Wendy Portillo's Lawyer Responds

by Kristina Chew

Published March 10, 2009 @ 01:02AM PT

David Walker, the attorney for Wendy Portillo---the Florida teacher who had her kindergarten students vote out fellow student Alex Barton in May of last year---has filed closing arguments. You can find the PDF file to read here, and documents for St. Lucie County School Board vs. Wendy Portillo can all be accessed here. Portillo's attorney argues the May 21, 2008, incident is not grounds for her being suspended for one year and losing her contract status, and that that her "effectiveness" as a teacher was not impaired by her "alleged misconduct."

Portillo's lawyer argues that she should be able to return to "employment with back pay from the date of suspension without pay." It is noted that, while Superintendent Michael Lannon has said that she "was not qualified to teach the children she had been teaching at Morningside Elementary School," there was "no testimony" stating that she "was and could not teach in the St. Lucie County School System." According to her lawyer, the claim that Portillo's "alleged misconduct was so serious" as to "impair her effectiveness in the school system" was not proven.

Portillo's lawyer also seeks to downplay Portillo's having the students "vote out" Alex by arguing that, in the case against her, too much emphasis was placed on a separate communication from a parent after the May 21st incident, and on the publicity ("alleged notoriety") of the incident. Certainly there was a great deal of attention in the national media about Alex's expulsion from Portillo's class, with many (myself included) puzzling over a teacher, and a teacher of kindergarteners, having her students "vote out" one of their fellow students----a measure that seemed modeled more after the TV show "Survivor" than any kind of pedagogical best practices.

Further, Portllio's lawyer argues that his client's "alleged misconduct" does not "[speak] for itself as it relates to the serious loss of effectiveness"----that Portillo's actions in her classroom were not, to any observer relying on common sense, simply inappropriate. Petillo's lawyer cites two cases (Purvis vs. Marion County School Board and Walker vs. Highlands County School Board) as examples in which there was an "alleged loss of serious effectiveness" on the part of a teacher. The case detailed (that of Walker) is so different from the case of Portillo that it does not contribute to the case being made for her not having "impaired effectiveness" in the classroom.

In the case of Walker, an "outrageous" and "joking" remark regarding "cigarattes, drugs, among other things" is cited:

The class in which the remarks were made consisted of twenty six students all of whom went out of control. Two or [sic] students left the class to report a theft. Two others were [sic] out of the class searching for stolen property. One student was intoxicated so that it would require two adult staff members to carry him from the classroom. Two other students were attempting to hide contraband in the dark room. One student hid a look a like drug in a trash can and another student testified that everyone in the class was going to the bathroom. Further no lesson was presented that day.

The type of conduct referred to in Walker is clearly distinguishable from the incident of May 21, 2008. The incident of May 21, 2008 was albeit questionable, orderly, there was no riot, none of the students were injured, the Respondent did not lose control of the classroom and the matter was handled appropriately including an apology by the Respondent to CAB's mother [regarding this last point, please see statements from cbs12.com].

To compare the Walker case to what happened in Portillo's classroom in May is to compare the proverbial apples and oranges. The students in Portillo's classroom were kindergarteners and, while no students were physically "injured," the exclusion of one student---based on his student peers "voting" on him remaining in the class or not---may well have emotional and other consequences not only on Alex, the student "voted out," but on the other students who were asked to engage in such a "questionable" activity, in an educational setting.

What is meant by "effectiveness in the school system" is not clearly articulated in the statement from Portillo's lawyer. If "effectiveness" refers to how well Portillo performed her job as a teacher, one should wonder about what exactly Portillo was teaching her class of kindergarteners that day in May of 2008 when she had them "vote out" one of their fellow students, Alex Barton: To cast out those who do not "fit in" and without further examination of why this is the case?

Something was certainly taught at Morningside Elementary School on May 21, 2008. The question is, is this the kind of lesson---about how we interact with those who are different, about how those who are the authorities model justice and compassion---- to be teaching our children today?

Photo by Thomas Roche.