{ "id": 8552613, "name": "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", "name_abbreviation": "Kurtz v. Winston-Salem/Forsyth County Board of Education", "decision_date": "1979-01-16", "docket_number": "No. 7721SC913", "first_page": "412", "last_page": "420", "citations": [ { "type": "official", "cite": "39 N.C. App. 412" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "430 U.S. 651", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12126861 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/us/430/0651-01" ] }, { "cite": "232 S.E. 2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 530", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551985 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0530-01" ] }, { "cite": "233 S.E. 2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] } ], "analysis": { "cardinality": 773, "char_count": 16779, "ocr_confidence": 0.834, "pagerank": { "raw": 7.317852702137001e-08, "percentile": 0.4388236534253541 }, "sha256": "07676baf27281040256eb97c3df111870cde9abd586116e8d61a59999d816fb5", "simhash": "1:fff7d3c247029cc0", "word_count": 2840 }, "last_updated": "2023-07-14T17:57:00.834910+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MORRIS (now Chief Judge) and HEDRICK concur." ], "parties": [ "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" ], "opinions": [ { "text": "WEBB, Judge.\nPetitioner-appellant brings forward several arguments as to why the superior court should be reversed. She contends first that the Board\u2019s policy in regard to corporal punishment is in conflict with state law. G.S. 115-146 provides in part:\nPrincipals, 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.\nThe Board\u2019s Policy No. 5131 provides in Article 8:\n\u201cA. 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:\n(1) In the principal\u2019s office by the principal or teacher with an adult witness present.\n(2) Pupils may not be struck or slapped about the face or head.\n(3) The parents of the child shall be notified by a school official by telephone, if possible, or in writing.\u201d\nThe Board\u2019s administrative regulation No. 51-44.1 further provides that:\n\u201cIn addition to the specific provisions of that policy, corporal punishment shall be administered in the following manner:\n1. Corporal punishment should be used only when other methods of discipline have failed.\n2. Students should be advised beforehand that specific acts of misconduct could result in corporal punishment.\n3. School officials should not administer corporal punishment when angry or upset.\n4. Only a paddle will be used in administering corporal punishment.\u201d\nThe petitioner-appellant contends that in order for the Board\u2019s 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\u2019s 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\u2019s 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.\nWe 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\u2019s 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\u2019s findings and this corporal punishment violated the Board\u2019s policy. We also hold the policy is not proscribed by G.S. 115-146. Under Thompson, our courts are required to use the \u201cwhole record\u201d 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\u2019s 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.\nThe defendant\u2019s last assignment of error deals with the Board\u2019s not having a public hearing at the meeting at which petitioner-appellant was discharged. G.S. 115-142 says in part:\n(j) Hearing Procedure.-^The following provisions shall be applicable to any hearing conducted pursuant to G.S. 115-14200 or (1).\n(1) The hearing shall be private.\nThe Board\u2019s 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)(l) 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, 97 S.Ct. 1401, 51 L.Ed. 2d 711 (1977). In that case, the United States Supreme Court held that the Eighth Amendment to the United States Constitution does not bar corporal punishment in schools as a cruel and unusual punishment. The opinion in that case relied upon \u201cthe 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.\u201d Ingraham, supra, at 670. 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\u2019s policy to comply with the law and we hold it was not unconstitutional for the Board to make this change.\nFrom 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.\nAffirmed.\nJudges MORRIS (now Chief Judge) and HEDRICK concur.", "type": "majority", "author": "WEBB, Judge." } ], "attorneys": [ "William G. Pfefferkorn and Jim D. Cooley, for petitioner-appellant.", "Hudson, Petree, Stockton, Stockton and Robinson, by W. F. Maready and George L. Little, Jr., for defendant appellees." ], "corrections": "", "head_matter": "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\nNo. 7721SC913\n(Filed 16 January 1979)\n1. Schools \u00a7 13.2\u2014 corporal punishment \u2014 policy of school board \u2014 no conflict with statute \u2014 violation of policy by teacher \u2014 dismissal\nA school board\u2019s policy as to corporal punishment did not 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, and the evidence was sufficient to support the court\u2019s determination that a probationary teacher violated the board\u2019s policy in punishing students by striking them about the head or grasping them so firmly about the arm as to leave a bruise.\n2. Schools \u00a7 13.2\u2014 teacher dismissal hearing \u2014 private hearing\nA school board was bound by the requirement of G.S. 115-142(j)(l) that a teacher dismissal hearing be private, and the teacher\u2019s constitutional rights were not violated by the board\u2019s failure to hold a public hearing at the meeting at which she was discharged.\nAPPEAL by petitioner from Albright, Judge. Judgment entered 30 June 1977 in Superior Court, FORSYTH County. Heard in the Court of Appeals 22 August 1978.\nIn the fall of 1976, Judith A. Kurtz, the petitioner-appellant, was a probationary teacher in the Winston-Salem / Forsyth County School System. On 2 December 1976, the Superintendent of the Winston-Salem / Forsyth County School Board (referred to hereinafter as the Board) notified Mrs. Kurtz that he would recommend to the Board that she be dismissed as a teacher for the three following reasons: (1) Inadequate performance; (2) Insubordination, and (3) Failure to comply with a reasonable requirement that the Board had prescribed for the imposition of corporal punishment. Petitioner-appellant elected to bypass the Professional Review Committee and requested a hearing before the Board. The Board held a hearing lasting from 4:00 p.m. on 21 December 1976 until 2:45 a.m. on 22 December 1976. Extensive evidence was taken in regard to incidents between the petitioner-appellant and several of her students. For a full understanding of the decision in this case, it is necessary for us to recount the evidence in some detail.\nEvidence\nTerri Rhodes, a third grade student, testified:\n\u201cAnd Dwight, he came over there and pushed me. And then I pushed him and hit him back. And she [Mrs. Kurtz] came over there and put him in the back of the line. She came up there and slapped me.\n* * *\n[I]t was hard.\u201d\nMs. Betty Carter Williams, the principal of Hall-Woodward Elementary School testified:\n\u201cMrs. Rhodes eventually came to my school. . . . [S]he came with . . . Terri and two other children. ... I looked at it and saw fingerprints on the left side of Terri\u2019s face.\nMrs. Kurtz said to me that she slapped Terri, when I asked her about it, after Mrs. Rhodes called me. Mrs. Kurtz said something to me at that time about other children. She said that \u2018While we were at it, I might as well tell you, before some others call you, that there have been some other incidents. ... I slapped some other children.\u2019 . . . She named Jay Davidson, Marshal Brady and James Winchester at that time.\u201d\nDr. James A. Adams, Superintendent of Winston-Salem / For-syth County Schools testified:\n\u201cShe indicated to me that she had slapped four youngsters and that she was having some personal problems in terms of a move to a new home. . . .\u201d\nOrlander Jay Davidson testified:\n\u201cthe Monday, 22nd of November.Mrs. Kurtz pinched me. She hit me on the head with a book and she slapped. . . . She pinched me on the arm. She pinched me kind of hard. She pinched me because I was talking on my way up. She slapped me because a boy named Marshal was teasing me. I was doing nothing to Marshal. She hit me on my face. She did not say anything to me before she hit me. She did not tell me what I was doing wrong. I have seen Mrs. Kurtz hit . . . Terri and Marshall the same day that she slapped me.\u201d\nLucy McAlexander testified:\n\u201c[My son] came home from school with some unusual marks on his arm. It was on his left arm, and it was above his elbow, and it was a thumb print and four fingers of bruises. I don\u2019t really know how long these marks remained on his arm; a couple of weeks, I guess. ... I received a letter, . . . from Mrs. Kurtz which indicated that she admitted causing those marks. She sent me a letter of apology the day that my husband took James back to school; and showed Mr. Johnson the places on his arm.\u201d\nMr. Jack Johnson, the principal of Vienna School, testified:\n\u201cit was kind of bruised right under \u2014A tiny bruise right under, right below his arm pit, on the inside of his arm. ... I told him [Mr. McAlexander] I would talk with Mrs. Kurtz, and I did. And she agreed that she did squeeze the arm too hard. And she related to me that the children . . . were coming in from the playground. . . . And they were lining up at the door. And as some were running, they were pushing and scuffling. And she grabbed them, two or three by the arm, to set them straight in line.\u201d\nTeresa Thomas testified about Monday, 22 November:\n\u201cMrs. Kurtz smacked me in the face. ... I hadn\u2019t put my pencil down when she asked me to put my pencil down.\n* * *\nAs to whether it was a little tap, very hard, or not so hard, it was middle sized.\n* * *\n[O]n any day before that Monday, . . . she squeezed my arm. . . . As to whether she squeezed my arm hard or soft, she squeezed it middle.\n[I]t was to get me in line. ... I do not ever remember her touching me with her fingers.\n* * *\nI did see Mrs. Kurtz hit or slap or touch some of the other students about the face and head. She smacked Terri, James, and Marshal.\u201d\nPetitioner-appellant testified:\n\u201cBoth Ms. Williams and Dr. Adams says \u2014say that I said, I slapped five children. And I\u2019m telling you here today, that I did not slap five children. Anyone \u2014 once you\u2019ve slapped one child once, you know it. And you\u2019ll never forget it. I told them that I handled four other children in some way physically I had to touch them or move them about the room. I never said I slapped five children. And this was a misunderstanding. And I feel very badly that I\u2019m contradicting what two other people say. But I don\u2019t believe \u2014 I said I handled them in some way physically.\u201d\nAs to Terri Rhodes, petitioner-appellant testified:\n\u201cShe stated that I took Dwight by the arm and moved him to the end of the line. I deny that I moved him to the end. I moved him back about three or four children from where she was. That was the first action I took to the best of my recollection.\nThen I came back. I don\u2019t recall if I said anything to Terri at that time. It all happened [sic] so fast. There was just, the indication she gave me was that she was just not going to stop, and that she wasn\u2019t going to stand still. And I thought it just essential that she do so then.\n* * *\nI heard the testimony of Terri. She testified that I smacked her; I call it popping her on the cheek. I took my hand and popped her on the side of the cheek so she\u2019d stop.\u201d\nAs to Jay Davidson, petitioner-appellant testified:\n\u201cI heard the testimony of Jay Davidson. I deny that I slapped him. I tapped him on the back of his forehead with two fingers. And I tapped him on the side of his head with a book, but not hard. And these were merely attention getting devices rather than disciplinary action, in the case of Jay.\u201d\nPetitioner-appellant also testified:\n\u201cThere\u2019s been some allegations that I grabbed James McAlexander and Teresa Thomas. And on both of these occasions, the students or their parents testified that there were marks or bruises left. I do not have any explanation for the amount of force that I used. As to why these students would have bruises on their arms, they were fighting and I just got them firmly by the arm and put them in line, basically.\u201d\nAs to James McAlexander, petitioner-appellant testified that on one occasion she had to grab him by the arm. She said:\n\u201cAnd three boys, when they came up near the door, and when they got to the line were fighting as they came up to the door. And so I just took them firmly by the arm and put them in the line, and said, \u2018I don\u2019t want any more fighting.\u2019 \u201d\nAt the conclusion of the hearing the Board made findings of inadequate performance and insubordination on the part of the petitioner-appellant. The Board also found that petitioner-appellant had failed to comply with the reasonable requirement the Board had prescribed for the imposition of corporal punishment. This finding was based on findings that the petitioner-appellant had struck students Terri Rhodes and Jay Davidson about the face and head, had grabbed James McAlexander with such force as to bruise his arm and had struck or grabbed students Teresa Thomas and Terri Rhodes on another occasion. The Board ordered that Mrs. Kurtz be dismissed from her employment as a teacher with due consideration given to her application should she reapply for a teaching position for the 1977-1978 school year.\nPetitioner appealed to the superior court. The superior court held the findings of the Board relating to inadequate performance and insubordination were not supported by substantial evidence in view of the entire record and overruled them. The superior court held that the findings and conclusions in regard to the corporal punishment administered by the petitioner-appellant to her students were supported by material and substantial evidence in view of the entire record and affirmed these findings and conclusions. The superior court affirmed the dismissal of Mrs. Kurtz from her position as a probationary teacher with the Winston-Salem / Forsyth County School System.\nWilliam G. Pfefferkorn and Jim D. Cooley, for petitioner-appellant.\nHudson, Petree, Stockton, Stockton and Robinson, by W. F. Maready and George L. Little, Jr., for defendant appellees." }, "file_name": "0412-01", "first_page_order": 440, "last_page_order": 448 }