The Prince William County high school teacher was fighting to hang on to his job and career. David Perino already had been cleared in criminal court of sexually abusing a student, a 20-year-old woman with Down syndrome. Now he had to convince another jury: eight School Board members.
Perino's defense attorney was stuck in traffic, but the board's chairman ordered the closed hearing to begin without her. The superintendent's attorney, seated at a table to Perino's left, launched into the case against him, while a stenographer dutifully transcribed the proceedings. The student who made the allegation was not asked to testify.
The verdict came swiftly: A week later, the School Board fired Perino, 40, and asked the state to revoke his teaching license, not only because of the allegation of sexual abuse but also because of the discovery of pornography on his school computer. For the veteran teacher, it was a jarring lesson: You can be acquitted by the legal system, but school boards operate in another realm of justice -- one that is rarely witnessed by the public and in which the rules are different.
In the criminal justice system, jurors can acquit a person accused of a crime when there is reasonable doubt, whereas school board members in grievance hearings can terminate a teacher on the same allegation based on "substantial evidence." At trial, defense attorneys can subpoena crucial witnesses for cross-examination, but they have no such power in an administrative hearing.
A polygraph administered to Perino that police said showed deception was inadmissible in court, but it was considered by the board. And the criminal trial judge did not admit the pornography evidence, saying it was impossible to determine who downloaded the images.
Among educators, one camp believes that any evidence, not just that admissible in court, should be considered by school boards in an abundance of caution to protect children. But others say that school board members, who serve as judge and jury, appear to have a conflict of interest: Their employee -- the superintendent -- is the one bringing the charges.
"It smacks of unfairness," said Michael Simpson, an assistant general counsel with the National Education Association. "School board members don't come into the hearing with a clean and open mind. Their bias is to support the superintendent. School boards hire superintendents, and they tend to want to support the guy they brought in."
Prince William School Board Chairman Lucy S. Beauchamp (At Large) said that Virginia's process is "absolutely fair" and that superintendents get scrutinized as much as the employee does during a hearing. "We do hire a superintendent, but we also fire superintendents, and we have to evaluate superintendents," she said.
Critics of Virginia's system point to other states that have teachers' unions and collective bargaining agreements, which typically require independent arbitrators to settle disputes. Virginia does not have teachers' unions. Unlike elected school board members, arbitrators have nothing to lose if they make an unpopular decision, said Lisa Soronen, a staff attorney for the National School Boards Association.
In Maryland, a teacher can appeal a school board's decision to an administrative law judge, who hears evidence from both sides, then makes a recommendation to the State Board of Education, whose members have the ultimate say. In the District, when school system hearing officers terminate a teacher, the teacher can appeal to independent arbitration officers from the American Association of Arbitration, said Nathan A. Saunders, general vice president of the Washington Teachers Union.
Perino's 16 years of instructing students with disabilities came to an abrupt halt Dec. 12, 2003, at C.D. Hylton High School in Woodbridge. About 11 a.m., the student came into his empty classroom to chat. On that point, both sides agree.
The student says she was seeking Perino's advice about her parents' separation when he tried to sodomize her. Perino says that the student was infatuated with him and that when she entered the room, the two talked about photographs on his wall before he told her to return to her regular classroom.
Without any forensic evidence or witnesses to the alleged incident, prosecutors put Perino on trial in May 2004, but the case ended in a hung jury. In November, jurors deliberated for 15 minutes and acquitted him on charges of attempted forcible sodomy and aggravated sexual battery, sparing him from up to 30 years in prison.
Despite the acquittal, the victim did not withdraw her allegations.
Five days after the verdict, Perino received a letter from then-Superintendent Edward L. Kelly. It said that Perino "violated" the law and school policies -- pornography had been found on his school computer -- and that Kelly was asking the School Board to dismiss him. The pornography was part of Kelly's decision, although Perino had denied downloading it and insisted that others had access to his computer and classroom.
Responding to Kelly's letter, Perino initiated the school system's grievance process, which typically is closed to the public. First, he went before a three-member fact-finding panel that hears evidence and makes a recommendation to the School Board. Then he participated in the School Board's grievance hearing, which determines the outcome.
According to a transcript obtained by The Washington Post, Perino said he was taken aback by some rules in the hearing. For instance, Beauchamp cut short Perino's opening statement because he kept breaking a rule that no "evidence or argument" regarding the criminal cases could be heard.
"I've endured two trials where the only student to take the stand against me was the alleged victim," Perino said before he was stopped.
"Mr. Perino, that is the end of your opening statement. Thank you very much," Beauchamp interjected. "You were warned on four occasions. Let's move to the evidence, please."
Perino, according to the transcript, also said in his opening statement: "It is very difficult for me to sit here and describe the impact and damage that this alleged victim has done to me and my family. I've wondered every day why she would have made up these vicious lies about me. Only she and God know the answer to that question,"
School Board members did not ask the alleged victim to testify, relying instead on her cross-examination provided in the transcript from the first criminal trial. The board's attorney, Mary McGowan, said court rulings have determined that employees do not have an absolute constitutional right to confront their accuser in an administrative hearing. But critics say withholding the accuser does not allow school board members to truly assess the accuser's demeanor or credibility.
"I have some serious concerns about the due-process rights of this teacher. There needs to be direct evidence when you're dealing with precise reasons for a dismissal," said Leslie Stellman, an attorney for school systems in Maryland and co-author of the book "Teachers and the Law."
Perino also was surprised that so much evidence barred from his criminal trial could be admitted into his grievance hearing. Polygraph results generally are inadmissible in court because there is no consensus on their reliability.
School Board members, in a 6 to 2 vote, fired Perino, according to court papers filed as part of lawsuits he has since filed against the school system. The evidence they cited included the interview with police afterward, a video of the student leaving his classroom looking "anguished" and the pornography. As part of one of his lawsuits, Perino wants a new School Board hearing on his license.
Citing privacy laws, Beauchamp declined to comment on the case. The student could not be reached to comment; her mother would not speak to a reporter asking for comment.
Perino has since moved to southwestern Pennsylvania to be near his family. On a recent afternoon, Perino said that he has brooded with resentment over the School Board's hearing and that he is trying to concentrate on the future. He said he has other worries: Doctors removed a cancerous thyroid from his wife, who has a genetic disorder that needs constant monitoring. In addition, his daughter Nicole, 10, was found this year to have the same disorder.
Sitting at his dining room table, Perino pulls out a newspaper story that he saved. It's about a Roanoke teacher who jumped off a bridge about two years ago and killed himself after a student falsely accused him of assaulting him.
"I look at the guy," Perino said, squinting out the window at nothing in particular, "and I bet you he was a good teacher and tried hard to help his kids."