State law bans district from firing her if she has no previous misconduct

By Emily Richmond

A high school physical education teacher’s controversial comments to her students that reportedly disputed historical details of the Holocaust might not trigger her firing because state law requires one reprieve for professional misconduct.

Lori Sublette, who teaches physical education at Northwest Career and Technical Academy, is under investigation by the district for allegedly telling students that the Nazis lacked the technological capability to kill millions of Jews during World War II.

State law allows teachers to be terminated outright only for a handful of the most serious offenses, including felony convictions for sex and drug related crimes and moral turpitude.

When it comes to the broader category of “unprofessional conduct” — such as straying from the required curriculum, as Sublette appears to have done — the district has less leeway.

A Nevada statute from 1967 prevents a teacher from being fired for unprofessional conduct unless there is a prior admonition in teacher’s file for a similar offense.

“Everyone gets one bite at the apple,” says Bill Hoffman, senior counsel for the Clark County School District. “The law is very protective of teachers. They must be given a chance to correct their behavior.”

Sublette could not be reached for comment.

Keith Rheault, Nevada’s superintendent of public instruction, says “it is incredibly difficult to fire a teacher outright for almost anything less than a felony.”

Such policies that make firing difficult are standard in other states, Rheault says.

Additionally in Nevada, if a teacher satisfactorily corrects his misconduct, the formal admonition will be removed from the permanent employment file after three years.

Rheault said he understands the reasoning for the three-year window, noting that people can sometimes have their criminal records expunged of minor drug-related offenses provided they complete treatment and stay out of trouble.

However, when it comes to matters of professional misconduct, Rheault says he’s less willing to be generous.

“In my view if you’ve done it, you’ve done it,” Rheault says. “It should stay in the file.”

The district negotiated with the teachers union to tweak the three-year provision, requiring that an employee make a formal request to have the admonition removed, Hoffman said. And even if the admonition is expunged, the original employee evaluation that detailed the problem remains in the permanent file, Hoffman says.

District officials wouldn’t say whether Sublette, who has taught physical education in Clark County since 2001, has any admonitions in her file. Regulations put in place by the Clark County School Board make all personnel files, including discipline records, confidential. However, Hoffman says, the law is also clear that a teacher’s job is to teach the curriculum set by state standards, and lesson plans are reviewed by school administration.

“As a general rule, a teacher’s freedom of speech is pretty limited,” Hoffman says.

Situations such as the one involving Sublette are unusual in the district, Hoffman says, adding “most teachers understand their role.”

Sublette, who has a bachelor’s degree in kinesiology from the University of Washington and a master’s degree from Grand Canyon University, allegedly made her comments about the Holocaust during a mentoring class, which are weekly sessions taught by all of the school’s faculty to help students with life skills they’ll need after graduation.

On Dec. 17, the district reassigned Sublette from the classroom to her home, where she is allowed to work on assignments. She will continue to receive her full salary and benefits pending the outcome of the district’s investigation.

The district has more than 18,000 licensed employees. In 2008-09, 93 were dismissed by the district for various reasons. Since August, the district has dismissed another nine teachers.

Democrat Assemblyman Richard “Tick” Segerblom, an attorney who specializes in employee rights cases and has represented a number of School District employees, says it’s only fair to give people a chance to fix their mistakes.

“Nobody is perfect,” Segerblom says. “Termination should be used only for the most serious offenses or a pattern of behavior after an employee shows that it can’t be corrected.”

Ruben Murillo, president of the Clark County Education Association, says there are occasional requests from members for support after being notified by their administrators that they have strayed from curriculum guidelines.

“We strongly recommend to teachers, especially when talking with students about subjects outside of your content area, to watch what you say,” Murillo says. “Keep the discussions focused on the lesson at hand.”

The topic of the Holocaust — the Nazis’ World War II-era systemic extermination of an estimated 6 million Jews as well as millions of other so-called “undesirables” — isn’t automatically controversial, Murillo says.

“It’s historical fact, and students should learn about it in the appropriate academic settings,” Murillo says. “But how it relates to a conversation in gym class baffles me.”

He agrees with the district’s response to Sublette’s comments and the campuswide fallout, including to bringing in Holocaust educators to talk about the issue with students at the school. Some of those opportunities have been pared down districtwide because of reductions in state funding, which included money for Holocaust education programs.

“Whenever it’s appropriate, and with the approval of the district, we encourage teachers to make use of community resources to support instruction,” Murillo says. “It’s unfortunate this type of situation had to happen for those kinds of opportunities to take place at Northwest CTA.”

Sublette’s comments likely don’t pass the free speech litmus test, said Allen Lichtenstein, attorney for the American Civil Liberties Union of Nevada. Her remarks “had really nothing to do with the class, the curriculum or any area of the teacher’s expertise,” Lichtenstein says.

As an individual in a public forum, “she certainly has a right to her opinion and to voice her opinions,” Lichtenstein says. “But if one thing is clear, it’s that the school and the school district have the right to control the curriculum.”

In 2005 the Nevada ACLU vigorously defended UNLV economics professor Hans-Hermann Hoppe, who allegedly made offensive comments about gays. During a lecture, Hoppe told his class that homosexuals were less likely to save money than heterosexuals because they do not have children, and live riskier lifestyles. After a student complained to university administration, Hoppe received a written reprimand, but it was removed at the behest of then-chancellor Jim Rogers (who later paid for a conference on academic freedom at the Boyd School of Law).

Hoppe’s situation differs from Sublette’s in several key areas, Lichtenstein says.

The limits on a teacher’s speech at the K-12 level are far greater than a university professor addressing an older audience. Additionally, Hoppe’s comments stemmed from his own area of expertise and independent research that, while controversial, were made within the context of the day’s lesson.

“It might not have been a sentiment that everyone agrees with, but it was clearly an academic exercise,” Lichtenstein says. “In the other teacher’s (Sublette’s) case, those were inappropriate comments she should have had the good sense not to have made.”