Legal A U W A ~ ~ ,

ILLINOIS STATE BOARD OF EDUCATION

IN THE MATTER OF THE CHARGES PREFERRED AGAINST )

I
BENNIE CANNON

by

REPORT AND RECOMMENDATION OF HEARING OFFICER

ROBERT M. LIVINGSTONE

APPEARANCES
D. CORRINE LEAK JENNIFER K. POLTROCK
ASSISTANT ATTORNEY WITWER, POLTROCK & GIAMPIETRO
BOARD OF EDUCATION OF 125 S. WACKER DRIVE
THE CITY OF CHICAGO SUITE 2 7 0 0
1819 WEST PERSHING ROAD, 5E(n) CHICAGO, IL 6 0 6 0 6
CHICAGO, IL 6 0 6 0 9
HISTORY OF THE CASE

The c h a r g e s i n t h i s c a s e grew o u t o f a n i n c i d e n t b e t w e e n

B e n n i e Cannon a n d Rashaun S m i t h , t e a c h e r a n d s t u d e n t r e s p e c t i v e l y

o f Lane T e c h n i c a l High S c h o o l , i n t h e gymnasium o f Lane T e c h n i c a l

High S c h o o l i n C h i c a g o . After the a l t e r n a t e s t r i k i n g process

from t h e l i s t o f f i v e p o t e n t i a l h e a r i n g o f f i c e r s

s u p p l i e d by t h e S t a t e -Board o f E d u c a t i o n , by l e t t e r d a t e d

F e b r u a r y 21, 1996 a n d r e c e i v e d F e b r u a r y 2 3 , 1996 t h i s H e a r i n g

O f f i c e r (H.O.) was n o t i f i e d o f h i s s e l e c t i o n a n d m a i l e d h i s

a c c e p t a n c e t h e same d a t e .

By a g r e e m e n t o f t h e p a r t i e s a n d t h e H.O. t h e h e a r i n g was

h e l d i n C h i c a g o o n t h e d a t e s o f A p r i l 22, 23 a n d 29, 1996.

N o o b j e c t i o n s o r m o t i o n s w e r e made r e g a r d i n g s e r v i c e o f t h e

D i s m i s s a l Charges and S p e c i f i c a t i o n s ; therefore, t h i s H.O. finds

t h a t they w e r e timely served. Both c o u n s e l c h o s e t o s u b m i t

b r i e f s r a t h e r t h a n make c l o s i n g s t a t e m e n t s ; J u n e 1 7 was

d e s i g n a t e d a s t h e d a t e by which b r i e f s m u s t b e m a i l e d . Both

b r i e f s were r e c e i v e d by J u n e 21, a n d t h e h e a r i n g was d e c l a r e d

c l o s e d by l e t t e r d a t e d a n d m a i l e d J u n e 2 2 , 1996.

THE CHARGES

By memorandum d a t e d J a n u a r y 1 6 , 1 9 9 6 , P a u l G . V a l l a s , Chief

E x e c u t i v e O f f i c e r of t h e Chicago P u b l i c S c h o o l s , s u b m i t t e d

the following charges.

1. I c h a r g e B e n n i e Cannon w i t h c o n d u c t unbecoming

a Chicago P u b l i c School t e a c h e r ; and

 2. Excessive use of corporal punishment.
SPECIFICATIONS

1. On or about January 9, 1996, you attacked a student,

R.S., with a hockey stick causing welts, bruises,

and lacerations to his body.

2. On or about January 9, 1996, you were arrested and
charged with battery for the attack of a student,

R.S., while -that student was present in gym class.

The above conduct is deemed irremediable.

STANDARD OF PROOF

The standard for this Report and Recommendation is proof

by a preponderance of the evidence. Board of Education -

of -
St.
Charles -
v. Adelman, (2nd Dist. 1981), 97 Ill. App. 3d 530,

53 Ill. Dec. 62, appeal denied, 85 Ill. 2d 563. This standard

has been cited in numerous later cases. A useful definition

of preponderance is stated in Board of Education of the City

of Chicaqo -
- v. -
Eli Johnson et al., 211 Ill. App. 3d 359 (1st
Dist. 1991), 520 N.E. 2d 382, 155 Ill. Dec. 860. Taking a
definition from Black's Law Dictionary, the Court explained
preponderance of evidence as "[elvidence which is of greater
weight or more convincing than the evidence which is offered
in opposition to it.***"

FINDINGS OF FACT

On January 9, 1996 Mr. Bennie Cannon, a teacher in his

 -3-
twenty-eighth year with the Chicago Public Schools, was

supervising his physical education class of 35 to 40 students

in the gymnasium at Lane Technical High School during the last

class period of the day. The gym can be divided into three

basketball courts, and Mr. Cannon's class was involved in a

basketball tournament using two of the courts while the varsity
and frosh-soph basketball teams were using one court at the

other end of the gym. Mr. Cannon placed cones on the floor
to separate his class from the space allotted to the basketball

teams.
The basketball teams were unsupervised. All witnesses

who testified about this matter agreed that none of the coaches
or assistant coaches were in the gym prior to or at the time

of the occurrence at issue here. Problems arose when basketballs

being used by the teams went past the cones placed on the floor

by Mr. Cannon and into the part of the gym where the physical
education class was playing a basketball tournament. Mr. Cannon

warned the team players to keep their basketballs under control

and out of the space used by the gym class. Due to the varying

testimony of the witneses the exact number of warnings by Mr.

Cannon cannot be definitively stated, but the number of warnings

was more than one. During this time some of the basketball
team players were swearing at Mr. CAnnon. Marvin Gray, who
described himself as a friend of Rashaun Smith's, admitted

that some players were cursing Mr. Cannon including use of the
 -4-
F--- word. (IT 87, 89) The basketballs continued to go across

the dividing cones into Mr. Cannon's gym class and the basketball
team players had go into the gym class activity or else Mr.

Cannon had to retrieve the ball for them, thus disrupting the
gym class. I find that Carlos Ruiz, one of the basketball

players, gave the most detailed and objective testimony

concerning this item, and I find his testimony on this matter

to be accurate. He estimated that the gym class had to stop

what they were doing because of the basketballs crossing over
into their activity as, "It was maybe about seven or eight
times." (IT 108)

In addition to the two basketball players whose testimony

has already been examined, Derrick Washington and Rashaun Smith,

who was hit by Mr. Cannon with a hockey stick, testified for
the proponent. Derrick Washington's testimony was not
particularly useful because he asserted he did not see or hear

certain key elements. I will examine Rashaun smith's testimony

a little later.
The situation between Mr. Cannon's gym class and the

basketball team accelerated until Mr. Cannon left the gym to

get the help of security personnel. At the Discipline Office
he spoke with Tammy Swanson at the security desk. Although

Mr. Cannon testified that Ms. Swanson left the security desk
and went with him to the gym, (2T 32) I find that not to be

true. In addition to the basketball players who testified,

Ms. Swanson, Officer Avalos, and security men Vel Torlo and
 -5-
J o h n Bouer t e s t i f i e d t h a t C h i c a g o P o l i c e O f f i c e r A v a l o s who

was a s s i g n e d t o Lane Tech i s t h e o n e who w e n t t o t h e gym.

Ms. Swanson t e s t i f i e d t h a t h e r i n s t r u c t i o n s were t o n o t l e a v e

the s e c u r i t y d e s k and t h a t s h e d i d n o t d o s o b u t i n s t e a d c a l l e d

t o O f f i c e r A v a l o s who t h e n l e f t t o g o t o t h e gym. ( I T 42-45)

O f f i c e r Avalos t e s t i f i e d t h a t M s . Swanson c o u l d n o t l e a v e h e r

d e s k a n d i t w a s s h e , O f f i c e r A v a l o s who w a s i n u n i f o r m , who

went t o t h e gym. (3T 6 ) She a l s o t e s t i f i e d t h a t M s . Swanson

was w e a r i n g a r e d s w e a t e r which makes a m i s t a k e n i d e n t i f i c a t i o n

unlikely. (3T 1 4 ) Mr. T o r l o t e s t i f i e d t h a t h e was c a l l e d t o

t h e gym v i a r a d i o by O f f i c e r A v a l o s a n d f o u n d h e r i n t h e gym

and M s . Swanson w a s n o t i n t h e gym. (2T 86, 87) J o h n Bouer

a l s o t e s t i f i e d t h a t h e went t o t h e gym i n r e s p o n s e t o O f f i c e r

Avalos' r a d i o c a l l who was i n t h e gym when h e a r r i v e d , a n d

Ms. Swanson was n o t t h e r e . I f i n d no m o t i v e o r a d v a n t a g e f o r

these four security o f f i c e r s t o lie. T h e i r testimony is accepted

a s accurate, and I f i n d t h a t Ms. Swanson d i d n o t walk t o t h e

gym w i t h M r . Cannon a s h e t e s t i f i e d , but that instead Officer

A v a l o s f o l l o w e d him t o t h e gym. It i s a l o g i c a l inference t h a t

Mr. Cannon w a n t e d t o n e g a t e t h e damaging t e s t i m o n y o f O f f i c e r

A v a l o s , a n d t h i s a t t e m p t damaged h i s c r e d i b i l i t y .

Next w e t u r n t o what h a p p e n e d i n t h e gym a f t e r M r . Cannon

summoned s e c u r i t y ; t h e e v e n t s which f o l l o w e d a r e t h e f o c u s o f

t h i s hearing. A s Rashaun S m i t h t e l l s i t , M r . Cannon r e t u r n e d

from t h e D i s c i p l i n e O f f i c e w i t h a C h i c a g o p o l i c e o f f i c e r a n d

went t o t h e c u b b y , ( a compartment where equipment i s s t o r e d )

g o t a h o c k e y s t i c k , waved t h e h o c k e y s t i c k a n d s a i d h e w a s g o i n g
 -6-

h u r t someone i f t h e y d i d n o t s t a y o n t h e i r s i d e o f t h e gym.

Then a b a l l bounced o f f t h e r i m a n d Rashaun w e n t a c r o s s t h e

cone l i n e t o r e t r i e v e i t . H e s t a t e d t h a t a s h e was w a l k i n g

b a c k t o w a r d h i s own s i d e o f t h e gym, M r . Cannon s t a r t e d h i t t i n g

him w i t h t h e hockey s t i c k . Rashaun s a i d t h a t h e t h e n t h r e w

t h e b a l l h e had r e t r i e v e d a t M r . Cannon. Rashaun t h e n damaged

h i s c r e d i b i l i t y when h e a d m i t t e d t h a t h e h a d d e n i e d t h r o w i n g

the ball a t Mr. Cannon w h i l e t e s t i f y i n g a t M r . Cannon's t r i a l

for battery. ( I T 16-19) D u r i n g h i s t e s t i m o n y Rashaun removed

h i s s h i r t t o d i s p l a y t h e marks from t h e h o c k e y s t i c k . I placed

i n t h e r e c o r d my o b s e r v a t i o n o f t h e marks a s a s c a r two a n d

one-half t o t h r e e i n c h e s l o n g o n t h e r i g h t u p p e r arm a n d two

s c a r s o n h i s l e f t s i d e , o n e a b o u t two i n c h e s l o n g a n d t h e o t h e r

s l i g h t l y over t h r e e i n c h e s long. ( I T 20, 2 1 )

Mr. Cannon r e l a t e d a d i f f e r e n t v e r s i o n o f t h e i n c i d e n t .

He stated that Ms. Swanson came t o t h e gym w i t h him from t h e

D i s c i p l i n e O f f i c e b u t was u n a b l e t o c o n t r o l t h e b a s k e t b a l l

players. H e t h e n g o t t h e hockey s t i c k from t h e c u b b y , walked

b a c k t o t h e gym c l a s s s i d e o f gym, s a i d n o t h i n g t o t h e b a s k e t b a l l

p l a y e r s and watched h i s c l a s s . H e t h e n o b s e r v e d Rashaun coming

a t him i n "an a b u s i v e manner" and t h r o w i n g a b a s k e t b a l l a t him.

H e s t a t e d t h a t h e swung t h e hockey s t i c k a t Rashaun t w o t i m e s

a s Rashaun k e p t a d v a n c i n g a t him, amd t h a t h e f e l t h e was b e i n g

a t t a c k e d by t h e s t u d e n t a n d was a c t i n g i n s e l f d e f e n s e . ( 2 T 33-

38)

Having two d i f f e r e n t v e r s i o n s o f what h a p p e n e d by t h e two

 -7-

participants, b o t h w i t h damaged c r e d i b i l i t y , I t u r n what I f i n d

t o b e a n o b j e c t i v e s o u r c e , O f f i c e r Avalos. A s previously

related, she followed M r . Cannon a f t e r h e went t o t h e

D i s c i p l i n a r y O f f i c e f o r h e l p w i t h t h e s i t u a t i o n i n t h e gym.

O f f i c e r A v a l o s was t h u s t h e f i r s t a d u l t i n t h e gym o t h e r t h a n

Mr. Cannon. When s h e e n t e r e d t h e gym, s h e o b s e r v e d a number

o f b a s k e t b a l l p l a y e r s e x c h a n g i n g words w i t h M r . Cannon. She

e x p l a i n e d t h e number a s b e i n g , "It h a d t o b e a t l e a s t a d o z e n

o f t h e m , " a n d t h e b o y s were " v e r y l o u d " . ( 3 T 8,9) O f f i c e r Avalos

t h e n worked a t c a l m i n g t h e b o y s . S h e t h e n saw M r . Cannon g o

t o t h e cubby a n d come b a c k t o t h e m i d d l e o f t h e gym w i t h a h o c k e y

s t i c k , and although h e w a s s a y i n g something, s h e c o u l d n o t d e t e c t

what h e was s a y i n g , b u t s h e d i d d e s c r i b e him a s " v e r y u p s e t " .

(3T 10, 1 1 ) O f f i c e r A v a l o s was t a l k i n g t o M a r v i n G r a y w i t h

h e r back t o M r . Cannon when h e r e t u r n e d t o t h e m i d d l e o f t h e

gym w i t h t h e hockey s t i c k , a n d d i d n o t see t h e b e g i n n i n g o f

t h e a l t e r c a t i o n between Rashaun Smith and M r . Cannon. She t u r n e d

when M a r v i n G r a y c a l l e d o u t , "Hey, hey;, what are you d o i n g ? "

S h e t h e n s a w Mr.Cannon s w i n g t h e h o c k e y s t i c k a t R a s h a u n twice.

S h e d o e s n o t know what h a p p e n e d w h i l e s h e h a d h e r b a c k t o M r .

Cannon a n d d i d n o t see w h e t h e r h e swung t h e h o c k e y s t i c k a t

Rashaun b e f o r e s h e t u r n e d a r o u n d . A f t e r w a r d s h e saw on R a s h a u n

w h a t s h e d e s c r i b e d as l a c e r a t i o n s on t h e u p p e r l e f t arm, l e f t

s i d e r i b c a g e , a n d down h i s b a c k . (3T 11-13) ( S c a r s Rashaun

d i s p l h y e d f o r t h e H.O. support a l a c e r a t i o n of t h e upper r i g h t

arm i n s t e a d o f t h e l e f t a r m . )
 -8-

At this point Security Officers Vel Torlo and John Bouer

had answered Officer Avalos' call to come to the gym, and Avalos

proceeded with Rashaun Smith to the Discipline Office to examine

his lacerations. Mr. Torlo testified that the basketball coach

came into the gym, filed the players in a line and escorted
them out of the gym. As the players left the gym he heard Mr.

Cannon say, "...something to the effect to one of the ball

players, like, if I can't get you, my family will get you."
(2T 8 9 ) . Later in his testimony he identified the student to
whom the remark was directed as Marvin Gray. (2T 9 4 ) Mr. Torlo

also testified about Rashaun's injuries, but was not precise

about the location or the injuries. (2T 9 0 )

Turning now to the testimony of the other Security Officer

who responded to Officer Avalos radio call for help, John Bouer
arrived in the gym after Vel Torlo arrived. Mr. Bouer, like

Mr. Torlo cannot give any account of what started the altercation
between Mr. Cannon and Rashaun Smith. However, he did give

an account of Mr. Cannon's remark to Marvin Gray. Mr. Bouer

testified that as the basketball players were filing out of

the gym that, "Mr. Cannon pointed a stick at one of the players
and commented that if he didn't get them that someone in his

family would get them." Further questioning brought the response

from Mr. Bouer that the remark was addressed to Marvin Gray.

(2T 1 0 4 , 105) Mr. Bouer was in a good position to hear Mr.

Cannon's remark to Marvin since he testified that he was about

three feet from Mr. Cannon at the time of the remark. (2T 1 1 6 )
 -9-

T h i s H.O. f i n d s t h e testimony o f O f f i c e r Avalos and s e c u r i t y

g u a r d s T o r l o a n d Bouer t o b e t h e most a c c u r a t e d e s c r i p t i o n o f

t h e key i n c i d e n t o f t h i s c a s e . Observing a l l witnesses c l o s e l y ,

I f o u n d t h e b a s k e t b a l l p l a y e r s a n i m a t e d by a d e s i r e t o d o n o

harm t o R a s h a u n S m i t h a n d l e t a l l harm f a l l on M r . Cannon.

Mr. Cannon damaged h i s c r e d i b i l i t y by i n s i s t i n g t h a t i t was

Ms. Swanson r a t h e r t h a n O f f i c e r A v a l o s who came t o t h e gym when

he requested help. Rashaun S m i t h damaged h i s c r e d i b i l i t y when

h e was n o t t r u t h f u l a t t h e b a t t e r y t r i a l a b o u t t h r o w i n g t h e

ball a t Mr. Cannon. I d i d n o t d e t e c t a n y animus a g a i n s t e i t h e r

Rashaun S m i t h o r M r . Cannon by t h e p o l i c e o f f i c e r o r t h e s e c u r i t y

guards; nor d i d I d e t e c t any d e s i r e t o shade testimony t o h e l p

anyone. T h i s l e a v e s t h i s H.O. without d e f i n i t i v e evidence about

what h a p p e n e d i m m e d i a t e l y p r e c e d i n g M r . Cannon h i t t i n g Rashaun

w i t h t h e hockey s t i c k . However, t h e r e a r e p r e c e d i n g e v e n t s

which h a v e now b e e n o u t l i n e d which w i l l b e h e l p f u l t h a t I w i l l

r e c o u n t a n d u s e i n t h e CONCLUSION p a r t o f t h i s r e p o r t .

P u r s u a n t t o Ch. 1 2 2 , 534-85 o f The S c h o o l Code t h i s H.O.

now e n t e r s t h e t e a c h e r ' s e v a l u a t i o n s w r i t t e n p u r s u a n t t o A r t i c l e

24A. They w i l l b e c o n s i d e r e d a n d g i v e n w e i g h t i n t h e CONCLUSION

p a r t of t h i s r e p o r t . On a s c a l e g o i n g f r o m b e s t t o worst r a t i n g ,

the possible ratings are superior, excellent, satisfactory,

and u n s a t i s f a c t o r y . R e s p o n d e n t ' s E x h i b i t 1 f o r t h e 1986-87

school year has a r a t i n g of e x c e l l e n t . J o i n t E x h i b i t 3 shows

r a t i n g s f r o m 1990-91 t h r o u g h 1994-95 o f s u p e r i o r f o r e a c h y e a r .

-1 0-
 -1 0-

R a t i n g s f o r o t h e r y e a r s were o n m i c r o f i c h e and t h e p a r t i e s

were n o t a b l e t o s e c u r e p r i n t e d c o p i e s from t h e m i c r o f i c h e .
However, M r . Cannon t e s t i f i e d w i t h o u t c h a l l e n g e o r c o n t r a d i c t i o n

t h a t a l l h i s r a t i n g s had been e i t h e r s u p e r i o r o r e x c e l l e n t ,

g o i n g back a n o t h e r f i v e o r t e n y e a r s b e f o r e t h e l a s t f i v e y e a r s .

(2T 18) S i n c e t h i s was n o t c h a l l e n g e d o r i n q u i r e d i n t o by t h e

proponent of t h e c a s e , I a c c e p t it a s a f a c t .

F o u r o t h e r e x h i b i t s were a l s o r e c e i v e d i n t o e v i d e n c e .

J o i n t E x h i b i t 1 i s a copy o f t h e s t a t e m e n t o f c h a r g e s a n d

s p e c i f i c a t i o n s approved by t h e Chief E x e c u t i v e O f f i c e r o f t h e

Chicago P u b l i c Schools. J o i n t E x h i b i t 2 i s a c e r t i f i e d copy

o f t h e C o n v i c t i o n and D i s p o s i t i o n o f t h e b a t t e r y c h a r g e a g a i n s t

Mr. Cannon a s a c o n s e q u e n c e o f h i s a l t e r c a t i o n w i t h Rashaun

Smith. I t shows a p l e a o f n o t g u i l t y , a f i n d i n g o f g u i l t y on

04-04-96 and t h e d i s p o s i t i o n i s s i x months s u p e r v i s i o n . Board

E x h i b i t s 1 and 2 a r e p h o t o g r a p h s showing w e l t s o n t h e arm and

body o f Rashaun S m i t h a f t e r t h e a l t e r c a t i o n w i t h M r . Cannon.

Also, f i v e w i t n e s s e s who h o l d p o s i t i o n s w i t h t h e C h i c a g o

P u b l i c S c h o o l s r a n g i n g from Dean o f S t u d e n t s a t K e l l y High S c h o o l

t o d r i v e r e d u c a t i o n i n s t r u c t o r s and p h y s i c a l e d u c a t i o n

i n s t r u c t o r s t e s t i f i e d on M r . Cannon's b e h a l f . A l l had known

Mr. Cannon f o r a number o f y e a r s a n d were f a m i l i a r w i t h h i s

c h a r a c t e r and t e a c h i n g c o n d u c t . A l l gave a f a v o r a b l e r e p o r t

of M r . C a n n o n ' s c h a r a c t e r , c o n d u c t a s a t e a c h e r , a n d demeanor

on t h e job. However, n o n e o f them were p r e s e n t a t n o r c o u l d

they t e s t i f y t o t h e circumstances of t h e incident a t issue.

 -11-

CONCLUSIONS AND RECOMMENDATION

The relevant part of the statutory language to apply to

this case comes from 105 ILCS 5/34-85, The School Code of

Illinois, Ch,122 §34-85. The relevant language follows.

NO written warning shall be required for conduct
on the part of a teacher or principal which is
cruel, immoral, negligent, or criminal or which in
any way causes psychological or physical harm or
injury to a student as that conduct is deemed to be
irremediable.
A search of legal indexes did not disclose any case law

for this part of the Code, which is not surprising since the
quoted language became effective only last year on May 30, 1995.
Neither of the post-hearing briefs submitted cites any case

law for this section of the Code either. Therefore, in reaching

a decision in this case this H.O. will use the plain language
of the cited passage with analogic help from other case law

on irremediability.
First, was striking Rashaun with a hockey stick conduct

which was "...cruel, immoral, negligent, or criminal or which

in any way causes psychological or physical harm or injury to
a student...."(?) Rashaun was a student at the time Mr. Cannon
hit him with a hockey stick; Mr. Cannon hitting him with a hockey

stick did cause physical harm as evidenced by the three scars

that were still visible more than three months after the date

of January 9, 1996 when the incident occurred; and the incident

did result in a criminal conviction for battery as evidenced

by Joint Exhibit 2. Thus, two of the possible kinds of conduct

deemed irremediable as a matter of law are demonstrated.
 - 1 2-

The question now is was that excessive use of corporal

punishment as stated in the Chief EXecutive Officer's Charges,

or was this purely self defense as argued in the Respondent's

brief? The two major participants in this altercation were

in the best position to answer this, but they both have hardened

positions to protect, both demonstrated emotional energy attached

to their positions during the hearing, and both have damaged

credibility as previously discussed. The only reliable eye

witness, Officer Avalos, was present in the gym when the

altercation occurred, but she had her back to Mr. Cannon and
Rashaun when the first blow was struck with the hockey stick

and saw only the last two blows. She did not see who the
aggressor was and how aggressive he was. However, there are
other findings of fact that help in deciding whether Mr. Cannon
was in a self defense mode. Mr. Cannon went and got the hockey
stick and positioned himself near the dividing line established
by the cones after he had acquired security personnel in the
person of Officer Avalos to handle the situation and after she
arrived in the gym to cope with the problems. In that context

getting the hockey stick and positioning himself near the

dividing line was an aggressive action by Mr. Cannon. Coupled
with that, when Officer Avalos turned and saw Mr. Cannon striking
Rashaun with the hockey stick, he was on the basketball players
side of the dividing line made by the cones. (3T 30) These
facts argue against self defense for Mr. Cannon and argue for

a desire to punish. There is further evidence that Mr. Cannon

desired to punish. As the basketball team filed out of the

gymn under the direction of their coach, two reliable witnesses,

security guards Torlo and Bouer, heard Mr. Cannon tell basketball

player Marvin Gray that, "If I can't get you, my family will
get you." These are the words of someone angry who desires

vengeance.
In summation this H.O. finds that the circumstances

preceding and following the hitting of Rashaun with a hockey

stick are sufficient to show that Mr. Cannon administered

corporal punishment, that this punishment did cause physical

injury to Rashaun, the conduct was found to be the crime of
battery, and therefore Mr. Cannon's conduct was irremediable
as a matter of law.
This H.O. also concludes that under prevailing case law
prior to May 30, 1995 when this language detailing when no
written warning is required bacame effective, the application
of the Gilliland two-prong test and its progeny would find Mr.
Cannon's conduct irremediable. The test reads:

The test in determining whether cause for dismissal

is irredediable is whether damage has been done to the
students, faculty or school, and whether the conduct
resulting in that damage could have been corrected
had the teachers superiors warned her.

Gilliland -
v. Chicaqo Board -
of Education, 61 ILL.2d 143, 365

N,E.2d 322 (1977). In a later case interpreting this test, the

appellate court for the 3rd district was confronted with the

finding of a teacher found guilty of theft from a student and

placed on court supervision. The teacher had an excellent

work record. In applying the second prong of the Gilliland

test the court held in regard to the criminal conduct,

We hold the concept was not intended to apply
to apply to criminal conduct which has no
legitimate basis in our society. Teachers
as leaders and role models, with their education
and background, have a duty to implant basic
societal values and qualities of good citizen-
ship in their students. To claim that such
conduct was remediable distorts the thrust and
purpose of the-rule. Criminal activity of this
nature is conduct which cannot be remedied by a
warning. We conclude, therefore, that the conduct
here is irremediable.

McBroom -
v. Board -
of Education, 144 Ill.App.3d 463, (1986) at
474. As in McBroom, the instant case has a finding of criminal

conduct by the teacher.

Also, the case of Board -
of Education -
of -
the City -
of Chicaqo
v. State Board -
of Education, 111.App.lst. 427 N.E. 368
(198l)involved the administration of corporal punishment by

the teacher. The court held that written notice was not required
before instituting formal charges against the teacher because
there was a board rule absolutely prohibiting such conduct.
This compares to the instant case which has statutory language
prohibiting such conduct.

In Mr. Cannon's case the harm cannot be remedied. When

Mr. Cannon used a hockey stick on a student there were fifty

to sixty students in the gym. It goes beyond reason to assume

other than that many of the students must have seen the incident

and talked about it afterward. The consequent harm to the school

cannot be erased by a written warning to the teacher.

 - 1 5-

There a r e m i t i g a t i n g c i r c u m s t a n c e s f o r M r . Cannon which

should be noticed. A l t h o u g h I d o n o t f i n d them c o m p e l l i n g enough

t o overcome t h e c o n c l u s i o n I h a v e r e a c h e d , it s h o u l d b e n o t i c e d

t h a t t h i s H.O. t o o k them i n t o c o n s i d e r a t i o n .

First, Mr. Cannon h a d a n e x c e l l e n t r e c o r d a s a t e a c h e r .

H e was n o t m e r e l y c o m p e t e n t ; h e was c o n s i s t e n t l y s u p e r i o r o r

excellent. Also, a n a d m i n i s t r a t o r and f o u r f e l l o w t e a c h e r s

who had b e e n i n p o s i t i o n s t o o b s e r v e h a d good t h i n g s t o s a y

about Mr. Cannon b o t h a s a p e r s o n a n d a s a t e a c h e r .

Second, M r . Cannon was p u t i n t o a s i t u a t i o n i n t h a t

gymnasium which p l a c e d a b u r d e n upon him t h a t s h o u l d n o t b e

p l a c e d upon a n y t e a c h e r . I t was a s i t u a t i o n f r a u g h t w i t h d a n g e r .
I n a d d i t i o n t o h i s c l a s s o f approximately f o r t y s t u d e n t s , there

were t h e f r o s h - s o p h a n d t h e v a r s i t y b a s k e t b a l l teams p r a c t i c i n g

a t one end of t h e c o u r t without supervision.

T h a t i s , none of t h e c o a c h e s o r a s s i s t a n t c o a c h e s w e r e i n t h e

gym, a n d t h e s e teams were n o t M r . Cannon's r e s p o n s i b i l i t y .

The team p l a y e r s d i d n o t r e c o g n i z e M r . Cannon's a u t h o r i t y a s

e v i d e n c e d by t h e t e s t i m o n y t h a t t h e p l a y e r s were c u r s i n g M r .

Cannon i n c l u d i n g u s e o f t h e f--- word.

T h i r d , when O f f i c e r A v a l o s e n t e r e d t h e gym a f t e r s e c u r i t y

was r e q u e s t e d by M r . Cannon, s h e found a t l e a s t a d o z e n p l e y e r s

e x c h a n g i n g words w i t h M r . Cannon a n d s h e d e s c r i b e d them a s v e r y

loud. ( S e e p. 7, t h i s r e p o r t ) The c u r s i n g and t h i s s h o u t i n g

a t Mr. Cannon by a t l e a s t a d o z e n p l a y e r s p r e s e n t s a c a s e o f

Mr. Cannon b e i n g t a u n t e d a n d t o r m e n t e d beyond h i s e n d u r a n c e .

 -1 6 -

That is when he got the hockey stick.

However, the law requires more endurance and restraint

than Mr. Cannon displayed. For the reasons already given in
the CONCLSUIONS AND RECOMMENDATION section, I conclude that

the Charges and Specifications in the January 16, 1996 APPROVAL

OF CHARGES AGAINST BENNIE CANNON are proven by a preponderance

of the evidence and that Mr. Cannon's conduct was irremediable.

This H.O. does, reluctantly, recommend to Paul G. Vallas, Chief
Executive Officer, that Mr. Cannon's services as a Chicago

Public School teacher be terminated.

Dated 7,
:)lLb~ /Y{A Robert M. ~ivingstone
L L J ' Hearing Officer for ISBE