THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Mable Canty,        Respondent,

v.

Richland County School District Two,        Appellant.

Appeal From Richland County
L. Casey Manning, Circuit Court Judge

Unpublished Opinion No. 2003-UP-522
Heard June 12, 2003 � Filed September 2, 2003

AFFIRMED

W. Allen Nickles, III, Carl L. Solomon and Dona Guffey, all of Columbia, for Appellant.

Kenneth L. Childs, Kathryn Long Mahoney and Vernie Williams, all of Columbia, for Respondent.

PER CURIAM:� The Richland County School District Number Two Board of Trustees (�the Board�) terminated Mable Canty�s teaching contract pursuant to South Carolina Code Annotated sections 59-25-430 and -440 (1990).� Canty appealed the Board�s decision to the circuit court.� The circuit court affirmed the decision of the Board, ruling evidence existed within the record to support the Board�s findings.� Canty appeals, arguing the circuit court erred in affirming the decision of the Board because:� 1) the Board incorrectly admitted evidence of Canty�s prior bad acts; 2) sufficient evidence did not exist within the record to support the Board�s decision; 3) her termination violated the notification requirements of section 59-25-430 and -440, and thus, violated her due process rights; and 4) her termination violated the equal protection clauses of the United States and South Carolina constitutions.� We affirm.

FACTUAL/PROCEDURAL POSTURE

Mable Canty was a teacher at Dent Middle School in Richland County School District Number Two (�the District�).� On February 21, 2001, a student in her classroom (�Student A�) left his chair to discard a used tissue.� In response, Canty struck her fist on an overhead projector, breaking the glass.�

Subsequently, Stephen W. Hefner, the superintendent for the District, recommended that the Board terminate Canty�s employment.� After holding a full, evidentiary hearing, the Board decided to terminate Canty�s employment.� Canty appealed the Board�s decision to the circuit court, and the circuit court affirmed the Board�s decision, ruling: 1) Canty�s contention the Board improperly admitted evidence of her prior bad acts was not preserved; 2) sufficient evidence existed within the record to support Canty�s termination pursuant to sections 59-25-430 and -440; 3) Canty�s termination did not violate the notification provisions of sections 59-25-430 and -440; and 4) Canty�s termination was not a violation of her equal protection rights.� Canty appeals.�

STANDARD OF REVIEW

It is well established that in teacher termination cases brought pursuant to section 59-25-410, et seq., this Court�s review is limited to determining whether the decision is supported by substantial evidence.� See Felder v. Charleston County Sch. Dist., 327 S.C. 21, 25, 489 S.E.2d 191, 193 (1997); Kizer v. Dorchester County Vocational Educ. Bd. of Trs., 287 S.C. 545, 548, 340 S.E.2d 144, 146 (1986); Laws v. Richland County Sch. Dist. No. 1, 270 S.C. 492, 495, 243 S.E.2d 192, 193 (1978).

However, Canty argues both Kizer, 287 S.C. at 545, 340 S.E.2d at 144, and Hall v. Board of Trs. of Sumter County Sch. Dist. No. 2, 330 S.C. 402, 407, 499 S.E.2d 216, 219 (Ct. App. 1998), heighten our standard of review and require that evidence of unfitness to teach be �undeniably and abundantly present.�� We disagree.

In Kizer, the Dorchester County Vocational Educational Board of Trustees terminated Kizer�s employment for �juvenile� behavior demonstrating �insensitivity to basic human concerns.�� 287 S.C. at 547, 340 S.E.2d at 146.� Kizer challenged his termination, arguing his due process rights were violated.� Our supreme court ruled Kizer�s due process rights were not violated.� Additionally, applying the substantial evidence standard, the supreme court ruled, �the officially enunciated public policy of this State is to provide for immediate removal of those whose conduct manifests evident unfitness [for teaching].� Such conduct is undeniably and abundantly present in this case.��� 287 S.C. at 550, 340 S.E.2d at 147.

Our review of this language, combined with a review of subsequent decisions promulgated by the supreme court, leads us to the conclusion this language is not intended to create a new standard by which to review teacher termination cases.� Rather, the Kizer Court was merely providing its evaluation of the evidence found in the record in that case.

Furthermore, �[a]lthough the Hall case references the �undeniably and abundantly present� language in Kizer, a reading of the entire Hall opinion makes clear that the court is not declaring a new standard of review but is applying the substantial evidence test.�� Barrett v. Charleston County Sch. Dist., 348 S.C. 426, 432, 559 S.E.2d 365, 368 (Ct. App. 2001).

Consequently, we limit our review of the record to determine whether the decision of the Board is supported by substantial evidence.� Felder, 327 S.C. at 25, 489 S.E.2d at 193; see McWhirter v. Cherokee County Sch. Dist. No. 1, 274 S.C. 66, 68, 261 S.E.2d 157, 158 (1979) (�[I]f any of the charges against a teacher are supported by substantial evidence, the school board�s decision to dismiss must be sustained.�); Barrett, 348 S.C. at 432, 559 S.E.2d at 368 (holding the reviewing court cannot substitute its own judgment for that of the Board).� ��Substantial evidence� is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the . . . [Board] reached or must have reached in order to justify its action.�� Laws, 270 S.C. at 496-97, 243 S.E.2d at 193.

LAW/ANALYSIS

I.������ Evidence of Prior Incidents

Canty argues the circuit court erred by affirming the decision of the Board because the Board improperly admitted evidence of her prior bad acts in contravention of South Carolina Rules of Evidence, Rule 404(b).

An issue cannot be raised for the first time on appeal.� Rather, an issue must be raised to and ruled on by the trial court to be preserved for appellate review.� Schofield v. Richland County Sch. Dist., 316 S.C. 78, 82, 447 S.E.2d 189, 191 (1994); Cogdill v. Watson, 289 S.C. 531, 537, 347 S.E.2d 126, 130 (Ct. App. 1986) (�The failure to make an objection at the time evidence is offered constitutes a waiver of the right to object.�); Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (�It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.�).����� �

Throughout the hearing, the District presented testimony regarding numerous incidents of Canty�s insubordination to and unprofessional conduct toward her superiors, colleagues, and students.� Canty did not object to any of the testimony.� Therefore, this issue is not preserved for appellate review.�

II.����� Termination Pursuant to Section 59-25-430

Canty argues sufficient evidence does not exist within the record to support her termination pursuant to either section 59-25-430 or -440.� We conclude substantial evidence exists to support her termination pursuant to section 59-25-430.� Therefore, we need not address whether Canty�s termination was proper pursuant to section 59-25-440.

Section 59-25-430 provides in pertinent part �[a]ny teacher may be dismissed at any time who shall . . . manifest an evident unfitness for teaching . . . .�

Student A testified he left his seat, and in response, Canty lost her temper and struck her fist on an overhead projector, breaking the glass.� Additionally, he testified she stated, ��[i]f you ever get out of your seat again, I�m going to choke you by your neck and throw you out of the classroom . . . You better be lucky that this overhead wasn�t your��� head . . .� I�ll recommend . . . [for you] to stay back in my class.���

Following the class, Student A told another student (�Student B�) what happened in Canty�s classroom.� Student B then told Randall Gary, an assistant principal.� Gary found Student A and questioned him.� Gary testified Student A told him Canty broke the overhead projector and threatened him with physical violence.�

Gary testified he questioned eight other students who were in Canty�s classroom when the incident occurred.� The students told Gary Canty�s behavior scared them.�

The following day, Dan Cobb, the head of the department of human resources for the District, and Gary met with Canty to discuss the events of the previous day.� Cobb testified Canty admitted she broke the overhead projector with her fist.� Furthermore, while discussing the incident on the phone with an unknown person, Cobb testified Canty said, �[y]ou know, I don�t believe this.� I can see if [Student A�s] neck was broken like it should have been.� [1] � (emphasis added).

Viewing the evidence in light of our standard of review, substantial evidence exists to support a finding Canty physically threatened a student, without justification, both through her conduct and statements. [2] � Because physical threats contravene the purpose and function of a learning environment, this evidence is also sufficient to support a finding Canty is unfit to teach. [3] � See Laws, 270 S.C. at 496, 423 S.E.2d at 193 (holding substantial evidence a teacher conducted unwise use of disciplinary action is sufficient to non-renew a teaching contract); Hendrickson v. Spartanburg County Sch. Dist. No. 5, 307 S.C. 108, 111, 413 S.E.2d 871, 873 (Ct. App. 1992) (holding evidence of physical violence toward a student is sufficient to demonstrate unfitness to teach pursuant to section 59-25-430).

III.��� Due Process

Canty argues she did not receive sufficient notice of her termination proceeding pursuant to sections 59-25-430 and -440, and thus, the Board has violated her procedural due process rights.� We conclude Canty received proper notice pursuant to section 59-25-430.� Therefore, we do not address Canty�s notice pursuant to section 59-25-440.

Section 59-25-430 states a teacher can be terminated at any time, �provided . . . that notice and an opportunity shall be afforded for a hearing prior to any dismissal.�� (emphasis in original); see Kizer, 287 S.C. at 550, 340 S.E.2d at 147 (�To remove from the school one whose conduct manifests an evident unfitness for teaching, all that is required is �prior notice and opportunity for hearing.��) (quoting section 59-25-430).�

On April 2, 2001, Hefner notified Canty he was recommending the Board terminate her employment pursuant to section 59-25-430 based on her threatening a student with physical violence and breaking an overhead projector. [4] � Furthermore, the record indicates Canty received notice of the hearing, attended the hearing, and presented evidence in her defense.� Canty has thus received the procedural due process required by section 59-25-430.� See Kizer, 287 S.C. at 550, 340 S.E.2d at 147 (�To remove from the school one whose conduct manifests an evident unfitness for teaching, all that is required is �prior notice and opportunity for hearing.��) (quoting section 59-25-430).�

IV.��� Equal Protection

Canty argues the circuit court erred by affirming the decision of the Board because another teacher in the District demonstrated violent conduct toward a student and was not terminated.� Thus, Canty contends her termination is a violation of the equal protection clauses of both the United States and South Carolina constitutions.� We disagree.

The Equal Protection Clause provides that� �[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.��� U.S. Const. amend.� XIV, � 1.� Furthermore, the South Carolina Constitution, provides, �[no person] shall . . . be denied the equal protection of the laws.�� S.C. Const. art. I, � 3.

�The sine qua non of an equal protection claim is a showing that similarly situated persons received disparate treatment.�� Grant v. South Carolina Coastal Council, 319 S.C. 348, 354, 461 S.E.2d 388, 391 (1995).�� Thus, the initial burden of proving disparate treatment is on the moving party.� Id.�

The evidence in the record indicates a teacher in the District (�Teacher A�) slapped a student in the face.� The incident occurred when Teacher A attempted to �break up a disruptive crowd� and the student grabbed her.� The only testimony in the record indicates the slap was the result of an accidental �reflex� of the teacher from being grabbed.� Teacher A was not terminated.�

Canty has failed to establish a claim for an equal protection violation because she has failed to prove the Board treated a similarly-situated person in a disparate manner.� Rather, at most, Canty has established she was terminated for violent conduct, when Teacher A, acting under different circumstances, was not terminated for violent conduct.� Without more, this evidence is insufficient to support a claim for an equal protection violation.�

CONCLUSION

Based on the foregoing the order of the circuit court, affirming the decision of the Board, is

AFFIRMED.

HOWARD, J., and BEATTY and JEFFERSON, Acting Judges, concur.