Kurtz v. WINSTON-SALEM/FORSYTH CTY. BD. OF ED.

250 S.E.2d 718 (1979)

39 N.C. App. 412

Judith A. KURTZ, Petitioner, v. WINSTON-SALEM/FORSYTH COUNTY BOARD OF EDUCATION, and Omeda Brewer, Beaufort Bailey, Betsy Sawyer, Nancy Wooten, Davey B. Stallings, Tom C. Womble, William Sheppard, and Marvin Calloway, Jr., in their official capacity as members of the Winston-Salem/Forsyth County Board of Education, Respondents.

No. 7721SC913.

Court of Appeals of North Carolina.

January 16, 1979.

*721 William G. Pfefferkorn and Jim D. Cooley, Winston-Salem, for petitioner-appellant.

Hudson, Petree, Stockton, Stockton & Robinson, by W. F. Maready and George L. Little, Jr., Winston-Salem, for defendants-appellees.

WEBB, Judge.

Petitioner-appellant brings forward several arguments as to why the superior court should be reversed. She contends first that the Board's policy in regard to corporal punishment is in conflict with state law. G.S. 115-146 provides in part:

Principals, teachers, . . . in the public schools of this State may use reasonable force in the exercise of lawful authority to restrain or correct pupils and maintain order. No county or city board of education or district committee shall promulgate or continue in effect a rule, regulation or bylaw which prohibits the use of such force as is specified in this section.

The Board's Policy No. 5131 provides in Article 8:

"A. School personnel have the authority to use reasonable force to maintain order in the schools. Corporal punishment, when administered, shall be administered fairly and impartially and in the following manner: (1) In the principal's office by the principal or teacher with an adult witness present. (2) Pupils may not be struck or slapped about the face or head. (3) The parents of the child shall be notified by a school official by telephone, if possible, or in writing."

The Board's administrative regulation No. 51-44.1 further provides that:

"In addition to the specific provisions of that policy, corporal punishment shall be administered in the following manner: *722 1. Corporal punishment should be used only when other methods of discipline have failed. 2. Students should be advised beforehand that specific acts of misconduct could result in corporal punishment. 3. School officials should not administer corporal punishment when angry or upset. 4. Only a paddle will be used in administering corporal punishment."

The petitioner-appellant contends that in order for the Board's action to be upheld we would have to adopt what she calls a per se rule, that is, that every touching about the face violates the Board's policy. She contends this is so because when the evidence in this case is measured by the rule of Thompson v. Wake County Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977), the only finding that can be supported is that she struck the students not as corporal punishment, but to get their attention to keep them from harming others or themselves. Petitioner-appellant contends that by penalizing her for this action the interpretation of the Board's policy puts it in conflict with G.S. 115-146 which confers on teachers the power to use reasonable force to maintain order in the classroom and prohibits school boards from adopting policies which interfere with this right and duty.

We recognize there may be some instances when striking a child is not punishment, but is done to remedy some immediate problem by getting the child to take some action for his own or someone else's safety. However, we do not pass on the question in this case. We hold that under Thompson v. Wake County Board of Education, supra, the Board could find that petitioner-appellant administered corporal punishment to the students named in the Board's findings and this corporal punishment violated the Board's policy. We also hold the policy is not proscribed by G.S. 115-146. Under Thompson, our courts are required to use the "whole record" test. Looking at the whole record, there is unequivocal evidence that Mrs. Kurtz struck the students about the head or grasped them so firmly about the arm as to leave a bruise. There is also unequivocal evidence that this was done not to get their attention or to make them take some action, but to punish them for previous wrongdoing. The petitioner-appellant's own testimony contradicted this evidence, but in considering all the evidence we cannot substitute our judgment for that of the Board. In Thompson, the evidence that the teacher had encouraged his students to fight among themselves was inconclusive. The teacher offered evidence which showed the words of the teacher which the Board relied on in that case were actually used to stop students from fighting. In the case sub judice, the evidence of corporal punishment is conclusive. There is some contradictory evidence, but taking all evidence into account we would have to substitute our judgment for that of the Board to reverse.

The defendant's last assignment of error deals with the Board's not having a public hearing at the meeting at which petitioner-appellant was discharged. G.S. 115-142 says in part:

(j) Hearing Procedure. The following provisions shall be applicable to any hearing conducted pursuant to G.S. 115-142(k) or (1). (1) The hearing shall be private.

The Board's policy provided for a public hearing, but in light of this provision of the statute, the Board repealed this provision of the policy immediately prior to the meeting and went into a private session. Petitioner-appellant contends G.S. 115-142(j)(1) is an anomaly when contrasted with the Open Meetings Law, G.S. 143-318.1 et seq. See Student Bar Association v. Byrd, 32 N.C.App. 530, 232 S.E.2d 855 (1977). It may be an anomaly, but it is the law as adopted by the General Assembly. The Board was bound by it. The petitioner-appellant also contends she was deprived of her constitutional rights by the holding of a private hearing. She relies on Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). In that case, the United States Supreme Court held that the Eighth Amendment to the United States Constitution *723 does not bar corporal punishment in schools as a cruel and unusual punishment. The opinion in that case relied upon "the openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which the Eighth Amendment protects the prisoner." Ingraham, supra, at 670, 97 S. Ct. at 1412. We do not believe Ingraham is authority for the proposition that it is unconstitutional not to have an open meeting to discuss the discharge of a public school teacher. Petitioner-appellant also contends it was unconstitutional for the Board not to follow its own stated procedure so far as open meetings are concerned. The Board changed its procedure to comply with the state law. Petitioner-appellant had a full hearing with all procedural safeguards. She has not shown how she was damaged by the change of the Board's policy to comply with the law and we hold it was not unconstitutional for the Board to make this change.

From a reading of the entire record, it appears that Mrs. Kurtz was a new teacher operating under difficult circumstances for her. Nevertheless, we cannot substitute our judgment for that of the Board.

Affirmed.

MORRIS (now Chief Judge) and HEDRICK, JJ., concur.