KARL PRIEST,

                  Grievant,

      v.

DOCKET NO. 00-20-144

KANAWHA COUNTY BOARD OF EDUCATION,

                  Respondent.

D E C I S I O N


      This grievance was filed by Grievant Karl Priest, on February 2, 2000, seeking an answer from the Kanawha County Board of Education (“Board”) regarding what legal protection was available to him if he criticized evolution in his classroom. His immediate supervisor denied the grievance on February 16, 2000. A level two hearing was held on March 30, 2000, and the level two grievance evaluator issued a decision denying the grievance on April 13, 2000. The Board voted to waive participation in the grievance on April 13, 2000, and Grievant appealed to level four on April 24, 2000. A level four hearing was held on June 7, 2000, and this matter became mature for decision on July 7, 2000, the deadline for the parties' submission of proposed findings of fact and conclusions of law. Grievant appeared pro se, with assistance from Dr. Joseph Mastropaolo, and the Board was represented by James W. Withrow, Esq.
SUMMARY OF EVIDENCE

Level Three Evaluator's Exhibits
Ex. 1 -
Level Four Grievant's Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 - Ex. 4 - Ex. 5 - Ex. 6 - Ex. 7 - Ex. 8 - Ex. 9 - Ex. 10 - Ex. 11 - Ex. 12 - Ex. 13 - Ex. 14 - Ex. 15 - Ex. 16 - Ex. 17 - Ex. 18 - Ex. 19 - Ex. 20 - Ex. 21 - Ex. 22 - Ex. 23 - Ex. 24 - Ex. 25 - Ex. 27 -
Level Four Board Exhibits

Ex. 1 -

Ex. 2 -
Testimony

      Grievant testified in his own behalf, and presented the testimony of Betty Jarvis and John Luoni.

FINDINGS OF FACT

      Based on the testimony and evidence of record, I find, by a preponderance of the evidence, the following facts.
      1.      Grievant is employed by the Board, and is currently assigned to teach mathematics at Andrew Jackson Middle School.
      2.      The “middle school concept” involves team teaching and interdisciplinary cooperation among teachers of different subjects.
      3.      The State approved mathematics textbooks and teachers' materials, which have been adopted by the County, contain references to dinosaurs, anthropology, timelines, geological eras, and other scientific concepts.
      4.      For several months prior to filing this grievance, Grievant made numerous appearances before the Board seeking to have it adopt a resolution which would havespecifically authorized teachers to criticize the theory of evolution and discuss theories for and against the theory of evolution. See LIV Board Ex. 2.
      5.      The Board has an existing policy relating to the teaching of “controversial subjects.” See LIV Board Ex. 1.
      6.      At its regular meeting in December, 1999, the Board, after hearing numerous speakers both for and against the resolution, voted not to approve the resolution.
      7.      At the Board's next regular meeting, Grievant appeared and requested the Board to give him specific advice concerning the legal protections available to him, should he choose to make statements critical of evolution in his classes.
      8.      After a brief discussion, the Board refused to grant Grievant's request. Thereupon, Grievant filed this grievance.
      9.      In May, 2000, Grievant asked his principal for guidance as to whether it would be acceptable for him to teach a lesson which was critical of evolution, in connection with a math lesson on ratios and probabilities.
      10.      After a brief exchange of correspondence, the Assistant Superintendent of Curriculum and Instruction advised Grievant he could teach such a lesson if, in his professional judgment, it was factual and relevant to the subject matter. G. Ex. ___.
      11.      Grievant's appearances before the Board resulted in several local newspaper articles. G. Exs. 6, 15-19, 22-24.
      12.      Grievant presented two out-of-state newspaper articles that indicated two educators had alleged they suffered adverse job actions as a result of their expression of views critical of evolution. G. Exs. 20, 21.      13.      Grievant has not suffered any adverse job action as a result of his actions with regard to the subject matter of this grievance.

DISCUSSION

      Grievant has the burden of proving each element of his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88- 130 (Aug. 19, 1988). See W. Va. Code § 18-29-6. Grievant claims his “academic freedom” is being impinged by the uncertainty surrounding what legal protection is available to him if he discusses issues and ideas which are critical of evolution, and that he has fear of adverse job action as a result of his involvement in these efforts. Specifically, Grievant wishes to teach alternative scientific theories regarding the origin of life.
      The Board contends it has answered Grievant's questions to the best of its ability. First, Grievant was given “permission” to criticize evolution in his mathematics class by the Assistant Superintendent of Curriculum, Mr. Williams. Second, the Board has in existence a “controversial subjects” policy, which was designed to guide teachers in the teaching or discussion of subjects which traditionally cause upset or distress among students, parents, or the community at large. R. Ex. 1. In adopting such a policy, the Board recognized a teacher's freedom to teach includes the freedom to discuss controversial subjects in the classroom.      It is undisputed that no adverse action has been taken by the board against Grievant for his attempts to introduce discussions critical of evolution into his classroom. Any further speculation on this matter would be in the manner of an advisory opinion, and this Grievance Board does not issue advisory opinions. Dooley v. Dep't of Transp., Docket No. 94-DOH-255 (Nov. 30, 1994); Pascoli & Kriner v. Ohio County Bd. of Educ., Docket No. 91-35-229/239 (Nov. 27, 1991).
      In addition, Grievant seeks a guarantee from the Board that he will be protected from adverse action or legal proceedings as a result of his activities. Grievant has pointed to no authority or obligation on the part of the Board to make any such guarantee to him, or any other professional, who chooses to embark on activities otherwise covered by the “controversial subjects” policy. “A grievant's belief that his supervisor's management decisions are incorrect is not grievable unless these decisions violate some rule, regulation, or statute, or constitute a substantial detriment to, or interference with, the employee's effective job performance.” Rice v. Dep't of Highways, Docket No. 96-DOH- 247 (Aug. 29, 1997). See W. Va. Code § 18-29-2(a); Ball v. Dep't of Highways, Docket No. 96-DOH-141 (July 31, 1997).
CONCLUSIONS OF LAW

      1.      Grievant has failed to prove by a preponderance of the evidence the Board violated, misapplied, or misrepresented any statute, policy, rule, regulation, or written agreement by refusing to guarantee him job security with regard to his desire to discuss theories critical of evolution.      2.      This Grievance Board is without authority to require a board of education to adopt a specific policy or undertake a specific course of action. “A grievant's belief that his supervisor's management decisions are incorrect is not grievable unless these decisions violate some rule, regulation, or statute, or constitute a substantial detriment to, or interference with, the employee's effective job performance.” Rice v. Dep't of Highways, Docket No. 96-DOH-247 (Aug. 29, 1997). See W. Va. Code § 18-29-2(a); Ball v. Dep't of Highways, Docket No. 96-DOH-141 (July 31, 1997).
      3.      This Grievance Board does not issue advisory opinions. Dooley v. Dep't of Transp., Docket No. 94-DOH-255 (Nov. 30, 1994); Pascoli & Kriner v. Ohio County Bd. of Educ., Docket No. 91-35-229/239 (Nov. 27, 1991).
      Accordingly, this grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Kanawha County. Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 18-29-7. Neither the West Virginia Education and State Employees Grievance Board nor any of its Administrative Law Judges is a party to such appeal, and should not be so named. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

                                           ___________________________________
                                                 MARY JO SWARTZ                                                        Administrative Law Judge

Dated: August 15, 2000