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Teacher Loses Appeal, Gets Lectured in Concurrence

By George Khoury, Esq. on December 05, 2017 | Last updated on March 21, 2019

The case of Stanley Penley v. McDowell County Board of Education may not be that remarkable when it comes to fact patterns. A teacher made an insensitive comment in one of his classes directed at a student. The student's parent complained. The teacher was investigated. The investigation resulted in the teacher's termination. The teacher lost on summary judgment, and now he lost his appeal.

And, sadly for that teacher, the appellate decision isn't even remarkable for the legal principles one could learn from it. Rather, the concurrence is worthy of mention. After getting beaten to the ground on every single appellate claim, which came after getting beaten to the ground on every claim at the district court, after a long and hard fought litigation, a concurrence all but calls this action frivolous.

Political Activities Don't Matter If There's Cause to Fire

The terminated teacher alleged that he was ousted for opposing the North Carolina House Rep. Robert Gillespie. During a visit to the school, it is alleged that the rep. was told not to enter the Penley's classroom because he had worked on the opponent's campaign. Penley was allegedly told that Gillespie wanted him fired.

And while Penley believed a conspiracy was afoot, he put his foot in his mouth, and on his keyboard. As a result of an inappropriate comment he made during class, an investigation led to the discovery an inappropriate Facebook exchange with another student. Penley even admitted that each of the comments were regrettable and inappropriate. The appellate court reviewed the claims and evidence, and upheld the district court's complete dismissal.

Not Another Concurrence

Rubbing salt into the recent wound being nursed by Penley, the concurrence of Judge Wilkinson is wrought with smugness and decries civil rights actions against school districts. The pontification found in the concurrence is not what one would expect to read in a court opinion that went to painstaking lengths to review the entire matter to reach a credible decision. This sort of concurrence undoubtedly leaves the reader with a sense that at least one justice had decided the case before even picking up a pleading.

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