STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

SUSAN HARRISON,

Respondent.

/

Case No. 14-3919PL

RECOMMENDED ORDER

A final hearing was held in the above-styled case before David M. Maloney, Administrative Law Judge with the Division of Administrative Hearings, on October 29, 2014. The hearing was held by video-teleconference at sites located in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock and Associates, P.A. Suite E

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

For Respondent: Branden Vicari, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUES

Whether Respondent committed any of the offenses alleged in the Amended Administrative Complaint dated August 28, 2014? If so, what is the appropriate disciplinary penalty?

PRELIMINARY STATEMENT

On November 15, 2013, the Division of Administrative Hearings (DOAH) received a letter from the executive director of the Education Practices Commission (EPC). Attached to the letter was an Administrative Complaint filed by Petitioner, the Commissioner of Education, against Respondent, Susan Elena Harrison. The Administrative Complaint sought appropriate disciplinary sanctions against Ms. Harrison’s educator’s certificate on the basis of material allegations and counts of statutory and rule violations. Also attached was an Election of Rights form executed by Ms. Harrison’s attorney through which

Ms. Harrison opted for a 45-day period of time to attempt a settlement of the charges and, failing settlement, a formal hearing. A case file was opened at DOAH, the case was assigned Case No. 13-4386PL, and Administrative Law Judge John G. Van Laningham was designated to conduct the proceedings.

On January 17, 2014, Petitioner filed a motion to cancel the hearing and relinquish jurisdiction to the EPC. The motion’s basis was that a settlement agreement had been negotiated, and

the parties expected it to be fully executed. The motion was granted, and an Order was entered that closed the DOAH file.

Nearly seven months later, Petitioner filed a motion to re-open the case. Petitioner requested that the matter be set for hearing because Respondent had not executed the written agreement that reflected the settlement.

A new case file was opened and assigned Case No. 14-3919PL. The case was transferred to the undersigned, and a final hearing was held on October 29, 2014, by video-teleconference.

At the hearing, Petitioner presented the testimony of eight witnesses, including Ms. Harrison. Petitioner offered three exhibits from a binder denominated “Petitioner’s Exhibit Booklet.” The three are tabbed as Nos. 1, 4, and 5 in the booklet. Petitioner also offered as exhibits portions beneath other tabs: pages 33 through 35 under Tab 2; pages 11 and 12

under Tab 3; and pages 36 through 42, 44, and 45 under Tab 6. All of the exhibits offered by Petitioner were admitted into evidence. Respondent presented the testimony of three witnesses

and then re-called Ms. Harrison. Respondent offered no exhibits.

One of Petitioner’s witnesses, S.K., was accompanied by her own attorney, Samira Arabnia. Ertugrul Kaya, a representative of the Turkish Consulate General in Miami, also attended the hearing.

Petitioner and Respondent agreed to file their proposed findings of fact and conclusions of law in a proposed recommended order (PRO) on December 20, 2014, a date expected to be at least

20 days after the filing of the transcript. The parties did not file timely PROs nor did they move for an extension of time for the filing of their proposed orders. After notification to the court reporter, the one-volume Transcript was filed at DOAH on December 30, 2014, a month or so later than expected when the filing of PROs were discussed at the end of hearing. On January 2, 2015, counsel for Petitioner submitted a letter announcing the parties’ agreement to file PROs by January 23, 2015. The letter was treated as a motion and denied. The parties, however, were given until January 16, 2015, to file their PROs.

References to statutes are to Florida Statutes (2014) unless otherwise noted.

FINDINGS OF FACT

1. The Parties

1. Petitioner, as the Commissioner of Education for the State of Florida, is responsible for the investigation and prosecution of complaints against individuals, who hold a Florida Educational Certificate, when they are appropriately alleged to have committed a violation as provided in section 1012.795, Florida Statutes, and related rules. See § 1012.796, Fla. Stat.

   
   

2. The parties stipulated to the following about Respondent, Susan Harrison:

   1. The Respondent holds Florida Educator’s Certificate 825145, covering the area of Mathematics, which is valid through June 30, 2014.

      
      

   2. At all times pertinent hereto, the Respondent was employed as a Mathematics Teacher at Coral Reef Senior High School in Miami-Dade County School District.

      
      

      Joint Prehearing Stipulation.

      
      

   3. At the time of hearing, Ms. Harrison was still teaching at Coral Reef Senior High School. Ms. Harrison is of Cuban heritage. “Both of [her] parents came over in 1960 from Cuba. They fled Cuba to come to this country.” Hr'g Tr. 205.

      Ms. Harrison is married to an African-American man.

      
      

      A Series of Unfortunate Remarks

      
      

      1. Turkish Music

         
         

   4. S.K. is of Turkish heritage; both of her parents are Turkish. She referred to herself at hearing as being “from Turkey.” Hr'g Tr. 28. S.K. is a Muslim.

   5. During the 2011-12 school year, S.K.’s first year in high school, she was a student in Ms. Harrison’s Honors Geometry class.

   6. On September 13, 2011, Ms. Harrison taught the class a lesson in Space Geometry and assigned them the activity of drawing three-dimensional shapes on isometric paper. Because the

      
      

      activity is “creative, the students were working in pairs which required mutual collaboration and discourse.” Pet'r's Ex. 4

      at 22. When working in groups and engaged in creative activity, it is typical of Ms. Harrison to allow her Honors Geometry class to play music because she finds it encourages the students’ creativity.

   7. After listening to the Beatles for some time,

      
      

      Ms. Harrison asked the class if anyone had other music to play.

      
      

      S.K. announced, “‘Oh, I have my iPod. I can play music.’” Hr'g Tr. 28. S.K. did not say the music on her iPod was “Turkish.” S.K., moreover, did not have Turkish music on her iPod. She does not listen to it because, as she explained at hearing, “my Turkish is not . . . the best, so I don’t really understand the music, so it’s never been my genre, I guess you could say.” Hr'g Tr. 28.

   8. Ms. Harrison declined S.K.’s offer and in doing so referred to her music as “terrorist music.” Reports of six students (including S.K.) dated October 5, 2011, who remembered hearing the remark, differed as to the exact reply by

      Ms. Harrison, but those who heard and remembered the remark made by their teacher all agreed that Ms. Harrison used the words “terrorist music” to describe S.K.’s offer. S.K. described the reaction of the students who sat near her:

      
      

      And the girls I was sitting with, they were also asking me, “S., did you hear that?” And “Did you hear what she said?” And I was, like, “Yeah, I did.” And they’re, like, “You’re not going to say anything?” I was, like, “I don’t know what to say.”

      
      

      Hr'g Tr. 27. S.K. later described her reaction as shock and confusion. When counsel asked her why at hearing, she offered this explanation:

      Because I’ve never been faced with a problem like that before and because I was very young

      . . . I was just starting high school and it was the beginning of the school year, and I was . . . already nervous from starting a new school with all these older kids, and I just

      – I don’t know. I was young. I didn’t know how to react.

      
      

      Hr'g Tr. 29.

      
      

   9. In contrast to S.K.’s testimony and statements of students in accord, Ms. Harrison’s assertions of what took place during the incident varied. At first, in making a written statement on Miami-Dade County Public Schools letterhead as to “Incident #T02369,” see Petitioner’s Exhibit 4, she did not

      relate that she had used the word “terrorist” to describe S.K.’s music. The reason for omitting the central word she had uttered that led to the moment in the class becoming classified by the school as an incident under investigation was because she dismissed it as a “non-event” and she, therefore, “left a lot of things out [of the written statement].” Hr'g Tr. 118. Later, despite her “short memory,” Hr'g Tr. 117, and after having

      
      

      thought and thought about what happened, she recalled the event in detail. Compare Petitioner’s Exhibit 4 with Petitioner’s Exhibit 1 and her testimony at hearing. See also Hr'g Tr. 117-

      118. She testified that she had asked what type of music it was that S.K. had offered to play. She averred at hearing and in her deposition that after the inquiry and over the noise of the classroom, she had heard the response from the students as “terra music” and then “terrish music” and, making out the responses as best she could, only then did she say: “‘Terrorist music?’ . . . ‘I can’t play terrorist music.’” Hr'g Tr. 120.

      10. While the product of Ms. Harrison’s attempt to recollect is an explanation that makes sense and, standing alone, seems believable, it was not corroborated by anyone present. Written statements were submitted by eight students, including

      S.K. One of the students did not “remember any negative comments in Ms. Herrison [sic] class.” Pet'r's Ex. 6 at 16. The entirety of another of the students’ statement is that “Ms. Harrison did not say any bad comments about music during the class.” Id., at

      1. The statements of the five remaining students (other than S.K.) all assert that the word “terrorist” was used by

         Ms. Harrison. None of the students’ statements describe any difficulty Ms. Harrison had hearing or any questions by her about “terra” or “terrish” music. Nor was there any explanation from any of the class' students, who submitted written statements or

         
         

         testified at hearing, as to why the remark would have been an innocent one due to difficulty in hearing or any misapprehension on the part of Ms. Harrison.

         1. Ms. Harrison’s accounts differ materially from S.K.’s distinct, precise, explicit, and, therefore, credible testimony. Of particular relevance in finding S.K.’s version of events more credible is her distinct memory of the incident. Weighing heavily in S.K.’s favor is her straightforward testimony that she: first, offered only to play music on her iPod and did not verbally offer to play “Turkish” music; second, does not have Turkish music on her iPod; and third, does not listen to Turkish music because she does not understand it well enough due to a lack of fluency in Turkish.

            1. Aliens and UFOs

               
               

         2. To signal the end of time for a test in her classes, Ms. Harrison used a device that sounded an alarm. The alarm had several sounds. One of the sounds was similar to that associated with an unidentified flying object (UFO) or, as Ms. Harrison described it at hearing, “[i]t was like a spaceship, woo, like that." Hr'g Tr. 157.

         3. On a number of occasions when the device sounded the UFO-type alarm, Ms. Harrison made a comment to one of her students, C.B., along the lines of “your family is calling you.” On another occasion, when the class was engaged in an activity

            
            

            that utilized a picture of an extra-terrestrial alien on the board, Ms. Harrison said to C.B., “Oh, C., I picked this one especially for you.”

         4. C.B. was approximately 16 years of age when the comments were made. She did not find them to be funny no matter how Ms. Harrison intended them. In a written statement submitted to the school district, C.B. described her reaction, “it made me feel bad because she was embarrassing me in front of the whole class and I came home crying." Pet'r's Ex. 6 at 39. Asked about that moment at hearing, she explained why she had been so upset:

            Because I was just over her, like, making these comments . . . it wasn’t the first day, because she . . . repeatedly called me an alien. It was probably . . . when it got excessive, that I was just tired of it.

            
            

            Hr'g Tr. 107.

            
            

         5. C.B. is of Haitian heritage. When she told her mother about the comments, her mother e-mailed Ms. Harrison and contacted the school authorities. Eventually, C.B. met with

            Mr. Mejia, the assistant principal at Coral Reef High School. After her meeting with Mr. Mejia, Ms. Harrison stopped the practice of referring to C.B. or her family as extra-terrestrial aliens.

         6. Ms. Harrison was aware of C.B.’s heritage. See Hr'g Tr. 159. But when she made the comments, it was not directed to

            C.B. or her family being Haitian; nor was it intended in any

            
            

            manner as a reference to undocumented or illegal aliens. The comments referred to C.B. and her family as being extra- terrestrial or from outer space.

         7. C.B. was described by other students to the effect that she had a distinct personality and was in her own world.

            Ms. Harrison perceived C.B. in much the same way. As Ms. Harrison testified, therefore, the comments were not “anything about her being Haitian, anything about her

            nationality. It was just her overall personality.” Hr'g Tr. 158.

         8. From the beginning of the school year, Ms. Harrison had had trouble with C.B. being on the telephone in class and being “flighty.” Id. Eventually, Ms. Harrison telephoned her mother to discuss C.B.’s classroom behavior. Through these encounters, Ms. Harrison felt like she had a connection to C.B. and her family. Because of C.B.’s behavior in class, her personality, and Ms. Harrison’s relationship with C.B.’s mother, Ms. Harrison mistakenly thought C.B. would not take offense at a reference to her or her family as being from “outer space.”

         9. However innocent Ms. Harrison’s intent, the comments singled out C.B. in an unflattering manner, embarrassing and upsetting her. C.B.’s reaction was reasonable. Ms. Harrison’s expectations were not. The consequences of the comments to C.B. should have been expected since she was a 16-year-old girl in the

            
            

            midst of a classroom of students and most importantly, since the comments were made by the teacher of the class.

            1. Crying to Mommy

1. In the fall of 2011, Ms. Harrison also taught an Algebra I class. D.G. was a student in the class. She submitted a written statement to the Coral Reef Administration that

   Ms. Harrison had said the students’ prospects after high school would be no more than flipping burgers and strumming their lips, as if they were a musical instrument, indicating a bleak future.

   D.G. took the comments to mean that Ms. Harrison intended to communicate that the students’ generation was “dumb.” D.G. said the comments lowered her self-esteem because, in her words, “math for me is not my strongest subject, so I was already . . . doubting myself, and these comments just made it even worse.” Hr'g Tr. 65.

2. Ms. Harrison admits making the remark about flipping burgers and that she strummed her lips to indicate what the future held for them, but she did not refer to D.G.’s generation as “dumb.” The remarks were not intended by Ms. Harrison as a comment about D.G., but on students in the class whose behavior was disruptive. She wanted them to take education as seriously as she does. Her purpose was to encourage the disruptive students to behave and buckle down to their studies so that they would succeed after they left school.

   
   

3. Ms. Harrison’s motive was not understood by D.G. She complained to her mother. D.G.’s mother wrote to Ms. Harrison in Spanish, and Ms. Harrison called D.G.’s mother and talked to her by telephone. The next day, Ms. Harrison, with the intention of referring to D.G., made the comment to the class to the effect, “Who else wants to go home crying to their mommy?” The class laughed at the question, and the laughter embarrassed D.G.

4. Ms. Harrison felt that D.G. had not fully informed her mother that the “flipping burger” comments and the strumming of her lips were because of misbehavior in the class. After she had spent a full hour on the telephone with D.G.’s mother,

   Ms. Harrison was upset. She argued that the reference to “crying to your mommy,” was not inappropriate under circumstances in which she had to explain the context of her comments about flipping burgers and the strumming of her lips to D.G.’s mother, a context which she believed justified her earlier words and actions.

   Reprimand

   
   

5. On October 28, 2011, Ms. Adrienne Leal, Principal of Coral Reef Senior High School, issued a written reprimand to Ms. Harrison with regard to the “terrorist music” comment.

6. The written reprimand, in the form of a Memorandum, see Petitioner’s Exhibit 5, after describing the details of the incident the previous September 13, states:

   
   

   This infraction was found to have Probable Cause by Preliminary Personnel Investigation, Administrative Review, Case # T-02369. By making that comment, you have violated School Board Policies 3210, Standard of Ethical Conduct, and 3210.1, Code of Ethics.

   
   

   It is your responsibility as a Miami Dade County Public School (M-DCPS) employee to conduct yourself in a manner that reflects credit upon yourself and the district.

   Therefore, you are hereby officially reprimanded for the above-stated actions.

   
   

   
   

   Id.

   You are directed to immediately refrain from making any discriminatory, disparaging or negative remarks toward students.

   
   

   The Amended Administrative Complaint’s Material Allegations

   
   

7. In addition to alleging that Ms. Harrison was disciplined for violations of the district’s rules and the Code of Ethics, the Amended Administrative Complaint makes six specific material allegations of inappropriate and disparaging comments to students. Alleged to have occurred in the Fall of the 2011-2012 school year, they are:

   1. Female student S.K., who is Muslim and of Turkish heritage, offered to play music on her iPod portable music play[er] for the class. The Respondent commented that she didn’t want to listen to “terrorist music.” The Respondent’s comments was [sic] heard by other students and was upsetting to S.K., who was removed from Respondent’s class; and

      
      

   2. The Respondent used an alarm devise for testing which omitted [sic] a UFO type sound. When the sound occurred, Respondent made several references that female student C.B.,

      
      

      who is of Haitian heritage, was an alien. The Respondent’s comments were heard by other students and were upsetting to C.B.

      
      

   3. The Respondent made derogatory comments if a student asked a question more than once including “Your generation is dumb and all of you will end up flipping hamburgers.”

      
      

   4. Female student, D.G., was offended by Respondent’s comments and told her parents. D.G.’s mother wrote an e-mail to cease and [sic] such demeaning comments. Respondent became upset over the e-mail and during class commented on the e-mail, stating “Who else wants to go crying to their mommy?” or words to that effect. The class laughed at Respondent’s comments which embarrassed D.G.

      
      

   5. Respondent has also made comments to the class that “Their generation is so dumb that you’re going to strum your lips thinking it was a musical instrument.” Respondent would flap her lips with her index finger to demonstrate.

      
      

   6. Respondent admitted to her administrator of making negative remarks, such as “flipping burgers for a living” and flapping her lips using her index finger, as if all of the students were dumb.

      
      

      Amended Administrative Complaint, at para. 3., second page.

      
      

      Other Students’ Impressions

      
      

      1. Sadam

         
         

8. S.A. is from Honduras, but his family is from Jordan.

   
   

   S.A.’s first name is Sadam because his family “like[s] Arab names.” Hr'g Tr. 183.

   
   

9. S.A. attended Coral Reef Senior High School from the 9th through the 12th grade. During that time, he was in

   Ms. Harrison’s Algebra II class.

   
   

10. Ms. Harrison never made fun of S.A.’s name. Nor did she ever make comments about any of the students’ national origin in his Algebra II class. She never referred to any of the students in the class as “dumb” or “stupid” or any similar adjective.

11. S.A. was in Ms. Harrison’s class during the 2011-12 or 2012-13 school year; he could not remember which. He was not, however, in S.K.’s class when the remark was made by Ms. Harrison about “terrorist music.”

    1. K.B.

       
       

12. K.B. was a student in three of Ms. Harrison’s math classes from 2011 to 2014. One of the classes was the Honors Geometry class in which the “terrorist music” comment was made.

13. K.B. heard S.K. ask to play her music on September 13, 2011, but the class was “loud enough,” Hr'g Tr. 189, that he did not hear Ms. Harrison use the word “terrorist.” S.K. sat six or seven seats behind K.B., and he does not remember anyone in the class that seemed to be upset by the colloquy between

    Ms. Harrison and S.K.

    
    

14. K.B. described the “UFO-type” sound when Ms. Harrison’s alarm went off as “an old movie alien abduction sound.” Hr'g

    
    

    Tr. 190. He remembers C.B. as a student “in her own little world,” id., and he took Ms. Harrison’s remarks to C.B. to be that C.B.’s “parents are aliens from outer space and they’re coming to get her.” Id.

15. K.B. was “born American,” but both his parents and his ancestry are Jamaican. Ms. Harrison never made any comment about his national origin, nor has he ever heard Ms. Harrison make any prejudicial statement about students in the three classes he took from her. He described Ms. Harrison at hearing: “She has a good humor. She’s a good teacher.” Hr'g Tr. 191.

16. K.B. remembers the students laughing at Ms. Harrison’s remark about C.B.’s family the first time Ms. Harrison said it. But he doesn’t think they laughed the other three, four, or five times Ms. Harrison made the remark because by then it was “old

    news.” Hr'g Tr. 192.

    
    

    1. A.C.

       
       

17. A.C. was in Ms. Harrison’s Honors Geometry class with

    
    

    S.K. and C.B. when he, like S.K., was a freshman. The Beatles music that played before the “terrorist music” comment was from his iPod.

18. A.C. remembers the incident, but he did not “hear exactly what was said” because “the whole room was being sort of rowdy. It was towards the end of the period, so everyone was being loud.” Hr'g Tr. 197.

    
    

19. With regard to the comments made to C.B., A.C. took them as a joke. His assessment of the environment in the class was that it was “very light . . . it was sort of a jokey, light atmosphere for most of the year,” Hr’g Tr. 199, so he did not “think there was any . . . weight behind [Ms. Harrison’s] words.”

    Id.

    
    

20. When asked at hearing if he had ever heard Ms. Harrison

    
    

    make an inappropriate remark in class, he replied, “Not that I can remember. Not that I can think of.” Id.

    Ms. Harrison’s Record and Devotion to Teaching

    
    

21. Ms. Harrison has been teaching in the Miami-Dade County School System since the year 2000. She has never been disciplined by the Department of Education. She has never called any of her students “dumb or stupid.” She has never made fun of any of her students’ national origin. She professed at hearing to have never intentionally embarrassed any of her students.

22. At the close of the hearing and her defense,

    
    

    Ms. Harrison summed up her devotion to her profession and the nature of flawed human beings:

    I became a teacher for all of the right reasons . . . in my late 30s. And I love to teach. I love being with the kids.

    
    

    * * *

    
    

    I take education very seriously. And I want my kids to be the best they can.

    
    

    And I take on my students as my kids, almost as if they were my own . . . sometimes I’m a little bit stricter with them . . . sometimes you can be a little bit more light-hearted.

    There [are] so many different personalities. But I love to teach and I would never really do anything – if I hurt somebody’s feelings and they came to me –- I . . . [took] one student under my wing, because . . . her mother had cancer, and I did everything I could to try to encourage her . . . .

    
    

    So I try to do as much as I can to help these kids out. That’s the type of teacher I am.

    
    

    * * *

    
    

    1. ometimes I’m not perfect, and I’ll say something that somebody hears the wrong way, but we’re all human beings. That’s . . .

       just the nature of . . . being a human being . . . .

       
       

       Hr'g Tr. 206-207.

       
       

       CONCLUSIONS OF LAW

       
       

23. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. §§ 120.569, 120.57(1), and 1012.796(6), Fla. Stat.

24. Petitioner must prove the allegations that are material to the charges in the Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292

    (Fla. 1987).

    
    

25. In 1994, the Florida Supreme Court detailed the requirements of the “clear and convincing” standard of proof:

    Clear and convincing evidence requires that the evidence must be found to be credible;

    
    

    the 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 or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re Davey, 645 So. 2d 398 (Fla. 1994) at 404 (quoting with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA

    1983)).

    
    

26. The Amended Administrative Complaint charges

    
    

    Ms. Harrison with three counts. The first is listed under the heading of “Statute Violations”:

    COUNT 1: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

    
    

    Amended Administrative Complaint, at page 3 of 4. The second two

    
    

    counts appear in the complaint under the heading, “Rule Violations”:

    COUNT 2: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety.

    
    

    COUNT 3: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in

    
    

    
    

    Id.

    that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement.

    
    

27. The charge in Count 1 is generic. It does not cite to specific “Principles of Professional Conduct Prescribed by State Board of Education Rule” (the Principles). Whether Ms. Harrison can be found guilty of Count 1, therefore, depends on Principles cited with specificity elsewhere in the Amended Administrative Complaint.

28. The Principles are found in Florida Administrative Code Rule 6A-10.081: “The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.” Fla. Admin. Code R. 6A- 10.081(1). Among the principles are those which Ms. Harrison is charged with violating by Counts 2 and 3. They are found in paragraphs (a) and (e) of subsection (3) of the rule:

    1. Obligation to the student requires that the individual:

       
       

       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.

    
    

    (emphasis added).

    
    

    (3)(a)

    
    

29. No evidence was offered that Ms. Harrison’s comments constituted a failure to make reasonable effort to protect any of her students from conditions harmful to the students' physical health and/or safety.

30. The charge that Ms. Harrison failed to make reasonable efforts to protect her students from conditions harmful to any of her students’ mental health also fails. There was accepted testimony from D.G. that she felt her self-esteem had been lowered by Ms. Harrison’s “flipping burgers” comments and the strumming of her lips in class. S.K. was shocked, embarrassed, and left at a loss by Ms. Harrison’s “terrorist music” comment.

    C.B. was frustrated, embarrassed, and hurt by Ms. Harrison’s “alien” comments. And D.G. was embarrassed by Ms. Harrison’s “crying to mommy” comment. In the cases of each of these three students, the emotional reactions they experienced may have lingered. But the evidence of record is not clear and convincing that these quite real emotions constituted or were evidence of damage to the students’ mental health or that damage ensued.

31. Whether the comments were “harmful to learning” is an open question. They may have been, particularly in D.G.’s case since the subject of mathematics is difficult for her and she testified that Ms. Harrison’s comments were not helpful. While Ms. Harrison’s comments caused the students emotional difficulty,

    
    

    there is no clear and convincing evidence that the comments reached the level of causing harm to their learning.

    (3)(e)

    
    

32. There is no doubt that Ms. Harrison’s comments caused S.K., C.B., and D.G. unnecessary embarrassment or disparagement. The question is whether the comments were made with the intention to do so.

33. Taken as a whole, the comments exhibit a pattern of insensitivity in singling out students by inappropriate remarks.

34. Of the three students, Ms. Harrison’s explanation with regard to C.B. seems to display most a lack of intent to embarrass or disparage her. Yet, surely the comments did just that. The comments, moreover, were repeated on more than one occasion. Repetitive comments to a student that portrayed her and her family, and no other student or student’s families, as aliens from outer space were bound to embarrass her.

35. In D.G.’s case, the “flipping burgers” comment and strumming of lips were meant to motivate disruptive and disinterested students. They were not uttered with intent to disparage or embarrass any of the students. But the “crying to mommy” comment was not motivational. No matter that it was

    Ms. Harrison’s attempt to teach the lesson of “telling the whole story,” it was obvious that the comment would embarrass D.G.

    
    

36. The “terrorist music” comment to S.K. appears to be an isolated disparaging remark about ethnicity or national origin. But it is exceedingly out-of-bounds for a teacher in an educational setting with impressionable students in today’s post-9/11 environment. Ms. Harrison’s explanation, moreover, that she misheard S.K.’s offer is not credited.

    Disposition of the Charges

    
    

37. Ms. Harrison should be found guilty as charged as to Count 3, and, therefore, as to Count 1.

38. She should be found “not guilty” as to Count 2.

    
    

39. Petitioner’s recommended penalty is:

1. hat the Respondent be issued a letter of reprimand by the Education Practices Commission, her educator’s certificate be placed on probation for a period of three (3) years with the terms and conditions to be set by the Education Practices Commission, including the completion of two (2) college level course work in the area of classroom management and sensitivity in communications and an appropriate fine of not less than

$1,000.00 to be paid within the first year from the Final Order.

Petitioner’s Proposed Recommended Order at 8. The recommended penalty is too severe even if Ms. Harrison is found guilty on all three counts. A more appropriate penalty is placement of her educator’s certificate on probation for a period through the expiration of the next school year with the terms and conditions

to include completion of course work in the areas of classroom management and sensitivity in communications with students.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty as charged under Counts 1 and 3 of the Amended Administrative Complaint, not guilty as charged under Count 2, and that the penalty be placement of her educator’s certificate on probation through the expiration of the 2015-16 school year with a condition of probation that she complete course work at an appropriate level in the areas of classroom management and sensitivity in communications with students.

DONE AND ENTERED this 22nd day of January, 2015, in Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2015.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director Education Practices Commission

Department of Education

325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 (eServed)

Branden Vicari, Esquire Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 (eServed)

Charles T. Whitelock, Esquire Whitelock and Associates, P.A. Suite E

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 (eServed)

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Marian Lambeth, Bureau Chief Bureau of Professional

Practices Services Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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.

Docket for Case No: 14-003919PL

Orders for Case No: 14-003919PL