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Doe v. Cedar Rapids Community School District9/5/2002
1229, 1232 (N.H. 1999). Based upon the facts before us, we conclude the School's judgment concerning this teacher did not involve the permissible exercise of policy judgment.
The School cites a number of cases purporting to support its contention that a school district's decision to hire, retain, and supervise a teacher is immune from judicial process. However, none of these cited cases articulates any policy reasons behind the schools' actions that our legislature intended to insulate from liability. In Gordan v. Ottumwa Community School District, the federal district court for the southern district of Iowa predicted that this court would conclude employment decisions relating to hiring, supervision, and retention of employees are protected by the discretionary function immunity. Gordan v. Ottumwa Cmty. Sch. Dist., 115 F. Supp. 2d 1077 (S.D. Iowa 2000). However, noticeably absent from this case is any discussion of specific policy considerations involved in such decisions. Rather, the court simply found "hiring, retention, training and supervision of public employees involves discretionary, policy-related decisions for which a public entity is immune from liability." Gordan, 115 F. Supp. 2d at 1087. Both the court in Gordan and the School have cited a number of other cases that merely assert policy considerations were involved without articulating the substance of such policies. See, e.g., Davis v. DeKalb County. Sch. Dist., 996 F. Supp. 1478, 1484 (N.D. Ga. 1998); Does 1, 2, 3 & 4 v. Covington County Sch. Bd., 969 F. Supp. 1264, 1285-87 (M.D. Ala. 1997); Willoughby v. Lehrbass, 388 N.W.2d 688, 700 (Mich. Ct. App. 1986); Doe v. Park Ctr. High Sch., 592 N.W.2d 131, 135-36 (Minn. Ct. App. 1999) (applying operational/planning dichotomy, the court discussed policies relating to investigation of allegations of misconduct).
The School has not shown any social, political, or economic factors existed at the heart of its decisions concerning this teacher. The choice to hire, retain, and supervise a particular teacher does not involve policy decisions entitled to protection from judicial review. See, e.g., Willis v. Dade County Sch. Bd., 411 So. 2d 245 (Fla. Dist. Ct. App. 1982) (applying the planning/operational dichotomy rejected by us in Goodman, court concluded filling a position of employment in the school district is not a discretionary function for which a school district is immune from suit in tort for negligent retention and hiring); Doe v. Estes, 926 F. Supp. 979, 989 (D. Nev. 1996) (applying the planning/operational dichotomy, court found discretionary immunity doctrine did not bar claims against school for negligent retention and supervision of teacher). The administrative act of hiring, retaining, and supervising an individual teacher does not involve the careful balancing of competing interests, risks, and advantages. It is merely a choice made by a school district to offer or not offer a position of employment within the district to a particular individual.
It is possible, with minimal effort, to articulate some notion of policy considerations involved in any decision. Although a school administration may very well make policy decisions concerning teachers and their conduct, a decision concerning an individual teacher with these policies as a backdrop does not catapult those decisions into the zone of immunity of the discretionary function. Decisions about individual teachers that may have policy implications do not elevate such decisions to the level of economic, political, or social policy- making. Only decisions grounded in economic, political, or social policy considerations are exempt from liability. City of Cedar Falls, 617 N.W.2d at 19. The choices inherent in hiring, r
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