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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. R. Brett Stirling v. North Slope Borough School District (3/14/2025) sp-7755
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
R. BRETT STIRLING, )
) Supreme Court No. S-18853
Appellant, )
) Superior Court No. 2BA-22-00238 CI
v. )
) O P I N I O N
NORTH SLOPE BOROUGH SCHOOL )
DISTRICT, ) No. 7755 - March 14, 2025
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Second Judicial District, Utqiaġvik, David L. Roghair,
Judge.
Appearances: Jennifer M. Coughlin, Landye Bennett
Blumstein, LLP, Anchorage, for Appellant. Allen F.
Clendaniel, Sedor, Wendlandt, Evans & Filippi, LLC,
Anchorage, for Appellee.
Before: Maassen, Chief Justice, and Borghesan, Henderson,
and Pate, Justices. [Carney, Justice, not participating.]
HENDERSON, Justice.
INTRODUCTION
A school principal used the school's printer after hours to create a coaster
as a retirement gift for a friend. The coaster design contained the School District's
official logo, including the logo's illustration of Alaska Native children engaged in a
traditional blanket toss, but changed the statement of the District's motto. A custodian
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working at the time took pictures of the coaster, and the pictures were subsequently
shared on social media alongside commentary expressing that the coaster was
disrespectful to Alaska Native peoples. The principal left the community the day after
the social media posts.
The District thereafter notified the principal that it proposed to terminate
him for incompetence and for violating the School Board's anti-harassment policies and
related state regulations. Following a brief pretermination hearing, the District
terminated the principal. The principal appealed, and the Board upheld the principal's
termination following an additional hearing. The principal appealed to the superior
court, which also affirmed his termination. The principal now appeals to us.
Given the principal's conceded inability to continue doing his job
following the events in question, we affirm his termination. However, given the lack
of process provided during the principal's pretermination hearing, which was then
remedied at his post-termination hearing, we reverse the superior court's decision
denying back pay through the date of the Board's on-record post-termination hearing
decision.
FACTS AND PROCEEDINGS
A. Facts
From July 2020 through February 2022 R. Brett Stirling served as the
principal of Kali School in Point Lay in the North Slope Borough School District (the
District). In January 2022 Stirling sent a series of emails and a letter to District
administrators about various challenges at his school. In these emails and letter, he asked
for assistance related to a recent homicide by a staff member's brother in a school housing
unit; criticized a new District policy related to charging long-term substitute teachers rent;
expressed concerns about staff members smoking marijuana outside a classroom;
identified problems with the school's phones; expressed concerns about rising COVID-
19 cases; and complained of staffing shortages.
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On January 26, around 7:00 or 8:00 p.m., Stirling went to Kali School and
brought his own wood to use the school's laser printer to make some coasters for himself
and as a retirement gift for his friend, a fellow principal in the District. The school was
empty except for two custodians who were working that evening. The coasters Stirling
made featured a modification of the District's official logo. The logo contains an
illustration of Alaska Native children performing a traditional blanket toss and the motto
"Striving for Excellence" along with the District's name. Around the District logo
Stirling wrote the text "Congratulations You survived NSBSD" and "Time for a fucking
drink," and included an image of two beer mugs. Inside the logo he replaced the motto
with "Striving for Excrement" and the District's name with "New Stupid Behaviors
Starting Daily." Stirling did not alter the illustration in the middle of the logo.
Later that evening a school teacher in Utqiaġvik posted pictures of the
coasters on Facebook, along with a caption stating the coasters were disrespectful to
Alaska Native peoples. A screenshot taken in April 2022 shows that the Facebook post
generated at least 285 reactions, 298 shares, and 29 comments.
After the Facebook post was made, Stirling texted one of the custodians
working that night, who he assumed had taken the photographs of the coasters and shared
them with the teacher who posted them on social media. He asked the custodian why she
shared the photographs. The custodian texted him, "Of all the things you could have
made, you made that with the words-whatever you made with [the District's] logo. Do
you really think that we 're crap?" Stirling texted the custodian an apology and explained
he did not think anyone in Point Lay was crap and was instead expressing frustration with
District decisions. Stirling decided to leave Point Lay the next morning and fly to
Utqiaġvik because he was concerned about his own safety. The District Assistant
Superintendent approved of this decision.
The next day someone posted the photographs of the coasters on Twitter
with the caption: "This is disgusting . . . Some of these administrators have no respect
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when it comes to our people and this is a prime example." The tweet generated at least
48 retweets, 15 quote tweets,1 and 125 likes.
B. Proceedings
1. District investigation and pretermination hearing
On January 28 the District's Human Resources Director met with Stirling
and a union representative. The Human Resources Director informed Stirling that the
meeting was strictly confidential, but he recorded the meeting without Stirling's
knowledge, and the recording was later admitted into evidence at the Board hearing
without objection from Stirling. Stirling said he did not think he could return to Point
Lay, stating that he did not believe he could "be an effective leader" if the majority of
the community believed he was racist.
Later that day the Human Resources Director issued a report to the District
recommending Stirling's employment be terminated because "Stirling willfully
operated company property for personal use that unwittingly disparaged the good
people and students of Point Lay." The report concluded that "this disparagement and
the public's use of social media makes it impossible for [Stirling] to return to the village
and District to continue his work as School Administrator." That day the Assistant
Superintendent also sent Stirling a letter that informed him that he was "on paid
administrative leave pending further investigation" and requested he report to the
District office on January 31 for a meeting with her.
On January 31 the Superintendent sent Stirling a letter notifying him that
the District proposed to terminate his employment because his conduct "constitute[d]
(1) incompetence and (2) substantial noncompliance with applicable education laws and
regulations." The letter stated Stirling would receive administrative leave with pay
1 A quote tweet "allows you to post another person's [tweet] with your own
comment added." About different types of posts , X HELP CENTER, http://help.x.com/en/
using-x/types-of-posts (last visited Dec. 2, 2024).
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through February 3. The letter explained that the District believed Stirling was
incompetent to serve as a principal under AS 14.20.170(a)(1) because he "used a
District printer and computer to make [a] racist, profane and offensive coaster that
demeaned District students and employees." It also stated Stirling was "unable to
perform the duties of a principal" due to his conduct "and the North Slope community's
loss of trust and respect for [him]." Finally, it indicated that Stirling's conduct
"constitute[d] substantial noncompliance with the school laws of the state and the Board
Policies of the District, which is grounds for dismissal under AS 14.20.170(a)(3)"
because the "coasters constituted racial harassment and discrimination of the Kali
School's Native Alaskan students as well as all of the District's Native Alaskan
students." The letter informed Stirling that it considered his conduct harassment of
students and employees.
The letter also notified Stirling he was entitled to a pretermination hearing
under AS 14.20.180(a) and Board Policy 4117.4. It explained that the purpose of the
hearing was to provide Stirling "an opportunity to contest the grounds for [his]
dismissal" and offer reasons why he should not be fired. It also notified Stirling that he
could bring a representative to the hearing. The letter scheduled the pretermination
hearing for February 2.
On February 2 the District held the pretermination hearing attended by the
Superintendent, the Assistant Superintendent, a union representative, and Stirling. The
Assistant Superintendent read the letter provided to Stirling on January 31 into the
record. The Superintendent summarized the investigation, explained that the evidence
the District had considered included the photographs of the coaster, and indicated that
the District would provide Stirling the evidence along with the recording of the
pretermination hearing the next day. The Superintendent concluded by stating that
Stirling's use of District property to "willfully disparage[] the good people and students
of Point Lay" made it "impossible for [him] to return to the village and the District to
continue his work as a school administrator."
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Stirling read into the record a letter he had sent to the District. He stated
that he did not create the design on a District computer and claimed that he created the
coaster because he was expressing frustration about the District to his friend in a private
message. He stated that he recognized that being placed back at Point Lay was "not an
option," and he offered to resign in April to allow him time to receive the health care
he needed to recover from the stressors of the job.
2. Stirling's termination and Board hearing
The next day the Superintendent sent Stirling a letter notifying him that
he was "dismiss[ed] for cause from employment" with the District for incompetence
and "substantial noncompliance with school laws of the state" and Board policies. The
letter largely repeated the points stated in the pretermination letter. It informed Stirling
that he could contest the dismissal by notifying the Superintendent in writing that he
wanted a formal hearing before the Board under AS 14.20.180(d) or invoking the
grievance procedures under AS 14.20.180(e). The same day Stirling also received a
letter informing him that he would not be retained for the following school year. In
mid-February Stirling sent a written request for a public hearing before the Board
challenging his termination.
Before the hearing Stirling and the District submitted trial briefs, exhibit
lists, and witness lists. Stirling's exhibits included his contracts with the District, the
notice of termination, an administrative leave letter, emails and a letter he sent to
District officials in January 2022 regarding difficulties in Point Lay, a copy of the
District's COVID-19 mitigation plan, emails and documentation of a labor relations
mediation in which Stirling was involved, and relevant excerpts of the Board's policies
and code of ethics. The District's exhibits included the Twitter and Facebook posts
about the coasters, the investigation summary, the notice of proposed termination, the
notice of termination, the notice of non-retention, Stirling's employment contracts, the
recording of the January 28 interview with Stirling, photos of the coasters, and Stirling's
letter responding to the proposed termination.
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The Board held an administrative hearing at the end of April.
The District called five witnesses: the teacher who had posted the photos
of the coaster on Facebook, the Assistant Superintendent, the current principal at Kali
School, the Human Resources Director, and the Superintendent. All of the District's
witnesses testified that they found the coaster offensive and disrespectful to the people
of Point Lay and the North Slope. For instance, the Assistant Superintendent testified
that she felt the coaster was racist because it paired the words "excrement" and "stupid"
with the illustration of Native children. The Superintendent testified that he had also
heard from "many, many people" in the community who were outraged by the incident
and perceived the coaster as racist.
Stirling called seven witnesses: a current Kali school teacher, two long-
time Point Lay residents, a middle school principal, a union representative, the retiring
principal for whom he had made the coaster, and himself.
A current Kali school teacher testified that she had worked as a teacher in
Point Lay for five years and that Stirling was an easy principal to work with. She stated
that earlier in January, before the coaster incident, the teacher who posted the photos to
Facebook had stopped by her house for a social visit and mentioned that he wished
Stirling would get fired. A life-long Point Lay resident testified that he had also heard
from the same teacher that he wanted to get Stirling fired.
Several of Stirling's witnesses testified that the coaster seemed like an
expression of frustration with the District rather than intentionally racist or directed at
Alaska Native people, though two of those witnesses admitted that they could
understand why people might have found it offensive. For instance, a long-time Point
Lay resident said that the coaster may have elicited memories of the historical trauma
of Alaska Native children being forced to attend boarding schools. That same resident
testified that he did not think it would have been safe for Stirling to stay in the village
after the community found out about the coaster, as he had seen social media posts by
individuals who expressed a desire to harm Stirling. Another long-time resident
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testified that although she understood why people were offended, she believed Stirling
had ultimately taken responsibility for the coaster and that he should not have been fired
over it.
The retiring principal for whom the coaster was intended testified that he
had worked for the District for two years and that he had recently returned from
extended medical leave necessitated by a heart condition. He stated he understood the
phrase "you survived NSBSD" meant literally he "made it through without having a
heart attack." The retiring principal explained that he and Stirling vented to each other
about the problems they faced in their jobs and compared those problems to "crap"
frequently. He stated that when he saw the word excrement on the coaster, he thought
that it referred to stressful situations Stirling was dealing with and he knew that it was
not a reference to the staff or students. The retiring principal testified that every time
he and Stirling talked, Stirling was very clear that he was frustrated with these problems
because they created obstacles to serving the children, which was always Stirling's
primary focus.
Stirling testified on his own behalf, stating he never intended to insult
Alaska Native people, he had worked in rural villages in Alaska for 17 years, and he
had "nothing but respect and admiration for the people of The Slope and the Native
peoples of Alaska." Stirling acknowledged that during his January 28 interview with
the Human Resources Director he had stated he did not think he could return to the
community; however, he discounted this statement, explaining that he made that
statement only 36 hours after the Facebook post about the coaster and when he had slept
for only four of the prior 48 hours.
At the end of the hearing the Board unanimously found by a
preponderance of the evidence that the District demonstrated it had cause to terminate
Stirling. At the beginning of May the Board issued a written decision affirming the
District's decision to terminate Stirling's employment. The Board explained that
Alaska law governing termination of teachers also applies to principals. The Board
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concluded that Stirling's conduct constituted incompetency under AS 14.20.170(a)(1)
because he used District equipment to produce "an offensive and demeaning
coaster, . . . render[ing] himself unable to perform the customary duties of a principal
in a satisfactory manner." It also decided that the District had cause to dismiss Stirling
under AS 14.20.170(a)(3)2 because "[t]he coaster design was demeaning, hurtful[,] and
offensive to the Iñupiat students and staff of the North Slope Borough School District"
and "[h]is actions constituted racial harassment and violated 20 AAC 10.020(b)(6) and
Board Policies 4119.21, 4119.12, and 5145.5." Finally, it determined that "[t]he
District Administration provided Mr. Stirling with the constitutional and statutory due
process required by providing him with the proposed grounds for termination and a
pretermination hearing."
3. Superior court proceedings and appeal
Stirling appealed the Board's decision to the superior court. He argued
that the District's grounds for his termination were not supported by substantial
evidence, his coaster amounted to protected speech under AS 14.20.095, and the
pretermination hearing process violated his due process rights.
In August 2023 the court affirmed the Board's decision to terminate
Stirling's employment. The court applied the substantial evidence test to questions of
fact and applied the rational basis test to questions of law because the District was
"interpreting fundamental policies within the scope of its own statutory functions." It
2 The District actually cited to AS 14.20.170(a)(2), but claims on appeal
that this is a typo and that the Board intended to cite AS 14.20.170(a)(3). Compare
AS 14.170(a)(2) (establishing teacher may be dismissed for "immorality, which is
defined as the commission of an act that, under the laws of the state, constitutes a crime
involving moral turpitude"), with AS 14.20.170(a)(3) (establishing teacher may be
dismissed for "substantial noncompliance with the school laws of the state, the
regulations or bylaws of the department, the bylaws of the district, or the written rules
of the Superintendent"). The context of the decision indicates the Board intended to
cite AS 14.20.170(a)(3) because the decision does not discuss immorality.
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decided that there were grounds to terminate Stirling due to substantial noncompliance
with District rules and regulations. The court concluded that "[w]hether or
not . . . Stirling interpreted the coaster to promote any view about Alaska Natives, the
facts at hand support that the community was reasonable to interpret the coaster as
racially offensive." It explained, "Stirling changed everything else about the design of
the logo, so a bystander, not knowing the context of Mr. Stirling 's anger about the
School District might see that as an intentional choice rather than an oversight on his
part." The court concluded that the "District's finding of incompetence has a reasonable
basis in law" because as "Stirling conceded at his pretermination hearing, he was unable
to effectively perform his duties after the widespread sharing of his coaster design, and
the negative public reaction to it."
The court also rejected free speech arguments Stirling had raised,
reasoning that "the right to openly critique a government employer without fear of
punishment does not extend to offensive or inappropriate speech." It also noted that
"Stirling argues profusely that the coaster was private speech between himself and his
friend - it was not public speech critical of his government employer," which would
be protected under the First Amendment.
Regarding Stirling's due process arguments, the court acknowledged that
the District's pretermination letter "should have put . . . Stirling on notice of his right to
call witnesses - should he have wanted to - at his pretermination hearing," but
concluded that "the District's failure to include information about . . . Stirling's right to
call witnesses amounts to harmless error, particularly in light of the post-termination
hearing he was afforded." Ultimately the court affirmed the Board's decision and
denied Stirling's requested relief.
Stirling appeals.
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STANDARD OF REVIEW
"When a superior court acts as an intermediate court of appeals, we
independently review the administrative decision."3 Here, we therefore independently
review the final administrative decision of the School Board.
"We review questions of fact under the 'substantial evidence' test.
Substantial evidence is 'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.' We need only determine whether such evidence
exists, and do not choose between competing inferences."4 When interpreting and
applying statutes, "[w]e apply the reasonable basis standard, under which we give
deference to the agency's interpretation so long as it is reasonable, when the
interpretation at issue implicates agency expertise or the determination of fundamental
policies within the scope of the agency's statutory functions."5 "We apply the
independent judgment standard, under which 'the court makes its own interpretation of
the statute at issue, . . . where the agency's specialized knowledge and experience would
6
not be particularly probative on the meaning of the statute.' "
We review constitutional questions, including questions regarding the
7
scope of an individual's due process rights and free speech rights, de novo.
3 Titus v. State, Dep't of Admin., Div. of Motor Vehicles, 305 P.3d 1271,
1276 (Alaska 2013) (quoting Alaska Exch. Carriers Ass'n v. Regul. Comm'n of Alaska,
202 P.3d 458, 460 (Alaska 2009)).
4 Grimmett v. Univ. of Alaska, 303 P.3d 482, 487 (Alaska 2013) (quoting
Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992)).
5 Marathon Oil Co. v. State, Dep't of Nat. Res. , 254 P.3d 1078, 1082
(Alaska 2011).
6 Id. (citing Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 175
(Alaska 1986)).
7 Greene v. Tinker, 332 P.3d 21, 31 (Alaska 2014).
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DISCUSSION
A. The Board Had A Reasonable Basis To Terminate Stirling's
Employment On Grounds Of Incompetency.
Stirling's first broad argument on appeal is that the District lacked a
sufficient basis for terminating his employment. More specifically, Stirling contends
that the evidence before the School Board was insufficient to demonstrate
8
"incompetency" under AS 14.20.170(a)(1).
Alaska Statute 14.20.170(a) establishes that a principal may be dismissed
at any time for "incompetency, which is defined as the inability or the unintentional or
intentional failure to perform the [principal's customary duties] in a satisfactory
manner."9 Application of these statutory terms presents mixed questions of law and
fact. To the extent we are called upon to interpret the terms of AS 14.20.170 in this
context, we apply the reasonable basis standard in light of the Board's expertise
regarding the implicated job qualifications and duties, as well as the involvement of
"fundamental policies within the scope of the [Board's] statutory functions."10 Here,
we conclude that the Board had a reasonable basis to terminate Stirling's employment
for incompetency under AS 14.20.170(a)(1).
Stirling contends that the Board lacked substantial evidence to find him
incompetent under AS 14.20.170(a)(1) because it supported this finding merely by
8 Stirling also argues that the evidence was insufficient to demonstrate
"substantial noncompliance" with applicable laws and rules pursuant to
AS 14.20.170(a)(3). Because we conclude the Board had a reasonable basis to
terminate Stirling's employment under AS 14.20.170(a)(1), we do not reach whether
the Board properly terminated his employment for separate reasons under
AS 14.20.170(a)(3).
9 AS 14.20.170(a). A principal may also be dismissed for immorality or for
substantial noncompliance with applicable laws and rules, such as anti-harassment
policies. AS 14.20.170(a)(2)-(3).
10 Davis Wright Tremaine LLP v. State, Dep't of Admin., 324 P.3d 293, 299
(Alaska 2014); see also Marathon Oil Co. , 254 P.3d at 1082.
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stating "it was impossible for Stirling to perform his duties as principal once he printed
out a coaster described by the Decision as 'offensive and demeaning.' " He argues that
the social media posts the District relied upon were insufficient evidence to support his
termination, because the posts only contained photographs of the coaster that were
widely shared and did not show the impact of the post on Stirling's ability to work as a
principal. He claims that the District's testimonial evidence was inadequate to prove
community sentiment and that his witnesses demonstrated the coaster was interpreted
only as a critique of the District. He discounts his own statements that he did not think
he could return to Point Lay, explaining that he made these statements to the Human
Resources Director only a day after the original Facebook post, when he was exhausted
and stressed and had not examined the community reaction on social media. He also
notes that he only admitted that he did not think he could "be an effective leader if the
majority of the community believe[d] [him] to be a racist." Stirling argues that the
Human Resources Director failed to consider moving Stirling to a different school
within the District, and that the true motivation for his termination was to punish him
for his criticism of the District.
Stirling's arguments, however, fail to account for both the statutory
definition of incompetence that applies here and for the entirety of the evidence before
the Board. Alaska Statute 14.20.170(a)(1) defines incompetency "as the inability or the
unintentional or intentional failure to perform the teacher's customary teaching duties
in a satisfactory manner." Here the testimony presented to the Board constituted
substantial evidence to terminate Stirling's employment for incompetence. The
Superintendent testified that he thought Stirling could no longer serve as a principal
because the community found the coaster racist and offensive. The District supported
this assertion through testimony from the teacher who initially posted the photographs,
the Assistant Superintendent, the current principal of Kali School, and the Human
Resources Director. Additionally, one of Stirling's own witnesses, a life-long resident
of Point Lay, testified that while he did not personally find the coaster offensive, he
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believed it was unsafe for Stirling to return to Point Lay because of other social media
posts by individuals who may want to hurt Stirling and sentiment from community
members who were offended by the coaster. Though some of the other witnesses
testified that they were not personally offended by the coaster and viewed it as an
expression of frustration with the District administration, there was substantial evidence
to support the Board's finding that Stirling fundamentally lost the trust of the District
administrators and community.11 The District's exhibits also tend to demonstrate that
the social media posts criticizing Stirling's coasters were fairly widely shared,
supporting the Board's finding regarding community sentiment.
Perhaps most importantly, the District presented statements from Stirling
himself that support a finding of incompetency. Stirling indicated in his interview on
January 28 that he did not think he could return to Point Lay if the majority of the
community thought he was racist. This statement and Stirling's decision to leave Point
Lay support the conclusion that Stirling himself did not think that he could competently
perform his job after the events at issue. Stirling argues that his admission during the
January 28 interview has limited import because it occurred shortly after initial social
media posts about the coasters. But Stirling repeated the sentiment during his
pretermination hearing several days later, stating that he did not believe being placed
back at Point Lay was an option. Stirling then offered to resign effective two months
later. Particularly in light of Stirling's own assessment of his inability to perform his
customary duties as principal, the evidence and testimony support the Board's decision
to terminate Stirling's employment under AS 14.20.170(a)(1).
11 Cf. Kilmer v. Dillingham City Sch. Dist., 932 P.2d 757, 765-766 (Alaska
1997) (affirming termination of superintendent and principal for incompetence because
his actions led to lack of trust between Board and employee, rendering him unable to
serve as superintendent and principal).
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B. The Board's Termination Of Stirling's Employment Violated Neither
AS 14.20.095 Nor The First Amendment.
Stirling appears to contend that his termination was also improper because
it violated his rights to free speech. While Stirling grounds his free speech claim in
AS 14.20.095, the superior court analyzed whether Stirling's speech was protected
under the First Amendment to the United States Constitution and concluded that his
speech was not protected. The District maintains that Stirling's creation of the coasters
was protected by neither AS 14.20.095 nor the First Amendment. Stirling, on the other
hand, argues that his speech was protected by AS 14.20.095, regardless of whether it
was protected by the First Amendment. We conclude first that the protection for speech
offered by AS 14.20.095 is coextensive with that offered under the First Amendment.
Second, even assuming that Stirling's creation of the coasters at issue constituted speech
that would be protected under both AS 14.20.095 and the First Amendment, we
conclude that Stirling's free speech rights are outweighed by the District's legitimate
interests in avoiding workplace disruption, meeting the needs of its students and the
public, and maintaining public trust in the school system. We thus hold that Stirling's
12
termination did not violate his free speech rights.
We begin by analyzing the potential sources of protection for Stirling's
speech: AS 14.20.095 and the First Amendment. Alaska Statute 14.20.095 prohibits
the District and Board from "restrict[ing] or modify[ing] the right of a teacher to engage
in comment and criticism outside school hours." The First Amendment similarly
protects an employee's right to speak as a private citizen "addressing a matter of public
12 Stirling and the District have both argued at times that we need not reach
the free speech issue because it was not raised before the superior court. However,
Stirling did argue before the superior court that his speech was protected under
AS 14.20.095, and on appeal he argues the superior court erred in its free speech
analysis. We therefore address the issue here.
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concern," although it permits an employer to limit such speech if the employer's
legitimate administrative interests outweigh the employee's rights.13
Stirling argues that even if his speech is not protected by the First
Amendment, as the superior court concluded, it is still protected by our state statute.
But the context and limited precedent surrounding AS 14.20.095 and subsequent
developments in First Amendment law support the conclusion that a teacher's free
speech rights under AS 14.20.095 do not exceed the scope of the First Amendment. We
observe that AS 14.20.095 was enacted at least partially in response to our 1964 opinion
in Watts v. Seward School Board.14 In Watts we held that the dismissal of two teachers
was justified because their criticisms of the school superintendent and board "had a
tendency to bring . . . the teaching profession into public disgrace or disrespect."15 The
legislature enacted AS 14.20.09516 soon thereafter to protect teachers' "right to
comment and criticize" outside school hours, though the statute did not go so far as to
shield teachers who defame a school or public officials or bring the school into "public
disgrace." 17 This added a layer of protection for teachers' free speech rights, which
13 Garcetti v. Ceballos, 547 U.S. 410, 423 (2006) (citing Pickering v. Bd. of
Educ., 391 U.S. 563, 568 (1968)).
14 395 P.2d 372 (Alaska 1964), vacated Watts v. Seward Sch. Bd., 381 U.S.
126 (1965) (per curiam).
15 Id. at 375.
16 AS 14.20.095 (1965) was subsequently amended in 1966, but
substantively remained largely the same. Compare Ch. 98, § 13, SLA 1966, with
Ch. 14, § 1, SLA 1965. The 1965 and 1966 versions of AS 14.20.095 were passed as
part of major revisions to education laws in Alaska. See Alaska Leg. Council, Staff
Background Report with Preliminary Draft: Revision of School and Education Laws 1
(1964).
17 After signing the bill into law, the Governor sent a letter to the Legislature
noting that the law did not give teachers "a special privilege to criticize others . . . with
impunity." Legis. Reporting Serv., Rep. No. 12, 4th Leg., 1st Sess. at 141 (Mar. 8,
1965).
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rested on uncertain legal ground at the time. Just three years later, however, the United
States Supreme Court held in Pickering v. Board of Education that the First Amendment
similarly protects teachers' right to "comment on matters of public interest in
connection with the operation of the public schools in which they work."18 That holding
19
effectively rendered AS 14.20.095 coextensive with the First Amendment - a
conclusion supported by our subsequent Watts decision upholding teacher disciplinary
sanctions.20 Indeed, we have more recently analyzed teachers' speech-related rights by
referencing the protections offered by the First Amendment, with no discussion or
21
mention of AS 14.20.095.
Under a First Amendment analysis, Sterling's free speech rights were not
without limit. In analyzing whether a public employee's free speech rights were
violated, a reviewing court performs a two-step inquiry.22 The court must first decide
whether the speech was made pursuant to the employee's official duties, or whether the
employee "speaks as a citizen addressing a matter of public concern."23 If the speech
is made pursuant to the employee's official duties then "the Free Speech Clause
generally will not shield the individual from an employer's control and discipline," but
if the speech addresses a matter of public concern then a court must proceed to the
second step.24 In the second step the court must decide whether the employee's speech
interests "are outweighed by the interest of the State, as an employer, in promoting the
18 391 U.S. at 568.
19 See Watts v. Seward Sch. Bd., 454 P.2d 732, 737 (Alaska 1969).
20 Id.
21 Shatting v. Dillingham City Sch. Dist., 617 P.2d 9, 12 (Alaska 1980) ("[A]
school board may not deny continued employment to a teacher because of the teacher's
exercise of first amendment rights.").
22 Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 527-28 (2022).
23 Id. (quoting Garcetti v. Ceballos, 547 U.S. 410, 423 (2006)).
24 Id.
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efficiency of the public services it performs through its employees."25 If the State's
"legitimate countervailing interests are sufficiently strong," the court will uphold the
26
State's restriction.
The second step of the inquiry is dispositive in this case. Assuming
without deciding that Stirling's creation of the coasters amounted to private speech
regarding a matter of public concern that would trigger First Amendment protection,
we must still conduct "a fact-sensitive and deferential weighing of the government's
legitimate interests" as an employer against Stirling's First Amendment rights.27 Here,
any speech-related rights Stirling may have had were outweighed by the Board's
legitimate interest in fulfilling its responsibilities to its students and to the public. The
Ninth Circuit has explained that within the educational context a court may consider
"whether students and parents have expressed concern that the plaintiff's conduct has
disrupted the school's normal operations, or has eroded the public trust between the
school and members of its community."28 Here the Board determined Stirling's speech
was especially disruptive to normal operations and damaging to the public trust because
he served in a leadership role in the school community-a conclusion supported by
Stirling's own testimony. The Board's concerns fell within its legitimate "interest[s] in
the effective and efficient fulfillment of [its] responsibilities to the public, including
promot[ing] efficiency and integrity in the discharge of official duties, and
maintain[ing] proper discipline in public service."29 We thus conclude that Stirling's
25 Id. (internal citations omitted).
26 Bd. of Cnty. Comm'rs v. Umbehr, 518 U.S. 668, 675-76 (1996).
27 Id. at 677.
28 Riley's Am. Heritage Farms v. Elsasser, 32 F.4th 707, 725 (9th Cir. 2022).
29 See Lane v. Franks , 573 U.S. 228, 242 (2014) (internal quotation marks
omitted) (quoting Connick v. Myers, 461 U.S. 138, 150-51 (1983)).
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termination did not violate his free speech rights under AS 14.20.095 or under the First
Amendment.
C. Stirling Was Not Provided Sufficient Process Prior To His
Termination.
Stirling next argues that even if his termination is upheld, the District
failed to provide him an adequate pretermination hearing, violating his procedural due
process rights and its obligations under AS 14.20.180(a).30 Stirling thus maintains that
even if his termination was ultimately appropriate, he should have remained "on
administrative leave with pay until" he received sufficient process through the Board's
April 2022 post-termination hearing. Among other arguments, he contends that the
District's pretermination notice did not inform him that he would be able to provide
evidence or witnesses.
The District responds that it gave Stirling notice through a three-page
letter that detailed the factual and legal grounds for his proposed termination along with
information about the "date, time, and location of the pretermination hearing." It asserts
it provided him the requisite process during the pretermination hearing because the
Assistant Superintendent read the notice of proposed termination and the
Superintendent explained the evidence and legal grounds for Stirling's termination. In
addition the District notes that it gave Stirling an opportunity to respond to this
information, which he did by reading a letter, and that Stirling did not ask to present
any evidence or call any witnesses. It also maintains Stirling was provided an adequate
31
post-termination hearing.
30 See AS 14.20.180(a) ("Before a teacher is dismissed, the employer shall
give the teacher written notice of the proposed dismissal and a pretermination hearing.
A pretermination hearing under this section must comport with the minimum
requirements of due process, including an explanation of the employer's evidence and
basis for the proposed dismissal and an opportunity for the teacher to respond.").
31 Both parties agree that Stirling was provided with adequate process in the
post-termination hearing before the Board.
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Under the Alaska32 and the United States33 Constitutions the state may not
"deprive individuals of property without due process of law."34 As a public employee
that could only be terminated for cause under AS 14.20.170, Stirling had a property
interest in his continued employment.35 Alaska Statute 14.20.180(a) requires that
before terminating a teacher's employment the District must "give the teacher written
notice of the proposed dismissal and a pretermination hearing," and that hearing "must
comport with the minimum requirements of due process, including an explanation of
the employer's evidence and basis for the proposed dismissal and an opportunity for
the teacher to respond."36 Under both the Alaska and federal Constitutions, "[i]n
employment termination cases in particular, due process requires '[a]t a minimum' that
the employee 'receive oral or written notice of the proposed discharge, an explanation
of the employer's evidence, and an opportunity to present his position.' "37 "Although
a full judicial hearing is not required [prior to termination], the employee must be
allowed to present a defense by testimonial and other evidence."38 A constitutionally
unlawful dismissal can be "cured by a post-termination hearing," but in that
circumstance the appropriate relief is backpay up to the time of the post-termination
39
hearing decision.
32 Alaska Const. art. I, § 7.
33 U.S. Const. amend. XIV, § 1.
34 City of N. Pole v. Zabek, 934 P.2d 1292, 1297 (Alaska 1997).
35 See AS 14.20.170.
36 AS 14.20.180(a).
37 Grimmett v. Univ. of Alaska, 303 P.3d 482, 488 (Alaska 2013) (quoting
Zabek, 934 P.2d at 1297).
38 Storrs v. Mun. of Anchorage, 721 P.2d 1146, 1150 (Alaska 1986).
39 N. Slope Borough v. Barraza , 906 P.2d 1377, 1381 (Alaska 1995).
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We conclude that although the District's pretermination process in this
matter certainly provided Stirling with notice of his proposed termination and the
District's reasons for seeking his termination, the District's notice and hearing
procedures failed to meaningfully provide for Stirling's right to "present a defense by
testimonial and other evidence."40 Although due process does not strictly require that
an employee be able to call and examine witnesses at a pretermination hearing in all
circumstances, we have previously recognized that "the charge of teacher incompetency
[is] sufficiently serious to warrant the heightened procedural protection that the right to
call witnesses brings."41 Here, where the District's proposed bases for termination
included incompetency and other "substantial noncompliance with school laws of the
state," including alleged harassment and discrimination, due process required that
Stirling be able to call and examine witnesses during the course of his pretermination
42
hearing.
The District did inform Stirling via letter that he was entitled to a
pretermination hearing and that he would have an opportunity to contest his dismissal
and to bring a representative of his choice to the hearing. But the District did not notify
Stirling, either before or during the hearing, that he would have the opportunity to call
witnesses. Absent such notice, we do not expect that Stirling could or should have
understood that he could call witnesses at this stage. As we have previously held, where
due process requires that parties be able to call witnesses during a hearing, "[w]e cannot
find due process [was provided] . . . where parties do not know if they will be allowed
to call witnesses until the hearing has actually begun."43 Given that Stirling was not
40 Storrs, 721 P.2d at 1150.
41 Zabek, 934 P.2d at 1298 (Alaska 1997) (citing Nichols v. Eckert, 504 P.2d
1359, 1365 (Alaska 1973)).
42 Id.
43 Nash v. Matanuska-Susitna Borough, 239 P.3d 692, 699 (Alaska 2010).
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informed of any opportunity to call witnesses during his pretermination hearing, the
hearing process failed to comply with constitutional due process requirements.
Both parties agree, however, and we conclude, that Stirling was provided
with adequate process in his post-termination hearing before the Board. Stirling is
therefore entitled to back pay from the time of his termination on February 3 until the
Board's on-record decision at the conclusion of its post-termination hearing on April
44
25.
CONCLUSION
We AFFIRM the superior court's decision upholding the Board's decision
terminating Stirling's employment. We REVERSE the superior court's holding
affirming the Board's decision that the District's pretermination hearing complied with
its due process obligations, and REMAND for calculation of back pay through the date
of the Board's post-termination hearing and decision.
44 See N. Slope Borough , 906 P.2d at 1381.
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