Denial of Due Process

Ozark School District Retaliation Against JROTC

Read the story of how the Major was forced from his position by the Ozark, MO School District. 

Denial of due process

I preface this section to note that providing numerous points of evidence against the District risks reducing the perceived significance of each one. I invite you (the reader) to note how many of these individual issues are damning all by themselves, without the multitude of other failings and violations the District has committed.

The concept of “due process,” as enshrined in our Constitution, requires that government and its agencies (including public schools) operate within the law and adopt (and faithfully adhere to) procedures designed to promote integrity, justice, and fairness. While the Constitution only guarantees due process in affairs pertaining to the government, it is not fundamentally a privilege or luxury for those who happen to work for the government; it is a basic principle of justice. It stems from recognition that each of us is subject to various biases, misinterpretations of facts, cognitive errors, etc. and can thus wrongly deprive someone else of what they are entitled to. 

JROTC-cadets-and-Major

"The principle of due process seeks to minimize the prospect of error by providing the harmed or threatened party an opportunity to demonstrate that an error is being made."

The principle of due process seeks to minimize the prospect of error by providing the harmed or threatened party an opportunity to demonstrate that an error is being made. While the Constitution guarantees due process specifically in pursuit of criminal complaints, courts have repeatedly affirmed that it is owed broadly across all aspects of government employment and service (including public schools.)

It requires such things as:

  • That fair procedures be established for investigating, judging, and prosecuting those facing discipline or loss of benefits.
  • That accusatory evidence be generated in good faith and that there be compelling grounds for believing it to be true. Any suspect or tainted evidence should be excluded from consideration.
  • That the accused be afforded opportunity to examine evidence (at an absolute minimum, to at least know what the charges are BEFORE being judged), organize a response to allegations, cross-examine accusers/accusations, and present exonerating evidence, including witnesses.
  • That the adjudicating authority be independent and impartial. (Judges, for example, are required to recuse themselves from a case when they have a potential bias due to a relationship with something in the case – i.e., a “conflict of interest”.)

Due process is not reserved principally for the innocent. Or rather, it is not reserved principally for those we think are innocent. It is specifically for those we assume are guilty. It exists as a safeguard against our dealing wrongly with them in presuming their guilt without offering them opportunity to demonstrate their innocence. Denial of due process is surely one of the hallmarks of abusive authority figures. They cannot fathom the possibility that they are wrong and they cannot tolerate any implication of their own fallibility.

"Due process is not reserved principally for the innocent. Or rather, it is not reserved principally for those we think are innocent. It is specifically for those we assume are guilty."

I invite you (the reader) to presume for a moment that I am guilty of all the charges levied against me and then consider whether the district’s investigation reflects any semblance of due process, legitimacy, transparency, or integrity. Once you realize how thoroughly the District refused due process throughout this proceeding, especially given the complete bad faith manifest by and throughout this investigation, it is easy to conclude that the District’s allegations hardly even matter. That is, there is no grounds for presuming any legitimacy to anything the District has alleged when it shows absolutely no willingness to deal honestly with the targeted employee. There is no grounds for trusting anything the District says about my case. At that point, there is no longer any reason to presume there is anything behind the outrageous charges the District has levied against me.

Abusers, especially those aided by a robust, experienced law firm, will always couch their behavior in terms of reasonable action and legitimate justification. Tyrants are as well-versed as patriots in the language of rights. The District has repeatedly insisted that they are carefully following policy in my case. But they have refused to reveal, even to me after my repeated requests, what policies apply to this case. This insulates them from criticism when the policies that seem most likely to apply are clearly not being followed. It also makes it utterly absurd for Dr. Bauman to claim, as he did in his KY3 news interview (https://www.ky3.com/2022/03/25/ozark-mo-parents-protest-outside-school-board-meeting-asking-accountability-within-administration/), that the policies are all readily available to the public so anyone can confirm for themselves the District’s adherence to policy. When the District refuses to tell even the target of the investigation what activities they are pursuing, no one on the outside can possibly hold them accountable for adherence to policy as he pretends. It would seem that the ONLY policies they are following are the ones relating to firing teachers. State law requires a sequence of steps before firing a teacher. Unfortunately, state law doesn’t require that ANY of these steps be taken in good faith. (See section on “Legal recourse” for an explanation.)

"But they have refused to reveal, even to me after my repeated requests, what policies apply to this case. This insulates them from criticism when the policies that seem most likely to apply are clearly not being followed."

Keep in mind that the point of due process is to ensure a sincere effort to discover the truth and to deal fairly with it. In general, due process relates to 1) the character and conduct of the investigator, 2) the integrity of (and adherence to) the investigatory procedures, 3) the opportunity afforded the accused to present and challenge evidence, and 4) the character of the rules they are accused of violating.

1. Character and conduct of investigator – Due process requires an impartial investigator, conducting a sincere and honest investigation. It requires that he/she only consider evidence that he/she believes to be credible.

a. No neutral investigator – The investigator for my case has been Mr. Chambers, the District’s Director of Secondary Education. His position makes him a fairly natural choice for this investigation. However, he is best friends with Dr. Bauman, the superintendent. They work out together every single morning. In fact, Mr. Chambers was working outside the District when Dr. Bauman was hired as superintendent. He requested Mr. Chambers return to the District to work with him. Since my complaint is that this whole investigation is a retaliatory action initiated by Dr. Bauman, Mr. Chambers cannot serve as a neutral investigator.

Dr. Carson, the Assistant Superintendent of Learning, is universally respected and trusted. It should have been comforting to learn that he was the reviewer for my case. But I learned so as he acknowledged having formed an opinion of my class presentation on the basis of tainted evidence (i.e., material in the slide presentation packet that wasn’t really part of the presentation). He alluded specifically to slides that weren’t part of my presentation as the basis for his opinion. He then declined my offer to present exculpatory evidence (i.e., to present the lesson to him in its entirety, so that he could see what message really attended each of the slides). When his immediate boss is the focus of my concern, he is not positioned to be a neutral reviewer.

Given that my conflict is directly with the superintendent, the best prospect for a neutral reviewer would lie with the school board. That is one of their assigned functions. And they have declined to fulfill this duty.

b. Bypassed me – Despite its being standard practice, after receiving a complaint about a teacher, to go directly to that teacher to solicit his/her response to the allegation, the District chose to solicit evidence under false pretexts via a colleague. This revealed bias from the outset.

c. Predetermined outcome – Just over a week into my suspension, the school district’s attorney disclosed to my attorney that they had ALREADY decided to serve me with a Notice of Deficiency (final notice before firing), long before they even interviewed me.

d. Withheld evidence from their own attorney – The District withheld from their own attorney my version of the nose ring removal incident they said they were so concerned about. She only found out from my attorney that the student in question had requested my assistance.

e. Manipulated witness testimony – The student who solicited my assistance removing her nose ring tried to correct the District’s account of that event. She reports that they were unwilling to amend their account of the incident. They needed their version of the incident, not her own, in order to make their case against me.

f. Deferred my testimony – When I finally requested, two weeks into my suspension and after no contact from the school district, that I be permitted to answer the allegations against me, Dr. Bauman reported that the investigation was moving as quickly as it could but that it was not yet time for them to hear from me. A reluctance to hear from the accused at the outset is a pretty telling indication of a malicious agenda.

g. No witness testimony – They declined to interview any of the students in the classes they alleged I “inappropriate[ly] messag[ed].” Two of my colleagues have sat it on the presentation in question for years, even inviting me to pitch it to their additional classes I wasn’t originally scheduled to present it to. If they had concerns about the content of the presentation, they surely would have spoken up. And they wouldn’t have invited me to present it to additional classes. Their testimony has not been solicited either.

h. Deliberate perpetuation of tainted evidence – Despite my clarifying to the District what material I presented and what I didn’t, they have still two more times accused me of presenting material that was never presented. Dr. Carson informed me that gag orders are intended to preserve the integrity of the investigation by ensuring witness recollection isn’t contaminated by subsequent discussion of the case. That hardly matters when the District declined to interview witnesses and when the District continued to accuse me based on “evidence” they knew wasn’t part of my presentation.

i. Duplicity over source of evidence – When I asked Mr. Chambers where they got the slide presentation packet they were considering as evidence against me (the answer to which I already knew), he and the high school principal, Dr. Brownfield, spun a tale about their origination that was clearly false.

j. Evolving criticism of my class presentation – Each time Mr. Chambers alleged a particular problem with my slides, I was able to demonstrate that the allegation was false. He just kept shifting from old allegation to new allegation until I got the message that the truth didn’t matter.

k. Pressured me to resign – The District’s invitation for me to resign was not simply a benign or beneficent offer to enable me to escape potential hardship from this investigation. It was an ultimatum that I either resign or be fired. Given that Dr. Carson had admittedly not yet seen the investigation report, that he had clearly been affected by contaminated evidence he alluded to, that he declined my invitation to provide exculpatory evidence (in the form of presenting the class to him), there should have been no basis for his warning me I would be fired. It would seem a prejudicial opinion since he had not yet seen the investigation report. If his offer had simply been “if you fear you might be found guilty and facing employment hardship thereafter, then we can offer you an out now,” then that might genuinely be generous of the District. But when the offer is an accompanied by a warning that the alternative is firing, this was really just a way to try to facilitate the District’s hostility against me.

l. Repeatedly demonstrated contempt for the truth – Multiple times, during the reading of my Notice of Deficiency, I pointed out that allegations in it were blatantly false. Mr. Chambers responded each time, “it doesn’t really matter as long as you don’t do it again.” On some of the allegations, Dr. Brownfield knew that the brief inquiry into the complaint it referenced had been dismissed, and yet he sat there in silence (or worse, contributed to it) as Mr. Chambers read to me the Notice of Deficiency claiming I had been found guilty of complaints I wasn’t found guilty of.

m. Shutting down concerned parents – Several parents undertook to lobby the school district about my case. They asked to at least be permitted to provide character witness on my behalf and to insist that the District abide its own policies concerning such investigations. The District initially refused them any audience, alleging that since it was a personnel issue, they couldn’t talk with the public about it. But the parents knew that. They hadn’t asked the District to talk about it. They asked that the District listen to them as they talked about their observations on the case and as they offer character witness. The District eventually permitted a few parents to address the school board but then only in closed session. They again justified the meeting as being in closed session on the grounds that it related to personnel issues. But the public isn’t restricted from talking about personnel issues and the Board can no more talk about personnel issues in closed session when an outsider
(parent) is present than they can in open session. So the only plausible explanation for this is that the District intended to limit exposure.

n. Denial of Raider season – In my Notice of Deficiency, the District alleges that the Raider season is over and that therefore I am forbidden from running any form of Raider training. It is preposterous for them to tell the Raider coach who has taken cadets to Raider meets each spring for the past seven years that the Raider season is over. Parents had been lobbying the school to expedite the investigation so that it didn’t interfere with spring Raider season. As soon as I resigned, they sent out an email that included:
[The Major] has submitted and the Board of Education has accepted his letter of resignation from Ozark School District. . . . We want to assure you that the district will take care to minimize the impact of this transition upon the Raider’s spring season. The sustainability of this valuable program is important to the Board and to the administration.

My resignation is NOT the reason I did not return to the classroom, as this implies. This also implies that there would have been a Raider season if I had not resigned, something they had explicitly forbidden. While I am grateful that the kids received some form of spring Raider opportunity, this affair reflects multiple accounts of dishonesty from the District.

o. Pretending it’s about the students – Dr. Bauman insisted during KY3 news interview about the accountability rally that the District makes all of its decision based on the best interests of the students. While the District has tried to frame all of my alleged offenses in terms that would suggest students were harmed, the students themselves will tell a very different story. It is highly unlikely that I have been a harmful influence to students for all these years and yet have nearly universal support from them.

Some of the preceding issues reflect on the character of the investigator. Some reflect on the conduct of the investigator. Some reflect on the charged atmosphere in which he operated. This third category is included in this section because 1) they are distinct from the ensuing points and 2) this atmosphere precludes his being impartial.

"Some of the preceding issues reflect on the character of the investigator. Some reflect on the conduct of the investigator. Some reflect on the charged atmosphere in which he operated."

2. Integrity of (and adherence to) the investigatory procedures – Due process requires that appropriate procedures be established, publicly accessible (known), and faithfully followed.

a. Refused to divulge which policies apply – I have asked three times what policy governs this investigation and what policies I was alleged to have violated.

b. Didn’t follow procedures in most plausible polies – Given that the District’s stated concern was about my “inappropriate[ly] messaging” students in a class the District thereafter characterized as sexist (even misogynistic, according to Dr. Carson), it would seem that the applicable policy was Board Policy ACA: SEXUAL HARASSMENT UNDER TITLE IX. This policy contains numerous specific requirements the District must follow and numerous specific protections that must be afforded the accused. None of them were observed. Interestingly, as I noted about due process in general, these specific protections provided the accused are not just special privileges for those accused of the greatest offenses. These are basic tenets of procedural justice. That they are so clearly specified in investigations of sexual harassment is surely a function of the fact that in these kinds of cases, organizations are particularly susceptible to letting charged feelings and aggressive prosecution interfere with their pursuit of genuine justice. They are at greater risk of violating the rights of the accused. So those procedural safeguards must be GUARANTEED in such cases. But they are surely appropriate aspects of due process in ALL investigations. That the District felt no inclination to afford any of them reflects that they had decided at the outset that I should not be permitted any defense.

c. Didn’t abide stated timelines– Multiple times in this process, District officials told me the “next step” in their investigation (which they alleged would involve me) was imminent. Not once did they stay even close to these predictions.

d. Withheld updates – I did not receive even one status update from the District, even when I requested them. They intended as little visibility as possible on their investigation.

e. Secret investigation – When the District finally served me with my Notice of Deficiency, it became clear that what they alleged was an investigation into a single class presentation was really an investigation into whatever dirt they could manufacture on me.

f. Protracted investigation and isolation – It took the District nearly three full months to conduct this investigation. As I was also prohibited from communicating with any District employees or students during this time, this was more than simply an absurdly long period of time for an investigation, given what they claimed they were investigating. It also served to alienate me from the support of colleagues with whom I had enjoyed such a successful relationship for these past several years. The isolation further ensured they remained ignorant of the school district’s attack against our JROTC program.

g. Refused to disclose charges – In Dr. Bauman’s final email denying me the required hearing, he alleged that “the investigation has revealed a pattern of unacceptable conduct and violation of Board policy.” Since this constituted pending charges against me, I requested to know what those charges were. He declined to respond. I found out only when I received my Notice of Deficiency.

h. Repeatedly alleged they were adhering to policy but refused to divulge the policy or procedure – Given that the District refused to ever tell me what policy governs the investigation, their repeated insistence that they were strictly abiding procedure is of no comfort. In fact, it was outright absurd that Dr. Bauman alleged during his KY3 interview that since Board policies were all available on the District website, any member of the public could look to confirm the District’s compliance with them. When the District refuses any information even to the target of their investigation, there is no chance that an outsider could observe and hold them accountable.

i. Refused Board oversight – I have lobbied the District several months in a row for the Board to review the District’s handling of my case. Initially, the superintendent blocked all these requests. Eventually, the Board began to deny me directly.

j. Refused hearing – The superintendent and two Board presidents have all refused me the hearing required by both board policy and state law. Their reasons for doing so continually evolved from absurdity to absurdity.

3. Opportunity afforded the accused to present and challenge evidence – Due process requires that the accused be permitted to know the charges being levied, know who is accusing him/her, know the evidence being presented, be permitted to challenge the evidence, and be permitted to present exculpatory evidence.

a. Didn’t come to me first – That the District didn’t come to me immediately about their concern, as is standard practice, precluded me from presenting testimony and evidence on my behalf. It also resulted in their receiving wrong information which they repeatedly declined to correct, even when I informed them of this.

b. Confiscated computer – When I was suspended, I was also locked out of all school network accounts. So I did not take my laptop computer home with me, as I so commonly do. When I was still suspended after two weeks, I asked Dr. Brownfield for permission to access my classroom to retrieve some running gear. He authorized me to do so the following morning. However, he first (accompanied by one of the District administrators) confiscated my laptop from my desk. It had still been on my desk before I made my request. They removed it thereafter, presumably to prevent me from taking it and perhaps finding a way to access my content on it. I was denied access to my computer, including all of the communications on it, until after I received my Notice of Deficiency. So I was prevented from access relevant notes and files to build a defense. Since Google school email accounts now also purge the “Trash” folder after 30 days, when I eventually recovered my computer and account access, it was too late for me to revive deleted emails pertaining to my case.

c. Wouldn’t allow me to contribute for five weeks – That the District refused to receive my testimony until five weeks into my suspension ensured that they had developed a heavy bias and prejudicial opinion before they ever heard my side of the story. Their prejudice was well reflected in my initial meeting with them.

d. Declined evidence – Since their investigation was allegedly about “inappropriate messaging” to students, the most relevant evidence would be my presentation itself (not just my lesson materials). I three times proposed to present the entire lesson to them, exactly as I presented it to cadets. I even suggested they have students present, who could then confirm it was the same content. They declined every time to receive this evidence.

e. Concealed charges – The charges in my Notice of Deficiency were all withheld from me, even though I requested to know them, until the Notice was served. Not even knowing the charges against me entirely prevented me from examining and responding to any evidence against me. The only element of the investigation I was permitted to have any insight or input into was the cover story accusation of “inappropriate[ly] messaging” students. I didn’t even know the additional charges they concocted until I read them in my Notice of Deficiency. Any attempt to challenge those charges or present exculpatory evidence for them has been repeatedly rebuffed by the District.

f. Gag order – They imposed a legally questionable gag order that prevented me from marshalling any witnesses in my defense or conferring with sympathetic parties about my case. Legal opinions have repeatedly found that directives prohibiting suspended employees from communicating with other employees during the investigation interfere with the employees’ rights as it limits their ability to organize a defense.

g. Denied me access to school board – When it became clear that the District administrators were not interested in my evidence or testimony, I requested to present those to the school board. The District repeatedly denied my request.

h. Refused hearing – Their refusing to hold the legally required hearing denies me any forum to examine and challenge their evidence. I still have not seen evidence for the vast majority of their charges.

i. Refused dialogue – Dr. Bauman has at least twice discouraged me from contacting him further, either by telling me to take up my issues with my attorney instead of him or by telling me there is no need for further dialogue on the matter. Without an audience to make my case to, I cannot present evidence on my case.

j. Raising dated allegations that it is now impossible to defend – My Notice of Deficiency includes numerous allegations that go back as many as 6 years. Not only was I previously cleared of those complaints which they now treat as founded, but it is impossible to marshal evidence against a complaint that is that old, especially for those allegations that were never raised before!

k. Anonymous allegations – My Notice of Deficiency includes such allegations as that I once, somewhere around two years ago, called a kid “stupid” in class. Without any accuser or context, it is impossible to answer a charge like this. (Nor was I even invited to before they presumed it to be true.)

"Due process requires that the accused be permitted to know the charges being levied, know who is accusing him/her, know the evidence being presented, be permitted to challenge the evidence, and be permitted to present exculpatory evidence."

4. Character of the rules they are accused of violating – Rules, requirements, restrictions, etc. all have to be unambiguous and applied consistently. Consequences for violating them also have to be applied consistently and proportionate to the significance of the alleged offense.

a. Dishonest and inconsistent application of school policy – In my Professional Improvement Plan, I am accused of not providing appropriate supervision, even though the District could not tell me how my instance of indirect supervision was different from the many other cases in which they accept indirect supervision as sufficient.

b. Notice of Deficiency warning against further “unprofessional” conduct – My Notice of Deficiency warns me that any further instance of “unprofessional” conduct would result in my immediate termination. This is an ambiguous requirement or restriction given that what counts as unprofessional is highly susceptible to individual interpretation (especially when one party already carries a heavy bias).

While my analysis of due process, especially as it applies to my case, is more thorough, I offer for comparison the “General Elements of Due Process” as published by the Missouri chapter of the National Education Association:

1. The person in a particular case must be advised in advance of his alleged wrongdoing or deficiencies and must be advised of the consequences that will occur if he fails to correct the situation.
2. The person has the right to prior notice of all charges and notice as to the time and place of the hearing.
3. The person has the right to be present before the decision-maker who is passing judgment.
4. There must be a hearing at which the person is afforded the opportunity to submit relevant evidence and to cross-examine witnesses produced in opposition to his/her position.
5. The person must be afforded the right to be represented at said hearing by counsel.
6. The standards of conduct and performance to which the person is being held must be generally known, and the person must not be held to any greater or different standards than are other persons in similar circumstances. The standard to which the person is being held must be reasonable.
7. The decision-maker must base this decision on the facts as presented at the hearing and give the reasons for his decision
https://www.mnea.org/sites/default/files/publications/Legal_Advocacy/dueprocesstenure.pdf

Even their more generalized list makes clear that nothing approaching due process was attempted in my case.

"Rules, requirements, restrictions, etc. all have to be unambiguous and applied consistently."

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