Nestler v. Chapel Hill/Carrboro City Sch.

311 S.E.2d 57 (1984)

Clyde H. NESTLER v. CHAPEL HILL/CARRBORO CITY SCHOOLS BOARD OF EDUCATION.

No. 8215SC1138.

Court of Appeals of North Carolina.

February 7, 1984.

*59 Winston, Blue, Larimer & Rooks by J. William Blue, Jr., Chapel Hill, for petitioner-appellee.

Alexander & McCormick by John G. McCormick, Chapel Hill, for respondent-appellant.

Tharrington, Smith & Hargrove by George T. Rogister, Jr. and Ann L. Majestic, Raleigh, for North Carolina School Boards Ass'n, amicus curiae.

WEBB, Judge.

We believe the Board's findings of fact as to the petitioner's weakness as a teacher support the conclusion of his inadequate performance. If these findings of fact were supported by the evidence, the superior court was in error in reversing the Board's decision. The standard of review for the superior court is the "whole record test" which requires that in considering the substantiality of the evidence to support the findings of fact, the court must take into account whatever in the record fairly detracts from the weight of the evidence supporting the findings of fact. See Thompson v. Board of Education, 292 N.C. 406, 233 S.E.2d 538 (1977). We believe that the testimony of Dr. Monson which was supported by the testimony of Dr. George Fleetwood and Doug Dwyer establishes the inadequacies of the petitioner as a teacher.

The petitioner argues that a consideration of the evidence that fairly detracts from the evidence in support of the Board's findings of fact shows that the findings were erroneous. The petitioner received a grade between fair and satisfactory in May of 1980. He says that by the Board's own standard this contradicts any finding of fact that there was a weakness or deficiency in his performance. He also contends that Dr. Monson's testimony on direct examination was so weakened by his testimony on cross-examination that it is of no credibility. As to Dr. Monson's testimony that petitioner made inadequate attempts to check on comprehension by students and that some students went the entire year without being called upon, Dr. Monson stated on cross-examination that this was based on the classes he observed and "by comments either formal or informal that we hear from parents, from students." Petitioner argues that this method is not adequate for the support of Dr. Monson's testimony on this point. As to Dr. Monson's testimony that students were assigned problems with no effort made to determine the comprehension level of the students in working the problems and that petitioner failed to relate the problems to classroom work, Dr. Monson testified on cross-examination that he made no effort to work the problems and was not sure he could have done so. Petitioner argues that for this reason Dr. Monson's testimony on this point is not credible.

Dr. Monson stated on direct examination that the laboratory experiences offered by petitioner were inadequate and poorly organized. On cross-examination, he admitted that of the three observations he made in 1978-79, a laboratory experience was observed on one occasion and in 1979-80 laboratory experiences occurred during five of the nine observations he made. One laboratory experience for each ten class sessions generally provides an adequate number of laboratory experiences and the petitioner contends the evidence does not show he was inadequate in the laboratory work assigned. Dr. Monson supported in part his testimony that the petitioner did not adequately challenge his students with the statement that students asked to be in other classes because of a greater challenge. At another point in his testimony he said that he did not use student comments to form his opinions as to the competency of teachers. Petitioner argues this inconsistent approach destroys the credibility of Dr. Monson's testimony. As to Dr. Monson's testimony that petitioner had not made an adequate effort for professional growth and maturity the petitioner testified at length in regard to *60 the efforts he had made to improve his teaching skills.

Other evidence which the petitioner contends detracts from the evidence in support of the findings of fact was the lack of any evidence that as to comparison between standardized tests given to the petitioner's students and other chemistry students and the report of the professional review panel which found the grounds for dismissal were not substantiated.

When all the evidence is considered which detracts from the evidence in support of the findings of fact, we believe the findings of fact are supported by substantial evidence. Dr. Monson, Dr. Fleetwood, and Doug Dwyer testified to the petitioner's deficiencies as a teacher. It is true that this testimony was weakened by cross-examination but we do not believe it was to such an extent to make it incredible. We believe the evidence is that there were certain objective standards which were followed in evaluating the petitioner as a teacher. The persons observing the petitioner were no doubt somewhat subjective, as any human would be, in applying these standards but we believe it could be and the evidence in this case shows the standard was fairly applied.

The evidence that petitioner had an excellent grasp of his subject matter, that there was no test showing his students were not as proficient in chemistry as other students, and that the professional review panel did not find the grounds for dismissal were substantiated, is evidence that detracts from the evidence supporting the findings of fact. When this evidence is considered, however, with all the evidence in the record, we still have the testimony of Monson, Fleetwood and Dwyer which we believe has been not so discredited as to not be substantial evidence supporting the Board's findings of fact. We do not believe that the Board was bound by the grade given to the petitioner by Dr. Monson in May 1980. We hold that the superior court substituted its judgment for the judgment of the Board of Education when it held the Board's findings of fact were not supported by the evidence.

The superior court also held that G.S. 115C-325(e)(1)(a) is unconstitutionally vague as applied to the petitioner. This statute provides in part:

(e) Grounds for Dismissal or Demotion of a Career Teacher: (1) No career teacher shall be dismissed or demoted or employed on a parttime basis except for one or more of the following: a. Inadequate performance.

Under the due process clause of the fourteenth amendment to the United States Constitution, a statute is void for vagueness if its terms are so vague, indefinite and uncertain that a person cannot determine its meaning and therefore cannot determine how to order his behavior to meet its dictates. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939) and State v. Poe, 40 N.C.App. 385, 252 S.E.2d 843, cert. denied, 298 N.C. 303, 259 S.E.2d 304 (1979), appeal dismissed, sub nom., Poe v. North Carolina, 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782 (1980).

We believe that the term "inadequate performance" is one that a person of ordinary understanding can comprehend in regard to how he is required to perform. In this case the evidence is that the petitioner was advised on several occasions that his performance was inadequate because of his teaching methods. We believe that as applied to the petitioner, he was given an objective standard with which a person of ordinary understanding could determine how he must comply. We do not believe the statute is unconstitutional as applied to the petitioner.

We reverse the judgment of the superior court and remand for an order consistent with this opinion.

Reversed and remanded.

HEDRICK and HILL, JJ., concur.