AIKEN -- School board members and the teacher they fired for not reporting her students' sexual escapade in a timely manner are headed back to court.
Attorney Jay Bender said Friday he will ask Circuit Judge Robert Smoak to grant another hearing before ruling on a motion to dismiss his client's complaint against the Aiken County Board of Education.
Tina Durham was a 17-year marketing teacher at Midland Valley High School when she was fired by Principal Warren Whitson.
He accused her of being too slow in reporting a sexual incident between two students during a field trip to Charleston.
School board members upheld the termination after a public hearing last June, and Mrs. Durham appealed in Aiken County Court of Common Pleas.
The request for another hearing comes after letters between Mr. Bender and Judge Smoak revealed a misunderstanding about a December order that directed the school board to take more testimony.
Judge Smoak expressed surprise that Mr. Bender in his letter would write that he believed the judge "ordered the taking of testimony by Tina Durham, particularly since I did not recall having ordered such a procedure."
Instead, the judge said he left the procedure up to the school board to work out. In his letter, Mr. Bender said the board's behavior demonstrated its "unwillingness to follow the law or your order."
On Jan. 14, the board met in executive session and gave sworn testimony, under questioning by its attorney, William Burkhalter, as to how the board reached the decision to fire Mrs. Durham.
Mr. Bender had complained that Superintendent Linda Eldridge faxed information to board members after the June 3 hearing and that they improperly used the information without giving Mrs. Durham a chance to respond. The faxes included letters in support and against Mrs. Durham.
Neither Mr. Bender nor Mrs. Durham was present Jan. 14 when the sworn testimony was taken.
Letters filed with court documents indicate Mr. Burkhalter contacted Mr. Bender about submitting questions to the board members. However, Mr. Bender has said he should have the right to cross-examine board members.
Attorney Kenneth Childs, who represents the school board, has asked Judge Smoak to rule on the motion to dismiss without a further hearing. In a Jan. 30 letter, he wrote that Judge Smoak now has the additional testimony and "a clear basis" on which to rule.
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