KANSAS STATE BOARD OF EDUCATION, ) ) Petitioner, ) ) v. ) Case No. 00-C-1307 ) CHARLES MARSH, JR. ) ) Respondent. ) ___________________________________ )
The above captioned matter comes before the Court on Petitioner Kansas State Board of Education's Notice of Appeal and Petition for Judicial Review, pursuant to K.S.A. 60-2101(d). After careful consideration, the Court finds and concludes as follows:
1. Charles Marsh, Jr. ("Marsh"), who is deaf, has been a teacher at the Kansas State School for the Deaf ("KSSD") for thirty years.
2. Marsh is the owner of undeveloped property near Hume, Missouri. Railroad tracks owned by the Kansas City Southern Railroad are located next to that property. These tracks are "active" and, according to Marsh, trains travel on these tracks from either direction both weekdays and weekends.
3. On February 28, 2000, Marsh contacted KSSD football coach and teacher Chris Kurz ("Kurz") and sought his assistance in recruiting KSSD football players to move old railroad ties onto Marsh's land from the adjacent railroad property. Kurz is also deaf.
4. Kurz executed the "field trip request" form required by KSSD and submitted it to LuAnn Ward ("Ward"), Head Teacher at KSSD. In the section of the field trip request form relating to the "purpose" or "objective" of the field trip, Kurz wrote: "Community service - help Charles Marsh move train tracks to his Haven." "Haven" was the name of Marsh's property.
5. Ward, puzzled by the description of the project, questioned Kurz about the reference to "train tracks." Kurz explained that the participants would be moving railroad ties from a pile of old ties up to Marsh's property. No specific mention was made that the ties were located on and were railroad property or that the work was to be performed on active railroad tracks, nor did Ward make any inquiry regarding this.
6. The field trip request form was submitted on March 6, 2000, and was approved by Ward. The project was scheduled for March 11, 2000.
7. Ward knew the field trip involved work on Marsh's privately owned property, however, neither she nor any other administrative official at KSSD objected to this fact.
8. Ward was responsible for assuring that parents of the students involved had been adequately notified as to the nature of the community service project.
9. Marsh and Kurz served as the faculty supervisors for the project. Four students originally volunteered for the project, but only two of them (Justin Barnett ("Justin") and Brian Harmon ("Brian")) were able to participate. The students were transported to Marsh's property by Kurz, where they were met by Marsh. After a tour of the property, the two students and the two supervising teachers proceeded to the railroad tracks to search for ties.
10. At some point between 10:30 and 11:30 a.m., Marsh left the area to begin preparing lunch for the group. Marsh and Kurz devised a method of teamwork for moving the ties, which included two persons setting the ties upon the active rails and pushing them along the track, in addition to watching out for each other, while the third person waited in the ditch resting.
11. At approximately 11:45 a.m. on March 11, 2000, Kurz and Brian were dragging a tie along the rails. Kurz had instructed Justin to wait in the ditch. However, when Kurz looked up and saw a train approaching their location, he also saw that Justin had left the ditch and brought a tie to the track. Justin was standing, supporting a railroad tie that rested against his shoulder, immediately adjacent to the track. Kurz and Brian attempted to warn Justin of the approaching train, but were unable to do so. The train's engineer and conductor rang the train's bell, blew its whistle, and applied the brakes, but to no avail. The train struck Justin, and he died from the impact.
12. The train, which included eighty cars, was traveling at approximately 49 miles per hour and it took almost 4,000 feet to stop after hitting Justin.
13. The Kansas State Board of Education ("Board") serves as the governing body for KSSD. After the fatal accident, a committee ("Investigative Committee") was appointed by the Board to investigate the accident.
14. Following the receipt of the report of the Investigative Committee, the Board decided to terminate the employment contracts of both Marsh and Kurz. The reasons for terminating Marsh's contract were stated as follows:
(a) [Marsh] jeopardized the health and safety of two students of [KSSD], as well as [himself] and another staff member, by engaging in an inappropriate and dangerous activity, which resulted in the accidental death of one of those students on March 11, 2000;
(b) [Marsh] failed to exercise appropriate professional judgment and care regarding student safety in the planning and execution of an activity involving two students of [KSSD], which activity resulted in the accidental death of one of those students on March 11, 2000;
(c) [Marsh] failed to comply with the school policies, orders and regulations concerning student safety and activities; and
(d) [Marsh] failed to conduct [himself] in a manner reflecting positively on the school and to maintain the respect and confidence of the other professional employees, students and the employer.
15. On April 5, 2000, the Board issued to Marsh a notice of intent to terminate contract of employment as a teacher at KSSD.
16. Marsh timely filed a written request with the Commissioner of Education to have the question of his termination of employment at KSSD heard by a hearing committee, as provided for in K.S.A. 76-11a06. A hearing committee ("Hearing Committee") was duly selected in accordance with the requirements of that statute.
17. The Hearing Committee conducted a two day hearing from July 6 - 7, 2000, issuing its decision that Marsh should be re-instated on August 31, 2000 to the Commissioner of Education.
The Board is responsible for controlling and supervising KSSD. K.S.A. 76-1001. The termination of employment contracts of KSSD teachers is governed by the statutory requirements set forth in K.S.A. 76-11a05 et. seq. The Board must give written notice of the intent to terminate a contract. K.S.A. 76-11a05. The written notice of the termination must include a statement of the reasons for the proposed termination and a statement that the teacher may have the matter heard by a hearing committee. K.S.A. 76-11a06. The hearing shall afford procedural due process and shall be conducted by a three-person hearing committee. K.S.A. 76-11a06 and 76-11a07. The hearing committee is to issue a written opinion to the Board and the teacher within 30 days after the close of the hearing. K.S.A. 76-11a11(a).
If the members of the hearing committee are unanimous in their opinion, the [Board] shall adopt the opinion as its decision in the matter and such decision shall be final, subject to appeal to the district court as provided in K.S.A. 60-2101, and amendments thereto.
K.S.A. 76-11a11(b).
Since the Hearing Committee arrived at a unanimous decision in this case, the Board adopted the decision of the Hearing Committee as its own and has appealed to the Court pursuant to K.S.A. 60-2101(d).
A judgment rendered or final order made by a political or taxing subdivision, or any agency thereof, exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal.
K.S.A. 60-2101(d).
As the Hearing Committee correctly recognized, there have been no cases which have defined the scope of a hearing committee under K.S.A. 76-11a11, thus the Court turns to interpretations under a similar law governing termination of teachers in local school districts, K.S.A. 72-5436 et. seq. At the time of the enactment of the due process standards governing termination and non-renewal of teachers at KSSD, the due process standards governing teachers of local school districts were substantially the same. Both statutory schemes provided for a hearing committee's decision to be binding if unanimous, and if not unanimous the Board or local school board was bound to consider the opinion, hear oral arguments, or receive written briefs from the teacher and a representative of the Board or local school board and decide whether the contract of the teacher should be renewed or terminated. However, the due process standards governing the termination or non-renewal of teachers in local school districts have since been amended to require only one hearing officer and to make the decision of that hearing officer binding upon the local school board, subject to the right of the parties to appeal. K.S.A. 72-5443. Despite the current differences in the two statutory schemes, the Court agrees with the Hearing Committee's determination that the case law regarding the due process requirements that apply to local school boards are still relevant in determining the scope of a hearing committee established under K.S.A. 76-11a06.
The due process hearing, among other things, requires the teacher be given a fair and impartial decision based on substantial evidence. See K.S.A. 76-11a07(f).
The purpose of the due process hearing granted a teacher by statute is to develop the grounds that have induced the board to give the teacher notice of its desire to discontinue her services, and to afford the teacher an opportunity to test the good faith and sufficiency of notice. The hearing must be fair and just, conducted in good faith, and dominated throughout by a sincere effort to ascertain whether good cause exists for the notice given. If it does not, or if the hearing was a mere sham, then justification for the board of education's action is lacking.
Gillett v. U.S.D. No. 276, 227 Kan. 71, 78, 605 P.2d 105 (1980). See also U.S.D. No. 500 v. Robinson, 262 Kan. 357, 360, 940 P.2d 1 (1997).
In Robinson, the Kansas Supreme Court set forth the standard for reviewing the decision of a hearing officer who is responsible for conducting the due process hearing upon termination or non-renewal of a school teacher pursuant to K.S.A. 72-5443. The three factors that should guide the hearing officer in his decision are as follows: "(1) the burden of proof was on the school board, (2) the school board's reasons for termination had to constitute good cause, and (3) the decision had to be supported by substantial evidence." Robinson at 361. The Court finds, for the above stated reasons, that this standard is applicable to the Hearing Committee in this case.
In reviewing the decision of the Hearing Committee, the Court once again looks to Robinson for the level of deference that should be given the Hearing Committee's Decision.
The standard of review of a due process hearing officer's decision is limited to deciding if: (1) the hearing officer's decision was within the scope of the officer's authority; (2) the hearing officer's decision was supported by substantial evidence; and (3) the hearing officer did not act fraudulently, arbitrarily, or capriciously.
Robinson at 361. In exercising judicial review, the court may not reweigh the evidence or substitute its judgment for that of the hearing officer. Id. Thus, the Court is precluded from substituting its judgment for that of the Hearing Committee and is limited to deciding if the Hearing Committee has exceeded the scope of its authority, if the decision of the Hearing Committee is supported by substantial evidence, and if the Hearing Committee acted fraudulently, arbitrarily, or capriciously.
In another case involving review of the non-renewal of a teacher's contract, the Kansas Supreme Court defined substantial evidence as "evidence which possesses relevance and substance and which furnishes a substantial basis of fact from which the issue can be reasonably resolved." Haddock v. U.S.D. No. 462, 233 Kan. 66, 70, 661 P.2d 368 (1983). "The arbitrary and capricious test relates to whether a particular action should have been taken or is justified, such as the reasonableness of an agency's exercise of discretion in reaching a determination or whether the agency's action is without foundation in fact." Sokel v. Kansas Dept. of SRS, 267 Kan. 740, 746, 981 P.2d 1172 (1999). "Arbitrary or capricious conduct may be shown where an administrative order is not supported by substantial evidence." Id.
The Hearing Committee's Decision addressed the four grounds upon which the termination of Marsh's employment was predicated. The Court will first address the third and fourth reasons given by the Board for the termination of Marsh's employment. As to the third ground for termination, the Hearing Committee found the there were no violations of school policies, orders, and regulations. The record appears to support such a finding, however the Court would note that policies and regulations may never feasiblely be so detailed as to set forth all activities that are prohibited. Conduct not specifically covered by the policies and regulations is covered by the exercise of professional judgment. This Decision will encompass some aspects of professional judgment in its analysis of the first two grounds for termination.
The Board's fourth ground for terminating Marsh, that Marsh failed to conduct himself in a manner reflecting positively on the school and failed to maintain the respect and confidence of the other professional employees, students, and the employer, was also found by the Hearing Committee to not be supported by the evidence produced at the hearing. After reviewing the record, the Court does not find that this conclusion is in conflict with the evidence produced at the hearing.
The first two grounds for termination were not clearly separated in the Hearing Committee's Decision, thus the Court will review the charge of engaging in an inappropriate and dangerous activity that endangered the lives of others along with the charge that Marsh failed to exercise appropriate professional judgment and care regarding student safety in the planning and execution of the project. Regarding Marsh's obligation or lack thereof to provide KSSD with information about the project, the Hearing Committee found that the evidence at the hearing did not support the portion of the Investigative Committee's report which criticized Marsh for failing to fully inform Ward and other individuals of the nature of the project. It also found that no evidence was adduced at the hearing in support of Marsh even having had the opportunity to make such disclosure and found that Marsh's "failure to personally contact [school administrators or parents] while he was on leave from KSSD did not indicate a lack of candor regarding the nature of the activity." Decision of Hearing Committee p. 13.
The field trip request form filled out by Kurz and approved by Ward did not fully detail the activity that the students and teachers would be engaged in, i.e. working on active railroad tracks. See Statement of Facts 5 & 6. In fact, Kurz testified at the hearing that he did not even know exactly where the railroad ties for the project were to be gathered. See Transcript of Hearing, 30:6-12, 98:8-10. Thus, Marsh, the instigator of the project, owner of the land, and faculty supervisor, was the only person who knew prior to the day of the project that the group would be working on active railroad tracks. However, the Hearing Committee deemed Marsh discharged from any further obligation to provide information regarding the activity once the activity was sanctioned by Ward. Decision of Hearing Committee, p. 13.
Marsh was presented with the following questions at the hearing and responded as follows:
Q: Mr. Marsh, would you agree that the parents of a child who is going to be on an active railroad track as a part of a school activity ought to know that the child is going to be on an active railroad track?
A: I assume that they would know, but it seemed that there was no communication expressed, because I was not involved with the communication to parents at all myself.
Q: So Mr. Marsh, is your answer to my question yes, a parent of a child who is going to be on an active railroad track ought to know that the child is going to be on an active railroad track?
A: Yes.
Transcript of Hearing, 19:13 - 20:1. Despite the evidence adduced at the hearing that Marsh was not responsible for contacting parents individually regarding the nature of each school project, without Marsh informing Kurz that the project would involve working on active railroad tracks how could either Ward or the parents of the children involved ever discover that the project entailed working on active railroad tracks. Thus, the Court finds that the Hearing Committee's determination that Marsh's failure to inform school administrators or parents that the activity would involve work on active railroad tracks did not indicate a lack of candor on Marsh's part is not supported by substantial evidence. There was no evidence before the Hearing Committee that presented any attempt by Marsh to be forthcoming about the exact nature of the activity, yet even he acknowledged that parents should be made aware that their children would be engaging in such an activity. Additionally, it is undisputed that this Community Service Project utilized uncompensated student labor to enhance the value of Marsh's property. This erroneous characterization of the project, once approved by the school apparently absolved Marsh of any further accountability for the personal profit he may have gained. Clearly, the hearing panel at a minimum should recognize a teacher has an independent duty to disclose the precise nature of such an undertaking not only to administrators but also to parents.
The Hearing Committee also arbitrarily disregarded the undisputed fact that the project involved trespassing on property belonging to the railroad and stealing railroad ties. In dismissing this as a factor that would entitle the Board to have terminated Marsh's employment, the Hearing Committee concentrated upon the fact that no evidence was presented to show that Marsh had knowingly or intentionally violated the property rights of the railroad. Marsh offered the testimony of a railroad employee that it is common for the public to trespass on the railroad's property without realizing that they are trespassing. See Transcript of Hearing, 125:13-24. However, it appears that the Hearing Committee ignored additional testimony of the same railroad employee that the general public does need the railroad's permission to remove ties and that if they do not have permission they are considered trespassers. Transcript of Hearing, 124:23 - 125:3. The Hearing Committee dismissed the issue as if the fact Marsh was ignorant of the law excused his behavior and thus failed to provide substantial evidence in support of the Board's allegation that Marsh lacked professional responsibility.
The reasoning of the Hearing Committee on this issue is fatally flawed. The fact that the evidence did not support Marsh having been aware of his trespassing or depriving the railroad of its property does not justify his conduct. The assertions that "everybody does it" and "I didn't know it was wrong" have repeatedly been denied as a means of justifying socially unacceptable conduct. But more importantly, as the Supreme Court stated in Hainline v. Bond, 250 Kan. 217, 224, 824 P.2d 959 (1992), "[t]eachers are role models for their students." It is one of the fundamental goals of education to instill respect for the law. Id. Thus, by ignoring the conduct that forms the basis of the project for which Marsh was terminated the Hearing Committee acted in an arbitrary and capricious manner in reaching its decision that the termination of Marsh was not supported by substantial evidence.
The Hearing Committee also found that the evidence supported the conclusion "that adequate instructions were given to the students regarding the fact the train tracks were active tracks and that they should be alert for trains which could come from either direction." Decision of Hearing Committee, p. 16. Upon reviewing the record of the hearing, the Court agrees that there is substantial evidence to support a finding that there was some instructions given the students regarding the dangers the railroad tracks posed, however, the Hearing Committee failed to consider and disregarded undisputed evidence of the conditions surrounding the tragedy. On the day of the accident, approximately 5 to 8 inches of snow had fallen at the location of Marsh's property. Stipulation of Facts, Exhibit 5. Justin was wearing tennis shoes, a T-shirt, a hooded shirt with pockets in it, and a hat. Transcript of Hearing, 159:16-21. Failure to have on proper attire for the conditions that day is a factor that should have been considered by the Hearing Committee in determining whether Marsh failed to exercise appropriate professional judgment and care regarding student safety in the planning and the execution of the project.
Specifically, the Hearing Committee made a finding regarding the appropriateness and dangerousness of the activity. The Hearing Committee found that the "overwhelming weight of the evidence" supported the project having been appropriate. See Decision of Hearing Committee, p. 14. The Hearing Committee expanded somewhat on this finding when it focused on the fact that the decision of the Board, which was based upon a report of the Investigative Committee, did not include any input from a representative of the deaf community. In contrast, however, at the hearing there was significant testimony from the deaf community and those involved in the education of the deaf. The Hearing Committee determined that the testimony and evidence offered by representatives of the deaf community gave rise to the finding that it was "completely acceptable to allow a 15 to 16 year old KSSD student to work on or around train tracks." Decision of Hearing Committee, p. 15.
The Court is not to substitute its judgment for that of the Hearing Committee, however, the Court is entitled to render judgment when the Hearing Committee has acted in such manner that is not supported by substantial evidence and is arbitrary and capricious. The Hearing Committee's finding that the evidence supports it being appropriate for 15 to 16 year old KSSD students to work on train tracks is exactly such a case. Although the evidence before the Hearing Committee's did support a finding that members of the deaf community should experience being around active railroad tracks, there is nothing in the record that would support a finding that working on active railroad tracks is an intricate part of the education of a deaf student. For example, Ward testified as follows:
Q: Now, ma'am, as part of this approval process, did Mr. Kurz or Mr. Marsh ever tell you that the activity would involve students working on an active railroad track?
A: No.
Q: What if they had told you that?
A: I would not have allowed the activity.
Q: Why not?
A: It's not safe. I've been very knowledgeable of safety issues, and I feel bad that I didn't realize that they would be working close to railroad tracks.
Q: Ma'am, as the principal of the school, is working on an active railroad track the type of activity that you would say is necessary to enrich the lives of your deaf students?
A: No. No.
Q: Is it known to you as the principal of this school to be a part of any particular curriculum?
A: No, hum-um.
Transcript of Proceedings, 130:25 - 131:18 (emphasis added). Justin's mother, who is deaf, also testified that the activity was not the type of activity that is necessary to enhance the lives of deaf students. Transcript of Proceedings, 163:11-16.
The Hearing Committee's Decision listed specific individuals testimony that was relied upon in making its finding that this activity was completely acceptable. However, upon review of the testimony it is evident that the Hearing Committee made a finding beyond that which was supported by substantial evidence and acted outside the scope of its authority by changing the Board's standards for teacher conduct. One individual's testimony upon which the Hearing Committee relied was that of a deaf parent of a current KSSD high school student who originally was scheduled to participate in the project. Rather than testifying that it was "completely acceptable to allow a 15 or 16 year old KSSD student to work on or around the train tracks," the testimony was that it was safe for deaf students to work around active railroad tracks. Transcript of Hearing, 244:9-11.
Furthermore, the testimony of a professor of the University of Kansas in the Department of Special Education was specifically relied upon by the Hearing Committee in its finding that this activity was also completely acceptable. However, upon careful examination of her testimony at the hearing, the Hearing Committee made a finding that was not supported by that testimony. The following is an excerpt of her testimony on direct examination:
Q: Given your knowledge of the facts leading up to the death of Justin Barnett in March of this year, do you believe it was appropriate for Chris Kurz and Charles Marsh to involve two 15, 16- year-old deaf students on an activity around an active set of railroad tracks?
A: No, I do not think it was inappropriate
Q: Why not?
A: It's my understanding that they were there as a service project. I think that's very appropriate. I'm knowledgeable of similar service projects and activities that [KSSD] students and teachers have been involved in. I think that as young adults, they were doing they were around a situation that, yes, was potentially dangerous but is one that is not atypical. . . .
Transcript of Hearing, 280:14 - 281:5 (emphasis added). Although the witness' statement that this activity was "not atypical" suggests that she did not fully understand the nature of the project in which she was expressing support, this fact is made evident in her testimony on cross-examination.
Q: Okay. Ma'am, lets talk about a little bit of what your testimony has been. Have you ever directed, you yourself, an activity which puts kids on an active railroad track?
A: No.
Q: Have you ever tried to assist them in crossing railroad tracks?
A: Yes.
Q: There's a big difference between putting someone on an active railroad track and giving them skills to cross it, isn't there?
A: Well, I can't really think of I can't really think of a situation where you would put somebody on a railroad track. It's not my understanding that's what happened in this case.
Transcript of Hearing, 284:19 - 285:8 (emphasis added). This same witness also equated the activity which gave rise to the death of Justin Barnett to that of crossing a busy street. See Transcript of Hearing, 274:2-20; 291:19-23. However, to accurately compare a busy street with this activity, would require the additional element of pushing a 150 pound object down the center of street. Thus, the Court finds that there was not substantial evidence before the Hearing Committee that would support a finding that the activity was "completely acceptable."
Not only does the Court find that there was not substantial evidence before the Hearing Committee for it to conclude that it was completely acceptable to have 15 to 16 year old students working on active railroad tracks, the Court finds that the Hearing Committee acted outside the scope of its authority by adopting a different standard for teacher conduct than the Board was under. The following statement by the Hearing Committee supports the Court's finding: "While removal of railroad ties from land adjacent to active railroad tracks might be considered inappropriate for any organized student activity, it was not so inherently dangerous as to preclude reasonable differences of opinion regarding that issue." From this statement, the Hearing Committee appears to have ultimately been applying an "inherently dangerous" standard in considering whether the project was appropriate or not.
Whether or not an activity is inherently dangerous is a question of law when the facts are undisputed. Falls v. Scott, 249 Kan. 54, 61, 815 P.2d 1104 (1991).
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) the likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on;
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Restatement 2d Torts §520 (1977). See also Falls at 60. "In determining whether an inherently dangerous activity exists, each case must rest upon its own facts." Wilson v. Daytec Construction Co., 22 Kan. App. 2d 401, 404, 916 P.2d 72 (1996) quoting McCubbin v. Walker, 256 Kan. 276, 290, 886 P.2d 790 (1994). "Generally speaking, the proper test is whether danger 'inheres' in performance of the work, and important factors to be understood and considered are the contemplated conditions under which the work is to be done and the known circumstances attending it." Balagna v. Shawnee County, 233 Kan. 1068, 1081, 668 P.2d 157 (1983) quoting Reilly v. Highman, 185 Kan. 537, 541, 345 P.2d 652 (1959).
Kansas courts have not addressed the precise question of whether working on railroad tracks is inherently dangerous; however, even if the question had been addressed, the facts of this case would control in determining whether or not this activity is inherently dangerous. See Wilson at 401. Thus, the Court will evaluate the presence of each of the factors set forth in the Restatement 2d §520. First, the act of trespassing and taking railroad property (railroad ties) coupled with pushing ties down active railroad tracks certainly involves some risk of harm, no matter how slight. However, where the participants are 15 to 16 year old students, the participants are deaf, the ground is snow-covered, the work involves pushing 150 pound ties along the tracks, and the schedule of the trains is unknown, the risk significantly increases that there will be harm caused to the participants. Also, there is no indication in the record as to any plan for removing ties from the track if a train were approaching. Therefore, there is also a risk of harm to the train itself and its occupants. It is also fairly certain that any harm to an individual that is caused by a moving train will be great, if not fatal. While there is the ability to eliminate some of the risk, under the facts of this case no more than reasonable care would be required to accomplish this. Although the record suggests that the taking of railroad ties is a common activity, the pushing of railroad ties down active railroad tracks is not. The fact that the project involved trespassing on the railroad's property, results easily in finding that the project should not have been carried on in this location. Finally, the value of the railroad ties for landscaping is significantly outweighed by the potential danger of this activity given the facts and circumstances surrounding their ultimate use. Therefore, in light of the circumstances under which the activity was performed, the Court finds that as a matter of law the project involved the inherently dangerous activity of having 15 to 16 year old students work on active railroad tracks. From the record, the Hearing Committee appears to have adopted Marsh's position that one of the purposes of deaf education is to empower the hearing impaired through exposure to situations encountered by members of the hearing community. This Court cannot envision a scenario in which any 15 year old student, regardless of physical or mental ability, is instructed to be exposed to this type of obvious hazard. Even Kansas law forbids exposure by children under the age of eighteen to occupations, trades or businesses which is in any way dangerous or injurious to the life, health, safety, morals, or welfare of such minor. (K.S.A. 38-602)
However, even if the Court were not to find that this is an inherently dangerous activity, the standard adopted by the Hearing Committee was different than the standard the Board was under. The grounds terminating Marsh's employment did not state that Marsh had engaged in an inherently dangerous activity, but that the activity was "inappropriate and dangerous." Thus, the Hearing Committee erred by changing the Board's standard. Although the grounds for termination should not be interpreted too narrowly, the Hearing Committee did not apply the correct standard in reviewing the Board's decision to terminate Marsh's employment. Therefore, the Hearing Committee, by applying a stricter standard on the Board in its determination on the propriety of the project, acted outside the scope of its authority.
After a careful review of the record, the Court finds that the Hearing Committee's conclusion that the Board did not have good cause to terminate Marsh is not supported by substantial evidence and is arbitrary and capricious. The activity itself was ill-conceived and ill-planned, with foreseeability of significant injury or property damage being substantial. Most troubling, however, is the Hearing Committee's conclusion that Justin's death is "the result of [Justin's] failure to abide by the instructions he was given . . ." Hearing Committee Decision, p. 16. After careful review of the record, such a conclusion is not only an abuse of discretion that is "so wide off the mark that its unreasonableness lies outside the realm of fair debate," it is a finding that in the realm of human experience is completely void of compassion and understanding of human behavior. While Justin's actions may have contributed to his death, to excuse the actions of those assigned to protect students under their care, employed to teach responsibility, and to act selflessly in those pursuits, is a denial of the very essence of the responsibility of those entrusted with the safety and caring of our youth. To conclude that Marsh's project was an appropriate and suitable undertaking for public school students trivializes Justin's life as a mere casualty, an acceptable loss in the pursuit of education. This Court will not stand for the proposition that Justin's life can be so callously disregarded.
The Hearing Committee expanded further on this point of view with gratuitous comments regarding the termination of Kurz, the teacher actually entrusted with the supervision of Justin at the time of the accident. See Decision of Hearing Committee, p. 19. Apparently, the Hearing Committee again felt compelled to act beyond its charge by absolving Kurz of any responsibility for this project or its disastrous outcome.
The Court's decision is not based upon the grounds that the Hearing Committee was simply wrong in its outcome, such a finding would be improper. Rather, the Hearing Committee made findings that were not supported by substantial evidence and has acted in an arbitrary and capricious manner. "A good school is dependant upon the Board being able to terminate teachers who do not meet the standards set by the Board." Kelly v. Kansas City, 231 Kan. 751, 762, 648 P.2d 225 (1982). See also Unruh v. U.S.D. No. 300, 245 Kan. 35, 42, 775 P.2d 171 (1989). The question for the Hearing Committee was not whether Marsh was responsible for Justin's death but whether the Board had met its burden of showing that there was good cause for the termination of Marsh's employment.
The Hearing Committee acted outside the scope of its authority when it adopted a different standard of conduct, which was contrary to the Board's standard for teacher conduct. The Board's standard requires that teachers engage students only in those activities which are appropriate and safe. The Hearing Committee found that the Board had failed to establish that Marsh involved students in an inappropriate and dangerous activity. In reaching this finding, the Hearing Committee arbitrarily disregarded undisputed material evidence. It is undisputed that the teachers and students trespassed onto railroad property to take railroad ties without the owner's permission for the personal use of Marsh on his property. It is also undisputed that the method adopted for accomplishing the work was to push or drag the ties down active railroad tracks. It is also undisputed that Marsh did not describe the precise nature of the activity to his colleagues, administrator or parents of the students.
The Hearing Committee rationalized its judgment by finding that Marsh was ignorant of the law of trespass and theft and was trying to engage deaf students in the same types of activities as might be available to students who were not deaf. Additionally, because he did not directly speak with his administrator or the parents about the project, he was excused by the Hearing Committee from his duty to independently assure that people who also had responsibility for the safety of the children could make informed decisions about permitting the children to participate in the described community service. The Hearing Committee's rationalization for its decision is arbitrary, capricious and not supported by substantial evidence. The Hearing Committee changed the standard for the proposed termination of Marsh's employment and then disregarded material undisputed evidence which established the basis for his discharge from employment by the Board. The decision of the Hearing Committee is reversed.
Dated _________________ day of __________________ 2001.
_________________________________
Eric S. Rosen
District Court Judge