Community standards v. teacher rights: what is 'immoral conduct' under Missouri's Teacher Tenure Act?

• Author: Neusel, Conor
• Position: NOTE

Homa v. Carthage R-IX School District, 345 S.W.3d 266 (Mo. App. S.D. 2011).

1. INTRODUCTION

   Most people would agree that a school board has a substantial interest in guarding the school community from anything that would distract it from accomplishing its purpose of educating each child enrolled in its schools. Of course, a very plausible source of distraction would be a misbehaving teacher. But how inappropriately must a teacher behave in order for the school board to take action? And when may a school board terminate a teacher for his or her inappropriate behavior?

   Across the country, almost every state legislature has enacted a statute that allows school boards to terminate a tenured public school teacher's contract for reasons related to his or her character. (1) In Missouri, a tenured teacher may be fired for engaging in "immoral conduct." (2) However, the Missouri legislature has not defined what type of behavior this phrase encompasses. Consequently, the ambiguous statutory language presents teachers, school boards, and courts with an obvious dilemma: what conduct constitutes immoral conduct? In any state, dismissing a teacher on the basis of "immorality" can present some difficulty, not only because "immorality" is difficult to define, but because "immoral" conduct can occur anywhere, not only within the schoolhouse gate. (3) As written, "moral" teacher statutes have the potential to greatly limit a teacher's activity, including activity in his or her private life. (4) However, when drafting statutes, lawmakers must consider interests other than those of the teachers. School boards and the communities they represent have an interest in overseeing their public employees, who have such a huge influence on their children. (5) Thus, courts must strike a balance between these contrasting interests when defining the phrase "immoral conduct."

   In a recent Missouri case, Homa v. Carthage R-IX School District, the Court of Appeals for the Southern District upheld the Carthage School District's decision to terminate one of its program directors for engaging in "immoral conduct." (6) The Carthage school board terminated Lynda Homa, a teacher, and the director of its Parents-as-Teachers program, after it found that Homa authorized a parent-educator to visit an incarcerated program participant to convince the participant to put her child up for adoption. (7) Interestingly, the court did not base its determination solely on the inappropriate adoption discussion. In its opinion, the court put greater emphasis on Homa's deceit and dishonesty in covering up the incident. (8)

   Of course, reasonable people might disagree about whether this behavior was so "immoral" that it merited Homa's termination. Whether the Homa court reached the correct result depends upon how one defines immoral conduct. Therein lies the real issue: Missouri's appellate courts have not definitively agreed upon what "immoral conduct" means, and the Supreme Court of Missouri has yet to define the phrase. (9) In Homa, the three-judge panel for the Southern District adopted the definition of "immoral conduct" previously applied by the Eastern District, which focuses on a teacher's intent. (10) This Note argues that Homa was correctly decided, and that by incorporating a mens rea into the definitional understanding of "immoral conduct," the Southern District has provided teachers, school boards, and lower courts in Missouri with a better understanding of what sort of behavior is "immoral" under the statute.

2. FACTS & HOLDING

   Carthage R-IX School District (District) is a Missouri public school district. (11) Employed as a tenured teacher in the District, Eloma was the director of the Parents as Teachers (PAT) program for twenty years. (12) Her main responsibility as the director was to supervise PAT employees. (13)

   PAT is a free, voluntary education program offered by the District to parents with children that have not yet started kindergarten. (14) Some of the program's goals are to "increase parent confidence, give parents an understanding of their child's developmental progress, and to provide children with early developmental screening." (15) PAT employees, called "parent-educators," have various responsibilities, including making personal visits, conducting group meetings, offering resources, and providing developmental screening for children. (16)

   The Missouri Department of Elementary and Secondary Education (DESE) funds the PAT program. (17) According to DESE guidelines, each school district must maintain records of program activities. (18) DESE's Early Childhood Development Act (19) Program Guidelines and Administrative Manual (ECDA guidelines) (20) states, "[P]arent educators must keep educational records of each personal visit and group meeting. Records must include ... the content of the visit [and] outline issues raised by the parent.... Only visits that have a completed personal visit record will be counted for reimbursement." (21) Furthermore, ECDA guidelines maintain that the goal of PAT educators in making personal visits is for "the child to be present during the personal visit. There may be instances where this is not possible.... These special instances must be approved by DESE." (22) Also, parent-educators "'are not expected to serve in the role of a counselor or social work[er]."' (23)

   In September 2007, PAT parent-educator Laura Davenport asked Homa if she could visit Encamacion Bail at the St. Clair County Jail in Osceola, Missouri. (24) Bail, an undocumented immigrant from Guatemala and former participant in the District's PAT program, was awaiting deportation. (25) Homa approved Davenport's visit to the jail. (26) Homa knew Bail's child would not be present during the visit; (27) however, she failed to notify her supervisor or DESE of Davenport's visit. (28)

   After Davenport's trip to the jail, Davenport informed Homa that she had a discussion with Bail about putting Bail's son up for adoption. (29) Homa did not have Davenport complete a personal visit record for her trip to visit Bail, (30) yet authorized payment of Davenport's full salary for that day, even though DESE would not reimburse the money expended for the visit because no personal visit record was completed. (31) On September 19, 2007, Davenport referred to her visit with Bail in her "Daily Visit Record," when she wrote "I went to jail today, I did not pass go--I did not collect $200." (32)

   In October 2008, Davenport received a subpoena to testify in an adoption hearing regarding Bail's son. (33) Homa knew Davenport was subpoenaed in October; however, she did not notify the District's superintendent, Dr. Blaine Henningsen, that there was a potential situation developing with Bail until early March 2009. (34) Upon learning of the adoption hearing, Henningsen asked Davenport to meet with him on April 15, 2009, and requested that she bring Bail's case file with her. (35) During the meeting, Davenport told Henningsen that she went to the jail "to get [Bail] to put [her son] up for adoption." (36) Henningsen then asked Homa and Davenport to each "write down in chronological order everything that they remembered about the circumstances surrounding the situation." (37) In their respective written statements, which were submitted to Henningsen several days later, Homa and Davenport each individually stated that the primary purpose for Davenport's trip to the jail was to take a birth certificate application form to Bail. (38)

   On April 21, 2009, the District put Homa on administrative leave until an investigation into allegations of improper behavior by Davenport were completed. (39) On June 16, 2009, Homa was charged with engaging in "immoral conduct" relating to her participation in the adoption of Bail's child. (40) On August 13, 2009, the school board convened for a hearing to consider the charges against Homa. (41) At the hearing, Homa, Davenport, and Henningsen testified.

   1. Homa's Testimony

      At the school board hearing, Homa testified that Davenport asked for permission to visit Bail so she could deliver a birth certificate application. (42) Homa never suggested that Davenport mail the application and admitted that it "possibly" would have been sensible to mail the application instead of visiting Bail in person while using District funds. (43) Homa also admitted that she knew the jail was outside of the District's county. (44)

      Homa was aware of the DESE and ECDA guidelines with regard to PAT personal visits. She knew the goal was to have the child present (45) and also knew that in order for a visit to be considered "personal," the parent-educator educator had to bring developmental materials on the visit. (46) Moreover, Homa acknowledged that she made a "mistake" in sending Davenport without developmental information. (47) Homa claimed that she did not think Davenport's trip to the jail was a "personal visit," (48) and instead considered the visit to be "family support," which required no recording. (49) Homa admitted that it was also a "mistake" not to have Davenport report the visit and that about $181.00 of District funds were spent on Davenport's trip. (50)

      When asked about the nature of the trip, Homa stated that she was not "shocked" that Davenport spoke with Bail about adoption. (51) She thought it would be fine for parent-educators to talk to clients about adoption. (52) In regards to Davenport's daily record entry from her jail visit, Homa thought the comment about not collecting $200 was "rather clever." (53) However, Homa also acknowledged that someone in Bail's position might be vulnerable. (54) Furthermore, she admitted she did not inform anyone about the nature of Davenport's discussion with Bail during the March 12, 2009 meeting, the April 15, 2009 meeting, or in her own written statement. (55)

   2. Henningsen's Testimony

      At the school board hearing, superintendant Henningsen testified that when he first asked Davenport why she went to the jail...