STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Petitioner, )

) CASE NO. 96-2783

vs. )

)

LORETTA L. YOUNG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case via teleconference on March 10, 1997, with the parties appearing in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

501 First Avenue North, Suite 600 St. Petersburg, Florida 33701

For Respondent: Leslie A. Meek, Esquire

Assistant General Counsel United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129

STATEMENT OF THE ISSUES

Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In a two-count Administrative Complaint dated November 7, 1995, Frank T. Brogan, as Commissioner of Education ("Commissioner"), charged Loretta L. Young with failing to make a reasonable effort to protect the students in her care from conditions harmful to learning and/or to the students' mental and/or physical health and/or safety and with intentionally exposing students to unnecessary embarrassment or disparagement, in violation of section 231.28(1)(i), Florida Statutes, and rules 6B-1.006(3)(a) and (e), Florida Administrative Code. These charges were based on allegations that Ms. Young made derogatory comments to her students during the 1993-1994 school year and that, on March 14, 1994, she hit a seventh grade student in the stomach.

Ms. Young timely requested a formal administrative hearing on the charges, and the Commissioner forwarded the request to the Division of Administrative Hearings for the assignment of an administrative law judge. After several continuances, the final hearing was conducted via video teleconference on March 10, 1997. At hearing, the Department presented the testimony of D. J.,

M. B., and M. P., students in Ms. Young's 1993-1994 seventh- grade science class; Tonya Tarpley, a teacher at North Dade Middle School during the 1993-1994 school year; and W. J. Roberson, principal of North Dade Middle School during the 1993- 1994 school year. Petitioner's exhibits 1 through 3 were offered

and received into evidence; the exhibit marked for identification as petitioner's exhibit 5 was offered into evidence then withdrawn. Loretta L. Young testified in her own behalf; she did not offer any exhibits into evidence.

A transcript of the hearing was filed with the Division, and the Commissioner timely submitted proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. Frank T. Brogan, as the Commissioner of Education, is the state official charged with investigating complaints against teachers and, upon a finding of probable cause, with filing formal administrative complaints against teachers' certificates. Section 231.262, Fla. Stat. The Education Practices Commission is the state agency charged with the responsibility for issuing final orders and imposing penalties. Id.

2. At all times material to this case, Loretta L. Young held Florida Educator's Certificate 591375, covering the area of biology. Ms. Young currently holds this certificate, which is valid through June 30, 1999.

3. During the 1993-1994 school year, Ms. Young was employed as a science teacher at North Dade Middle School in Dade County, Florida. During that school year, she taught a seventh-grade

   science class which consisted mostly of African-American children. A male student named C. M. was a member of this class.

4. This seventh-grade science class was large, and the students were very unruly. Ms. Young had a very difficult time controlling the class, and she often became irritated with the students. In addition, the students used to ignore her when she told them to be quiet, and they would "pick at her" and make derogatory comments about her to one another in voices pitched loud enough for her to hear.

5. On March 14, 1994, C. M. was in the back of the classroom playing cards and gambling with several other students. Ms. Young told C. M. to stop gambling. C. M., who was described as a bad student who was consistently disrespectful to Ms. Young and generally disruptive in her classroom, reacted to this order with anger. He walked to the front of the classroom and tapped her on the shoulder. She turned around quickly and struck C. M. in the stomach with her elbow. C. M. loudly accused her of hitting him and threatened to go to the office and tell what she had done. Ms. Young sent a student to summon security, and C. M. was removed from the classroom.

6. Ms. Young consistently referred to the students in her class as "niggers." One of the students who testified at the hearing gave the following as an example of the remarks Ms. Young often made: "Ya'll niggers, ya'll niggers don't know how to act, ya'll don't have no home training."

7. Although children sometimes refer to each other as "niggers," the use of such an epithet by a teacher when addressing students is unprofessional; it causes students to feel uncomfortable in the teacher's classroom, thereby diminishing the teacher's effectiveness. Even Ms. Young admitted that the term "nigger" is derogatory and degrading.

8. It is not acceptable for a teacher to hit a student. Not only does such an act expose the student to physical harm, it diminishes the teacher's effectiveness in the classroom and is in violation of school board policy. There is, however, no violation of school board policy when a teacher inadvertently touches or bumps into a student.

9. The evidence presented by the Commissioner is sufficient to establish that Ms. Young often addressed the students in the seventh-grade science class identified herein as "niggers." The evidence presented by the Commissioner is not, however, sufficient to establish that Ms. Young intentionally hit C. M. in the stomach with her elbow. The greater weight of the evidence presented by eyewitnesses to the event involving C. M. establishes that C. M. startled Ms. Young when he approached her from behind and tapped her on the shoulder, causing her to turn quickly and inadvertently strike him in the stomach.1

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of

    the parties thereto pursuant to section 120.569 and .57(1), Florida Statutes (Supp. 1996).

11. In section 231.28(1), Florida Statutes, the Education Practices Commission is given the authority to suspend or revoke teaching certificates or impose other penalties on any person who has violated the provisions of that section. Among the "other penalties" specified in section 231.262(6) are imposing an administrative fine, placing a teacher on probation, restricting the scope of a teacher's area of practice, and issuing a reprimand.

12. The Commissioner has charged Ms. Young with violating section 231.28(1)(i), which authorizes the imposition of a penalty if a person holding a teacher's certificate "[h]as otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate."

13. Ms. Young is charged specifically with violating the Principles of Professional Conduct for the Education Profession set out rule 6B-1.006(3)(a) and (e), Florida Administrative Code. These rule provisions provide that a teacher's obligation to his or her students requires that the teacher

    1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

       ***

       (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

14. When the Commissioner files an Administrative Complaint in which permanent revocation of an educator's certificate is among the penalties sought, the Commissioner has the burden of proving the allegations of the complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

15. Clear and convincing evidence, as defined by the court in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983),

    requires that the evidence must be found to be credible; that facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief of [sic] conviction, without hesitancy, as to the truth of the allegations sought to be established.

16. On the basis of the facts found herein, the Commissioner has met his burden of proving by clear and convincing evidence that Ms. Young intentionally exposed her students to embarrassment and disparagement by frequently addressing them as "niggers," in violation of rule 6B- 1.006(3)(e). The Commissioner has not, however, met his burden of proving by clear and convincing evidence that Ms. Young violated rule 6B-1.006(3)(a) when her elbow made contact with

C. M.'s stomach.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission

issue a Final Order finding that Loretta L. Young violated section 231.28((1)(i), Florida Statutes, and rule 6B-1.006(3)(e), Florida Administrative Code, and placing Ms. Young on probation for a period of three years, subject to such conditions as the Commission deems appropriate.

DONE AND ENTERED this 5th day of May, 1997, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1997.

ENDNOTE

1 Ms. Young's testimony that C. M. approached her and pulled on her hair, causing her to fall back against him and to try to break her fall with an outstretched hand is rejected as inconsistent with the description of the event given by the three eyewitnesses who testified at the hearing.

COPIES FURNISHED:

Bruce P. Taylor, Esquire

501 First Avenue North, Suite 600 St. Petersburg, Florida 33701

Leslie A. Meek, Esquire Assistant General Counsel United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129

Karen Barr Wilde, Executive Director Education Practices Commission

224-B Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

1 Ms. Young's testimony that C. M. approached her and pulled on her hair, causing her to fall back against him and to try to break her fall with an outstretched hand is rejected as inconsistent with the description of the event given by the three eyewitnesses who testified at the hearing.

Docket for Case No: 96-002783

Orders for Case No: 96-002783