I chose not to testify. I thought they could not hold that against me.

We’ve all seen it on TV. The defendant asserts his 5th Amendment right not to testify against himself and the judge advises the jury not to read anything into this.  But that’s not what happened when Coach Alexander did not testify in his termination hearing.  Here’s what the Commissioner’s decision said about that:

It should also be noted that Petitioner [Coach Alexander] did not chose [sic] to testify.  It is proper to draw an adverse inference from this:

When a party with special knowledge of a disputed issue fails, without explanation, to testify about it, a judge may infer that the party knew its testimony would not support its claim. [Case cites omitted; emphasis added].

It may be inferred that Petitioner knew if he testified it would not support his case.

The Commissioner upheld Coach Alexander’s termination based on the substantial evidence rule.  This being a termination case, the original decision came from an independent hearing examiner.  The hearing examiner ruled against the coach and the school board affirmed that decision.

When a school board approves of the decision from the independent hearing examiner, it’s very difficult for the teacher to override that decision, especially given the substantial evidence rule. As the Commissioner points out in this case:

*the presumption is that the decision is supported by substantial evidence and the other guy has to prove otherwise;

**the evidence may actually “preponderate against the decision of the agency and nonetheless amount to substantial evidence.”

***”The true test is not whether the agency reached the correct conclusion, but whether some reasonable basis exists in the record for the action taken by the agency.”

Summing up, the Commissioner noted that “Substantial evidence is not a high standard.” No kidding.

Thus the decision of the Troup ISD school board, terminating Coach Alexander’s contract, was affirmed.  The decision was based on evidence of “rough handling” of students and the use of inappropriate language. We’re going to tell you more about the rough handling tomorrow, and save the cursing for Friday.

The case is Alexander v. Troup ISD, decided by the Commissioner on May 20, 2016; Docket No. 023-R2-02-2016.


File this one under: LABOR AND EMPLOYMENT

Tomorrow: Is “rough handling” of a student grounds for termination?