie elements is “not onerous.”

[11] Brooks v. Lexington-Fayette Urban Co. Housing Authority, 132 S.W.3d 790, 803 (Ky. 2004).

[12] Record 2167.

[13] Hearing on the jury instructions to be given, 7/28/09, 08:10:47—08:11:51 a.m., tape 22/3/09/CD/108-8.

[14] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[15]Parker v. Board of Regents of Tulsa Junior College, 981 F.2d 1159, 1162 (10th Cir. 1992).

[16]Scharf v. Dept. of Air Force, 710 F.2d 1572, 1574 (U.S. Ct. App. Fed. Cir. 1983) (citing Pearlman v. United States, 490 F.2d 928, 993 (Ct. Cl. 1974)).

[17] Scharf at 1574. (Emphasis added.)

[18] Commonwealth of Ky v. Stosberg, 948 S.W.2d 425 (Ky. App. 1997).

[19] Id. at 427.

[20] Northeast Health Management, Inc. v. Cotton and Howell, 56 S.W.3d 440 (Ky. App. 2001).

[21] Id. at 446.

[22] Walther Test. 07/20/09, 02:00:57, tape 22/3/09/CD/108-3.

[23] Walther Test. 07/20/09, 02:24:04, tape 22/3/09/CD/108-3.

[24] Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987).

[25] Id. See also Edgerton v. Merit Systems Protection Board, 768 F.2d 1314, 1317 (Fed. Cir. 1985.).

[26] Petrilli Test. 07/16/09, 03:27:50 p.m., tape 22/3/09/CD/108-2; see also PX 13, App. 28.

[27] Id.

[28] Brooks v. Lexington-Fayette Urban Co. Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[1] Hamilton v. CSX Trans., 208 S.W.3d 272 (Ky.App. 2006).

[2] Record at 2162.

[3] Record at 2163-2167.

[4] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[5] Record 2163.

[6] Record 2165.

[7] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[8] Record at 2053-2070.

[9] See, e.g., Irving v. Dubuque Packing Co., 689 F.2d 170, 173 (10th Cir. 1982).

[10] Fuelling v. New Vision, 2008 U.S.App. LEXIS 13915 (6th Cir, 2008) at 14; see also Logan v. Denny’s, 259 F.3d 558 (6th Cir. 2001) Further, according to Harding v. Gray, 9 F.3d 150, 152 (D.C., 1993), the burden for proving these prima facie elements is “not onerous.”

[11] Brooks v. Lexington-Fayette Urban Co. Housing Authority, 132 S.W.3d 790, 803 (Ky. 2004).

[12] Record 2167.

[13] Hearing on the jury instructions to be given, 7/28/09, 08:10:47—08:11:51 a.m., tape 22/3/09/CD/108-8.

[14] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[15]Parker v. Board of Regents of Tulsa Junior College, 981 F.2d 1159, 1162 (10th Cir. 1992).

[16]Scharf v. Dept. of Air Force, 710 F.2d 1572, 1574 (U.S. Ct. App. Fed. Cir. 1983) (citing Pearlman v. United States, 490 F.2d 928, 993 (Ct. Cl. 1974)).

[17] Scharf at 1574. (Emphasis added.)

[18] Commonwealth of Ky v. Stosberg, 948 S.W.2d 425 (Ky. App. 1997).

[19] Id. at 427.

[20] Northeast Health Management, Inc. v. Cotton and Howell, 56 S.W.3d 440 (Ky. App. 2001).

[21] Id. at 446.

[22] Walther Test. 07/20/09, 02:00:57, tape 22/3/09/CD/108-3.

[23] Walther Test. 07/20/09, 02:24:04, tape 22/3/09/CD/108-3.

[24] Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987).

[25] Id. See also Edgerton v. Merit Systems Protection Board, 768 F.2d 1314, 1317 (Fed. Cir. 1985.).

[26] Petrilli Test. 07/16/09, 03:27:50 p.m., tape 22/3/09/CD/108-2; see also PX 13, App. 28.

[27] Id.

[28] Brooks v. Lexington-Fayette Urban Co. Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).