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Swayne v. Board of Education

OPINION FILED JUNE 19, 1986.

NANCY SWAYNE, PLAINTIFF-APPELLEE,

v.

THE BOARD OF EDUCATION OF ROCK ISLAND SCHOOL DISTRICT NO. 41, DEFENDANT-APPELLANT (THE STATE BOARD OF EDUCATION ET AL., DEFENDANTS).



Appeal from the Circuit Court of Rock Island County; the Hon. Joseph F. Beatty, Judge, presiding.

JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

Plaintiff, Nancy Swayne, was a teacher for 16 years in the elementary schools of Rock Island. She was discharged by defendant board of education on October 4, 1983. Pursuant to section 24-12 of the School Code, a hearing was held to determine whether irremediable cause existed for the discharge. The hearing officer concluded that cause was present. On administrative review, the circuit court reversed. We affirm the circuit court.

The incident which prompted plaintiff's discharge occurred on September 28, 1983. Plaintiff was teaching first grade at the Hawthorne-Irving School. She had a class load of 32, which is considered a very large group. Among the group were several repeaters and some children who were eventually referred for special education. Also in the class was Terry Pulliam. Terry was, to put it mildly, a disciplinary problem. His kindergarten teacher, Marilyn Miskowicz, testified at some length concerning her problems with Terry. Terry liked to fall out of his chair, talk out of turn, push, kick, and trip other children and generally make a nuisance of himself. Miskowicz also related that there was little that one could do to curb Terry's activities short of keeping him at one's side and away from the other children. Miskowicz also testified to having spanked Terry on occasion. The testimony generally reveals that Terry had not improved his deportment between kindergarten and first grade.

At about 12:15 p.m. on the day in question, plaintiff observed a student "sailing toward the blackboard." A gleeful smile on Terry's face indicated that he was the instigator. He also knocked over a tape recorder. Plaintiff took Terry and put him in a multi-doored coat closet behind the last row of desks. Although the parties differ in their characterization of Terry's impromptu dungeon, it appeared to be over 6-feet high with shelves beginning at a height of about 42 inches. The closet was slightly deeper than 24 inches. There is about a 5-inch space between the bottom of the door and the floor, which lets in light from the room and would be high enough for a person on the floor to look in or out of the closet. There is no independent lighting in the closet.

At 12:30, plaintiff took the remainder of the class to the library. Upon her return a minute or two later, plaintiff found the door open and Terry asleep on a coat and partly out of the closet. Plaintiff allowed Terry to sleep until 1:40 when the children returned. Terry was then put back in the closet and the door closed. Shortly thereafter, Terry became disruptive. He started swinging the closet doors, calling the names of other students aloud and otherwise disturbing the class. Terry persisted despite being warned. Plaintiff then took Terry out and swatted him three times with a yardstick. Terry was then redeposited in the closet. Soon, Terry was up to his old tricks of disturbing the class. Plaintiff then took Terry out of the closet and marched him to the front of the class. He was ordered to lower his blue jeans and to bend over and grab his ankles. Whatever underwear Terry had on remained. Plaintiff gave him three swats with the yardstick and, after ordering him to pull up his pants, returned him to the closet, where he remained until the other children were ready to leave. After holding Terry for a few minutes after school, plaintiff allowed him to go home.

Terry's mother, Mrs. Ann Pulliam, testified that she went to meet her children at the close of school. Some children informed her that "Terry was `dogged' today." She spotted Terry at the school "looking like he was lost." Terry denied being spanked or put in the closet when his mother asked him about it.

Mrs. Pulliam went looking for plaintiff. The two had previously conversed about Terry's problems. Plaintiff spotted Mrs. Pulliam and said "You're the one I want to see." With Terry present, a heated discussion ensued. Plaintiff told Mrs. Pulliam that she was sick and tired of Terry. When Mrs. Pulliam asked about the pants-down spanking and closet time, plaintiff said she had done it. Mrs. Pulliam said, "Bitch, I don't do that."

The conversation eventually dissolved into an argument about the propriety of and necessity for such drastic measures. Mrs. Pulliam thought that it was not plaintiff's place to spank her child, while plaintiff countered that if his mother wouldn't discipline him, she would. The argument concluded when principal Jim Davis promised Mrs. Pulliam that the incident would be investigated.

That evening, Davis met with district personnel director Robert Lagerblade and superintendent James Hopson. They decided to suspend plaintiff with pay pending investigation.

The next morning, plaintiff met with Davis. Davis, after confirming the relevant details, told plaintiff that he considered her conduct inappropriate. Plaintiff's response was that her conduct was appropriate. She further stated that this was how it was done in the old days and that she thought she could moderate Terry's behavior using those means. After Davis reiterated his disapproval, plaintiff stated that although she would have done it again, she would not do it anymore since Davis disapproved. Later that morning, in response to Lagerblade's handing her a letter of suspension, plaintiff stated that the district was overreacting.

Davis interviewed Mrs. Pulliam as part of his investigation. She told him that Terry was a different child following the incident. He no longer wanted to be around other children. He did not want to go to school. He only wanted to sleep in her bed with her because he had bad dreams.

On October 3, Hopson and Lagerblade met with plaintiff and a union representative. Plaintiff was asked if she was familiar with the district's policy concerning the presence of witnesses during corporal punishment. She replied that she thought other students could be witnesses. When asked whether she knew that only the principal could administer corporal punishment, she replied that she assumed that he had the prerogative. (There was, however, considerable testimony that other teachers administered corporal punishment as the need arose.) She also stated that although parents had the right to exempt their children from corporal punishment, she was not aware that Mrs. Pulliam had sent such a letter (she had not). Her attitude toward the propriety of her conduct was as always; although she would not paddle children in the future, she felt that she needed to take drastic measures since all previous efforts had failed.

The decision to discharge was made on a unanimous vote by the board. The board accepted the characterization of Davis and Hopson that plaintiff's failure to recognize the gravity of her conduct rendered the cause for her discharge irremediable.

The hearing also featured the testimony of two psychiatrists. The board used Dr. Ner Littner, a prominent Chicago child psychiatrist. His testimony was based on a hypothetical question constructed from the facts of the incident. He did not examine any party or witness. His conclusions were that plaintiff had acted very inappropriately, could seriously harm a child of Terry's make-up, and could cause variable harm to those children who observed the ...


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