, (4)(b), and (5)(a), and, if so, what penalty should be imposed against the teaching certificate of Respondent.
On February 17, 2005, Petitioner filed an Administrative Complaint against Respondent and, upon Respondent's request for hearing, referred the matter to DOAH to conduct a formal hearing. DOAH assigned the matter to ALJ Susan B. Harrell who scheduled the hearing for August 29, 2005. ALJ Harrell denied Petitioner's request to consolidate this proceeding with a disciplinary proceeding against Ms. Jacquelyn Cross, DOAH Case No. 05-1545.
DOAH transferred the instant case to the undersigned, who granted two continuances pursuant to Respondent's unopposed motions for continuance. The undersigned conducted the formal hearing on October 26, 2005.
At the hearing, Petitioner presented the testimony of three witnesses and submitted one exhibit for admission into evidence. Respondent presented the testimony of six witnesses and submitted two exhibits.
The identity of the witnesses and exhibits and the rulings regarding each are reported in the one-volume Transcript of the hearing filed with DOAH on November 10, 2005. At the conclusion
of the hearing, the ALJ granted the parties' request that proposed recommended orders (PROs) be filed 15 days after the filing of the Transcript with DOAH. Respondent timely filed her PRO on November 22, 2005. Petitioner filed its PRO on
November 28, 2005, without objection from Respondent.
Respondent holds Florida Educator's Certificate
No 484481 (teaching certificate). Respondent is certified to teach physical education through June 30, 2009.
The Hillsborough County School District (District) has employed Respondent as a physical education teacher for 10 years. In March 2004, the District employed Respondent as a physical education teacher at Gorrie Elementary School (Gorrie).
At Gorrie, Respondent proctored the math and science portions of the Florida Comprehensive Assessment Test (FCAT) for some fifth grade students sometime in March 2004. Ms. Jacquelyn Cross was the teacher and test administrator for the class.
As a proctor, Respondent's responsibilities during the FCAT were minimal. Respondent was responsible to assist the test administrator and to be available in the event of an emergency.
It is undisputed that during the second day of testing Respondent made check marks in the test booklets of some students. The check marks coached the affected students during
the FCAT test in violation of Subsection 1008.24(1)(c), Florida Statutes (2003).
Neither Petitioner nor the legislature has defined the term "coach" for the purpose of the cited statute. Nor did Petitioner adduce evidence to support a finding that the definition is a matter within the scope of agency expertise.
The plain and ordinary meaning of the term "coach," in relevant part, is to "train or tutor" a student. The American Heritage Dictionary of the English Language, 353 (4th ed. Houghton Mifflin Company 2000) (American Heritage). Respondent tutored the affected students because the check marks had the effect of instructing the affected students. American Heritage at 1860.
Respondent "knowingly or willfully" coached the affected students in violation of Subsection 1008.24(1)(c), Florida Statutes (2003). Respondent intended a check mark to signal a student that the student should reread the particular question or passage.
No aggravating factors are evidenced in the record.
However, several mitigating factors are in evidence.
For reasons discussed hereinafter, no finding is made that Respondent had actual knowledge that her actions violated the relevant statute. The evidence to support such a finding is less than clear and convincing. Similarly, the evidence is less
than clear and convincing that Respondent violated Florida Administrative Code Rules 6B-1.006(3)(d), (e), (4)(b), and (5)(a), respectively, by intentionally suppressing or distorting subject matter relevant to a student's academic program, intentionally exposing a student to unnecessary embarrassment or disparagement, intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression, or by failing to maintain honesty in all professional dealings.
The evidence is less than clear and convincing that Respondent received any training from either her employer or Petitioner in how to proctor an FCAT. Gorrie administrators assigned Respondent to proctor approximately a week before the scheduled test.
During the first day of testing, the test administrator walked through the classroom and pointed to incorrect answers recorded by some of the students. The test administrator also used verbal prompts such as, "you obviously haven't read that passage," and "you need to go back and reread that." During the second day, Respondent followed the example set by the test administrator during the first day of the FCAT and chose check marks as a means of prompting the students to recheck their answers.
The test administrator had received training in the administration of the FCAT. Respondent's reliance on the example of the test administrator was reasonable under the circumstances. Nothing in the record shows that the check marks made by Respondent on the test booklets intentionally distorted or misrepresented facts concerning an educational matter within the meaning of Florida Administrative Code Rule 6B-1.006(4)(b).
Respondent would not accept similar assistance from a proctor during a test Respondent was taking and was concerned about the actions she took during the second day of testing. That night during a class attended by Respondent, she asked a peer if the actions of the test administrator and Respondent were appropriate. The peer stated the actions were inappropriate and explained that Respondent could be disciplined for her actions. When Respondent proctored the FCAT on the third day of testing, Respondent did not coach the examinees.
Another teacher reported to the assistant principal that some of the students proctored by Respondent had received assistance during the FCAT. When the assistant principal questioned Respondent, Respondent freely admitted her actions, but denied that she knew at the time that her actions were inappropriate. Nothing in the record shows that Respondent failed to maintain honesty in all her professional dealings
within the meaning of Florida Administrative Code Rule 6B-1.006(5)(a).
Although Respondent had proctored the FCAT in previous years, the evidence is less than clear and convincing that Respondent had received any training in how to proctor an FCAT. Respondent's name does not appear on the sign-in sheet for the FCAT training session in March of 2003. The evidence is less than clear and convincing that Respondent did anything in previous years except follow the lead of the test administrator.
Respondent did not receive a copy of the 2004 FCAT test manual. Gorrie administrators did not ask Respondent to read the manual or instruct Respondent as to its contents.
The evidence is less than clear and convincing that the check marks provided by Respondent were a material violation. It is less than clear and convincing that the check marks altered or interfered with the responses of the affected students within the meaning of Subsection 1008.24(1)(c), Florida Statutes (2003). Although some test booklets showed changes in student answers, it is less than clear and convincing that any check mark by Respondent caused a student to change his or her answer. None of the affected students testified.
In the absence of clear and convincing evidence that Respondent's actions affected the answers of examinees, no finding is made that Respondent assisted examinees in answering
test questions in violation of Florida Administrative Code Rule 6A-10.042(1)(c). For the same reasons, no finding is made that Respondent violated Florida Administrative Code Rules 6A- 10.042(1)(d) and 6B-1.006(3)(a) and (b), respectively, by interfering with an examinee's answers to questions, failing to make a reasonable effort to protect examinees from conditions harmful to learning, or unreasonably restraining a student from independent action in his or her pursuit of learning. Nothing in the record shows that the check marks on test booklets were intended to suppress or distort subject matter within the meaning of Florida Administrative Code Rule 6B-1.006(3)(d).
Gorrie administrators invalidated the test results of the 15 students in the test administrator's class. However, the invalidation of those tests did not invalidate the FCAT as a whole and did not prevent students with invalidated results from progressing to a higher grade.
It is less than clear and convincing that the violation committed by Respondent was an act of "moral turpitude" or "gross immorality" within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2003). No rule applicable to the discipline of a teaching certificate defines the quoted terms. However, rules applicable to teacher dismissal proceedings provide definitions that are instructive.
The evidence is less than clear and convincing that the violation was a base, vile, or depraved act within the meaning of moral turpitude in Florida Administrative Code
Rule 6B-4.009(6). Nor did the violation satisfy the definition of immorality in Florida Administrative Code Rule 6B-4.009(2). In relevant part, the violation did not impair Respondent's service in the community.
It is clear and convincing that Respondent continues to be an effective employee of the District within the meaning of Subsection 1012.795(1)(f), Florida Statutes (2003). Although Respondent's employer issued a letter of reprimand to Respondent, suspended her without pay for two days, and transferred Respondent to a different school, the District continues to employ Respondent. The testimony of District personnel, including fellow teachers and parents, makes it clear that Respondent has been and continues to be an effective teacher.
Although the incident received attention in two newspaper articles, the articles are not in evidence, and no finding can be made concerning the adverse effect of the publicity. For similar reasons, no finding is made that the check marks on test booklets violated Florida Administrative Code Rule 6B-1.006(3)(e) by intentionally exposing a student to
unnecessary embarrassment or disparagement. None of the affected students testified.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter and the parties in this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2005). DOAH provided the parties with adequate notice of the formal hearing.
Petitioner bears the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint, that the acts violated the statutes and rules cited in the Complaint, and that the proposed revocation of Respondent's teaching certificate is a reasonable penalty. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973).
The requirement for clear and convincing evidence imposes an intermediate level of proof on Petitioner. Petitioner must prove material factual allegations by more than a preponderance of the evidence, but the proof need not be beyond and to the exclusion of a reasonable doubt. Inquiry Concerning a Judge No. 93-62, 645 So. 2d 398, 404 (Fla. 1994); Lee County v. Sunbelt Equities, II, Limited Partnership, 619 So. 2d 996, 1006 n. 13 (Fla. 2d DCA 1993).
The Florida Supreme Court has addressed the clear and convincing standard of proof with attention to detail. In relevant part, the court stated:
This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy. . . . [T]he facts to which witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witness 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 or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Inquiry Concerning a Judge, 645 So. 2d at 404 (quoting in part from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
In order to satisfy the qualitative standard for clear and convincing evidence, incriminating evidence must be credible, material facts must be "distinctly remembered," and testimony must be "precise" and "explicit." This qualitative standard has been adopted by each District Court of Appeal in the state. E.F. v. State, 889 So. 2d 135, 139 (Fla. 3d DCA 2004); McKesson Drug Co. v. Williams, 706 So. 2d 352, 353 (Fla. 1st DCA 1998); Kingsley v. Kingsley, 623 So. 2d 780, 786-787
(Fla. 5th DCA 1993); Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Petitioner must show that Respondent violated the operative terms of relevant statutes and rules to discipline Respondent's teaching certificate. The operative terms must be construed strictly in favor of the Respondent and against the imposition of discipline. State ex. rel. Jordan v. Pattishall,
99 Fla. 296, 126 So. 147 (Fla. 1930); Ocampo v. Department of Health, 806 So. 2d 633 (1st DCA Fla. 2002); Equity Corp. Holdings, Inc. v. Department of Banking and Finance, Division of
Finance, 772 So. 2d 588, 590 (Fla. 1st DCA 2000); Jonas v. Florida Department of Business and Professional Regulation, 746 So. 2d 1261 (Fla. 3d DCA 2000); Loeffler v. Florida Department of Business and Professional Regulation, 739 So. 2d 150 (Fla.
1st DCA 1999); Elmariah v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164 (Fla. 1st DCA 1990); Rush v. Department of Professional Regulation, 448 So. 2d
26 (Fla. 1st DCA 1984); Ferdergo Discount Center v. Department
of Professional Regulation, 452 So. 2d 1063 (Fla. 3d DCA 1984); Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981); Lester v. Dept. of Professional and Occupational Regulations, 348 So. 2d 923 (Fla. 1st DCA 1977).
Subsection 1008.24(1)(c), Florida Statutes (2003), makes it a violation for Respondent to knowingly and willfully:
(c) Coach examinees during testing or alter or interfere with examinees' responses in any way. . . . (emphasis supplied)
For reasons stated in the Findings of Fact, Petitioner showed by clear and convincing evidence that Respondent violated Subsection 1008.24(1)(c), Florida Statutes (2003), by coaching students during the second day of the FCAT with check marks in their test booklets. However, the evidence is less than clear and convincing that the check marks altered or interfered with the examinees' responses or violated relevant terms of the remaining statutes and rules charged in the Administrative Complaint.
In relevant part, Florida Administrative Code Rule 6A- 10.042(1)(c) and (d) provides:
Tests . . . shall be . . . administered in a secure manner such that the integrity of the tests shall be preserved.
Examinees shall not be assisted in answering test questions by any means by persons administering or proctoring the administration of any test.
Examinees' answers to questions shall not be interfered with in any way by persons administering, proctoring, or scoring the examinations. (emphasis supplied)
Florida Administrative Code Rule 6A-10.042(1)(c) and (d) cannot be construed to expand the reach of Subsection 1008.24(1)(c), Florida Statutes (2003). Petitioner and the
State Board of Education (the Board) are statutorily prohibited from interpreting a rule in a manner that enlarges, amends,
modifies, or contravenes the specific provisions of the law implemented. Similarly, DOAH has no jurisdiction, in the exercise of its quasi-judicial responsibility, to interpret a rule in a manner that expands the reach of the statute.
§ 120.52(8)(c), Fla. Stat. (2003).
An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute.
. . . Statutory language
. . . generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statue.
§ 120.52(8), Fla. Stat. (2003)(flush paragraph).
Petitioner tacitly relies on language in Subsection 1008.24(1), Florida Statutes (2003), that provides:
It is unlawful for anyone knowingly and willfully to violate test security rules adopted by the State Board of Education for mandatory tests administered by . . . school districts . . . (emphasis supplied)
The preceding statutory language cannot be construed as a delegation of legislative authority for the Board to adopt a rule that enlarges the terms of the enabling legislation. A conclusion that the legislature intended to provide no definite parameters to define prohibited assistance would vest unbridled discretion in the agency and risk violation of the non- delegation doctrine in Florida. Fla. Const., Art. 2, § 3.
The non-delegation doctrine requires the legislature to provide standards and guidelines in each enactment that are
ascertainable by reference to the terms of the enactment.
Bush v. Schiavo, 885 So. 2d 321 (Fla. 2004); B.H. v. State, 645 So. 2d 987, 992-994 (Fla. 1994); Askew v. Cross Key Waterways,
372 So. 2d 913, 925 (Fla. 1978). Petitioner and DOAH should construe the operative statute, whenever possible, in a manner that preserves the constitutionality of the statute. See, e.g., Spurlin v. School Board of Sarasota County, 520 So. 2d 294, 296-
297 (Fla. 2d DCA 1988) and Von Stephens v. School Board of Sarasota County, 338 So. 2d 890, 894 (Fla. 2d DCA 1976)(avoiding statutory construction that would authorize unbridled agency discretion even though statute included no express limits). Petitioner and DOAH should also construe the operative rule in a manner that preserves the validity of the rule by limiting the rule to standards and guidelines prescribed in the statute.
Petitioner cannot rely on non-rule policy stated in test manuals, security agreements, and pre-test training to enlarge, amend, modify, or contravene the specific acts prohibited in Subsection 1008.24(1)(c), Florida Statutes (2003). Petitioner cites no legal authority that authorizes an agency to accomplish by non-rule policy that which the agency is prohibited under the non-delegation doctrine from accomplishing by rule.
The Administrative Procedure Act limits the scope of this proceeding to the factual grounds and charges alleged in the Complaint. Petitioner cannot find Respondent guilty of a charged violation based on evidence of grounds not specifically alleged in the Complaint. Thomas P. Trevisani, M.D. v.
Department of Health, Case No. 1D04-2488 (Fla. 1st DCA July 20, 2005); Ghani v. Department of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); Cotrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996).
In Cotrill, the court reversed a finding that the licensee violated statutes referred to in the administrative complaint based on factual grounds not alleged in the complaint. Judge Benton explained:
Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint . . . violates the Administrative Procedure Act. To countenance such a procedure would render nugatory the right to a formal administrative proceeding to contest the allegations of an administrative complaint.
Cotrill, 685 So. 2d at 1372.
The record evidence does not set forth a reasonable basis for a finding that an interpretation of relevant terms in the statutes and rules charged in the Administrative Complaint requires special agency insight or expertise. Petitioner did not articulate any underlying technical reasons for deference to agency expertise. Johnston, M.D. v Department of Professional Regulation, Board of Medical Examiners, 456 So. 2d 939, 943-944 (Fla. 1st DCA 1984).
Subsection 1012.795(1)(c), Florida Statutes (2003), authorizes Petitioner to discipline the teaching certificate of Respondent if it were found that the check marks Respondent
placed on test booklets involved an act of moral turpitude or gross immorality. Moral turpitude and immorality are not synonymous terms. Each term is separately defined by rule and each describes a separate standard of conduct.
A determination of whether a teacher deviates from a standard of conduct is not infused with agency expertise. Such a determination is the province of the trier of fact. See Bush v. Brogan, 725 So. 2d 1237, 1239-1240 (Fla. 2d DCA 1999)(finding that conduct was not gross immorality is a finding of fact that is not infused with agency policy); accord Dunham v. Highlands
County School Board, 652 So. 2d 894, 896 (Fla. 2d DCA 1995).
Petitioner does not cite a rule adopted by Petitioner to define gross immorality or moral turpitude for the purpose of disciplinary action against a teaching certificate. However, analogous rules used in teacher dismissal proceedings are instructive.
Florida Administrative Code Rule 6B-4.009(6) defines moral turpitude, in relevant part, to be a crime. In relevant part, Subsection 1008.24(2), Florida Statutes (2003), provides:
(2) Any person who violates this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s.
775.083. (emphasis supplied)
The rule further defines moral turpitude to be a crime evidenced by an act of "baseness, vileness, or depravity in the
private and social duties" that Respondent owes to her "fellow man or society in general." The quoted terms must be construed strictly in favor of Respondent and against the imposition of discipline. Pattishall, 126 So. 147; Ocampo, 806 So. 2d 633;
Equity Corp., 772 So. 2d at 590; Jonas, 746 So. 2d 1261;
Loeffler, 739 So. 2d 150; Elmariah, 574 So. 2d 164; Rush, 448
So. 2d 26; Ferdergo, 452 So. 2d 1063; Bowling, 394 So. 2d 165; Lester, 348 So. 2d 923. It is less than clear and convincing that the check marks on test booklets involved an act that was base, vile, or depraved.
Florida Administrative Code Rule 6B-4.009(2) is instructive and defines the term "immorality" as:
. . . conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
A finding that the check marks on test booklets are acts of immorality must satisfy a three-part conjunctive test. The conduct of the teacher must be:
. . . [1]inconsistent with the standards of public conscience and good morals (emphasis supplied), . . . [2]sufficiently notorious
. . . to disgrace the teaching profession and [3]impair the teacher's service in the community. (latter emphasis the court's).
Cf. McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)(citing McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995) and Sherburne v. School Board of Suwannee County, 455 So. 2d 1057, 1058 (Fla. 1st DCA 1984)(each case involving teacher dismissal by a local school district).
The definition of immorality measures the conduct of Respondent against a standard described in the relevant rule as "good morals." The term "good morals," like the term "good moral character," is unusually ambiguous and can be defined in an almost unlimited number of ways, depending on the views of the person formulating a definition. As the Florida Supreme Court has explained:
The term "good moral character" . . . by itself, is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory [agency action]. Konigsberg v. State Bar of California, 353 U.S. 252, 262-263, 77 S. Ct. 722, 728, 1 L. Ed. 2d 810
(1957).
Board of Bar Examiners, 358 So. 2d 7, 8-9 (Fla. 1978).
A determination of whether Respondent deviated from a standard of conduct is not infused with agency expertise and is the province of the trier of fact. See Bush, 725 So. 2d at 1239-1240; Dunham, 652 So. 2d at 896. Relevant terms such as
"good morals" must be construed strictly in favor of Respondent and against the imposition of discipline. Pattishall, 126 So. 147; Ocampo, 806 So. 2d 633; Equity Corp., 772 So. 2d at 590;
Jonas, 746 So. 2d 1261; Loeffler, 739 So. 2d 150; Elmariah, 574
So. 2d 164; Rush, 448 So. 2d 26; Ferdergo, 452 So. 2d 1063;
Bowling, 394 So. 2d 165; Lester, 348 So. 2d 923. It is less than clear and convincing that placing check marks on test booklets was inconsistent with good morals.
The placing of check marks on test booklets was not sufficiently notorious to disgrace the teaching profession. Petitioner cannot rely on its own activities, including the invalidation of test scores, investigative interviews of students, and a public disclosure, to prove conduct is widely known. Sherburne, 455 So. 2d at 1061; Baker v. School Board of
Marion County, 450 So. 2d 1194 (Fla. 5th DCA 1984).
The placing of check marks on test booklets did not impair Respondent's service in the community. Respondent's service in the community is measured by her effectiveness in the classroom. McNeill, 678 So. 2d at 477-478, citing McKinney, 667 So. 2d at 387 and Sherburne, 455 So. 2d at 1062. The evidence is clear and convincing that the check marks on test booklets did not impair Respondent's effectiveness in the classroom. Nor did the marks seriously reduce Respondent's effectiveness as an
employee of the District within the meaning of Subsection 1008.24(1)(f), Florida Statutes (2003).
The evidence is less than clear and convincing that the check marks on booklets violated Principles of Professional Conduct for the Education Profession prescribed in Florida Administrative Code Rule 6B-1.006(3)(a) and (e), (4)(b), and (5)(a) (standards of professional conduct). § 1012.795(1)(i), Fla. Stat. (2003). Except for the standard of professional conduct prescribed in Florida Administrative Code Rule 6B- 1.006(3)(a), culpable intent is an essential requirement of the remaining standards. Petitioner did not show by clear and convincing evidence that the placing of check marks on test booklets involved the requisite intent to: expose a student to unnecessary embarrassment or disparagement, distort or misrepresent facts concerning an educational matter in direct or indirect public expression, or practice dishonesty in all professional dealings. Fla. Admin. Code R. 6B-1.006(3)(e), (4)(b), and (5)(a).
The placing of check marks in test booklets during the second day of testing comprises a single act of misconduct during one day of the FCAT in March 2004. A single act of misconduct does not constitute a dishonest practice in "all professional dealings." Cf., Werner v. State, Department of Insurance and Treasurer, 689 So. 2d 1211, 1214 (Fla. 1st DCA
1997)(holding, inter alia, that term "practices" contemplates more than a solitary lapse, and a single act of misconduct does not evidence dishonest "practices").
It is less than clear and convincing that aggravating circumstances exist which would warrant revocation or suspension of Respondent's teaching certificate pursuant to Subsection 1012.795(1), Florida Statutes (2003). Petitioner submitted no evidence of any prior disciplinary history.
Numerous mitigating factors in evidence support a written reprimand authorized in Subsection 1012.796(7)(f), Florida Statutes (2003). Respondent has been and is an effective teacher and a valuable asset to the District. The check marks involved a single isolated incident that was neither continuing nor part of a pattern and practice. The invalidation of FCAT results for 15 students did not prevent any of the students from progressing to the sixth grade. Nor did the invalidation of the test results prevent the District from testing 95 percent of the fifth-grade students. The record does not support a finding that the check marks diminished the educational progress of the affected students, harmed them, or subjected them to embarrassment or disparagement.
