SCHOOL BOARD OF ST. LUCIE )
vs. ) CASE NO. 83-1739
Respondent. )
This case was heard on October 4-5, 1983, by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, in Ft. Pierce, Florida.
For petitioner: Ben L. Bryan, Jr., Esquire
Ft. Pierce, Florida 33448
For Respondent: Steven A. Been, Esquire
Whether respondent, an English teacher employed by the St. Lucie County School Board, should be removed from continuing contract status and returned to annual contract for allegedly: 1) Making inappropriate remarks and engaging in inappropriate discussion during classroom instruction; 2) presenting instruction in a fragmented manner; and 3) disregarding school policies relating to instructions, evaluation, and discipline of students.
By petition dated June 1, 1983, petitioner School Board of St. Lucie County ("School Board"), through its Superintendent of Schools, sought to remove Clifford Haycock ("respondent") from his continuing contract with the School Board, and return him to annual contract. The alleged basis for this action was that he "made inappropriate remarks to students during instruction time . . . and engaged in inappropriate discussions with students during the instruction time"; that he "presented subject matter to students in a fragmented manner due to his extended lecturing on and discussion of topics unrelated to language arts"; and that he "disregarded school policies related to the instruction, evaluation, and discipline of students." (Petition for Hearing, dated June 1, 1983) Respondent denied the charges and requested a hearing.
This case was then referred to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was set for October 4-5, 1983.
At hearing, the School Board presented the testimony of Jerry Barlowe, George J. Banketas, Robert Soar, Kelvin Murray, Rodney Addison, Tawonna Davis, Michelle Lens, Anita Addison, Lynn Hollingsworth, Richard A. Morgan, Stephen Bouzianis, and Penny Roberts. Petitioner's Exhibit Nos. 1 through 17 were received into evidence.
Respondent testified on his own behalf and presented the testimony of Martin Fitzpatrick, Dan Huber, Edward Mayner, Charlie Matthews, Latina Whitfield, Sophia Gibson, Kathy Williams, Tonya Isiah, Jonathan Miller, Mike Rhew, James Manies, Robert Lewis, Kelly Weaver, James T. Wilson, Elizabeth Williams Purdue, and Mary Goodenow. Respondent's Exhibits lettered A through S were received into evidence.
The transcript of hearing was filed on October 19, 1983. The parties filed proposed findings of fact and conclusions of law by December 12, 1983.
Based on the evidence presented, the following facts are determined: FINDINGS OF FACT
I.
At all times material hereto, respondent taught English (or language arts) at Dan McCarty Middle School in Ft. Pierce, Florida.
Both parties agree that respondent has the training and ability to be a good teacher. Prior to the last two years, his performance evaluations were uniformly outstanding. Credible experts, who have observed him teaching in the classroom setting, agree that his teaching skills are above average, even exceptional. He is a gifted, dynamic, and enthusiastic-- even exuberant-- teacher whose style is rapid-fire, and intense. He challenges and engages his students, insisting that they listen, learn, and respond. Exceptionally articulate, he expresses ideas effectively. His devotion to children and the teaching profession is obvious. He is keenly interested in the subject which he teaches.
I think the key element in my classroom demeanor and behavior is my enthusiasm. I love this thing called English, and I let the kids know I love it, and my enthusiasm for it rubs off on them. I push them, I push the children, I expect work to
be done, and they respond.
I make them think. Perhaps the first time in their school years they have been given an opportunity
. . . a causation to think. Then
I cause them to speak their thoughts,
and I cause them to write their thoughts. And of course along the way we're constantly reinforcing early lessons; not only in my class, but things that they should have learned in other classes and life experiences. (TR.-339-340)
He has a special affinity for the dictionary:
Oh, love it. In my estimation the dictionary is one of the great books of the world, and in my classroom my dictionaries do not sit on a shelf for only occasional usage. I am going to use the word sin once in a while in this hearing, sinful. I think that's a sin; there's a book with so much in-
telligence and knowledge and information in it.
First day of school I put a dictionary into the hole of every desk. That is how our desks are designed. And early in the week, early in the school year, the first week, we do a dictionary exercise. It might not appear in my lesson plan, but I need to get this
in to see if they are familiar with how to use a dictionary. And there is almost never a day that goes by that at least one or two or three or
maybe all of my classes have been into the dictionary. What would trigger it? I don't know. Maybe a child would say a word in a certain way and another kid will say "What's that? How do you say
that word?" So we will grab our dictionary, we discuss pronunciation, and we have a chance to look at how the dictionary shows syllables, shows how we do our vowel sounds, the long or short, basically.
So the dictionary is a very prime book in my room, used frequently. (TR.-348-349)
II.
Alleged Inappropriate Remarks and Discussions With Students During Class
The first reason given by the School Board in support of its action against respondent is that he made inappropriate remarks to students during instruction time in his classes and engaged in inappropriate discussions with them. "Inappropriate remarks" were remarks which referred to students in a demeaning manner. Allegedly, black students were offended by his use of the
word "boy" or "girl," and his approach to racial topics was indelicate. These allegations were not substantiated by the evidence.
Numerous black students testified in respondent's behalf and, without exception, believe that he has no racial prejudice. Two black students who had once been critical of him are now convinced that he is not prejudiced. At the beginning of the 1982-1983 school year, respondent separated two students-- Edward Maynor and Kelvin Murray--when they were talking during class and not paying attention. Edward, at first, thought respondent was just "picking on black kids" and complained to his mother and the assistant principal. But as the year passed, Edward's view of respondent began to change, "because of all that . . . he went through with us, what he taught us." (TR.-199-200) Edward now is convinced that respondent is "the best English teacher that I ever had."
(TR.-194)
Kelvin Murray, another black student, had once complained of respondent's reference to black dialect when discussing the Langston Hughes poem, Mother to Son, a poem written in black dialect. Kelvin, too, began to realize that he had misjudged respondent and--as the year passed-- became convinced that he was a good teacher. "I felt that what he was doing, he was doing for our benefit . . . I started speaking better English . . . [You thought you were learning from class?] Yes." (TR.-238)
Respondent believes the black dialect is a beautiful expression of the English language, and encourages black children to be proud of it. He would say to his black students:
As a matter of fact, boys and girls, I am jealous. I am jealous of you,
I am envious of you. You have something that I don't have. You have the
ability to do this black dialect, which is a gorgeous thing, never be ashamed of it, be proud of it. It's part of your heritage, it's great. I can't
do it. The only thing I have is standard American English. You have the opportunity to stay with your dialect. Learn American standard English and you've got two things going for you. (TR.-356-357)
Both black and white students reacted to respondent's teaching with equal enthusiasm and interest. Black students were as equally involved as white students. John Townsend, a former Assistant Principal at Dan McCarty, who is black, rated respondent as exceptional or outstanding, observing that he had good rapport with his pupils and showed respect for their opinions.
Rodney Addison, a white student, recalls a discussion in respondent's class about how black people use "ain't" instead of "isn't." It has not been shown that this discussion was demeaning or denigrating to black students. No problem was created by it and black students were not offended by it.
It is also alleged that respondent used inappropriate teaching methods. The example given when he allegedly told his students that they did not love their mothers, or were liars. This allegation is untrue. Respondent, in fact, used a teaching technique to solve a student behavioral problem. The technique
worked and he gained his students' attention. He would ask his students to agree or disagree with a series of propositions he put before them. They quickly agreed with the propositions that they loved, honored, and respected their parents; that their parents wanted them to behave in the classroom; and that if they misbehaved, they were being disrespectful of their parents wishes. Then he would ask:
If we know for a fact that these are true and we are not living the
truth and practicing the truth, aren't we in fact living a lie? Aren't we
in fact living a lie when we know what to do and we agree that's the thing to do, that we're doing something contrary to what the other established facts are? We are living a lie. (TR.-376)
By the end of this dialogue, his students were thinking, and listening again.
He had regained their attention--not by threat or coercion but by engaging them-
-by encouraging them to think. It has not been shown that this technique was either educationally unsound or inappropriate for students of that age.
Respondent uses innovative teaching techniques which are effective in maintaining his students' attention and enthusiasm. For example, he believes students learn to write by practice. He requires each student to write an essay every week during the school year. He also devised a reward system which he operates throughout the year. Any student who catches him making a grammatical error receives ten cents; if the student expands the error and supplies a correction, he receives twenty-five cents.
III.
Alleged Fragmented Lectures
The second reason given for returning respondent to annual contract is that he allegedly teaches his classes in a fragmented manner. Two specific incidents are given. On January 11, 1983, his class was observed by Assistant Principal George Banketas, who allegedly found that the lesson plan was not followed.
In his prior observations of respondent's classroom, Assistant Principal Banketas had rated respondent as satisfactory or exceptional in every category. On a November 23, 1981, observation, he wrote:
Mr. Haycock has a very well organized and very well managed classroom.
Mr. Haycock has created an atmosphere conducive to teaching the basic language arts students. Overall, a job well done.
(Respondent's Exhibit H) In a December 2, 1982, observation, he wrote:
Mr. Haycock's class was very well organized and well planned.
(Respondent's Exhibit H) On January 11, 1983--at the request of his Principal-- he again observed respondent teaching class. The only criticism he had of
respondent's performance was that he spent five to ten minutes teaching items not specified in the lesson plan. The Assistant Principal subsequently made several more visits to respondent's classroom. On each visit, he noted that respondent was following his lesson plan and giving a good lesson. It has not been shown that respondent was ever unprepared for class, or that he taught material unrelated to language arts.
The other alleged incident occurred on January 12, 1983, when Ms. Penny Roberts, Chairperson of the Language Arts Department, found that respondent allegedly skipped from one subject to another, and engaged in spontaneous lecturing on a variety of subjects. This allegation is not substantiated by the evidence. Ms. Roberts saw respondent lead the class through a Langston Hughes poem. When he came to a grammatical phrase he wished to focus on, he went to the blackboard and addressed the point--then continued with the poem. It has not been shown that his teaching was educationally unsound or confusing to the students, or that on January 12, 1983, he taught material unrelated to language arts. He used a technique of constantly reinforcing lessons his students learned in prior classes. To the uninitiated, this might have appeared to be skipping from subject to subject, but it is a proven and effective teaching technique--indeed, it is a technique which teachers are encouraged to use.
IV.
Alleged Disregard of School Policies
on Instruction, Evaluation, and Discipline of Students
The third reason given for removing respondent from his annual contract is that he allegedly disregarded school policy on instruction, evaluation, and discipline of students. Several incidents are given.
First, he allegedly failed to follow the format for lesson plans and curriculum set by the Language Arts Department. This allegation was not substantiated by the evidence.
Respondent also allegedly failed to comply with the school requirements relative to the basic skills exam. The state requires that all eighth graders master certain communication skills. During the 1981-82 school year, the policy of the Language Arts Department at Dan McCarty required each teacher to decide which particular skills to teach during each of the four nine- week grading periods. Students were to be given failing grades if they did not master each skill taught during the grading period--even if they passed all of the regular course material. Respondent, mistakenly, failed to follow this grading policy. This was an honest mistake on his part, one which he freely admits and regrets. It was also an understandable one. The Department's past policy on teaching and grading the basic skills had been informal, and had changed each year. The policy for 1981-82 was not expressed in writing, and was not clearly communicated to the English teachers. Consequently--at hearing-- various witnesses gave conflicting interpretations of the policy. One English teacher James Wilson, did not know what was supposed to happen if a student failed to master the skills taught during a particular grading period. (TR.-
276) There is absolutely no evidence that respondent's failure to follow the basic skills grading policy was anything other than an honest mistake.
It is alleged that respondent made no provisions in his lesson planning to accommodate the various abilities of his students, that he used one lesson plan for all level classes. The evidence is insufficient to sustain this
charge. It has not been shown that the lesson plans which he prepared were deficient in any manner.
It is also alleged that he disregarded testing procedures for the eighth grade language arts pre-test by administering the test before it was to be given. At the beginning of the 1982-83 school year, the Language Arts Department at Dan McCarty set a date for administering a new, recently revised, language arts test. The old test--one which had been given during previous years--had been rewritten because it had been used for remediation, and students had become too familiar with it. Respondent, on the second day of school, administered the old language arts test, the one used the previous year. He used it as a teaching tool. It never occurred to him that he was violating any school requirement. Two weeks later, he gave his students the new language arts test on the same day it was administered to all other eighth grade students.
His giving of the old test--one already familiar to the students--did not affect the validity of the new test administered two weeks later. Although he was the only teacher to give the old test during the early days of school, it was not shown that he intended to violate any school requirement or that his giving of the test adversely affected any school policy.
Finally, it is alleged that respondent disregarded the school's disciplinary procedure--known as the "Win With Dignity Program." Under this program, teachers were to handle disciplinary problems arising in their classrooms and to send for an administrator only if they needed additional help. For a short time during the 1981-82 school year, respondent used a disciplinary form which he had devised for use with his students. When administrators mentioned it to him, he stopped using it. It has not been shown that respondent's individualized disciplinary form was inconsistent, in any way, with the "Win With Dignity Program." Although not specifically alleged, two School Board witnesses claimed that respondent deviated from the "Win With Diginity Program" in other ways. One administrator claimed respondent sent misbehaving students to the dean's office rather than send for an administrator to take them to the office. This allegation was not proven. Another witness claimed that respondent used in-class suspension instead of sending for an administrator.
Yet under "Win With Dignity," teachers were supposed to handle disciplinary problems in their classrooms, and send for an administrator only if necessary. The same administrator also criticized respondent for calling an administrator to remove a student merely because the student was refusing to work. But the administrator was not fully informed. The misbehaving student had become openly defiant of respondent, and respondent was correct in insisting on his removal.
In summary, it has not been shown that respondent intentionally disregarded any school policy relating to the discipline of students. Whenever he was asked to make changes in his disciplinary practices, he did so.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla.Stat. (1983).
The School Board relies on Section 231.36(4)(b), Florida Statutes (1983), as authority for the action it proposes to take against respondent:
(4)(b) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be
dismissed or may be returned to annual contract status for another 3 years
in the discretion of the school board, at the end of the school year when
a recommendation to that effect
is submitted to the school board on or before April 1 of any school year, giving good and sufficient reasons therefor, by the superintendent, by the principal
if his contract is not under consideration, or by a majority of the school board . . . .
(e. s.)
This statute is penal in nature and must be strictly construed. School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla. 1st DCA 1980); Gainey v. School Board of Liberty County, 387 So.2d 1023, 1030 (Fla. 1st DCA 1980). Charges must be proven by clear and convincing evidence, by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2d DCA 1975); Bowling v.
Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).
A tenured teacher, one with continuing contract rights such as respondent, has acquired a valuable property right in his expectation of continued employment. Texton v. Hancock, 359 So.2d 895 (Fla. 1st DCA 1978). The statute relied on by the School Board provides that a teacher's continuing contract right (or tenure) cannot be taken away without "good and sufficient reasons therefor," and provides for notice and a right to a hearing. "Good and sufficient reasons" must be construed to mean serious shortcomings in a teacher's performance--shortcomings serious enough to justify dismissal, though not requiring it.
This is the only construction possible when read in pari materia with Section 231.36(6). Under this subsection, teachers may be suspended or dismissed, at any time during the school year, only for enumerated grounds, including immorality, misconduct in office, incompetence, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude.
The argument that a teacher may be deprived of his continuing contract right--and returned to annual contract--on charges of less magnitude or seriousness is rejected. Under this argument, a tenured teacher could, conceivably, be dismissed for inconsequential, or even wrong reasons. The teacher could be returned to annual contract for minor deficiencies; then, at the end of the school year, he could find himself without a job for no reason, and none need be given. See, William Wenz v. The Board of Trustees of Brevard Community College, So.2d (Fla. 5th District, 1983)(Case No. , Opinion filed September 15, 1983). A decision is simply made not to contract with him for another year. In this way the continuing contract rights of teachers could be deprived of their value, and rendered meaningless.
Measured by these evidentiary and statutory standards, it is concluded that "good and sufficient" reasons for depriving respondent of his continuing contract rights (and returning him to annual contract) have not been alleged and proven.
An isolated mistake, unintentional and of no consequence, is no basis to deprive a teacher of his continuing contract rights. At hearing, additional
minor, even petty infractions were raised, in an apparent attempt to buttress the case against respondent. But these were clearly afterthoughts, neither alleged, nor specified in the School Board's More Definite Statement (of Charges), and are rejected.
The lack of evidence in this case raises the question of why these charges were brought against respondent, in the first place. He is a competent, even gifted, teacher--dedicated to his craft--who has been forced to defend himself. He has been subjected to an ordeal, perhaps unfairly and without just cause.
Both parties filed proposed findings of fact and conclusions of law. Those proposed findings which are incorporated herein are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolution of the issue presented.
That the School Board enter an order dismissing all charges brought against respondent by the Superintendent of Schools of St. Lucie County.
DONE and ENTERED this 12th day of April, 1984, in Tallahassee, Florida.
R. L. CALEEN, JR. Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1984.
Ben L. Bryan, Jr., Esquire Post Office Box 3230
Ft. Pierce, Florida 33448
Steven A. Been, Esquire FEA/United
Ralph D. Turlington Commissioner of Education Department of Education The Capitol
Norman Behling, Superintendent School Board of St. Lucie County 2909 Delaware Avenue
Ft. Pierce, Florida 33450
