Heightened Pretermination Due Process for Principal Incompetency Allegations; Post-Termination Cure Requires Back Pay Until the Board’s On-Record Decision

1. Introduction

In R. Brett Stirling v. North Slope Borough School District (Alaska Mar. 14, 2025), the Alaska Supreme Court reviewed the termination of a rural school principal after he used district equipment after hours to produce novelty drink coasters that modified the District’s official logo and included profane, disparaging text. Photos circulated widely on social media alongside commentary describing the coaster as disrespectful to Alaska Native peoples. Stirling left the village the next day and repeatedly expressed that he could not effectively return as principal if the community viewed him as racist.

The District dismissed Stirling for (1) “incompetence” and (2) “substantial noncompliance” with laws/policies (including anti-harassment rules). The School Board upheld the termination after a full post-termination evidentiary hearing. The superior court affirmed. On further appeal, the Alaska Supreme Court addressed three central issues:

  1. Whether the Board had a reasonable basis, supported by substantial evidence, to find “incompetency” under AS 14.20.170(a)(1).
  2. Whether the termination violated teacher speech protections under AS 14.20.095 and/or the First Amendment.
  3. Whether the District provided the minimum pretermination due process required by AS 14.20.180(a) and constitutional law—and, if not, what remedy applies when a later post-termination hearing cures the deficiency.

2. Summary of the Opinion

The Court affirmed Stirling’s termination on incompetency grounds, holding the Board had a reasonable basis to conclude he was unable to perform his customary duties satisfactorily after the incident and resulting loss of trust. The Court also held that AS 14.20.095’s protection for teacher “comment and criticism” outside school hours is coextensive with First Amendment doctrine, and that even assuming the coaster was protected citizen speech on a matter of public concern, the District’s interests in avoiding disruption and maintaining public trust outweighed Stirling’s speech interests.

However, the Court reversed in part on procedure: Stirling’s pretermination hearing failed to satisfy due process because he was not meaningfully afforded the ability to present a defense through “testimonial and other evidence,” including the ability to call witnesses—protections the Court deemed required given the seriousness of incompetency allegations. Because a later post-termination hearing cured the defect, the termination stood, but Stirling was entitled to back pay from termination until the Board’s on-record decision at the conclusion of the post-termination hearing. The case was remanded to calculate that back pay.

3. Analysis

A. Precedents Cited

1) Administrative review standards and deference

  • Titus v. State, Dep't of Admin., Div. of Motor Vehicles and Alaska Exch. Carriers Ass'n v. Regul. Comm'n of Alaska: The Court reaffirmed that when the superior court sits as an intermediate appellate court, the Supreme Court independently reviews the agency’s final decision. This framing ensured the School Board’s decision—rather than the superior court’s reasoning—was the primary object of review.
  • Grimmett v. Univ. of Alaska and Handley v. State, Dep't of Revenue: These cases supplied the “substantial evidence” definition—evidence a reasonable mind might accept as adequate—while emphasizing appellate restraint in choosing among competing inferences.
  • Marathon Oil Co. v. State, Dep't of Nat. Res. and Matanuska-Susitna Borough v. Hammond: The Court relied on these to set the boundary between “reasonable basis” (deferential) statutory interpretation where agency expertise/fundamental policy is implicated and “independent judgment” where expertise is less probative. Because “incompetency” depends heavily on educational leadership expectations and community trust, the Board’s interpretation/application received deference.
  • Greene v. Tinker: The Court cited this for de novo review of constitutional questions, anchoring its independent analysis of speech and due process.
  • Davis Wright Tremaine LLP v. State, Dep't of Admin.: Reinforced that “reasonable basis” deference applies when agency interpretation implicates fundamental policy within its statutory function—supporting deference to how a school board operationalizes “incompetency.”

2) Incompetency and “loss of trust” as inability to perform

  • Kilmer v. Dillingham City Sch. Dist.: This was the key Alaska analog. The Court used it to validate a theory of incompetency grounded not only in technical skill deficits but in the practical inability to do the job because the relationship of trust necessary to perform leadership functions has collapsed. Stirling’s own statements that he could not return effectively, coupled with evidence of community outrage and safety concerns, fit the Kilmer model.

3) Teacher speech: statutory protection and First Amendment doctrine

  • Watts v. Seward School Board (and its later history Watts v. Seward Sch. Bd.): The Court treated AS 14.20.095 as historically responsive to the original Watts approach that permitted discipline where criticism tended to bring the profession into public disgrace. It then used later doctrinal development (notably Pickering) and its own subsequent Watts decision to support the conclusion that the statute does not create broader protection than the First Amendment.
  • Pickering v. Bd. of Educ.: Provided the foundational balancing principle for public employee speech: even citizen speech on matters of public concern can be limited when the employer’s operational interests outweigh the employee’s speech interest. The Alaska Court effectively treated Pickering as the doctrinal point at which AS 14.20.095 and constitutional protections align.
  • Garcetti v. Ceballos and Kennedy v. Bremerton Sch. Dist.: Supplied the two-step structure: (i) whether the employee spoke as a citizen on a matter of public concern rather than pursuant to official duties; and (ii) if so, whether the employer’s interests outweigh the speech interest. The Court assumed arguendo the first prong and decided the case on the second prong.
  • Bd. of Cnty. Comm'rs v. Umbehr: Cited for the need for “fact-sensitive and deferential weighing” and that sufficiently strong governmental interests can justify restriction—supporting the Court’s emphasis on leadership roles and community trust in schools.
  • Riley's Am. Heritage Farms v. Elsasser: The Court drew from the Ninth Circuit’s education-context considerations: disruption of normal operations and erosion of public trust as relevant harms in the balancing analysis.
  • Lane v. Franks and Connick v. Myers: Used to articulate the government employer’s interests in efficiency, integrity, and discipline—interests the Court found especially weighty where a principal’s perceived disrespect toward students/community can impair the school’s mission.
  • Shatting v. Dillingham City Sch. Dist.: Referenced to show Alaska’s general commitment to First Amendment limits on adverse employment actions against teachers, while implicitly confirming that the protection is not absolute and is assessed through constitutional standards.

4) Procedural due process in termination and the back-pay remedy

  • City of N. Pole v. Zabek: The Court relied on Zabek for two critical points: (i) due process attaches to termination of a public employee with a property interest in continued employment; and (ii) incompetency charges are “sufficiently serious” to warrant “heightened procedural protection” associated with calling witnesses (drawing on Nichols).
  • Grimmett v. Univ. of Alaska (again) and Storrs v. Mun. of Anchorage: These framed the minimum pretermination requirements: notice, explanation of evidence, opportunity to respond, and (per Storrs) the ability to present a defense by “testimonial and other evidence.”
  • Nichols v. Eckert: Reinforced the principle that, in certain serious contexts, due process protection includes witness-related rights.
  • Nash v. Matanuska-Susitna Borough: Used to hold that due process is not satisfied where parties do not know whether they may call witnesses until the hearing begins; advance clarity is required when witness presentation is part of meaningful process.
  • N. Slope Borough v. Barraza: Controlled the remedy: an unlawful pretermination dismissal can be cured by an adequate post-termination hearing, but back pay is owed up to the time of the post-termination hearing decision.

B. Legal Reasoning

1) Incompetency under AS 14.20.170(a)(1): inability to perform customary duties

The Court treated “incompetency” as defined by statute: “the inability or the unintentional or intentional failure to perform the [principal’s] customary duties in a satisfactory manner.” The key move was conceptual: incompetency need not be limited to deficient educational management skills; it can include circumstances—of the employee’s making or otherwise—that render the employee unable to lead effectively.

Substantial evidence supported the Board’s finding that Stirling could not perform satisfactorily after the incident:

  • District leadership and witnesses testified that the coaster was perceived as racist/offensive and that trust was undermined.
  • Evidence showed broad social media circulation, supporting an inference of widespread reputational damage in a small community ecosystem.
  • A Point Lay resident testified that returning could be unsafe due to community sentiment and social media posts threatening harm.
  • Most importantly, Stirling repeatedly indicated he could not return effectively—initially to HR and again at the pretermination hearing—conceding Point Lay was “not an option” and proposing resignation later.

On this record, the Court concluded that the Board had at least a “reasonable basis” to treat the “loss of trust” and Stirling’s own expressed inability to return as satisfying the statutory “inability” prong. Having affirmed on incompetency, the Court declined to decide whether “substantial noncompliance” under AS 14.20.170(a)(3) independently supported termination.

2) Speech protections: AS 14.20.095 tracks the First Amendment; balancing favors the District

The Court made two doctrinal holdings.

(a) Coextensiveness of AS 14.20.095 and the First Amendment.
Although AS 14.20.095 states that a district may not “restrict or modify” a teacher’s right to comment and criticize outside school hours, the Court concluded this statutory protection does not exceed First Amendment protection. The Court grounded that conclusion in statutory history (enacted after the early Watts litigation) and the subsequent federal constitutional evolution under Pickering, along with Alaska’s later reliance on constitutional analysis in teacher speech cases.

(b) Even assuming protected speech, the employer’s interests prevail.
The Court assumed without deciding that the coaster constituted citizen speech on a matter of public concern. It nonetheless held that the District’s interests outweighed Stirling’s because:

  • The speech was “especially disruptive” in a school setting, particularly given the principal’s leadership role and the community’s reaction.
  • Schools’ governmental interests include maintaining public trust, meeting student needs, and ensuring effective operation—interests recognized in public employee speech doctrine.
  • Evidence supported that trust eroded and operations were jeopardized by Stirling’s inability to return and lead.

The Court therefore held the termination did not violate AS 14.20.095 or the First Amendment.

3) Due process: witness opportunity required here; post-termination cure triggers back pay

The Court accepted that Stirling, as a for-cause public employee, had a protected property interest. AS 14.20.180(a) expressly requires a pretermination hearing meeting minimum due process, including evidence explanation and an opportunity to respond.

The District did provide notice and a chance for Stirling to speak. But the Court held it did not meaningfully allow Stirling to present a defense with “testimonial and other evidence,” because:

  • Given the seriousness of incompetency allegations (and the additional harassment/discrimination framing), due process in this setting required the ability to call and examine witnesses at the pretermination stage.
  • The District never told Stirling—before or during the hearing—that he could call witnesses; the Court rejected the idea that an employee must intuit this right.
  • Due process is not satisfied where it is unclear whether witnesses will be permitted until the hearing begins; here it was never clarified at all.

Because both parties agreed the post-termination Board hearing was adequate, the due process defect was “cured.” The remedy therefore followed N. Slope Borough v. Barraza: Stirling was entitled to back pay from February 3 (termination) until April 25 (the Board’s on-record decision at the conclusion of the post-termination hearing).

C. Impact

1) Employment-law impact: “incompetency” as functional inability in leadership roles

This decision strengthens the practical, trust-centered application of “incompetency” under AS 14.20.170(a)(1), particularly for principals. The Court affirmed that inability can be situational and reputational—if a principal cannot credibly lead or safely return to the community, the statutory definition may be met even absent evidence of classroom or managerial incompetence in the traditional sense. Expect districts to rely on this framework where conduct outside core instructional duties undermines the employee’s functional capacity to serve.

2) Speech-law impact: AS 14.20.095 does not create a broader “teacher speech” safe harbor

By holding AS 14.20.095 coextensive with the First Amendment, the Court reduces the likelihood that Alaska teachers/principals can successfully argue for uniquely expansive statutory protection beyond federal constitutional doctrine. Future litigation is more likely to turn on (i) whether the employee spoke as a citizen and (ii) the Pickering-style balancing—especially disruption and public trust in school communities.

3) Due process impact: clearer requirements for pretermination hearings and monetary exposure

The due process holding is operationally significant: when incompetency (and similarly serious allegations) are at issue, districts should ensure pretermination procedures explicitly allow the employee to present evidence and, where required, to call witnesses. The case also underscores a concrete financial consequence even when termination is ultimately upheld: if the pretermination process is constitutionally deficient but cured later, the employer may still owe back pay until the post-termination decision.

4. Complex Concepts Simplified

  • “Substantial evidence”: not the most persuasive evidence, just enough that a reasonable person could agree with the Board’s conclusion.
  • “Reasonable basis” deference: when an agency applies a statute in an area tied to its expertise (here, school leadership and policy), courts often uphold the agency if its interpretation is reasonable, even if another interpretation is possible.
  • Public employee speech balancing: even if an employee speaks as a private citizen about public issues, the government as employer can discipline if the speech significantly disrupts operations, damages trust, or undermines the agency’s mission.
  • Pretermination vs. post-termination hearings: the pretermination hearing is a minimal, early safeguard against mistaken dismissal; the post-termination hearing is the fuller evidentiary proceeding. A defective pretermination process can be “cured” by a proper post-termination hearing, but the employee can still receive back pay for the period of unlawful deprivation.
  • “Incompetency” here: not merely lack of skill; it can mean being unable to do the job satisfactorily—e.g., because trust necessary for effective leadership is lost and the employee cannot return or function.

5. Conclusion

The Alaska Supreme Court’s decision delivers two key takeaways. First, it confirms that a principal may be terminated for “incompetency” when the employee’s own conduct—amplified by community reaction—renders the employee unable to perform customary duties satisfactorily, with “loss of trust” and functional inability serving as legally sufficient grounds. Second, it clarifies that districts must provide meaningful pretermination process for serious charges like incompetency, including an actual, clearly communicated opportunity to present testimonial evidence (and, in this context, to call witnesses). Even when a later Board hearing validates the termination and cures procedural defects, employers remain exposed to back pay until the post-termination decision is made on the record.