Case against teacher who viewed porn at school headed to state Supreme Court

2013-10-27T08:15:00Z Case against teacher who viewed porn at school headed to state Supreme CourtMOLLY BECK | Wisconsin State Journal | mbeck@madison.com | 608-252-6135 madison.com

The Middleton-Cross Plains School Board has taken its case against a middle school science teacher fired for viewing pornographic images at school to the Wisconsin Supreme Court, a legal journey that has cost the district at least $598,000, a district spokesman said.

If the court declines to take the case, the district could be on the hook for about $932,000 in legal costs, arbitration costs and back pay to the terminated teacher and two now-retired teachers, according to estimates provided by the district.

Briefs from the teachers union and the district’s attorneys were filed earlier this month, after the school board voted in September to appeal to the state’s highest court to overturn an arbitrator’s decision to give the teacher his job back and reduce to reprimands the suspensions of two other teachers also found to have viewed and shared inappropriate content at school. Subsequent circuit and appellate court rulings upheld that award.

District spokesman Perry Hibner said the court could take up to four months to decide whether it will accept the case.

“At that point, if they don’t accept it, it’s over with,” he said.

In addition to the legal costs incurred so far and $25,000 for the arbitrator, if the court declines to take the case the district will be required to pay former

Glacier Creek Middle School teacher Andrew Harris about four years of back pay — estimated by Hibner at about $300,000 — and around $9,000 in back pay to now-retired teachers Mike Duren and Gregg Cramer.

The three were part of a grievance the teachers union filed on behalf of seven district employees after a 2009 investigation revealed the employees had viewed or shared pornographic or sexually inappropriate images, jokes or videos on district computers. Harris was terminated, while the rest received suspensions ranging from three to 15 days or reprimands.

A complaint by a female teacher whom Harris had shown an image of a nude woman prompted the investigation, which determined 23 emails Harris received from his sister over several years violated the district’s acceptable use policy.

A subsequent district-wide investigation found other teachers viewed or shared inappropriate content.

The district maintains the content Harris viewed was more inappropriate than that seen by others. Middleton Education Association attorney William Haus said the content viewed by others was the same or worse in some cases.

Hibner said if the court agrees to take the case, the district expects to spend an additional $75,000 in court.

The arbitrator ruled the district’s termination of Harris’ employment was overreaching because a district investigation found others were “doing the same or similar types of things — viewing pornographic materials in various ways, receiving inappropriate emails, forwarding them to others, failing to discourage the senders, attempting to or in fact accessing inappropriate websites.

“The fact that he was discharged while others were suspended or received written reprimands or nothing at all, the discharge cannot stand,” the arbitrator wrote in the ruling, ordering Harris be given a 15-day suspension instead.

Superintendent Don Johnson said last week the discipline was different for different employees because the level of inappropriateness varied among the content each person viewed or shared — Harris’ being the worst.

The district has continued its appeal because it disagrees with the arbitrator’s finding that Harris’ actions did not meet the legal standard of “immoral conduct” and thus merit termination, Johnson said.

“That’s the biggest disagreement,” Johnson said. “They say his behavior doesn’t meet the level of dismissal.”

Haus said lower court rulings upheld the arbitrator’s decision because the case is about whether there was just cause to fire Harris and not others for similar actions, not about whether it’s OK to have porn in schools.

“Why are you firing this one guy and nobody else?” he said. “Why is it OK to treat this guy like he’s some kind of child molester and everyone else can go back to the classroom? That’s what this is about.”

Haus pointed to an incident in 2006, noted in the arbitrator’s ruling, in which a teacher received a one-day suspension after a student hacked into his district computer and found inappropriate images saved to the district’s network.

“It depends on what you want to put down as your standard, and the thing is, they didn’t have any standards,” he said. “You’re talking about after the fact, we’re going to decide who did something worse, and the arbitrator didn’t see much difference in what various people did but she didn’t see sufficient evidence between somebody getting fired and their career destroyed and somebody getting suspended.”

According to Hibner, the district could have accepted Harris’ resignation in exchange for around $20,000 just after district officials learned of the situation in 2010, or for $400,000 in 2012 after the arbitrator’s ruling.

Hibner said the board decided not to accept those offers because, in part, the proposals included a positive letter of recommendation.

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