KEITH YOUNG, INDIVIDUALLY AND AS SUPERINTENDENT OF BOARD OF EDUCATION, ADAIR COUNTY V. SCOTT HAMMOND, MICHAEL AKIN, JANET HUTCHESON, JOHN PECK, CANDACE STOCKTON, AND DEBRA WIMMER, INDIVIDUALLY AND AS MEMBERS OF ADAIR COUNTY HIGH SCHOOL COUNCIL AND RONALD BACK, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF RUSSELL INDEPENDENT SCHOOLS, AND BOARD OF EDUCATION OF RUSSELL INDEPENDENT SCHOOL DISTRICT V. MARY ROBINSON
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RENDERED : APRIL 22, 2004
TO BE PUBLISHED
supreme Crvurf of
2003SC-0397I
---I
KEITH YOUNG, INDIVIDUALLY AND AS
SUPERINTENDENT OF BOARD OF
EDUCATION, ADAIR COUNTY
V.
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APPELLANTS
ON APPEAL FROM COURT OF APPEALS
2002-CA-1906-I AND 2002-CA-2307-I
ADAIR CIRCUIT COURT NOS . 2002-CI-0166 AND 2002-CI-0167
SCOTT HAMMOND, MICHAEL AKIN,
JANET HUTCHESON, JOHN PECK,
CANDACE STOCKTON, AND DEBRA
WIMMER, INDIVIDUALLY AND AS
MEMBERS OF ADAIR COUNTY HIGH SCHOOL
COUNCIL
APPELANTS
AND
2003-SC-0462-DG
RONALD BACK, IN HIS OFFICIAL
CAPACITY AS SUPERINTENDENT
OF RUSSELL INDEPENDENT SCHOOLS,
AND BOARD OF EDUCATION OF
RUSSELL INDEPENDENT SCHOOL
DISTRICT
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
2001-CA-1933-MR
GREENUP CIRCUIT COURT NO . 1999-C-0445
MARY ROBINSON
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING
The central issue in each of the captioned cases is whether KRS 160 .345(2)(h)
requires a site based decision making council to select a school principal from among
those applicants whom the local superintendent recommends . Because the primary
issue is common to both cases, we will address it in a single opinion . We will also
address the issue of whether the gender discrimination claim asserted in Back v .
Robinson is barred by the election of remedies doctrine .
The Court of Appeals, sitting en banc, heard the issue concerning the
construction of KRS 160.345(2)(h) in Robinson v. Back, Ky. App ., 2001-CA-1933-MR
(rendered May 16, 2003). In an 8-5 decision, the Court reversed the summary
judgment of the Greenup Circuit Court and concluded that the statute requires the local
superintendent to forward all applications meeting statutory standards to the school
council upon its request, regardless of whether the candidate bears the
superintendent's recommendation . A three-member panel considered the dismissal of
the appellee's gender discrimination claim in Robinson v. Back , determining that the
doctrine of remedies did not bar the claim and, therefore, summary judgment was
improper . We affirm the Court of Appeals on both issues .
In Young v. Hammond , the movant sought interlocutory relief before the Court of
Appeals, claiming that the Adair Circuit Court abused its discretion in granting two
temporary injunctions . Incorporating by reference its en banc opinion in Robinson v.
Back , the Court of Appeals in Young v. Hammond denied the motion for interlocutory
relief. We affirm.
I.
Young v. Hammond
The movant, Keith Young (Young), is Superintendent of the Adair County School
District . On May 3, 2002, Young demoted Michael Akin (Akin) from his position as
principal of Adair County High School, citing inadequate performance . Young posted
the position as vacant, received nine applications, and forwarded three applications to
the Adair County High School's site based decision making council (the Adair Council) .
The remaining six applications, including Akin's, were not forwarded to the Adair
Council because Young did not recommend these applicants .
The Adair Council reviewed the three recommended applications, rejected
them, and subsequently requested that Young forward all remaining applications for
consideration. Young refused, relying on KRS 160.345(2)(h) that he was not required
to forward applications that he did not recommend . The 2002-2003 school year
commenced, and Young appointed one of the three recommended applicants as the
interim principal . The Adair Council filed a complaint and motion for a temporary
injunction against Young. The motion sought to compel Young to forward all nine
applications to the Adair Council for consideration . Akin filed a simultaneous complaint
and a motion.
The Adair Circuit Court entered its joint findings of fact, conclusions of law, and
order on August 27, granting the motions for temporary injunctions against Young .
Young eventually did forward the remaining applications to the Adair Council, which
made the recommendation that Young re-hire Akin as the principal of Adair High
School. Young refused to complete the hiring of Akin, and the Adair Council and Akin
sought another temporary injunction against Young that would order him to hire Akin .
Arguing that the Adair Circuit Court abused its discretion in granting the two temporary
injunctions, Young sought interlocutory relief from the Court of Appeals . Incorporating
by reference its opinion in Robinson v. Back, the Court of Appeals denied Young's
motion, determining that KRS 160 .345(2)(h) does not require a school's site based
decision making council to fill a vacancy in a principalship only from those applicants
bearing the local superintendent's recommendation . Young now appeals to this Court.
II .
Back v. Robinson
The appellant, Ronald Back (Back), is the Superintendent of the Russell
Independent School District . In 1998, a vacancy occurred in the principalship of Russell
High School . The appellee, Mary Robinson (Robinson), then the assistant principal of
Russell High School, submitted her application for consideration . Pursuant to KRS
160 .345(2)(h), Back forwarded to Russell High School's site based decision making
council (the Russell Council) four applications for the vacant principal position.
Robinson's application was not forwarded .
The Russell Council then requested additional applications from Back. Stating
that he did not recommend any of the remaining applicants and was therefore not
required to provide additional candidates, Back did not forward any additional resumes
to the Russell Council . Consequently, Robinson's application was not considered and a
principal was selected from among the four applications originally provided to the
Russell Council . Both parties agree, however, that Robinson was statutorily qualified
for the position .
Robinson sued Back on three grounds: (1) that Back acted in violation of KRS
160 .345(2)(h) when he refused to forward her application to the Russell Council ; (2)
that Back had discriminated against her on the basis of gender ; and (3) that she had
not been compensated for work performed in violation of KRS 337.020 . The Greenup
Circuit Court granted summary judgment dismissing all three claims . Robinson
appealed . The Court of Appeals affirmed the dismissal of Robinson's compensation
claim, but reversed the dismissal of her gender discrimination claim. Sitting en banc as
to the issue concerning KRS 160.345(2)(h), the Court of Appeals reversed the trial
court's decision, holding that KRS 160.345(2)(h) requires a local superintendent to
forward all available and statutorily qualified applicants to the site based decisionmaking council, including those whom the superintendent does not recommend . Back
now seeks review by this Court of the Court of Appeals' decision with respect to its
reinstatement of Robinson's gender discrimination claim and its interpretation of KRS
160 .345(2)(h) .
III.
Interpretation of KRS 160 .345(2)(h)
The primary question before us in both matters is the proper interpretation of
certain portions of KRS 160.345(2)(h), which are highlighted below :
From a list of applicants submitted by the local superintendent, the
principal at the participating school shall select personnel to fill vacancies,
after consultation with the school council, consistent with subsection
(2)(i)10 of this section . The superintendent may forward to the school
council the names of qualified applicants who have pending certification
from the Education Professional Standards Board based on recent
completion of preparation requirements, out-of-state preparation, or
alternative routes to certification pursuant to KRS 161 .028 and 161 .048.
Requests for transfer shall conform to any employer-employee bargained
contract which is in effect. If the vacancy to be filled is the position of
principal, the school council shall select the new principal from
among those persons recommended by the local superintendent .
When a vacancy in the school principalship occurs, the school council
shall receive training in recruitment and interviewing techniques prior to
carrying out the process of selecting a principal . The council shall select
the trainer to deliver the training. Personnel decisions made at the school
level under the authority of this subsection shall be binding on the
superintendent who completes the hiring process . Applicants
subsequently employed shall provide evidence that they are certified prior
to assuming the duties of a position in accordance with KRS 161 .020.
The superintendent shall provide additional applicants upon request
when qualified applicants are available .
(Emphasis added).
Specifically, we must determine the meaning of the word "qualified" as it is used
in the final sentence of the statute . Young and Back argue that the Court of Appeals
erred in interpreting the term "qualified" to mean "meeting statutory requirements." As
read by Young and Back, the last sentence of KRS 160 .345(2)(h) requires the
superintendent to forward additional applications to the Council only when additional,
recommended applications exist. To allow the Court of Appeals' opinion to stand would
mean that school councils might hire principals that are not recommended by the local
superintendent, as was the case with Young. Young and Back assert that this
interpretation removes the local superintendent from the hiring process, and creates an
environment in which the local superintendent is expected to closely manage an
employee whom he or she did not necessarily recommend for employment.
In their respective responses, Akin and Robinson urge this Court to affirm the
Court of Appeals' decision . Akin and Robinson point to the use of the word "shall" in
the last sentence of KRS 160.345(2)(h) to support the interpretation that the
superintendent must forward all remaining applicants to the school based decision
making council, regardless of whether the local superintendent recommends those
applicants . This reading also requires that the term "qualified," as used in the last
sentence of the statute, mean simply "meeting statutory requirements ." Akin and
Robinson rely heavily on the Kentucky Educational Reform Act's objectives of
decentralization and shared decision-making authority to support this interpretation .
According to Akin and Robinson, KRS 160345(2)(h) sets up a two-tiered process
whereby the superintendent initially recommends one or more candidates to the school
based council for its consideration in the selection of a principal ; it is only after the initial
candidates have been selected and rejected that the superintendent then must forward
all remaining applicants who meet the statutory requirements for the position.
We have considered the positions of both parties, as well as the numerous
amicus curiae briefs filed in these matters, and conclude that the Court of Appeals'
interpretation of KRS 160.345(2)(h) is correct .
In deciding the issue of whether KRS 160 .345(2)(h) requires the local
superintendent to provide to the school council additional applications when qualified
applications are available, even though such applicants may not carry the
recommendation of the superintendent, it is imperative to revisit the objectives and
goals of the Kentucky Education Reform Act (KERA), and the background against
which the reform act was passed . The General Assembly passed KERA in response to
this Court's decision in Rose v. Council for Better Education, Inc . ,' in which we
determined that the General Assembly had not fully complied with its constitutional duty
to provide "an efficient system of common schools throughout the state" .2 Among other
contributing factors, the Court in Rose concluded that the dire situation in Kentucky's
,3
public schools was due largely to "improper nepotism" and "favoritism .' Moreover, in
delineating the characteristics of a system of education that would meet the
constitutional mandate of efficiency, this Court listed as a minimum requirement a
common school system that operates with "no waste, no duplication, no
mismanagement, and with no political influence . ,4
Ky., 790 S .W . 2d 186 (1989)
Ky. Const. Sec. 183
3 _. at 193.
Id
4 I d . at 213.
2
Consequently, in constructing KERA, a central and fundamental goal of the
reform act was to decentralize school management, to remove opportunities for
nepotism and political influence, and to disperse decision-making authority among
several interested parties . Especially important to consideration of the case sub iudice
are the underlying theories behind the bold and ambitious implementation of site based
decision making councils . These councils were created in direct response to widely
documented instances of mismanagement that most agreed were incubated in, if not
caused by, an overly centralized system of school governance in which vast decisionmaking authority rested in the hands of a few key players . 5 Decentralization of school
management, however, allows for a higher level of accountability, in that it is easier to
hold a particular school responsible for poor performance when school governance
issues are actually being decided at the school, rather than at the county or state level .6
The language of KERA itself reflects the faith that was placed in decentralization as a
vehicle for massive educational reform : "The General Assembly recognizes that public
education involves shared responsibilities . State government, local communities,
parents, students, and school employees must work together to create an efficient
public school system ." KRS 158.645 . Likewise, this Court has continually recognized
decentralization as a cornerstone of educational reform in this Comonwealth .
Pervasive throughout all pertinent provisions, when considered as a whole
statutory framework, is one important theme. The essential strategic point
of KERA is the decentralization of decision making authority so as to
involve all participants in the school system, affording each the
opportunity to contribute actively to the educational process .'
See generally , Molly A. Hunter, All Eyes Forward: Public Engagement and
Educational Reform in Kentucky, 28 J .L. & Educ. 485 (1999).
° William H . Clune, Educational Adequacy : A Theory and Its Remedies, 28 U.
Mich. J.L. Reform 481, 488 (1995) (discussing decentralization of authority in school
governance as a method to increase accountability) .
' Bd . of Education of Boone County v. Bushee, Ky., 889 S .W.2d 809, 812 (1994).
-85
Bearing in mind the importance of decentralization to KERA, we turn to the
interpretation of KRS 160.345(2)(h) . We conclude that the word "qualified" as used in
KRS 160 .345(2)(h) must be interpreted to mean "meeting statutory requirements ." To
hold that a school council may only select a principal from among those applicants
recommended by the local superintendent would undermine the primary goal of
decentralization of authority and would be at odds with KERA's stated goal of shared
decision-making authority.
A construction of KRS 160 .345(2)(h) that would allow the local superintendent to
provide the school councils with only those applications whom he or she recommends
would run counter to these goals . Such a reading of the term "qualified" would
essentially strip the school council of any actual authority, for the superintendent could
simply choose to recommend only the applicant whom he or she personally selects. If
the school council disapproved of the superintendent's choice, the superintendent could
simply state that no other "qualified" - i .e . recommended - candidates exist and the
school council would have no option but to effectuate the superintendent's choice for
principal . More importantly, such a framework would remove virtually all accountability
of the superintendent, who would essentially be authorized to subjectively choose
school principals on the basis of any criteria, even personal or political. We do not
believe the legislature intended to grant such singular and unfettered authority in the
hands of one person.
Rather, KRS 160.345(2)(h) must be read so as to require the superintendent to
forward to the school council all applications meeting the minimum statutory
requirements for the position of principal . Interpreting the term "qualified" in that
manner sets up an effective system of checks and balances that is in tune with KERA's
goal of shared decision making . The school council considers first the superintendent's
recommended candidates, and it should be noted that the superintendent is not limited
in the number of candidates whom he or she may recommend . It is only after the
council has reviewed and rejected these candidates that the council may then request
all remaining qualified candidates . By this process, the superintendent has a voice in
the selection of school principals . It should also be noted that the authority granted to
the school council in selecting new principals is tempered by the restriction that the
school council is not permitted to make recommendations as to transfers or dismissals ;
in the case of the position of principal, this power remains in the hands of the local
superintendent. KRS 160.345(2)(f) .
However, we believe that the legislature intended for the school councils to have
ultimate authority in the selection of school principals . Reviewing the entirety of KRS
160 .345, it is plainly evident that the General Assembly intended for these councils to
have a real voice in school governance and to be vested with legitimate authority, not to
be a body that merely makes recommendations that the local superintendent or school
board may or may not adopt. Indeed, other portions of KRS 160 .345 vest the school
council with the authority to make such fundamental decisions as selection of the
school's curriculum and instructional materials, determination of methods of school
assessment, and management of instructional practices within the school . KRS
160 .345(2)(1) . Therefore, it is not illogical that the General Assembly also intended for
the school council to hold the ultimate authority when it comes to choosing the leader of
the school.
Furthermore, a review of the language of KRS 160 .345(2)(h) itself supports the
conclusion that the school council, not the superintendent, makes the final decision in
- 1 0-
the selection of school principals . The statute requires that the "school council shall
receive training in recruitment and interviewing techniques prior to carrying out the
process of selecting a principal" and that the school council shall select the trainer to
deliver such instruction. If the school council were only permitted to select the principal
from among the candidates recommended by the local superintendent, then such
training would be superfluous and it would be the superintendent receiving instruction .
Rather, we believe that the General Assembly wisely included a requirement that the
school council receive training in hiring techniques because it envisioned the school
council as playing the key role in the selection of new principals .
We believe that such a reading of KRS 160.345(2)(h) ultimately enhances the
relationship between the school council and the local superintendent by creating a
meaningful dialogue in the selection of school principals . The superintendent reviews
the applications before anyone else and, after removing those applicants not meeting
state and local requirements, the superintendent may then apply his or her subjective
criteria before making a final recommendation . Aware that the school council is under
no obligation to select a recommended applicant, the superintendent is encouraged to
base his or her recommendations on sound, legitimate criteria and is required to explain
and justify such recommendations in an open and frank discussion . Moreover, the
superintendent is less likely to recommend a clearly unsuitable, though favored,
applicant. Even in circumstances where the school council disagrees with the
superintendent and requests additional applications, the superintendent is still free to
share his or her analysis of the remaining candidates and attempt to persuade the
school council towards the recommended applicants . Where the recommendation is
rooted in the best interests of the school, the capable superintendent should not have
difficulty persuading the school council to accept his or her recommendation .
We conclude that the only reading of KRS 160.345(2)(h) that is in line with
KERA's stated goals of decentralization and shared decision-making authority is one by
which the school council holds ultimate authority in selecting the school's principal . We
read "qualified," as used in the last sentence of KRS 160.345(2)(h), to mean that, upon
the request of the school council, the local superintendent is required to forward all
remaining applications that meet statutory requirements for the position. The holding of
the Court of Appeals with respect to this issue in Back v. Robinson , and the holding of
the Court of Appeals in Young v. Hammond are, therefore, affirmed .
IV.
Gender Discrimination
The Greenup Circuit Court granted summary judgment in favor of Back and
dismissed Robinson's claim of gender discrimination, holding that the claim was barred
by the doctrine of election of remedies. Robinson claimed that she was discriminated
against on the basis of her gender where her application for Russell High School
principal was not considered, even though she was statutorily qualified for the position.
Robinson had previously filed a claim with the Equal Employment Opportunity
Commission (the EEOC), prior to filing her claim in the present matter. The Greenup
Circuit Court concluded that Robinson's present claim was barred by the doctrine of
election of remedies. We disagree and adopt the analysis of the Court of Appeals with
regard to this issue, as set forth below:
The doctrine of election of remedies provides that when a person has at
her disposal two modes of redress that are contradictory and inconsistent
with each other, her deliberate and settled choice and pursuit of one will
preclude her later choice and pursuit of the other. Wilson v. Lowe's Home
Center, Ky. App., 75 S .W.3d 229 (2001). The trial court relied on
Vaezkoroni v. Domino's Pizza, Inc. , Ky., 914 S .W .2d 341 (1995), as
- 1 2-
authority for its finding that Robinson's action in filing a claim with the
Equal Employment Opportunity Commission (hereinafter EEOC) in 1998
precluded her from bringing this action . The trial court stated that the
"filing of an administrative complaint bars such court action under the
doctrine of election of remedies."
While it is true that Vaezkoroni established a standard in the
Commonwealth that provides both administrative and judicial sources of
relief for claims arising under the Kentucky Civil Rights Act, the facts of
Vaezkoroni and the statute indicate that this standard applies only to the
Kentucky Human Rights Commission and local commissions . On appeal,
the appellees argue that the case of Founder v. Cabinet for Human
Resources , Ky. App. 23 S.W .3d 221 (1999), is controlling on this issue.
This panel is of the opinion that Founder should be viewed narrowly .
Furthermore, the opinion of Grego v. Meijer, Inc. , 187 F .Supp.2d 689
(W .D. Ky. 2001), and this Court's more recent opinion of Wilson , supra ,
are more persuasive.
The trial court's reliance on the doctrine of election of remedies in
this case was misplaced . Robinson filed a charge of discrimination with
the EEOC . After filing the charge, she was notified by the EEOC that her
file was being closed and she was informed of her right to sue. It is not
alleged that Robinson ever filed a complaint with any agency of the
Commonwealth other than the instant circuit court action . As such, the
trial court's reliance on the doctrine of election of remedies to grant
summary judgment was inappropriate .
Robinson v. Back, Ky. App ., 2001-CA-1933-MR at 8-9 (rendered May 16, 2003).
We also agree with the Court of Appeals that Robinson has established a prima
facie case for sex discrimination, and therefore summary judgment was not appropriate .
The trial court correctly applied the analysis used in McDonnell Douglas Corp . v.
Green 8 which sets forth a four-prong test for establishing a prima facie case for sex
discrimination : (1) that the plaintiff was a member of a protected class, (2) that the
plaintiff was qualified for the job, (3) that the plaintiff did not receive the job, and (4) that
the position remained open and the employer sought other applicants . Id. The trial
court concluded that Robinson did not satisfy the second prong of this test. In its
8 411 U .S . 792, 93 S . Ct. 1817, 1824, 36 L. Ed . 2d 668 (1973)
-13-
consideration of the KRS 160.345(2)(h) matter, the trial court determined that a
candidate is "qualified" for the position of school principal only when that applicant
meets statutory requirements and bears the superintendent's recommendation . The
trial court then applied that definition of "qualified" to its analysis under the McDonnell
test; that is, because the trial court believed Robinson was not "qualified" within the
meaning of KRS 160.345(2)(h), she was therefore not "qualified" for purposes of the
McDonnell test . We have interpreted KRS 160.345(2)(h) otherwise . Having concluded
that KRS 160 .345(2)(h) does not require a candidate to bear the recommendation of
the local superintendent in order to be qualified for the position of school principal,
Robinson has therefore met the four-prong test to establish a prima facie case of sex
discrimination .
V.
Conclusion
In summary, we conclude that, in order for the objectives and principles of KERA
as envisioned by the Kentucky General Assembly to be satisfied, KRS 160 .345(2)(h)
must be read to require the superintendent to provide to the school council all statutorily
qualified applications upon its request, regardless of the superintendent's personal
recommendations . Therefore, in Young v. Hammond , we agree with the Court of
Appeals that the Adair Circuit Court did not abuse its discretion in granting temporary
injunctions against Young, and hereby affirm the Court of Appeals' opinion in that
matter. Similarly, in Back v. Robinson , we conclude that the Greenup Circuit Court did
not err in granting summary judgment in favor of Robinson as to the violation of KRS
160 .345(2)(h), and we affirm the Court of Appeals' opinion regarding this issue . Finally,
in light of our construction of KRS 160.345(2)(h), we conclude that Robinson did
establish a prima facie case of gender discrimination, which was not barred by the
- 1 4-
election of remedies. Thus, we affirm the Court of Appeals' holding that the trial court
erred in granting summary judgment as to that claim .
Lambert, C .J .; Graves, Stumbo, and Wintersheimer, JJ., concur. Cooper, J .,
dissents by separate opinion, with Keller, J ., joining that dissent .
2003-SC-0397-I YOUNG V. HAMMOND
COUNSEL FOR APPELLANTS:
Michael A. Owsley
W . Cravens Priest III
English, Lucas, Priest & Owsley
1101 College Street
P. O. Box 770
Bowling Green, KY 42102-0770
COUNSEL FOR APPELANTS :
Jeffrey S . Walther
Beth Anna Bowell
Walther, Roark, Gay & Todd, PLC
163 East Main Street, Suite 200
P. O. Box 1598
Lexington, KY 40588-1598
COUNSEL FOR AMICUS CURIAE,
KENTUCKY SCHOOL BOARDS
ASSOCIATION:
J . Stephen Kirby
Kentucky School Boards Association
260 Democrat Drive
Frankfort, KY 40601
COUNSEL FOR AMICUS CURIAE,
KENTUCKY EDUCATION
ASSOCIATION :
Bridget S . Brown
Kentucky Education Association
401 Capital Avenue
Frankfort, KY 40601
2003-SC-0462-DG BACK V. ROBINSON
COUNSEL FOR APPELLANTS:
Michael A. Owsley
W. Cravens Priest III
English, Lucas, Priest & Owsley
1101 College Street
P. O. Box 770
Bowling Green, KY 42102-0770
COUNSEL FOR APPELLEE:
Jeffrey S . Walther
Beth Anna Bowell
Walther, Roark, Gay & Todd, PLC
163 East Main Street, Suite 200
P. O . Box 1598
Lexington, KY 40588-1598
COUNSEL FOR AMICUS CURIAE,
KENTUCKY SCHOOL BOARDS
ASSOCIATION :
J . Stephen Kirby
Kentucky School Boards Association
260 Democrat Drive
Frankfort, KY 40601
COUNSEL FOR AMICUS CURIAE,
KENTUCKY EDUCATION
ASSOCIATION :
Joellen S . McComb
Mary Wheeler Ruble
Brooks, McComb, Fields, Ruble & Mullins
318 East Main Street, Suite 310
Lexington, KY 40507
COUNSEL FOR AMICUS CURIAE,
THE PRICHARD COMMITTEE FOR
ACADEMIC EXCELLENCE:
William H. McCann
William B . Owsley
Wyatt, Tarrant & Combs
Lexington Financial Center
250 West Main Street
Lexington, KY 40507
Ruth H. Webb
421 A
Arrowhead Road
Harrodsburg, KY 40330
COUNSEL FOR AMICUS CURIAE,
KENTUCKY ASSOCIATION OF
SCHOOL ADMINISTRATORS :
Vernon Wayne Young
General Counsel
Kentucky Association of School Administrators
152 consumer Lane
Frankfort, KY 40601
COUNSEL FOR AMICUS CURIAE,
JEFFERSON COUNTY TEACHERS
ASSOCIATION :
Dennis Franklin Janes
Segal, Stewart, Cutler, Lindsay, Janes & Berry
1400-B Waterfront Plaza
325 West Main Street
Louisville, KY 40202-4251
RENDERED : APRIL 22, 2004
TO BE PUBLISHED
,SupxPmt Courf of ~tufurhV
2003-SC-0397-1
KEITH YOUNG, INDIVIDUALLY AND AS
SUPERINTENDENT OF BOARD OF
EDUCATION, ADAIR COUNTY
V
APPELLANT
ON APPEAL FROM COURT OF APPEALS
2002-CA-1906-I AND 2002-CA-2307-1
ADAIR CIRCUIT COURT NOS . 2002-CI-0166 AND 2002-CI-0167
SCOTT HAMMOND, MICHAEL AKIN,
JANET HUTCHESON, JOHN PECK,
CANDACE STOCKTON, AND DEBRA
WIMMER, INDIVIDUALLY AND AS
MEMBERS OF ADAIR COUNTY HIGH
SCHOOL COUNCIL
AND
2003-SC-0462-DG
RONALD BACK, IN HIS OFFICIAL
CAPACITY AS SUPERINTENDENT OF
RUSSELL INDEPENDENT SCHOOLS,
AND BOARD OF EDUCATION OF
RUSSELL INDEPENDENT SCHOOL
DISTRICT
V
MARY ROBINSON
APPELANTS
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
2001-CA-1933-MR
GREENUP CIRCUIT COURT NO. 1999-CI-0445
APPELLEE
DISSENTING OPINION BY JUSTICE COOPER
KRS 160 .345(2)(h) defines the respective roles that the superintendent, the
principal, and the school based decision-making council ("school council") play in filling
employee vacancies at a public (common) school . I will discuss each provision of the
statute and its legislative history at length, infra. To summarize, although only the
superintendent is authorized to hire a school employee, KRS 160 .370; KRS
160.380(2)(a), hiring decisions are shared with the principal and the school council. If
the vacancy is other than that of principal, KRS 160.345(2)(h) provides that the principal
shall select Iflrom a list of applicants submitted by" the superintendent and after
"consultation with the school council ." If the vacancy is the position of principal, the
school council shall choose the new principal " from among those persons
recommended by" the superintendent . (Emphasis added .) The logic behind this
statutory scheme is obvious : the superintendent supervises and evaluates the principal ;
the principal supervises and evaluates all teachers and other school employees . KRS
160.370 (superintendent has general supervision of conduct of schools) ; KRS
160.345(2)(c)(1) (principal is primary administrator of school) ; KRS 156.557(3)(c) (1),
(2) ; 704 KAR 3 :345 § 4(2)(a) (immediate supervisor is primary evaluator of certified
employee below level of superintendent) . The superintendent is also the only school
district employee authorized to transfer, dismiss, suspend, reinstate, or demote an
employee of the school district, KRS 160 .390(1) ; obviously, the superintendent must
have input in the hiring of all school personnel . With respect to non-principal vacancies,
the superintendent's input is by providing the list of applicants from which the principal
must select the new employee. With respect to a principal vacancy, the
superintendent's input is by recommending those persons from whom the school council
must select the new principal .
At issue in these two cases is the last sentence of KRS 160 .345(2)(h), viz: "The
superintendent shall provide additional applicants upon request when qualified
applicants are available." (Emphasis added .) The logical interpretation of "qualified"
when the vacancy is the position of principal and, thus, the person selected must have
been "recommended by the superintendent," is that "qualified" must inclusively mean
"recommended by the superintendent ." Eschewing logic, however, the majority opinion
holds that "qualified" means "meeting minimum statutory requirements," ante , at - (slip
op . at 9), conveniently forgetting that one of those statutory requirements is that the
person selected must have been "recommended by the superintendent ." Thus, the
majority opinion concludes that the school council can choose, over the
superintendent's objection, any applicant with a non-disqualifying criminal record and a
certification issued by the Education Professional Standards Board . The facts in Young
v. Hammonds , discussed infra, provide a textbook example of the potential abuse
unleashed by that conclusion.
Justice Leibson was fond of citing Judge Jerome Frank's reference in Dincher v.
Marlin Firearms Co . , 198 F.2d 821 (2d Cir. 1952), to an imaginary "topsy-turvy land ."
Id. at 823 (Frank, J., dissenting) . See Michels v. Skavlos , Ky., 869 S .W .2d 728, 730-31
(1994) ("a one-way ticket to 'Topsy-Turvy Land"') ; Perkins v. Northeastern Log Homes ,
Ky., 808 S.W.2d 809, 817 (1991) ; Tabler v. Wallace, Ky., 704 S .W.2d 179, 184 (1985).
Topsy-turvy \ 1 . in an inverted posture : with the top or head downward :
upside down \ 2. in a state where proper or normal places, values,
standards, objects, or facts are reversed .
Webster's Third New International Dictionary of the English Lanquage Unabridged 2411
(1993) . Today's majority opinion converts Judge Frank's aphorism from imaginary to
real and converts our carefully crafted system of common schools into a "topsy-turvy
land" where employees choose their own supervisors without input from and over the
objections of their employers, and may even choose a person whom the employer has
previously removed from the same position because of incompetence, i .e. , a place
where the tail clearly wags the dog . It is also a place where a judicial system will enjoin
the employer from removing the same incompetent supervisor in the future even though
the employer is the only person legally authorized to do so . KRS 160 .370; KRS
160 .390(1).
A school council consists of three teachers elected by their fellow faculty
members, two parents elected by parents of preregistered students, and, virtually
always, the school principal (who, of course, is unavailable to vote when the vacancy to
be filled is the position of principal itself) . KRS 160 .345(2)(a), (b)(1) . Thus, the teacher
members of a school council possess the majority votes necessary to choose their new
supervisor (principal). No doubt, that is why both the Kentucky Education Association
and the Jefferson County Teacher's Association submitted amicus briefs supporting the
position adopted by today's majority opinion . Significantly, however, the Kentucky
Association of School Councils (KASC) has not filed an amicus brief. In fact, Susan
Perkins Weston, the executive director of the KASC, was recently quoted as stating with
respect to the previous statutory interpretation now being discarded :
We were comfortable with that (selection process) . . . . For a school and a
principal to succeed, there must be a strong commitment from the central
office . They work together.
Mark Cooper,' Hiring, costs, health top school issues ; Principal selection is in dispute ,
Messenger-Inquirer, Jan. 4, 2004, at 1C .
Even in "topsy-turvy land," one would hope that teachers, being teachers, would
not abuse the power now bestowed upon them by this Court for the purpose of usurping
a superintendent's exclusive authority over school personnel decisions . KRS 160.370
("[The superintendent] shall be responsible for the hiring and dismissal of all personnel
in the district ."); KRS 160 .380(2)(a) ("All appointments, promotions, and transfers of
principals, supervisors, teachers, and other public school employees shall be made only
by the superintendent of schools . . . ."); KRS 160.390(1) ("[The superintendent] shall be
responsible for all personnel actions including hiring, assignments, transfer, dismissal,
suspension, reinstatement, promotion, and demotion . . . ."). Unfortunately, such abuse
is precisely what occurred in Young v. Hammond .
I. YOUNG v. HAMMOND .
Michael Akin had been principal of Adair County High School since 1999. On
May 3, 2002, Keith Young, superintendent of Adair County schools, gave Akin written
notification of his demotion to a teacher position, as authorized in KRS 161 .765(1),
because he had failed to meet any of the standards of performance used in evaluating
school principals within the Adair County school district . See KRS 156 .557(2) ; 704 KAR
3:345 § 5. In addition to Young's written evaluation, the record includes affidavits from
parents, teachers, the school's food service director, and the school's guidance
counselor attesting to Akin's policy of benign neglect . As is customary, Young posted
the principal vacancy on the Kentucky Department of Education's website .
' No relation to the author of this opinion .
5
Akin appealed his demotion to the local evaluation appeals panel, consisting of
one central office administrator and two teachers selected by the faculty. KRS
156 .557(6); 704 KAR 3 :345 §§ 7-8. Following an evidentiary hearing where Akin was
represented by counsel, the panel revised the evaluation in two respects but still found
his other deficiencies sufficient to warrant the demotion. Akin did not seek an additional
appeal to the State Evaluation Appeals Panel. 704 KAR 3:345 § 9 . Instead, he
submitted a written application to fill the vacancy in his former position as principal of
Adair County High School . (!) Young "discarded" Akin's application because he would
never recommend that the school council choose for its new principal the very person
he had just demoted from that same position on grounds of incompetence .
Eight other persons also applied for the vacancy. On June 18, 2002, Young
delivered to the school council the applications of the three applicants that he
recommended for the position of principal . The school council met that evening to
examine the applications . By written communication dated June 18, 2002 (!!), the
council requested "all applications for Principal, including Mr. Mike Akin's ." (Emphasis
added .) Obviously, the skids were greased . On June 21, 2002, Young sent a memo to
the council stating that there were no other applicants that he could recommend . (It
was stipulated that all nine applicants, including Akin, possessed a principal's
certification and no disqualifying criminal record .) On June 24, 2002, the council sent
another written communication to Young requesting "all applications including that of
Mr. Michael Akin for the position of principal ." (Emphasis added.) At this point, the
council had not interviewed any of the three applicants recommended by Young. The
same communication also requested that the position be re-advertised . Since the
vacancy was still posted on the Department of Education website, this request required
no responsive action. No further applications were received .
On July 5, 2002, the council interviewed the three applicants that Young had
recommended . One teacher member of the council testified that she rejected one
recommended applicant who "looked good on paper" because he was "too aggressive."
When asked her opinion of Akin, the same witness admitted that he was "probably too
laid back." On July 8, 2002, the council members sent Young another written
communication, expressing for the first time their dissatisfaction with his recommended
applicants and requesting that the position be advertised in statewide newspapers .
Young complied by advertising the vacancy for five days in both the Louisville CourierJournal and the Lexington Herald-Leader . He received no additional applications .
School was scheduled to begin on August 6, 2002 . On July 8, 2002, apparently
pursuant to KRS 160.380(2)(c), Young appointed one of the recommended applicants,
the principal of an Adair County elementary school, as interim principal of the high
school. The school council members responded by filing an action in the Adair Circuit
Court for an injunction requiring Young to furnish them with all of the applications he
had received for the principal vacancy. Akin filed a separate suit on the same day
demanding compensatory and punitive damages for wrongful discharge and also asked
the court to order Young to forward his application to the council . Following a hearing
on August 24, 2002, the Adair Circuit Court entered an order concluding that "[i]n the
process of hiring a principal, the role of the superintendent is non-discretionary and
ministerial," and requiring Young to submit all applications to the school council . Young
forwarded the additional five applications still in his possession to the council with a note
explaining that he had "discarded" Akin's application . Not surprisingly, Akin delivered a
new application to Young's office the next day. Young forwarded it to the school
council . Shortly thereafter, the council members notified Young that they had chosen
Akin as the new principal . When Young refused to complete the hiring process, the
council and Akin returned to the Adair Circuit Court and obtained a temporary injunction
requiring Young to hire Akin, subject to a contempt citation, and enjoining Young from
demoting or terminating Akin during the pendency of the action . Young then sought
interlocutory relief pursuant to CR 65.07 and CR 65 .09.
II. LEGISLATIVE HISTORY.
KRS 160 .345(2)(h) was enacted as part of the Kentucky Education Reform Act
(KERA), 1990 Ky. Acts, ch . 476, pt. I, § 14(2)(1), and has been amended by the General
Assembly on four occasions . Like many statutes that have undergone multiple
amendments, what started as a reasonably brief and simple paragraph has evolved into
a lengthy paragraph that describes separate procedures for hiring two categories of
employees . For ease of understanding, I have divided the statute into three
paragraphs, enclosing in brackets the language added by subsequent amendments,
which are numerically designated, indicating by strikethrough any language deleted by
an amendment (only one word), and emphasizing the language pertinent to the present
litigation . The amendments will be discussed, infra , in the order of their numerical
designation .
From a list of applicants FeGOFnmended [submitted]' by the local
superintendent, the principal at the participating school shall select
personnel to fill vacancies, after consultation with the school council,
[consistent with subsection (2)(i)10 of this section] .2 [The superintendent
may forward to the school council the names of qualified applicants who
have pending certification from the Education Professional Standards
Board based on recent completion of preparation requirements, out-ofstate preparation, or alternative routes to certification pursuant to KRS
161 .028 and 161 .048.]4 Requests for transfer shall conform to any
employer-employee bargained contract which is in effect .
If the vacancy to be filled is the position of principal, the school
council shall select the new principal from among those persons
recommended by the local superintendent . [When a vacancy in the
school principalship occurs, the school council shall receive training in
recruitment and interviewing techniques prior to carrying out the process
of selecting a principal . The council shall select the trainer to deliver the
i
training.]
Personnel decisions made at the school level under the authority of
this subsection shall be binding on the superintendent who completes the
hiring process . [Applicants subsequently employed shall provide evidence
that they are certified prior to assuming the duties of a position in
accordance with KRS 161 .020 .]4 The superintendent shall provide
additional applicants upon request [when qualified applicants are
available] .
As thus parsed, the first paragraph applies to the hiring of all school employees
except a school principal ; the second paragraph applies to the hiring of a principal ; and
the third paragraph applies to both. The principal alone has authority to select a non
principal employee, subject to the requirements that the person hired be from "a list of
applicants submitted by the local superintendent" and "after consultation with the school
council ." The school council has authority to select the new principal, subject to the
requirement that the person selected be among those "persons recommended by" the
superintendent .
As originally enacted, the statute required that all newly hired school employees
be "recommended by" the superintendent. It made no reference to "certified" or
"qualified" applicants and contained no provision for training school council members in
interview techniques . Evidence in the record of Back v. Robinson, infra, indicates that
previous school councils at Russell High School had enlisted the superintendent to
assist them in interviewing principal applicants . Since its original enactment, the statute
has been amended as follows :
1992 Ky. Acts, ch. 376, § 3. As originally enacted, the statute required that
personnel hired by the principal be from a list of applicants "recommended by" the
superintendent, almost identical to the requirement that still exists with respect to the
hiring of a principal . The amendment deleted the "recommended by" requirement and
substituted therefor a requirement that those hired be from a list of applicants
"submitted by" the superintendent. The same amendment added the language at the
end of the last sentence that is at the heart of today's controversy, i .e . , that additional
applicants be provided upon request "when qualified applicants are available."
Prior to the 1992 amendment, the Attorney General rendered an opinion
pursuant to KRS 15 .020 in response to an inquiry as to whether school councils were
entitled to review applications of those not "recommended by" the superintendent before
consulting with the principal with respect to filling non-principal vacancies . The Attorney
General opined that "the council has a right to see applications and accompanying
materials on applicants who have been recommended, but not on applicants who have
not been recommended by the superintendent ." OAG 92-131 . Presumably, the
issuance of OAG 92-131 is what prompted the 1992 amendment . It is noteworthy that
the 1992 amendment did not change the "recommended by" language pertaining to the
hiring of a new principal .
After the 1992 amendment, the Attorney General was asked to render a new
opinion on the same subject previously addressed in OAG 92-131 . Despite the deletion
of the "recommended by" requirement, an argument was advanced (presumably by a
superintendent) that addition of the language, "qualified applicants," meant applicants
that met all legal requirements, i.e. , certification, and no disqualifying criminal record,
and the recommendation of the superintendent . The Attorney General rejected that
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interpretation and opined that in light of the deletion of the "recommended by" language,
"qualified applicants," in the context of a non-principal vacancy, means "all persons who
meet all qualifications set forth by statute, regulations, and school board policies"
(though the school board has no hiring role except to "appoint the superintendent of
schools, and fix the compensation of employees," KRS 160.290(1)) . OAG 95-10
(emphasis added) .
The Attorney General has not rendered an opinion interpreting the meaning of
"qualified applicants" in the context of a principal vacancy, which still requires that the
person hired must be "recommended by" the superintendent. However, the Department
of Education, the supervising agency of our system of common schools, KRS 156 .010,
has consistently interpreted "qualified applicant" in that context to mean an applicant
with no disqualifying criminal record, who has been certified by the Education
Professional Standards Board pursuant to KRS 161 .027, and who has been
recommended by the local superintendent . See Kentucky Department of Education,
School-Based Decision Making Statute 17 (2002) ("'Qualified' applicants for a principal's
position include proper certification, a clear criminal records check, any objective criteria
established in local board policy (OAG 95-10), and the recommendation of the
superintendent. If the school council reviews the entire slate of candidates received
from the superintendent and still wants more applicants, the superintendent must submit
the names of additional qualified, thus, recommended applicants if those applicants are
available .") (emphasis added) . See also Ky. Dep't of Educ., SBDM Issue , 6 Common
Agenda : A Kentucky Department of Education Publication for School Councils 131, 132
(Jan . 2000) ("an unrecommended applicant is an unqualified applicant for principal") . It
is a principle of statutory construction that if, as here, there is a statutory ambiguity, i .e. ,
the meaning of "qualified," "controlling weight will be given to a long-standing
interpretation given to the statute by the agency charged with its administration."
Davidson v. Am . Freightways, Inc. , Ky., 25 S.W.3d 94, 98 (2000); Hagan v. Farris , Ky.,
807 S.W .2d 488, 490 (1991) .
2000 Ky. Acts, ch. 212, § 1 . This amendment added the language, "consistent
with subsection (2)(i)(10) of this section ." Subsection (2)(i)(10) requires the school
council to adopt "[p]rocedures to assist the council with consultation in the selection of
personnel by the principal, including, but not limited to, meetings, timelines, interviews ,
review of written applications, and review of references ." (Emphasis added to point out
for purposes of the next amendment that council members are authorized to interview
all applicants for school employment, not just applicants for principal .)
3 2000 Ky. Acts, ch . 527, § 14. This amendment requires that school council
members be trained in interview techniques prior to interviewing applicants for principal .
The majority opinion, ante , at __ (slip op. at 11), cites this amendment as indicating a
legislative intent that applicants for principal need not be recommended by the
superintendent ; otherwise, only the superintendent would need training in interview
techniques . In fact, this amendment was a small part of a comprehensive bill entitled
"A[n] Act relating to the professional preparation of school personnel," that provided for
continuing training and education for all school employees. See generally 2000 Ky.
Acts, ch . 527 . The records in the two cases sub iudice indicate that school council
members had been interviewing principal applicants recommended by the
superintendent long before this amendment was enacted. The amendment merely
requires council members to acquire some expertise in that regard . Presumably, a
superintendent does not need additional training in interviewing and selecting applicants
to recommend for principal, having acquired that expertise while fulfilling the
requirements for obtaining a superintendent's certification, see 16 KAR 3:010, or while
attending the superintendent training and assessment program . See KRS 156 .111 ; 704
KAR 3:406 .
4 2002 Ky. Acts, ch. 152, § 1 . This amendment added language permitting the
superintendent to submit names of qualified applicants for non-principal positions who
were not yet certified but requiring that any applicant subsequently hired present proof
of certification pursuant to KRS 161 .020 before assuming the duties of the position for
which that person was hired. This amendment clarifies that there is a distinction
between "qualified" and "certified" and that the General Assembly understands that
distinction . The majority opinion, ante , at - (slip op. at 6-7, 9), defines "qualified" as
"meeting statutory requirements ." The only statutory requirements for a principal
applicant, other than not being a convicted violent offender or felony sexual offender,
KRS 160.380(3), is that the applicant be certified by the Education Professional
Standards Board . KRS 161 .020(1); KRS 161 .027; 16 KAR 3:053. If "qualified" and
"certified" mean the same thing, the 2002 General Assembly would not have amended
KRS 160 .345(2)(h) to permit the consideration of an applicant who is "qualified" though
not yet "certified."
Proposed amendments of KRS 160 .345(2)(h) that were introduced but not
enacted, also are relevant to a proper interpretation of legislative intent, viz:
2 If so, perhaps school council members could make their decisions on factors other
than whether a candidate was "too laid back" as opposed to "good or. paper' but "too
aggressive ."
- 1 3-
1998 House Bill 152, which would have amended KRS 160 .345(2)(h) by deleting
the requirement that the school council consider only those principal applicants
"recommended by" the superintendent and substituted therefor a requirement that the
superintendent merely submit a list of principal applicants to the council as is presently
done with respect to vacancies in non-principal positions; and
2000 House Bill 717 and 2000 Senate Bills 46 and 76, which would have deleted
the last sentence of KRS 160.345(2)(h) and substituted language that "[t]he
superintendent shall initially recommend no fewer than three (3) principal candidates
and shall honor all requests of the council to provide additional candidates ."
The majority opinion, ante , at - (slip op. a t 9), invokes the horrible that a
superintendent might recommend only one candidate and claim that the other
applicants were not qualified, thereby "strip[ping] the school council of any actual
authority." Of course, the plain language in KRS 160.345(2)(h) that the school council
shall select the new principal "from among those persons" recommended by the
superintendent belies this particular horrible. As correctly interpreted by the Department
of Education, "from among those persons" obviously means "more than one" person .
Common Agenda , supra, at 2. On the other hand, the majority opinion's interpretation
of "qualified applicant" creates the horrible that actually occurred in Young v. Hammond ,
i .e. , the council's stripping the superintendent of statutory authority over personnel
actions by unilaterally reinstating a "too laid back" applicant previously demoted by the
superintendent apparently because of that very characteristic .
Admittedly, attempts to change this aspect of KERA have not been one-sided .
The General Assembly has also considered and rejected three proposed amendments
that would have vested superintendents with the authority to hire principals from a list of
- 1 4-
applicants recommended by school councils instead of vice versa . SB 308, 1996 Sen .,
Reg . Sess. (Ky. 1996) ; SB 338, 1998 Sen., Reg . Sess. (Ky. 1998) ; SB 264, 2000 Sen .,
Reg. Sess . (Ky. 2000). However, despite the best lobbying efforts of the Kentucky
Education Association and the Kentucky Association of School Administrators, the
General Assembly has wisely maintained the system of checks and balances that
requires the school council to select a new principal from applicants recommended by
the person best qualified by training and experience to determine whether an applicant
is qualified, and who is statutorily required to supervise, evaluate, and, if necessary,
demote or terminate the person selected . Numerous reasons support the necessity of
an initial screening process that demands more of applicants than the absence of a
serious criminal record and fulfillment of minimum certification requirements :
Not every person who holds administrative certification is qualified
to serve as principal . There are individuals who maintain lifetime
certificates who have not been inside a school in many years . There are
certified individuals whose misconduct or negligent behavior, breach of
professional ethics or breach of contract may be known to the
superintendent but who for some reason have not been prosecuted . And
there are some certified personnel who simply are not competent to be
educational leaders . These circumstances may cause a superintendent
not to recommend an applicant for a principalship, but they may or may
not be known to the school council . If the council selects a principal whom
the superintendent cannot recommend because of lack of professionalism
or incompetence, it is the students who suffer.
Brief of Amicus Curiae Prichard Committee for Academic Excellence at 8 . It is
appropriate to add to the Prichard Committee's list those certified individuals who have
managed to cultivate favoritism within the school council . As noted by the majority
opinion, ante , at - (slip op . at 7), favoritism in hiring was one of the evils singled out for
condemnation in Rose v. Council for Better Education . Inc. , Ky., 790 S.W.2d 186, 193
(1989). Back v. Robinson , infra , provides a prime example of such favoritism; one
teacher member of the school council testified that she would have preferred her "good
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personal friend" (Robinson) as her supervisor instead of "that doofus" (her actual
supervisor) .
The Prichard Committee was formed in 1983 and spearheaded education reform
in Kentucky. One of its members, former Governor Bert T. Combs, served pro bono as
lead counsel for the plaintiffs in Rose , supra . Molly A. Hunter, All Eyes Forward: Public
Engagement and Educational Reform in Kentucky, 28 J. L . & Educ. 485, 489-93, 499
(1999). The Committee has consistently advocated decentralization of authority and
involvement of parents and school councils in the decision-making process, even to the
point of antagonizing some superintendents and school board members . Id . at 508 .
Yet, the Prichard Committee has filed an amicus brief urging us (to no avail) to reject
the Court of Appeals' interpretation of "qualified applicants" :
This case has important public policy implications for Kentucky's
system of public education . If allowed to stand, the decision of the Court
of Appeals will adversely affect the working relationship between the
school superintendent and the school council. . . . The Prichard
Committee submits that if the council may select a candidate whom the
superintendent does not recommend, the superintendent's ability to
supervise the district is impaired and the quality of education in the
schools may ultimately suffer.
Brief of Amicus Curiae Prichard Committee for Academic Excellence at 1 . That is
almost exactly the same sentiment expressed by the executive director of the Kentucky
Association of School Councils, quoted supra, viz: "For a school and a principal to
succeed, there must be a strong commitment from the central office . They work
together ." Cooper, supra , at 1C.
I find no evidence of any legislative intent consistent with the majority opinion's
interpretation of KRS 160.345(2)(h) . In fact, all evidence of legislative intent runs
contrary to it. Today's majority opinion will only promote more favoritism among school
employees to the detriment of the educational process . Few principals would dare
-16-
discipline or correct the very teachers in whose hands their employment might someday
rest. Principals now know that if demoted or terminated by the superintendent, they can
be rehired by their own teachers, and will be tempted to curry favor in anticipation of
that occurrence . Thus, being "too laid back" has the dual advantages of (1) minimizing
the principal's supervisory obligations while (2) increasing the principal's job security.
Unfortunately, it also promotes incompetence and inefficiency in our system of public
schools to the detriment of the students, precisely what Rose and KERA intended to
eliminate .
Accordingly, I dissent in Young v. Hammond and would reverse the Court of
Appeals and remand this case to the Adair Circuit Court with directions to dissolve the
temporary injunction and dismiss the civil actions filed by Akin and the individual
members of the school council .
III. BACK v. ROBINSON.
Mary Robinson was the assistant principal of Russell High School when a
principal vacancy occurred in the spring of 1996. Robinson possesses a principal's
certification and applied for the vacant position . The superintendent, Ronald Back,
furnished the school council with the applications of those applicants that he
recommended for the position, which did not include Robinson's application . The record
does not reflect whether any other female applicants were recommended . The council
did not request additional applications and chose a male applicant for the job . The
vacancy recurred in the spring of 1997 and Robinson again applied for the position .
Again, Back did not include Robinson among his recommended applicants to the school
council . This time, the council requested additional applications and Back's response,
like Adair County superintendent Young's, was that there were no other applicants that
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he would recommend . The council then selected one of the recommended applicants,
another male, and that person was hired .
Robinson filed suit in the Greenup Circuit Court against the Russell Independent
School District and against "Ronald Back, in his official capacity as Superintendent of
Russell Independent Schools ." She claimed Back violated KRS 160.345(2)(h) because
she was a "qualified applicant" whose application was not provided to the school council
when it requested additional applications . For this claim, Robinson demands that the
1997 hiring of the new principal be set aside and that the hiring process be reopened so
that the council can consider her application. The majority opinion's interpretation of
"qualified applicant" mandates that result . It should be noted that, unlike the Adair
County school council, the members of Russell school council have not expressed any
fixed determination to hire Robinson . They did not specifically request that her
application be provided and, in a letter to Robinson dated July 18, 1998, informed her
only that if her application had been provided, "you would have been given the same
consideration that the other candidates were given for selection ." Because I disagree
with the majority opinion's interpretation of KRS 160.345(2)(h) for the reasons stated in
my review of Young v. Hammond , supra, I also dissent from the majority's decision
requiring removal of the present principal of Russell High School and the reopening of
the 1997 hiring process .
Robinson's second claim is for damages for gender discrimination proscribed by
the Kentucky Civil Rights Act. KRS 344.040(2) ; KRS 344.450. The Russell Board of
Education is an agency of state government entitled to governmental immunity . Yanero
v. Davis, Ky., 65 S.W.3d 510, 527 (2001). Since Back was sued only in his official
capacity and not in his individual capacity, he enjoys the same immunity as the Board.
Schwindel v. Meade County , Ky., 113 S .W .3d 159,169 (2003). Obviously, the hiring of
a school principal is a governmental function, not a proprietary one, and immunity
applies unless waiver is found "by the most express language or by such overwhelming
implications from the text as [will] leave no room for any other reasonable construction ."
Withers v. Univ. of Ky. , Ky., 939 S .W .2d 340, 346 (1997) (quotation omitted) . For the
reasons expressed in my dissenting opinion in Department of Corrections v. Furr, Ky.,
23 S .W .3d 615, 618 (2000), I conclude that the General Assembly has not waived a
governmental agency's immunity from suit under the Kentucky Civil Rights Act. Thus, I
also dissent from the majority opinion's holding that Robinson can proceed with her
gender discrimination claims against Back and the school board .
Robinson's third claim was that the Russell Board of Education owed her money
for overtime that she worked in the summer of 1996 at the verbal request of a former
principal . Both the Greenup Circuit Court and the Court of Appeals ruled against her on
this claim and she filed no cross-motion for discretionary review. CR 76 .21 . Thus, that
claim is abandoned . Commonwealth Transp . Cabinet, Dep't of Highways v. Taub , Ky.,
766 S .W .2d 49, 51-52 (1988) .
Accordingly, I dissent in Back v . Robinson and would reverse the Court of
Appeals and reinstate the summary judgment entered by the Greenup Circuit Court .
Keller, J., joins this dissenting opinion .
3 It is unnecessary to determine whether Back could have been sued in his individual
capacity . See Lococo v. v. Banger, 958 F.Supp. 290, 294-95 (E .D . Ky. 1997), rev'd on
other grounds by Lococo v. Barger, 234 F.3d 1268 (table) (6th Cir. 2000), 2000 WL
1679484 .
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