did mr pasternack or refused to travel to track meets with him or left the track team because of anything he said or did there's no evidence of a student was significantly harmed may think mr pasternack said or did no expert opined that mr next conduct or remarks harm students and ways that were not aware of mr passion it was always a value weighted every two years at least seven times as competent teacher  investigated twice at the school board's urging and determine the claims of abuse against mr passing a quorum warton the waukegan police department did the same investigating determining the criminal charges against m unwarranted we don't dispute that mr pasternack in his two years as a coach may have said things that students found inappropriate or insensitive but such behavior can be corrected with remediation notice here the school board and school district decided they want to get rid of mr pastor or whatever the reason and they did so they did so however by summarily firing him not in doing so they relied on the executive summary that was prepared which contained things that weren't even relevant weren't even part of the administrative hearing  so the superintendent presented that executive summary to the board without talking to the teacher without talking to an student without talking to any witness this was a rush to judgment and in doing so what the district has done is taken a fifteen year teacher and well regarded coach and characterized them as immoral d a sexual predator and a host of other things to justify their actions the teacher tenure protects teachers from arbitrarily being fired or terminated here that's exactly what the district did the board over reacted by dismissing mr  and didn't comply with the school code in doing so and in so doing so exceeded its power and doing whatever it wanted to do thirty two past years of the case law lays out you'll damage could not have been corrected even if warnings had been given by the teachers to peer years the fact that if the cause were not corrected charges would be brought seeking the leaders the teacher says so here it's undisputed that mr pasternack had not been given the written warning that's provided undisputed sakin it's undisputed that at the testimony there was no harm or damage to students it wasn't proven ms horace actually argued in the trial court that the harm for one of the students of color s w was a perceived poor performance of one track and field meet the parents testified that any conduct was not a cause for concern no psychologist testified no adult testified to any change a student athletes the meter back there's no basis in the record for any harm to the faculty the karma here that was claimed was harms to the school but that was south imposed because it's solely based on isha kaga tribune article for which the school district released the summary of charges to the newspaper they weren't required to do so but they did nonetheless and that the sole source that was identified now instead what they do is they say the conduct was immoral and there was no need to give the written warning but the cases that talk about that talk about the commission of a crime stealing fraud etc or thing talk about sexual punching sexual fondling or other aspects of inappropriate behavior which would be criminal gang in and day out again the record is undisputed th things didn't happen here so taken full circle to harm them the superintendent pockets the only testimony of harm which leads to the immoral conduct that students may d have not complained or said anything because that's the way either black students or hispanic students particularly girls are trained to be basically an appeal to racism as a way to justify immoral conduct there's no suggestion that anything that mr passe did was racially motivated russell racially driven or contained any racial epithet in any way shape or form what we're left with is a fifteen year teacher who had always been well regarded who was summarily dismissed the other piece that's interesting is in the hearing officers report he read references a situation from possibly five years before when someone else a team leader told mr pass that they'd just be careful what people perceive as a close offer but if you're going to focus on that day you get into like russell which says you can't look at a five year the incident from five years before the school district is trying to have it both ways on the one hand they tried to get to conduct and say mr passenger warned and then they say no they didn't have to warn him because he was a moral under and given him a written notice and said ok revisit in six months if he do students go on couples invading their space is he talking in appropriately seconds they could have given him mediation saying be careful with the comments that you're making on the track bill and the students find it appropriate and then come back and say ok did he say anything or do anything in the next six months the cause an issue d i got it six months three months a year three or they could have  away his coaching all of the instances that are pointed to here happened in the coaching nothing happened in the squash room it off so that could have been a rd way to deal with it so those are three examples of ways that this could have been remediated forth actually would have been with right to the heart asked him to actually give a written apology to the students for insensitive comments and take it from them so that would be what i would suggest would be a method of remediation but you  left out the remediation for the fact that he keeps touching these girls so there is no i'm sorry i thought i addressed that it could be part of it is do not for any purpose for any reason such any so you and your position is the school's responsible for its own harm yes our position is the school's responsible for its farm near the extent they are saying the harm comes from the newspaper article which is what  so you think that because they were the one that put out the press release had they not and simply put up you know put a cork in this bottle then no harm no foul it would have been no harm and so d when you look under the gil respect to the notice that they would have given had given him previously do they really have to be that specific and say you can't touch kids you can't you know blah blah blah i mean look at your school polic itself you still have to go through the harm and the question is is it remediable i mean take the example of the case where the teacher with a lesson choir d and and other things and they said no you have to give him the warning even though it was part of the school well if if they if he it was spotted if they felt it was he was here remediable based upon their prior conversation with him then the written warning would be required correct now because if it is some of the prior that puts you in the case of prior notice he would have been brought before the board no not necessarily but here right there was no prior notice to him d of anything ok i have no further questions one second ok no i'm good thank you thank you just the szostak mr blinder wasn't there some conversation and a previous time involving a student and a pencil in his classroom yes that was the incident roughly five years before for which it was deemed unfound not the same that is not the definition or is that part of the school regs it doesn't say if it's on founded it's ok there are eight specific definitions maybe not in the regs but certainly within case law that's based upon similar regulations talking about what is not appropriate conduct and so if someone such talk to him and said look you know this isn't a good idea you shouldn't do that in your classroom or otherwise why kit why should we just forget that that happened because number one it was the mum founded there really is no statutory definition of immoral or in immorality in in the law or in the regulations isn't there are is there well they're not your own and so this would be a basic subjective i guess decision by those in where those in the place of responsibility to school board or the administrators reporting to the school board correct well someone and i i beg your pardon i forgot in cool but didn't your client have conversations on three occasions where his union representative was with him with someone affiliated with the waukegan high school party about in connection with the terminations well as this as this process of the interview of the girls was taking place wasn't he didn't he have an opportunity to talk with someone from the administration about this i believe there was at least there was one meeting but that meeting they didn't give him a the charges against all right but at some meeting different in the administrative error did he ever deny to the people that he talked to at least on that one occasion that you know nothing there's no problem doesn't he has never denied that he made the comments that were attributed to him they need to be looked at and all but he has never again he's not testing here that he may have said things that were doesn't the issue of immorality have to be taken not only in the contest context of the regulations but in the context of what's happening in the world criminal conduct people looked into it all said no look them in context yes you made d a couple of inappropriate comments as inappropriate touching if you call it that which was again not the hearing recognized that yeah maybe it wasn't quite right part it didn't rise to the level busy of immoral conduct didn't most of the students who testified say that they felt on comfortable but they when cross examined said they didn't quit track because it's what they love and it's what they do some of them said that and some of them said that mr  so if you look at in context it's apparent she didn't even think it was anything immoral and she was the st one on the scene and have the best view of it because she was the one the student possibly because there are so many young women involved and basically initials i apologize for not knowing the precise young woman who said this but one of them said that they didn't report it because somebody else had reported something and nothing it happened i think it was mr had there had been a report to mr taylor and nothing happened so it kind of got around the squad that there's no point in reporting these things again and i don't remember the exact  didn't feel that there was a criminal case in d c affected until there was the case that should have been indicated aren't the standards review and the burden of proof is much different on a criminal case and the d ok thanks ok thank you counsel you will have an opportunity to reply if you choose after ms horoscopes for it and are you ready to do that ma'am may please the court and this case really has its at its at its core the question of what it is to be a teacher it is certainly more than teaching or reading or writing class our teachers have to be role models both to girls and boys that are under his tutelage this case is not now and is never been a case involving remediable conduct the case law is clear remediable kind the cases are to typically those types of cases of teachers implementing teaching plans what's going on in the classroom this however is irremediable conduct as evidenced by how the appellant treated these teenage girls for at least two track seasons teachers are our children's role models we ensure us to our children from a young age to adulthood and these teachers must exemplify the qualities we want in our next generation which has nothing to do with teaching english literature so what it comes down to is this case is all about qualities of respect responsibility in citizenship those qualities that a teacher has and demonstrates to others including students peers parents and the community so i believe that this case is not about the classroom it's all about character and if the teacher lacks that inherent good character that is essential to be a role model then it really doesn't matter how good he teaches and the school code embodies that that says that a board is entitle to remove a teacher who it engages in acts of cruelty negligence immorality or other sufficient cause and that term immorality is not defined in the code the case law does define it and it's looked at as under its ordinary and common meeting in more immorality is the moral and difference to what members of the society would hold as good and respectable so when the decision before you we look st to say what did the hearing officer do on findings of fact did the board prove that mr pasternack had engaged in this behavior and the hearing officer was the person who sat just feet away from these girls she heard them using their teenage words in their teenage status to express what had happened to them and how they felt about it she heard their testimony she received the evidence she determined their credibility and gave way to that custom oney and she found that the board had proven four categories of misconduct the invasion of  physical contact the i'm going crude comments and leering at these girls for example the strange comment about use the junk in your trunk or to b s one of these young girls who had a medical condition and his response was to turn to her and say are you pregnant and then laugh at her encouraging the girls to run in sports bra as asking as w n another girl at dinner or did they want to take a picture of his pickle and there's plenty more that's in the record and and in short this man treated these girls because they were girls because of and based on their sex and the hearing officer found that the board had proven that mr pasternack engaged in that behavior that review the review of the facts it's based on a manifest weight of the evidence standard on with when we review on appeal and that is is an opposite conclusion clearly evident and that's not the case here so then we look to the nd question and that's the issue of irremediable billeted did the board prove that this conduct was irremediable and as mr blinder mentioned there's two factors here did it damage students faculty or school and could that be havior had been corrected with a warning and on the issue of damages the board clearly proved that girl that the girl testified about how this man made them feel granted they used teenage words to express themselves it was creepy it was weird it was ad it made me feel strange they also used the word inappropriate one girl testified  feel like he was looking at the girls in a different incorrect manner and that's a quote a number of the girls said it made them uncomfortable but but there's more than that as w would not go to a sports clinic unless another girl went she was so upset after he touched her on the buttocks that she did not do good in her event she quoted and another quote here i was in shock and she alternately had acquit her dad said i'm not let you go back there until he's removed as the coach b s testified that she changed the way she dressed around him and she was very distraught when she confided in him an a on a personal medical problem and he showed no r regard for her as a person one of the girl said she was so embarrassed she wouldn't tell her parents while two said they were so angry that they didn't tell their parents and then there was testimony about the adult factor that  we don't know if we should would should say anything as w feared retaliation one of the girls did say you know what b s already reported it to mr taylor we don't think anything can be done and longtime educator the superintendent testified that she believed in her experience that it took a great amount of resilience for these girls to come forward in states any complaint now with it with regard to the local news sources i want to be clear on this point those news articles were introduced into the record via stipulation there is no testimony in the record as to how that information got to the to the news it is very  possible that they were for it there is local reporters that go to those hearings so it's an absolutely incorrect for any decision to be made based on this unsupported promise that the board of fed this information to the papers is simply not in the record jones one of the legal guardians said you know it's really bad when these types of things are happening here and we're reading about it in the paper so next we turn to the nd gillion factor and that is with this conduct changed had this man to this man at a parent meeting telling him you need to treat these girls with respect and yet that disrespectful sexist treatment of this girl of these girls continued the hearing officer held that it was  board adopted that decision mr blatter is right there are a number of cases that deal with irremediable well conduct however it's not simply limited to conduct that is criminal or that is sexual assault it's from chicago public schools in order to acquire supplies that she sold in her business pain involved teacher who was convicted of pot possession but perhaps more on point is the the case deemed to be irremediable there was no way this teacher could continue to be a role model after engaging in that one instance so now let me turn to hunt which is probably more  long time gym teacher and three nd grade girls reported that hunt pulled them by the shoulders and pinched them on the butt while the hearing officer surprisingly found against the school  appealed both to the trial court and the appellate court the courts disagreed finding that this conduct was distinguishable from those types of remediable discharge cases that often go to teacher performance or corporal punishment this was a situation involving in moral conduct it has no legitimate basis in school policy and it didn't need to have a sexual component to it to be irremediable and be immoral in all of these cases have the common denominator of an inherent human trait that these teachers lacked poor judgment diminished affix questionable morality or cruelty and that's what this case comes down to we don't need to have agree just sexual assault or sexual molestation that is not the law a teacher should know better than to touch girls to continue a litany of these comments to check them out leering and making it clear to them that they are candy to him his conduct was immoral and it's inconceivable that behavior could have been excused by up by a warning and that was why he was terminated this behavior was irremedia and i'll take questions if any thank you i didn't want to start the questioning when i wasn't sure if you were just taking a risk now i i thought i had come to the end of my time and i didn't want you guys to give me school's reputation correct if it pollute leotard to both of them and we see that and how these girls girl after girl testified that it was strange it was weird it was at it made me feel uncomfortable  is a sortie that stands for the promise that our hearing officer found here that where you have testimony from these teenage girls about the the discomfort the inappropriateness the being strange weird and the nature of the conduct in and of itself is harm in it of itself and that an expert does not have to be it does not have to be presented for example in the pain case that was the teacher that was convicted of  pot had a pot condition there was no expert but the superintendent opined in that case that you know what we can't have this teacher back he's now got a pot conviction he can't be a role model to our students we have that same thing here we've got a twenty plus years superintendent who came up through the ranks it's called a public schools now is over at kagan and she testified at length about the behavior that was  that she didn't observe that was reported to her in the effect it had on these girls and how much resilience and how much it took for them to actually come to someone to report it with a fear of the adult factor hanging over their heads there is certainly proof of damage to these girls without a psychologist testifying to it you know everything except the very adamant hans really boils down to work crime is well of pot is a crime indorsing it check and receiving the funds is a crime here they're we i i disagree i mean physical contact with a girl that it was inappropriate and should not have happen and that is battery was he charged no he wasn't do i know why keegan police department chose not to pursue i don't and by the way those facts are not in the record police officer was not called here but there were i mean we've got the police reports that that mr pasternack entered into evidence it clearly the police were involved in this criminal battery so your point is that conduct amounts to a crime and it is not matter of charge but whether the conduct is correct now that that's not my position at all the case law does not say in order to be immoral it must be criminal rolando case where the teacher used you know the act people with a cattle prod and then wrote their such cases are typically considered remediable conduct but enroll lando that teacher took it up a notch and that behavior was cruel and that they had to part of that same lingo out of the code that says a teacher can be terminated for irremediable conduct where it is negligent cruel immoral or other sufficient cause the statute doesn't it in the word criminal to that so there's no requirement that cruel negligent immoral behavior also be criminal ok bear no i have no further questions thank you you're welcome thank you thank you justice jurgen morning st but that is not this case twelve discussion between dr levin and mr pasternack to show that there had been discussions in counseling about the need to be aware of your spatial awareness with children so that was a general counseling bringing to mind the need be careful with how you approach these the students could be girls or boys watch how close you get to them so that was relevant only in terms of he had been counseled but we never introduced that as proof of prior warning  those different than what we're dealing with today oh absolutely absolutely and i don't think the corporal punishment cases even even enter into the discussion on this because typically under dealing and and it's corporal punishment cases and teaching performance are typically looked at surprisingly as remediable conduct so that has to be you know subject to prior prior discipline and i think the corporal punishment i think that whole term is slowly given way to what is proper discipline in the courtroom and in you're right some of these cases and i don't in the in the right to treat i believe there is societal growth if you will but we don't have to stray too far from the statute you know that teachers are teaching character  character education so the teacher is not only teaching english but they are teaching qualities of respect and responsibility and fairness that's in the school code is and is bed in the school code since two thousand and five saw you interaction with both girls and boys how you treat a girl demonstrates or how and how this man demonstrates that this is appropriate and how we treat women this is how i'm going to say to a group of boys hey you know join cross country because what's better than seeing girls in short shorts so it is not only what you are modeling to these girls what is appropriate for a man to treat a woman but you're also modeling the same thing to these boys will look that treat them a sex object that is inappropriate and that as a society we do need to grow and adapt and our teachers are on the front lines of that that concept that he was a good teacher for fifteen years is not in this record we as the school did not offer it because it was irrelevant and our opinion and mr pasternack rested he did not put on a case he had he wished his performance reviews and his entire school record to be in this record he could have that opportunity to do so we have one teacher dr eric levin who attested to the fact that he had given him one performance a rip valuation and that his recollection was that it was proficient so i do not want want anyone making that giant assumption here that we've got this spectacular teacher when that's not in the record that was his obligation to put that in the record and he chose not to so do we do we look at the fact that he was a twelve year teacher fifteen whatever it happens to be  analysis of irremediable behavior really doesn't take that into account the cunt case that i mentioned earlier the the the argo he hunt there was a case i believe that teacher was a gym teacher for seventeen years and it was three girls who simply report well i shouldn't say simply who reported he stood close to us he moved us close to us and he pinched our butts that was enough the fact that he'd been a teacher for seventeen years that did not control the day in fact didn't really even enter into the decision his conduct was immoral it was irremedia single one of them but generally felt or said they felt that the conduct was not sexual so how was that treated in the executive believe one of the girls did say s w she said that the pickle comment was kind of sexual i think is how she said it in her teenage years did they use the word sexual no doesn't have to be overtly sexual this conduct is inappropriate if it's taken against a person because of their sex and that's clearly the case here the appellant was treating these girls this way because they were girls and he felt that he could he was the he was the adult in the room and he could look these girls up and down say looking good and oh you don't have to say that your hat we all know you're hot in the litany of these these comments go on and on it wasn't limited to one track event or a week or a month it was two track seasons so the fact that these girls didn't say you know we did maybe we didn't find it a sexual come on i think that by some of the adults almost as an aside that they had experienced spatial invasion personal space in beijing but both the teachers or the adults and the girls testified that when that happened generally they would move back and he would not move toward them i think there was at least one who said he continued to move but the fact that he didn't move forward that indicate that he recognized the problem or did they handle that in any way in the executive summary the spatial encroachment both from the from the record point of view the girls routinely experience that it was so commonplace they talked about it amongst one another and then we have the fourteen year old all that believe it was n p who reported a very intimidating situation where she was telling mr pas can't make it to two track and she was leaning against the door frame with her leg stretched out and he stood over her in a very intimidating way for fifteen to twenty seconds questioning her commitment to track  that's a highly threatening intimidating position to take and then in the executive summary with the supporting documents i mean that there really should be considered one document it's in there about his repeated violation of personal space by standing too close i mean when you when you look at this and total and i believe that's how how the court has to look at this as the hearing officer in the board did when you look at it in total it was a violation of multiple board policies and how this man treated these girls that there was a lack of respect there was no no appreciation for these girls as having their own individual words it was either sexual harassment and or just flat out discrimination treating these girls the way they were because they were girls ok but the fact that my question really relates to the fact that with the exception of that one young woman who was standing in the door and there was that will call confrontation most of the girls said that when he got too close they moved back and he didn't move anymore he stayed where he was and i think there were a couple of teachers or coaches or administrators who were also related that they had conversations with them and they thought their personal space was invaded but when they moved back he stayed where he was is  it i'm sorry that an indication that or isn't at some evidence that he understood and could maintain the distance and so you know he he took it on a person to person basis as opposed to a general discrimination basis as is described in the executive summ taking he took each person separately he stepped up they stepped back he stayed where they were with the exception of that one young woman right i have to be a close talker is that something that i want to see my male teachers do to a teenage girl i think as a matter of practice no i do agree with you that in most cases they stepped back and he didn't approach further so i would agree with you there but i don't think that it makes it right and i also don't think that if we we look at things and isolation that that's the appropriate way to to view this this was just one more indicator  possibly paint again criminal convictions as there is or was no expert because you had a person convicted of a crime and then they said because they're convicted of a crime it was inappropriate for them to be a teacher every case they cited where there wasn't an expert involved someone who was convicted of a crime again on the nd grader were since the bar and then that case there actually was expert testimony mcbroom which they reference was the nd district in and that it was a criminal conviction ahmad again a criminal conviction so there's a line here in the question that really put back t of this which is what power does a school board hal or a school district when they can terminate someone and how's that interface with the protections of teacher tenure act and what limitations are there on that  so again i stand before you and i say here mr pasternack receive professional capital punishment he was terminated without having you get no warning d warning for conduct  that was remediable again as the justice d question avid and when he was standing too close and someone moved back d he respected the space and he did think people i mean individual basis were handling this case pro bono i've known mr pasternack for thirty four years and he's not the immoral person he's being made out to be we ask that you reverse the decision of the school board and reinstate him to his position i am not going to consider counsel's personal opinion because it's not in the record i scritched a the way you feel about your client but i don't think that is appropriate and it's not in the record i will not give that any weight  making this decision the defending put on no case at all but yet you want to argue certain things that were never put into the record down below why is that if you didn't put on a case the article in the tribune and said well maybe it came from oil well the tribune article came within days of what it was two days after mr pesach was for may this board meeting and if it came through for you that would be a record for the at the administrative he ok also if do you have a case that says that there must be a criminal conviction in order to to meet their burden as a plane to earn a defendant in the case takes thank you i have no further questions ok mr blonder does proficiency as a teacher does it stand alone as teacher he may have been a proficient teacher and that you say is in the record but i hesitate to use this right now but i can't think of a better word does that trump the fact that he also consistently engaged in there was no issue that was a race in the fifteen years all right but now that this issue has been raised and let's say that correction remediation was putting him just in the classroom not  isn't there going to be i mean it's a high school it's full of kids and it's full of social media and it's full of things that we probably didn't have when we were going to high school but isn't this reputation that he has going to get around and could that not in fact or would that not in fact impact his proficiency as a teacher no i don't think it would again that's  they necessarily should be taken out of the classroom because people could google it people could find that the reputation to be at issue consider the situation where someone is arrested for drunk driving was a teacher and let's assume that they're suspended temporarily while that happens and assume that they're acquitted after a trial under the laws and what has come around is because or convict administrative role or a different role with the school well i don't think most teachers would like to be a building superintendent dance as we know that term correct they may not like to be that but that may be the result of d the maybe it wouldn't have but that's the relevant to based on the record whether d or not the conduct was remediable or not ok thank you very much counsel i do either my colleagues have any questions based upon the ones i asked in the answers i received just as jurgen can i do not a one hundred just a shotgun now ok well counsel thank you very much for your presence here today and