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Advocate for Children Fights for Her Job, Rights

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ANAHEIM, CALIF--Ellen Johnsen's colleagues praise her as a pioneer and "an advocate for children,'' as her new plaque from the National Association of School Nurses phrases it.

But the Oklahoma school officials who fired Ms. Johnsen five years ago have another description. They say she was a troublemaker who disrupted the nursing staff with repeated challenges to the system's policy on dispensing medications.

The district and Ms. Johnsen are currently locked in a long-running legal battle whose outcome could have consequences for other nurses working in public schools.

At stake is a public employee's First Amendment right to speak out--even if doing so would violate the harmony of the workplace--against practices that could endanger lives.

Observations Alarmed Her

The case began in 1982, when Ms. Johnsen, who had been a school nurse for 10 years in New Jersey, took a job with the suburban-Tulsa district of Broken Arrow so that her children could attend Oral Roberts University.

She became alarmed, she said at the NASN meeting here, when she discovered that nurses in the Oklahoma district were allowed to dispense over-the-counter medications to students without a doctor's written authorization. They also routinely dispensed prescribed medications in a haphazard fashion, she said.

Children, according to Ms. Johnsen, would bring medicine that was to be administered to them by the nurses during the day "in foil paper, in tupperware containers, in used medication jars.''

She added: "Medicine such as valium, antibiotics, and other potent drugs was being brought by the children without any prescription.''

In one incident Ms. Johnsen recalled, a child brought what appeared to be a 250-milligram tablet of Thorazine, which is a powerful tranquilizer used for treating psychotic reactions. When she called the mother to verify whether the child was in fact to receive the pill, the mother discovered that the wrong medication had been inadvertently carried to school.

A Public Protest

What Ms. Johnsen viewed as the potentially disastrous consequences of the district's loose guidelines in this area led her to protest the policy internally and then at a public meeting.

She contended that the policy was illegal and that, by forcing nurses to conform to it, the district put them in an ethically untenable position.

Both the state's Nurse Practice Act and standard nursing procedure, she argued, require that a doctor's permission be given before nurses can hand out over-the-counter medication. After consulting with a lawyer and contacting the state nursing board, she appeared before a school-board meeting, telling those present that nurses were "indiscriminately'' handing out medicine to children.

For school officials, that action was the final breach of professional conduct in a campaign of divisiveness they accused Ms. Johnsen of waging against the school system. They fired her, the officials have claimed in court, because she sowed dissension among the nursing staff.

Ms. Johnsen said that her fellow nurses were intimidated by her actions because they feared the policy debate would endanger their jobs.

Free Speech or 'Efficiency'?

In 1986, a federal jury in Tulsa sided with Ms. Johnsen, sayingthat the Broken Arrow Public Schools had violated her First Amendment right to freedom of speech. Their verdict was overturned by the presiding judge, however, who ruled that Ms. Johnsen's exercise of free speech had created such discord among staff members that it was not protected by the First Amendment.

Nurses and educators are awaiting the outcome of legal arguments to be presented this fall before the U.S. Court of Appeals for the 10th Circuit in Denver.

"If I win, it means there will be a precedent to help nurses and defend them in their First Amendment right to speak out against dangerous and illegal practices,'' Ms. Johnsen said here. "If I lose, it means there will be a precedent to protect institutions when employees speak out.''

Broken Arrow school officials declined to comment on the case.

In overturning the jury verdict, U.S. District Judge Thomas R. Brett held that Ms. Johnsen's "speech disrupted the operation of the school system, undermined the authority of the administration, and significantly impaired the close working relationship among the health-services staff.''

Judge Brett cited the 1968 U.S. Supreme Court decision in Pickering v. Board of Education, which provides for a balance of "the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of public services it performs through its employees.''

After Ms. Johnsen's contract was not renewed in the spring of 1983, he pointed out, the state's attorney general issued a legal opinion stating that the Broken Arrow school policy conflicted with state law.

Several districts subsequently changed their medicine policies and the Oklahoma legislature enacted a law giving school nurses the authority to dispense nonprescription medicine with parental consent only and exempting school nurses from civil liability.

The district judge's ruling, if upheld, would have a chilling effect on the free-speech rights of all public employees, said Ms. Johnsen's lawyer, Louis Bullock.

"Our position was that anytime you raise important issues there is going to be a disruption,'' Mr. Bullock said. "I see it as the very reason speech should be protected.''--NM

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