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 -
Kanawha County Curricular Alignment, Grade 7, Pre Algebra w/Geometry.
Ex. 2 -
Pre-Algebra, An Integrated Transition to Algebra & Geometry, p. 395.
Ex. 3 -
Various Internet printouts.
Ex. 4 -
Pre-Algebra, An Integrated Transition to Algebra & Geometry, pp. 51, 52, 61,
62.
Ex. 5 -
Pre-Algebra, An Integrated Transition to Algebra & Geometry, p. 430, 431,
484a.
Ex. 6 -
Gazette Online, March 18, 2000, Senate day change 'ticks off' teachers.
Ex. 7 -
Middle Ground, February 2000, pp. 3, 11-14.
Ex. 8 -
Schools in the Middle, March 2000, Vol. 9, No. 7, pp. 3, 8-11, Unique and
Purposeful Schools.
Ex. 9 -
Handwritten note to Karl Priest dated April 5, 2000, with attached Master
Syllabus, Marshall University Graduate College.
Ex. 10 -
Middle Ground, February 2000, Vol. 3, No. 4, pp. 35-36, Mathematics in
Motion.
Ex. 11 -
Internet printout on math science integration.
Ex. 12 -
May 14, 2000, West Virginia Department of Education news release on
awards reception.
Ex. 13 -
SERC internet printout, March 19, 2000, Math in the Middle.
Ex. 14 -
EduNet internet printout, March 19, 2000, Integrating Math and Science
Using an Inquiry Approach.
Ex. 15 -
Charleston Daily Mail internet printout, October 10, 1999, Critic of evolution
theory seeks school board's support.
Ex. 16 -
Charleston Gazette, October 14, 1999, Creating problems? Evolution
resolution opens a can of worms.
Ex. 17 -
Charleston Gazette, December 16, 1999, Evolution supporters threaten
lawsuit.
Ex. 18 -
Charleston Gazette, November 30, 1999, Evolution resolution likely to be
rejected.
Ex. 19 -
Charleston Daily Mail, November 30, 1999, 'Evolution revolution' likely to die
out.
Ex. 20 -
The Charlotte Observer, Science teacher seeks to debunk evolution.
Ex. 21 -
Internet publication, Brave New Schools, March 3, 2000.
Ex. 22 -
Charleston Gazette internet printout, March 16, 2000, Grassroots Report.
Ex. 23 -
Gazette Online, March 17, 2000, Creation textbook divides board.
Ex. 24 -
Charleston Gazette, April 4, 2000, Group abandons 'creation' textbook.
Ex. 25 -
June 5, 2000 letter To Whom It May Concern from Catherine Bennett.Ex. 26 -
Various correspondence from Cathy Bennett, Karl Priest, and Thomas
Williams.
Ex. 27 -
Patterson, John, Do Scientists and Educators Discriminate Unfairly against
Creationists?, Journal of the National Center for Science Education (Fall
1984), pp. 19-20.
Level Four Board Exhibits
Ex. 1 -
Kanawha County Board of Education Policy, Instruction/Controversial Issues,
April 19, 1990.
Ex. 2 -
Resolution of Kanawha County Board of Education.
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