on March 31, 1981, in Hearing Room No. 2, Oakland Building, Tallahassee, Florida. The issue for determination at the hearing was whether respondent should be suspended for one day without pay for the reasons set forth in the "Notice of Charges" dated January 7, 1981.
For Respondent: Pamela L. Cooper, Staff Counsel
On January 7, 1981, the petitioner filed "Notice of Charges" against the respondent, Richard Stephens, alleging that respondent used excessive force on a male student while breaking up a fight between two students. It was charged that such excessive use of force was contrary to professional standards and constituted misconduct in office, incompetency and gross insubordination as defined by Section 231.36(6), Florida Statutes. It was recommended by the Superintendent that the Leon County school Board suspend respondent Stephens for one day without pay.
In support of the charges, the petitioner presented the testimony of eleven witnesses from Nims Middle School--the Principal, the Assistant Principal for Administration, five teachers and two custodians who observed a portion of the altercation, and the two students involved in the altercation. Petitioner's Exhibit 1 was received into evidence. The respondent Stephens testified on his own behalf.
Subsequent to the hearing, counsel for the petitioner and the respondent filed proposed findings of fact, proposed conclusions of law and a proposed recommendation. To the extent that the parties' proposed findings of fact are not incorporated in this Recommended Order, they are rejected as being either irrelevant or immaterial to the issues for determination, not supported by competent, substantial evidence adduced at the hearing, or as constituting conclusions of law as opposed to findings of fact.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Respondent Richard Stephens is a tenured instructional employee of the Leon County School Board, and has been a science teacher at Nims Middle School for seven years.
On October 31, 1980, an incident occurred on the Nims Middle School premises during the lunch hour. A female student, Loretta Brown, called a male student, Johnny Bryant, an offensive name inside the school cafeteria. As she was standing on the outside of the double doors near the back entrance to the cafeteria, Johnny Bryant jumped out of his seat at the lunch table, ran outside and either jumped on Miss Brown's back or pushed her. Miss Brown flipped Bryant over, he landed on the cement sidewalk, got up and they began to fight.
As respondent Stephens was leaving the cafeteria with his students, he noticed that a male student (Bryant) had jumped up from his chair and run out the door. As respondent walked out the door, he saw a male and a female student fighting. Student Bryant had student Brown pinned up against a railing, was holding her by the collar with his left hand and was violently swinging at her with his fisted right hand. The students were hitting each other about the face and the stomach.
When the respondent initially encountered the two fighting students, he told them to stop fighting. They continued to fight. Being unable to verbally stop the altercation or to get between the students, and feeling that serious damage to the students could result, respondent reached under student Bryant's left arm and around his chest and tried to grasp Bryant's swinging right hand. Respondent was attempting to pull the students apart, but Bryant continued to hold on to Brown's collar. When respondent grabbed Bryant, Bryant gave no indication of control and respondent felt that Bryant needed further restraint.
Respondent was eventually able to get Bryant's right arm down by his side. Bryant twice attempted to elbow respondent in the groin area. In order to avoid this attack, respondent turned his body. When he did so, it appeared that Bryant would get away from him. Respondent then lost his balance, and having made the decision to fall to the ground rather than to let Bryant go, both respondent and Bryant fell to the concrete walkway. When this occurred, respondent put Bryant's arm behind his back and squatted over Bryant's back with his knees on the ground. While on the ground, Bryant continued to kick his feet, move his head up and down and yell. Respondent told him on several occasions that he would allow Bryant to get up when Bryant calmed down. When two other teachers, Richard White and Gerald Chandler, came to the scene, Bryant was still struggling with respondent on the ground. Mr. White helped respondent and Bryant up and White and respondent continued to hold on to Bryant's arms. When Mr. Humphries, the Assistant Principal for Administration, came, Bryant was not calmed down and was continuing to try to get away. Mr. Humphries shook
Bryant by the arm and told him to stop. At that time, Bryant did calm down and the students were taken to Mr. Humphries' office.
Throughout the incident, respondent was of the opinion that if he let Bryant go, Bryant would have injured him or someone else. The two fighting students testified that they would have continued fighting if respondent had not stopped them. Bryant admitted that while he was on the ground with respondent, he was still mad, was yelling and that after respondent let him get up, he was still attempting to get free. Another teacher who witnessed a part of the incident stated that Bryant was not in control and that it was difficult to determine what Bryant would do if he were released.
Other witnesses who observed portions of the incident testified that respondent had Bryant under control, was holding his arm in a "hammerlock" or "chicken wing" position and that Bryant was complaining that respondent was hurting his arm. When Assistant Principal Humphries investigated the incident, Bryant complained of bumping his knee, but made no remark concerning his arm.
During the preplanning period prior to the 1980-81 school year, teachers at Nims Middle School were not given specific instructions or guidelines as to how to break up a fight between two or more students. Subsequent to the October 31, 1980, incident described herein, teachers were instructed that in cases of student fightings, they may use whatever force is necessary to break up the fight and that they have a right to defend themselves and protect other students. Generally, the amount of force to be used will be a judgment call on the part of the teacher dependent upon the specific situation.
On November 30, 1979, a letter written by Devurn H. Glenn, the former Principal of Nims Middle School, concerning respondent's actions when stopping a fight between two students on November 8, 1979, was placed in respondent's personnel file. This letter states that
". . . while you were carrying out your duty in stopping the fight, the amount of force used by you was in excess of the minimum necessary to bring the fight to a conclusion.
In light of the above finding, I instruct you to use more restraint in dealing with similar situations in the future."
CONCLUSIONS OF LAW
Respondent has been charged with using excessive force on a male student while breaking up a fight between two students. It is alleged that such conduct is contrary to professional standards and constitutes misconduct in office, incompetence and gross insubordination as defined in Section 231.36(6), Florida Statutes.
The crucial issue in this case is whether excessive force was used by the respondent when he intervened in a physical confrontation between two middle school students. The evidence is undisputed that the respondent faced a volatile, aggressive situation wherein both students were angry and were using fists to strike each other. Both students admitted that they would have continued to fight absent respondent's intervention. Even after respondent's intervention, student Bryant continued to struggle and be aggressive and abusive both to student Brown and to the respondent. The evidence indicates that
student Bryant did not regain his composure until he was confronted by Assistant Principal Humphries who had to shake his arm even after Bryant was in a standing position and had been released from respondent's control. Under the circumstances of this incident, the undersigned concludes that respondent did not exceed the bounds of a reasonable and prudent person in exerting the amount of force against Bryant as shown by the facts of this case. Indeed, it appears from the evidence that the fight between the students could not have been stopped without such force.
Section 232.27, Florida Statues, requires a teacher to "keep good order" in places in which he is assigned to be in charge of pupils. This statute necessarily implies the power of a teacher
"to use reasonable physical force (not amounting to corporal punishment) to
do so. Without such reasonably implied power, the requirement to 'keep good order' would be meaningless." Williams v. Cotton, 346 So.2d 1039 (Fla. 1st DCA, 1977)
The facts in the instant case lead to the conclusion that respondent Stephens acted properly and reasonably in breaking up the altercation between students Bryant and Brown.
Having concluded that respondent is not guilty of using excessive force under the circumstances shown by the evidence, it cannot be found that respondent is guilty of misconduct in office, incompetency or gross insubordination, all of which constitute grounds for disciplinary action pursuant to Section 231.36(6) Florida Statutes. The basis for such charges are defined in Rule 6B-4.09, Florida Administrative Code. The charge of "misconduct in office" requires a demonstration of a violation of the Code of Ethics of the Education Profession so serious as to impair the teacher's effectiveness. Rule 6B-4.09(3), Florida Administrative Code. Neither a violation of the ethics code nor an impairment of respondent's effectiveness as a teacher was demonstrated in this case. Indeed, the Code of Ethics requires an educator to make a reasonable effort to "protect the student from conditions harmful . . . to health and safety." Rule 6B-1.02(2)(c), Florida Administrative Code. The facts in this case illustrate that had respondent not acted in the manner as shown,there was a strong likelihood that one or both of the two fighting students would have been injured. "Incompetency" is defined as an inability or lack of fitness to discharge required duties as a result of inefficiency or incapacity. Rule 6B- 4.09(1), Florida Administrative Code. The petitioner has failed to adduce any evidence to demonstrate inefficiency or incapacity as further defined in Rule
6B-4.09(1)(a) or (b), Florida Administrative Code. The offense of "gross insubordination" is defined in terms of a "willful neglect of duty" or a constant or continuing intentional refusal to obey a reasonable direct order. Having concluded that respondent acted in a proper and reasonable manner in disengaging the fighting students, it cannot be found that he was insubordinate or in neglect of his duties.
The remaining charge of acting contrary to professional standards is not substantiated by the evidence. Not only did the teachers at Nims Middle School fail to receive specific guidelines relating to a teacher's rights and responsibilities in instances of student fighting prior to the October 31, 1980, incident, but the instructions given teachers after said incident comport with the actions taken by the respondent in the instant situation.
