STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3939

)

JOHN F. SHULER, )

)

Respondent. )

)

RECOMMENDED ORDER

Following the provision of notice, a formal hearing was held in this case on December 13, 1989, in Jacksonville, Florida. Charles C. Adams was the Hearing Officer. Authority for conduct of the hearing is set forth in Section 120.57(1), Florida Statutes.

APPEARANCES

For Petitioner: Rex D. Ware, Esquire

Huey, Guilday, Kuersteiner and Tucker, P.A.

215 South Monroe Street, Suite 510 Post Office Box 1794

Tallahassee, Florida 32302

For Respondent: John F. Shuler, Pro Se

1253 Ribault River Drive Jacksonville, Florida 32233

STATEMENT OF THE ISSUES

The issues in this case concern an administrative complaint brought by the Petitioner against Respondent under authority set forth in Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code. In the course of that complaint, Respondent is accused of making derogatory racial remarks directed to black students in his class, denying privileges to students within his class based upon race, and the exclusion of a black student from a position in extracurricular activities. He is also accused of physically striking a student on the leg with a stick and grabbing that student and restraining the student against the student's will.

PRELIMINARY STATEMENT

Respondent having requested a formal hearing in accordance with Section 120.57(1), Florida Statutes, that hearing was convened on December 19, 1989, to allow him to contest the facts set forth in the underlying administrative complaint.

During the course of the hearing Petitioner presented the testimony of Tekina Lavonnye Watson, Shawnae Latrice Worthy, Ronald Alexander Dubois, Thomas Earl Cravey, II, James Albert Calise and John Emory Trawick. Respondent and Respondent's pastor, Louis Kennison presented evidence on behalf of the Respondent. Petitioner's Exhibit No. 1 admitted into evidence constituted the tangible evidence presented.

The Recommended Order is being entered following the receipt of the transcript of proceedings which was filed with the Division of Administrative Hearings on December 21, 1989. It had been requested that the parties be given more than the ordinary length of time to submit proposed recommended orders.

Typically those proposals are filed within ten days of the date of filing of the transcript. In this instance the filing date was extended upon request until January 9, 1990. On that day Petitioner submitted a proposed recommended order. A correction to the proposed recommended order was filed January 11, 1990.

Respondent did not offer a proposed recommended order. By extending the time for filing the proposed recommended order the parties have waived the requirement for submission of a Recommended Order within 30 days of the receipt of the transcript. See Rule 22I-6.031 Florida Administrative Code. In preparing the Recommended Order the suggested fact finding set forth in the proposed recommended order filed by the Petitioner has been examined. It is commented on in an Appendix to the Recommended Order.

On January 29, 1990, a letter in argument of his position was submitted by the Respondent. On that same date correspondence from Louis Kennison, Pastor to Respondent, was also filed. Both of these items are beyond the time for submitting proposals or argument. Nonetheless, they have been considered in deliberating this case and preparing the recommended order. There is no indication that copies were provided to counsel for Petitioner. Consequently copies are being transmitted with Petitioner's counsel's copy of the recommended order.

FINDINGS OF FACT

1. At all times relevant to the inquiry Respondent, a white male, was licensed by the State of Florida, Department of Education as a teacher. The teaching certificate issued for that purpose is number 447593. That certificate covers the subject area of math.

   
   

2. During the relevant period under examination by the administrative complaint Respondent was employed as a mathematics teacher and a soccer coach at

   J.E.B. Stuart Junior High School in Duval County, Florida.

   
   

3. While teaching one of his math classes in the school year 1988-1989, he made certain remarks which were racial in nature and demeaning to black students in his class.

   
   

4. Tekina Watson, a class member in this junior high class, who is black, recalls the Respondent saying something to the effect that, "Black people should stay in their place and stop trying to be white like us." This made her feel uncomfortable or as she describes it made her feel like "dirt." She also heard the Respondent use the term "niggers."

   
   

5. Tekina Watson complained about the racial remarks and withdrew from Respondent's math class as a result of those comments.

6. Respondent in the face of those events told Tekina Watson that she should not come out for soccer anymore to serve in her capacity as manager for the boys soccer team. As a result, notwithstanding the attempts of other adults in the school to encourage her to rejoin the team as manager she resigned her position.

   
   

7. Shawnae Latrice Worthy was also a student in the math class in which Tekina Watson was a student Ms. Worthy is black. Her recollection of Respondent's remark was to the effect that, "you need to start acting like black and stop trying to be like us", taken to mean that black people should act like black people and not attempt to act like white people. This upset Ms. Worthy. As a consequence of his remarks she was removed from his class as a student.

   
   

8. Ronald Alexander Dubois was also a student in the mathematics class previously described. He remembers the Respondent saying something to the effect that, "blacks should act like blacks." Mr. Dubois is black. After the remark he was withdrawn from the math class. The impression this remark left on him was that he simply wanted to get out of the class and avoid any racism.

   
   

9. Mr. Dubois also testified about concerns he had that a white female student in the class was allowed to be able to either sharpen a pencil or throw a piece of paper in the trash can and when Tekina Watson attempted to do so she was not allowed that opportunity. It is unclear from the record whether there was justification to allow the unnamed white female to sharpen a pencil or throw a piece of paper in the trash can and deny that opportunity to Tekina Watson.

   
   

10. The three students who have been identified by name gave statements to school officials concerning the racial remarks by the Respondent.

    
    

11. In January, 1989, while serving as a soccer coach, Respondent became upset with Thomas Earl Cravey, II, concerning Mr. Cravey's effort on the soccer field. In response to what Respondent considered to be inadequate attention to responsibilities as a player, Respondent told Mr. Cravey that he should stop "playing around." Respondent then went to a tree and cut a small branch and took that branch and switched Cravey on the legs leaving two marks.

    
    

12. Respondent then escorted the student to the sidelines off the soccer field and in the course of these events grabbed the student by the ear. Words were exchanged between the Respondent and Mr. Cravey, none of which would justify the physical actions that have been described and are attributable to Respondent in dealing with Mr. Cravey. This exchange was seen by another soccer coach James Albert Calise.

    
    

13. Based upon this circumstance the incident was investigated by the school and upset Mr. Cravey and his mother.

    
    

14. When Respondent took the stand he tried to explain the statements that he had made in his classroom which are recalled by Tekina Watson, Shawnae Latrice Worthy and Ronald Alexander Dubois. It went something to the effect that he was trying to explain to the black students that they should be encouraged by their differences, be proud of those differences and at the same time have respect for themselves and be proud of themselves in that they could be outstanding in mathematics no matter what differences they might have. This explanation that Respondent attempted is not accepted as excusing his remarks, which remarks as reported have derogatory racial overtones.

15. Likewise the attempt to explain away the incident related to the soccer player Thomas Earl Cravey, II, is not accepted. To the extent that this was an effort at providing discipline to Mr. Cravey it was inappropriate discipline.

    
    

16. John Emory Trawick who was the principal at J.E.B. Stuart Junior High during the time of the incidents that have been described testified at hearing. On the topic of whether the racial remarks and the conduct directed to the soccer player would constitute actions which cause the Respondent to lose his effectiveness as an employee of the Duval County School Board, Mr. Trawick said that the type of statements made in the presence of students if they continued would cause loss of effectiveness as would any future striking of a student. He stopped short in his opinion of indicating that the Respondent had lost his effectiveness because of the incidents. The proof on balance does not show that the Respondent because of these incidents has lost effectiveness as a teacher. This takes into account the fact that 5 to 7 students withdrew from his mathematics class as a result of the racial remarks.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

18. To successfully prove its allegations Petitioner must do so by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

19. For his actions related to the students in his classroom through racial remarks and for action that he took by striking the soccer player, Respondent is said to have violated Section 231.28(1)(c), Florida Statutes, in that he is guilty of gross immorality or an act involving moral turpitude. Facts related to the two incidents make out violations of that provision.

    
    

20. For those two incidents Respondent is also said to have violated Section 231.28(1)(f), Florida Statutes, in that he is guilty of personal conduct which reduces his effectiveness as an employee of the school board. That proof has not been made.

    
    

21. The Respondent is said to have violated Section 231.28(1)(h), Florida Statutes, and Rule 6B-1.006(3)(a), Florida Administrative Code, in that Respondent failed to make reasonable efforts to protect a student from conditions harmful to learning or to health or safety. The two incidents in question do make out violations of those provisions.

    
    

22. The Respondent is said to have violated Section 231.28(1)(h), Florida Statutes, and Rule 6B-1.006(3)(e), Florida Administrative Code, by intentionally exposing students to unnecessary embarrassment or disparagement. In both incidents Respondent is guilty of violating those provisions.

    
    

23. Finally, Respondent is said to have violated Section 231.28(1)(h), Florida Statutes, and Rule 6B-1.006(3)(g), Florida Administrative Code, in that he on the basis of race excluded a student from participation in a program or denied a student benefits or granted a student advantages. The first of those items related to exclusion of a student from participation in a program has been proven in that Tekina Watson because of race has been excluded from participation in the soccer program as can be inferred from the facts. By contrast, the suggestion that Tekina Watson was prohibited from sharpening a

pencil or from throwing a piece of paper into the trash can when a white student had been allowed to do so has not been proven in the sense that there was inadequate proof to demonstrate that the two students were in a similar circumstance and should have been treated similarly. This refers to the fact that there may have been a reason for allowing the white student to undertake those activities and not violate class policies concerning the time when those activities were permitted by the teacher or that the teacher did not observe the white student undertaking those activities and that Tekina Watson undertook those activities at a time when by class policy it was inappropriate to do so.

RECOMMENDATION

Based upon the consideration of the facts of fact made and the conclusions of law reached, it is recommended that a Final Order be entered which suspends the Respondent's teaching certificate for a period of 60 days.

RECOMMENDED this 31st day of January, 1990, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3939

Petitioner's Facts

The proposed facts of the Petitioner are discussed as follows:

Paragraphs 1-7 are subordinate to the facts found with the exception of the reference to the idea that Respondent had referred to black students as "jerks". This is heresay information which may not be used for fact finding. See Section 120.58, Florida Statutes.

Paragraph 8 is contrary to facts found.

Paragraph 9 suggestion that parents requested that students be taken out of the Respondent's mathematics class is rejected. Again, for reasons that those suggested facts are hearsay and may not be used for fact finding. See Section 120.58(1), Florida Statutes. In this connection, the students desire to leave the class based upon the remarks of Respondent are not sufficient standing alone to say that the Respondent has lost his effectiveness.

Paragraphs 10-13 are subordinate to facts found.

Paragraph 14's suggestion that the Respondent was removed as a soccer coach is true, but is not necessary to the resolution of this dispute.

Paragraph 15 is not necessary to the resolution of this dispute.

Paragraphs 16 and 17 are contrary to the testimony of Mr. Trawick and are rejected.

Paragraph 18 is contrary to the testimony of the Respondent, in that he did not acknowledge whether his swings at the student Mr. Cravey contacted the legs of that student. Nonetheless, it is found as a fact that he did strike the student.

Paragraph 19 is an accurate depiction of the testimony but is not necessary to the resolution of the dispute.

COPIES FURNISHED:

Rex D. Ware, Esquire

Huey, Guilday, Kuersteiner and Tucker, P.A.

215 South Monroe Street, Suite 510 Post Office Box 1794

Tallahassee, FL 32302

John F. Shuler

1253 Ribault River Drive Jacksonville, FL 32233

Karen B. Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Martin B. Schapp, Administrator Professional Practices Services

301 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Docket for Case No: 89-003939

Orders for Case No: 89-003939