Findings Of Fact William Burnett Washington's primary residence is 106 Westwind Court, Sanford, Florida. Mr. Washington and his wife, Betty Washington, have jointly owned the house at 106 Westwind Court house for 10 years. On a highly infrequent basis, Mr. Washington spends the night at 2020 Old Lake Mary Road, Sanford, Florida. This is the primary residence of Mr. Washington's brother, who is normally the sole occupant of the house. The Westwind Court house is occupied by Mr. Washington, Mrs. Washington, and their children, Shawn Washington, aged 16 years, and Niki, aged 14 years. Apart from infrequent overnight visits with friends, the Westwind Court home is the exclusive residence of Shawn and Niki. The Westwind Court house is served by the Seminole High School attendance zone. The Old Lake Mary Road house is served by the Lake Mary High School attendance zone. At the beginning of the 1989-90 school year, Shawn and Niki were attending Lake Mary High School. By letter dated September 21, 1989, Respondent informed Petitioner that his children were enrolled in Lake Mary High School on the basis of false information. The letter explained that they were being administratively withdrawn from Lake Mary High School and administratively enrolled at Seminole High School.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Seminole County, Florida enter a Final Order confirming the enrollment of Shawn and Niki Washington in Seminole High School. ENTERED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 22nd day of February. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5651 Treatment Accorded Proposed Findings of Respondent 1: adopted except that Petitioner primarily resides at 106 Westwind Court. Even if he were to reside primarily at 2020 Old Lake Mary Road, however, the result would be the same because the children primarily reside with their mother. 2-3: adopted. 4: rejected as unsupported by the greater weight of the evidence. The children primarily reside with their mother. 5: adopted. 6-9: rejected as subordinate and recitation of evidence. 10: rejected as irrelevant. COPIES FURNISHED: Harry L. Lamb, Jr. Perry & Lamb, P.A. 135 Wall St. Suite 200 Orlando, FL 32801 Ned N. Julian, Jr. Stenstrom, McIntosh, Julian, et al. P.O. Box 1330 Sanford, FL 32772-1330 Robert W. Hughes Superintendent The School Board of Seminole County, Florida 1211 Mellonville Avenue Sanford, FL 32772 Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
Findings Of Fact At all times material to this proceeding Respondent, Frederick Alexander, was a student at Seminole Community College. As such, Respondent was subject to the disciplinary rules and regulations of Seminole Community College as set forth in the College's general catalog, Volume 16, April 1981. In particular, Petitioner's Rule 6HX25-4.06 provides as follows: Seminole Community College expects its students to be mature and responsible citizens at all times and places. Any student whose conduct or dress, whether on or off campus, at any time, is in violation of law, is a public nuisance, or deemed improper and detrimental to the College, may be subject to disciplinary action including probation, suspension, dismissal or denial of re-enrollment . . . . While enrolled at Seminole Community College, on or about September 25, 1981, Respondent entered Room J-110 at the College and, while in the presence of Claudette Gover, a secretarial employee of the College, exposed his genitals, and remarked to Ms. Gover, "Do you want some of this black stuff, Baby?" Ms. Gover appeared as a witness at the final hearing in this cause, and positively identified the Respondent from a photograph of the Seminole Community College basketball team. Subsequently, on or about October 26, 1981, Respondent was observed in the ladies shower room in the health building on the campus of Seminole Community College. That shower room is a non-coeducational facility, intended solely for use of female college students and faculty and staff members, and is clearly marked as such. Respondent was observed in the shower room by a female student who had just emerged from the shower and was clad only in her underclothing. Although Respondent made no overt advances to the female student, he remained in the locker room adjacent to the shower room, which also was used only by female students and faculty, until the female student dressed and left the room. Later, when questioned by college officials concerning his entry of the ladies shower room, the Respondent neither admitted nor denied his conduct. The Respondent was, however, positively identified as the individual in the shower room by the female student.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Board of Trustees of Seminole Community College dismissing Respondent as a student at the College. DONE AND ENTERED this 15th day of April, 1982, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1982. COPIES FURNISHED: Clayton D. Simmons, Esquire Stenstrom, McIntosh, Julian, Colbert & Whigham, P.A. Post Office Box 1330 Sanford, Florida 32771 Frederick Alexander 1619 West 16th Street Sanford, Florida 32771
The Issue Are proposed amendments to Rules 6C-6.001, 6C-6.002 and 6C-6.003, Florida Administrative Code, calling for language to be repealed and added, "invalid exercises of delegated legislative authority?" Section 120.52(8), Florida Statutes.
Findings Of Fact The Parties Petitioner, NAACP, Inc., individually and through its Florida Conference of Branches of NAACP, is a foreign not-for- profit corporation that has a certificate of authority to conduct its affairs in the State of Florida. Petitioner Mattie Garvin has not applied for admission to any state university within the State University System (SUS) for school year 2000-2001. The goal of Petitioner, Mattie Garvin, is to provide her son, Keith Garvin, with the best possible educational opportunities, a goal shared by many parents of the State of Florida. Petitioner, Keith Garvin, has not applied for freshman admission to any state university within the SUS. Petitioner, Keith Garvin, has not applied to any limited access program offered by any state university within the SUS. Petitioner Keith Garvin has not applied for admission to any preteacher education or teacher education pilot program at any state university within the SUS. Petitioners Keith Garvin and Mattie Garvin are members of the NAACP, but are not members of Florida Now. The Board of Education is a body corporate created by Article IX, Section 2 of the Florida Constitution, consisting of the Governor and members of the cabinet. The Board of Education is constitutionally mandated to supervise the system of public education as provided by law. Section 229.053, Florida Statutes (1999), designates the Board of Education as the chief policymaking and coordinating body of public education in Florida. With respect to the SUS, the Board of Education is required to approve all rules adopted by the Board of Regents before the rules are filed with the Department of State, and to exercise general supervision and control over the Board of Regents pursuant to Section 240.203, Florida Statutes (1999). The Board of Regents is a body corporate created by Section 240.205, Florida Statutes (1999), and is an agency of the State of Florida for purposes under Chapter 120, Florida Statutes (1999). The Board of Regents consists of the Commissioner of Education and 13 citizens of Florida who are selected from the state at large, and is representative of the geographical areas of the state. Programs Section 240.529(9), Florida Statutes (1999), authorizes universities to establish preteacher education and teacher education pilot programs to encourage promising minority students to prepare for a career in education. The programs shall be designed to recruit and provide additional academic, clinical, and counseling support for students who are potentially successful teacher education candidates but who may not meet teacher education program admission standards. Those programs may admit students who may not meet the requirements for entrance into an approved teacher education program. The establishment of preteacher education or teacher education pilot programs as described in Section 240.529, Florida Statutes (1999), is not mandatory. No SUS university currently offers a preteacher education and teacher education pilot program. Enrollment in preteacher education and teacher education pilot programs offered by state universities within the SUS is a separate process from freshman admission into a state university. Enrollment in limited access programs offered by state universities within the SUS is a separate process from freshman admission into a state university. Neither the Board of Regents nor any of the ten universities in the SUS has adopted a rule establishing an admissions quota. There is no provision in the existing rules of the Board of Regents which requires that public universities grant race or gender-based preferences in admissions. Case History On November 9, 1999, the Governor issued Executive Order 99-281, requesting that the Board of Regents implement a policy prohibiting the use of racial or gender set-asides, preferences, or quotas in admissions to all Florida institutions of higher education. The Board of Regents, at its November 18-19, 1999, meeting directed its staff to develop appropriate language to amend admission rules to prohibit the use of race, ethnicity, and gender-based preferences in the university admissions process, and to implement other policies outlined in the Governor's Equity in Education Plan. The Board of Regents published its "Notice of Rule Development" in the Florida Administrative Weekly on November 24, 1999. At the meeting of the Board of Regents held on December 9-10, 1999, the Board of Regents reviewed proposed language for the rule amendments and data that was presented in support of the rule amendments. On December 23, 1999, and February 4, 2000, the Board of Regents published its "Notice of Proposed Rulemaking" in the Florida Administrative Weekly. On February 3, 2000, the Agenda for the Board of Regents' February meeting was mailed to each Board of Regents member; this Agenda included over 145 pages of information on the Proposed Rule Amendments. At the Board of Regents' meeting held on February 17- 18, 2000, the Board of Regents heard comments from 78 members of the public regarding the proposed rule amendments. At the conclusion of the public comments, the presidents of each of the ten SUS universities also offered comments on the proposed rule amendments. At the Board of Regents meeting on February 17-18, 2000, the Board of Regents voted to approve the proposed rule amendments. The Board of Education approved the proposed rule amendments on February 22, 2000. On February 25, 2000, the Petitioners filed a Petition to Determine Invalidity of the Proposed Rule Amendments. By order dated March 30, 2000, the Florida National Organization of Women was granted leave to Intervene in support of the petition filed by the Petitioners. The Board of Regents has granted the Petition for Emergency Variance filed by the ten SUS universities on April 11, 2000. The universities were granted a variance from the portion of Rule 6C-6.002(3)(a), Florida Administrative Code, that requires entering freshman to possess four additional academic electives from five specific subject areas referenced in the rule, i.e., English, math, natural science, social science and foreign language. Gender In the 1998-99 academic year, 56.7 percent of the students enrolled in SUS universities were women. Other Facts: Standing NAACP The NAACP is chartered under laws in the State of New York. It has affiliates throughout the country. There are 39 state conferences. There is a Florida conference. The Florida conference, as other state conferences, is made up of local Adult Branches, Youth Councils, and College Chapters. Within the NAACP national office is a department of education. That department has the function of development of educational policy at the state and national level through affiliated units in the NAACP. NAACP, in pursuit of educational policy and in particular in relation to the desegregation of public education in elementary schools, secondary schools, undergraduate, and graduate studies in universities, is engaged in litigation. The Florida Conference State Convention takes up topics concerning education related to enrollment in colleges and universities. The Constitution and By-Laws for Branches of NAACP, Article I, Section 3, describes the purpose of its branches, to include: . . . to improve the . . . educational . . . status of minority groups: to eliminate racial prejudice; to keep the public aware of the adverse effects of racial discrimination; and to take lawful action to secure, its elimination, consistent with the efforts of the National Organization and in conformity with the Articles of Incorporation of the Association, its Constitution and By-Laws and as directed by the National Board of Directors. Article II, Section 1, establishes that "membership in the Branches shall include membership in the National Association." Under Article IV, Section 4, in that document, NAACP has a standing committee for education. Article IV, Section 5(d), refers to the education committee which shall, among other responsibilities, "(1) Seek to eliminate segregation and other discriminatory practices in public education; (2) Study local educational conditions affecting minority groups . . ." (Petitioners' Exhibit No. 18) NAACP has a Constitution for Youth Councils. Under Article I, Section 2, to that constitution, Youth Councils are subordinate units of the NAACP and are expected to coordinate their activities to achieve the aims and objectives of NAACP. Article I, Section 3, within the Constitution for Youth Councils states the purpose of the Youth Councils to, among other expectations, advance educational status of Black people and other minority groups. Article II, Section 1, identifies members in Youth Councils as persons under the age of 25. Those members of the Youth Council may become members of the Youth and College Division by accepting the terms of the Constitution of the NAACP. Membership in the Youth Council constitutes membership in the NAACP. The Constitution for Youth Councils, Article V, Section 4(f), establishes a standing committee for education. That committee is charged with the responsibility to, "(1) Seek to eliminate segregation or other discriminatory practices in public education; (2) Study local educational conditions affecting minority groups . . ." (Petitioners' Exhibit No. 19) NAACP has a Constitution for College Chapters. According to Article I, Section 2, the College Chapters are affiliated with NAACP and shall subscribe to the general policies and programs of NAACP. The College Chapters shall have as their purpose, among other goals and responsibilities, the improvement of educational status in minority groups, elimination of racial prejudice and assistance to the public in becoming aware of the adverse affects of racial discrimination. In accordance with Article II, Section 1, membership in the College Chapters pertains to persons under the age of 25. Membership in the College Chapters shall include membership in the NAACP. Article IV, Section 4(e), identifies a standing committee on education within the College Chapters charged with the study of educational conditions affecting Black people and other minority groups and in particular, charged to: Concern itself with educational practices on its own campus as well as other campuses. Be a center for popular education on the problems of Black students in the work of the NAACP. To work for the integration of students, faculty and non-teaching personnel; elimination of quota systems, particularly in medical, dental and engineering schools and to give attention to upgrading and granting tenure to professors. Seek to secure unprejudiced presentation in the teaching of materials pertaining to racial and other minority groups. . . . (Petitioners' Exhibit No. 20). NAACP has established State Youth and College Division By-Laws. Article I, Section 3, to the By-Laws states the objectives of a State Youth and College Division of NAACP to advance the educational status of Black people. Article II, Section 1, refers to membership partially composed of Youth Councils and College Chapters. Under Article IV (c), the By- Laws establish a standing committee on education charged to organize and study conditions affecting the education of Black people in Florida. (Petitioners' Exhibit No. 23) NAACP sponsors the Afro-Academic, Cultural, Technological and Scientific Olympics (Act-So). Act-So was designed to stimulate, promote, and encourage high academic and artistic achievement among Afro-American high school students. NAACP Branches throughout the country conduct annual local Act- So competitions in the sciences, the humanities, the performing arts, and the individual arts. The competition is for students in grades 9-12. Winners in local competitions then compete with winners from other cities in national Act-So finals. (Petitioners' Exhibit No. 21) Branches within NAACP work through the Back To School/Stay In School program to assist students who are "at risk" to remain enrolled in school. This program includes tutoring and mentoring. The Florida Conference in relation to the Youth and College Divisions brings representatives of colleges and universities to address students about the opportunities for attending college. Recently 13 colleges and universities sent representatives for this presentation. NAACP prepared a membership report for its members in Florida for the period February 1, 1999 through February 29, 2000. The report reflects the number of members in Adult Branches, Youth Councils, and College Chapters. In the reporting period there were 7,205 regular adult members, and there were 2,587 regular youth members, further divided into 1,835 Youth Council members and 602 College Chapter members, all categories having membership in NAACP. (Petitioners' Exhibit No. 22) The number of members in Youth Councils enrolled as high school students cannot be discerned from the report; however, it is estimated to be 70 percent to 80 percent of Youth Council membership. In its challenge, NAACP considers the term "preferences" to be a "negatively charged word" as used in the proposed rules amendments. It believes that the term is used to enflame passions and create prejudice against the use of affirmative action programs. It alleges that in prohibiting "preferences" programs benefiting minorities such as scholarships, tutoring, and recruitment will be negatively affected. NAACP has its greatest concern in the Board of Regents' choice to refer to "prohibition of preferences" in the proposed amendment to Rule 6C-6.003(5), Florida Administrative Code. Mattie Garvin and Keith Garvin: Mattie Garvin and Keith Garvin reside in Miami, Florida. Mattie Garvin is Keith Garvin's mother. Mattie Garvin and Keith Garvin are African-American. Both are members of NAACP. Keith Garvin is a minor; he is 15 years old, a tenth grader at Miami Lakes Senior High School, in Hialeah, Florida. To this point Keith Garvin has received his education in public school. He anticipates graduating in the year 2002. Keith Garvin has a 2.6 grade point average (GPA). He is unfamiliar with his class rank. (Respondents' Exhibit Nos. 98 and 99) Class rank is not determined until the twelfth grade. Keith Garvin plans to attend college. He has particular interest in attending Florida State University within the SUS. He has interests in computer engineering and computer programming as possible college majors. In addition to his school course work, Keith Garvin visits with a counselor to assist him in identifying his needs in the interest of attending college following graduation from high school. These sessions also involve the discussion of the Scholastic Aptitude Test (SAT), and overall study habits. Keith Garvin has taken the PSAT. His aggregate score was 1400, divided 700 in English and 700 in Math. For future reference concerning hypothetical admissions possibilities for Keith Garvin, information has been taken from the SUS Fact Book 1997-98. (Petitioners' Exhibit No. 40 Respondents' Exhibit No. 54) It shows that for the fall of 1997 regular admissions the average SAT score was 1150.7 and the average GPA was 3.6. In that term, the entering freshmen class at the University of Florida had an SAT score of 1242.1 and a 3.8 GPA. In that term, the Florida State University entering class had an SAT score of 1151.6 and 3.5 GPA. At the other end of the scale, the Florida Gulf Coast University entering freshmen class had an SAT score of 1047 and a 3.5 GPA. Keith Garvin participates in other activities aside from his education. He plays high school football, is involved with Future Business Leaders of America, as well as his membership in NAACP in the Miami Dade Youth Council. His NAACP Youth Council has approximately 500 members with approximately 80 percent of that membership attending high school. Mattie Garvin actively participates in the education of Keith Garvin and her other two children. She is committed to advancing the education of her children, and she intends to have her children attend college. Florida Now Florida Now is incorporated by the State of Florida. (Intervenor's Exhibit No. 1) As its Statement of Purpose, Florida Now indicates it [I]s to take action to bring women into full participation in the mainstream of American society now, exercising all privileges and responsibilities thereof in truly equal partnership with men. This includes, but is not limited to, equal rights and responsibilities in all aspects of . . . education . . .; and it includes freedom from discrimination because of race, ethnic origin, age, marital status, sexual preference/orientation, or parenthood. (Intervenor's Exhibit No. 2A) In its brochure, Florida Now describes its support for affirmative action, and equal opportunity for women and people of color. The brochure reflects that members of Florida Now are actively involved in issues relating to the full equality for women in society in relation to education and the stated opposition to discrimination in education. The brochure states the purpose as "we actively pursue the rights of girls and women to full and equal educational opportunities." Further, "we oppose discrimination or gender segregation." (Intervenor's Exhibit No. 2B) The National Organization of Women, Inc. (Now) has a number of resolutions that direct its members at the local and state level to monitor the circumstances of education for women of all colors to make certain that state university systems comply with federal law and the state and local laws concerning equity in education for women. Some of its members have established a scholarship for women in Florida to attend college in the state. There is particular concern about having women educated in non-traditional careers, to allow those women to earn more income. The organization has a concern about discrimination from the earliest educational experience for girls through the educational experience for women who attend college. The organization is concerned that guidance counselors not give women information that causes those students to be "trapped into womanly-type careers" that are underpaid. There are 36 chapters of Florida Now with approximately 6,000 members in Florida. Part of the membership is constituted of high school students, college students, and graduate students. Florida Now has both men and women as members. Members of Florida Now are parents who have students in high school who expect to attend the SUS. Members of Florida Now are parents who have children who attend the SUS. The number of Florida Now members who have children currently enrolled in Florida high schools was not established. The number of Florida Now members currently enrolled in undergraduate programs within the SUS was not established. The number of Florida Now members who have children currently enrolled in undergraduate programs in the SUS was not established. The number of Florida Now members currently enrolled in limited access programs within the SUS was not established. The Florida Now members currently enrolled in graduate or post-baccalaureate or professional programs in the SUS was not established. This information was not established because Florida NOW does not call upon its members to identify their places in the educational system. Florida Now Witnesses Maxene Tuchman is an Hispanic woman. She is a member of Florida Now. She is a senior at Palmetto Senior High School, in Miami, Florida. Her unweighted GPA is 3.8 and her weighted GPA is 4.2. Under the unweighted GPA the maximum is 4.0 and under the weighted GPA the maximum is 6.0. She is in the 27th percentile ranking of her class at Palmetto Senior High School. She attended the Design Architecture Senior High in Dade County before transferring to Palmetto Senior High School. Had she remained in that smaller school she would have been in the top 10 percent ranking by her estimate. Maxene Tuchman has participated in the National Honor Society and Social Science Honor Society, among other school activities. She has taken college courses at Miami Dade Community College. In pursuing admission to the SUS Maxene Tuchman received a combined score of 1120 on the SAT. Maxene Tuchman has been accepted to the University of Florida, Florida State University, and the University of South Florida, and New College within the SUS, together with a number of other universities outside that system. Information concerning Maxene Tuchman and her educational performance is found in Intervenor's Exhibit No. 4. Carla Denise Edwards came from an upper-middle-class background and attended the University of Pennsylvania at which she earned both bachelor's and master's degrees. Carla Denise Edwards is a member of Now. Carla Denise Edwards is a graduate student at the University of Florida. She is pursing a doctoral program in sociology. When she applied for admission to the program her Graduate Record Examination (GRE) score was 980. The minimum requirement for regular graduate admission was a GRE score of 1000. Because the program which she applied for was interested in bringing African-American women into that department she was accepted as a student and has excelled. The basis of admission for Carla Denise Edwards was in the interest of "diversifying" the department. Her initial admission was conditional. To be retained in the program, Carla Denise Edwards submitted additional writing materials and attended a minority enhancement program sponsored by the Board of Regents before commencing course work in the following term. Carla Denise Edwards maintains a 3.85 GPA out of a possible 4.0 GPA in her studies. She has won the College of Liberal Arts and Sciences Pre- Dissertation Award, the Graduate Student Teaching Award, and the Graduate Student Paper Award within her department. Information concerning Carla Denise Edwards' background in education is found in Intervenor's Exhibit No. 3. As a sociologist, Carla Denise Edwards explained her belief in the need for diversity in her discipline when dealing with the study of social groups and social organization and the importance of student diversity in her graduate program. Background: State of Florida/Office of Civil Rights (OCR) Consistent with Title VI of the Civil Rights Act of 1964, the State of Florida has committed itself to equal access and equal opportunity to all its citizens who pursue public higher education. Over time, these commitments have been formalized through agreements between the State of Florida and the Federal Government. To this end, a plan was established in February 1978, entitled Florida's Commitment to Equal Access and Equal Opportunity in Public Higher Education. This plan represented the agreement between the State of Florida and the United States Department of Health, Education, and Welfare, Office for Civil Rights. This commitment was in the interest of continuing efforts by the State of Florida to overcome the effects of past segregation in public higher education and to put in place an integrated and unitary system of higher education. The commitment included the provision of adequate opportunities and necessary support services to assist African- American students in addressing their educational needs and achieving their educational goals. (Petitioners' Exhibit No. 37) The State of Florida completed a higher education desegregation plan for the years 1978-1985, but its efforts of providing equal access to higher education continue to be the subject of an agreement between the State of Florida and the United States Department of Education, Office for Civil Rights (OCR). The present basis for OCR action is Title VI of the Civil Rights Act of 1964. As well, OCR has pursued its role in accordance with the decision in U.S. vs. Fordice, U.S. 112 S. Ct. 2727 (1992). The State of Florida and OCR entered into a partnership agreement in the interest of providing higher educational opportunities for minorities in the state in relation to access, enrollment, retention, and graduation of minority students. A document was prepared in 1998 entitled "Partnership Report and Commitments" describing the progress and future expectations in arrangements between the State of Florida and OCR. (Petitioners' Exhibit No. 2 and Respondents' Exhibit No. 8). This document in describing access for first-time-in- college (FTIC) enrollment, indicated that admission standards, in addition to considering an applicant's academic ability, might also consider creativity, talent, and character. It went on to state that there was an on-going goal to establish diversity in the composition of student population in public post-secondary institutions. It addressed the commitment to pursing alternative means for admitting students to the SUS, aside from the regular admissions process. In particular, it addressed admissions based upon persons having a satisfactory high school record and who had submitted appropriate evidence that the student could be expected to succeed academically once admitted to the university. Alternative means of admissions were described in the report as pertaining to persons who do not meet regular requirements for admission but who have important attributes or special talents, and who in the judgment of a faculty committee could be expected to succeed in performing academic work. The 1998 Report and Statement of Commitment also addressed limited access programs within the SUS. The discussion concerning those programs described how SUS policy required universities to develop Equal Opportunity Impact Studies to make certain that minorities and females are not negatively affected when limited access programs are established or modified. According to the report, in the event that negative impact is anticipated universities are expected to develop a corrective action plan. The 1998 Report and Statement of Commitment discussed access to graduate programs, recognizing the decentralized nature of those programs and the resulting variation in admissions criteria. The report described how students who did not meet stated criteria may be subject to admission as an exception under alternative admissions criteria when supported by faculty in the admissions request. The report described outreach to recruit minorities and the availability for financial incentives in recruiting minority students. The report gave examples of these pursuits. The future commitment under the 1998 partnership statement spoke of monitoring the SUS efforts on access and enrollment issues for minority students and, as needed, enhancement of outreach to increase enrollment of African- American and Hispanic students to reduce disparities in comparing the enrollment of those students to that of the majority. A future commitment was made to use of alternative admissions criteria to broaden the opportunities of students, to include minorities who attend the SUS. The partners stated the commitment to continue in efforts at retention and graduation of minority students. The 1998 Partnership Report and Commitments was made effective on July 16, 1998 by the Honorable Richard W. Reilly, Secretary of the United States Department of Education, following execution by Florida Governor Lawton Chiles on June 11, 1998. In 1999, the State of Florida and OCR prepared a "Partnership Agreement Interim Report" disseminated on December 29, 1999. (Respondents' Exhibit No. 69) The Civil Rights Partnership Agreement Interim Report was prepared in anticipation that Secretary Reilly and Florida Governor Jeb Bush would be apprised. The 1999 Interim Report made reference to the expectation that the commitments made in the 1998 agreement would be concluded in 2003. The 1999 Interim Report in its executive summary described the One Florida Initiative and the Equity in Education Plan component. The plan was explained in the report to include: The elimination of race, national origin, and sex in public university admission decisions; guarantee of admission to a public university to the 'Talented 20,' the top 20 percent of students in every Florida high school senior class who have completed 19 required credits; a $20 million increase in need-based financial aid; proposed funding to make the Preliminary Scholastic Achievement Tests available to all 10- graders to prepare them to test better in the 11th grade on the Scholastic Achievement Tests; increased availability of Advanced Placement classes at low performing secondary schools; a new partnership with the College Board to improve preparation for students in low-performing high schools; and, the creation of a Task Force to make recommendations of how to eliminate inequities within the K-12 education system. Those aspirations coincide with the Governor's Equity in Education Plan goals to be explained. The 1999 Interim Report included summary tables addressing ongoing commitments by the SUS. A table identified the anticipated change by the proposed rule amendments concerning alternative admissions criteria, proposed Rule 6C- 6.003(3)(c), by the process referred to as "Academic Profile Assessment," with a 10 percent limitation on FTIC admissions. A summary table also addressed access for minority graduate students, in relation to changes anticipated with the Governor's One Florida Initiative through the education component known as the "Equity in Education Plan." It was anticipated that each university would be held accountable for providing access to minority graduate students. SUS Existing Admission/Enrollment The SUS prepared a Fact Book for 1997-98. Among other statistics, Table 18 discusses a student headcount by part- time/full-time students for the fall 1997 in relation to gender, race, and level. The reference to level pertains to placement within the academic hierarchy. The statistics reflect aggregate student numbers in the SUS and numbers for the ten universities. More discreet demographic information is provided in the tables within the Fact Book concerning students and academic programs. (Petitioners' Exhibit No. 40 and Respondents' Exhibit No. 54) As revealed at Table 18, in the fall of 1997, 112,430 females were enrolled, and 96,848 males were enrolled in the SUS. Of these numbers 27,692 were African-American students; 28,555 were Hispanic students; 8,042 were Asian students; 717 were American Indian/Alaska native; and 130,566 were referred to as white. Other information was prepared by the SUS concerning headcount/enrollment by ethnic origin/race from the fall of 1990 to the fall of 1999. It provides SUS totals and totals concerning the various universities. It reflects percentages of enrollment by ethnic origin/race. Within the overall SUS, the fall of 1990, 9.64 percent of students enrolled in the SUS were African-American. In the fall of 1999, 14.02 percent of the students enrolled in the SUS were African-American. In the fall of 1990, 9.53 percent of the students enrolled in the SUS were Hispanic. In the fall of 1999, 14.23 percent of the students enrolled in the SUS were Hispanic. In the fall of 1990, 22.01 percent of all students enrolled in the SUS were described as minority. In the fall of 1999, 32.78 percent of all students enrolled in the SUS were described as minority. In the fall of 1990, 74.07 percent of all students enrolled in the SUS were described as white. In the fall of 1999, 62.40 percent of all students enrolled in the SUS were described as white. A further comparison shows that in the fall of 1990, 7.00 percent of the students enrolled at the University of North Florida were African-American. In the fall of 1999, 9.71 percent of the students enrolled at that university were African-American. In the fall of 1990, 2.35 percent of the students enrolled at the University of North Florida were Hispanic. In the fall of 1999, 3.58 percent of the students enrolled at that university were Hispanic. In the fall of 1990, 12.99 percent of the students enrolled were described as minority at the University of North Florida. In the fall of 1999, 18.49 percent of the students enrolled at the University of North Florida were described as minority. In the fall of 1990, 6.91 percent of the students enrolled at Florida State University were described as African- American. In the fall of 1999, 12.23 percent of the students enrolled at Florida State University were described as African- American. In the fall of 1990, 3.95 percent of the students enrolled at that university were described as Hispanic. In the fall of 1999, 7.19 percent of the students enrolled at that university were described as Hispanic. In describing overall minorities in the fall of 1990, 12.59 percent of students enrolled at Florida State University were in that category. In the fall of 1999, 22.32 percent of the students enrolled at that university were described as minority. (Respondents' Exhibit No. 21) In another report prepared by the Board of Regents, comparing the circumstances in 1994-95 to those in 1980-81, and at times in between, in 1994-95, men represented 46 percent of the total enrollment, a 4.8 percent decrease over the years. Women represented 54 percent of total enrollment in 1994-95, a 5.01 percent increase over the years. Whites represented 68 percent of total enrollment in 1994-95, a 12.2 percent decrease over the years. African-Americans represented 12.0 percent of total enrollment in 1994-95, a 2.6 percent increase over the years. Hispanics represented 12.4 percent of total enrollment in 1994-95, a 6.9 percent increase over the years. Asian and Pacific Islanders represented 3.7 percent of total enrollment in 1994-95, a 2.6 percent increase over the years. American Indians and Alaska Natives represented a 0.3 percent of total enrollment in 1994-95, a 0.1 percent increase over the years. (Petitioners' Exhibit No. 42). Statistics have been maintained in the SUS in relation to the overall system and the respective universities concerning alternative admissions. One document compares the experience of students regularly admitted and students admitted alternatively. On the subject of retention and graduation it shows that students regularly admitted tend to be retained and to graduate sooner and in higher numbers by percentage measurement. For example, the four-year retention rate for regular admissions in the 1989 cohort was 76.9 percent for regular admissions and 61.7 percent for alternative admissions. The four-year graduation rate for that cohort was 28.4 percent for regular admissions and 9.5 percent for alternative admissions. The six-year graduation rate for that cohort was 63.1 percent for regular admissions and 38.0 percent for alternative admissions. (Respondents' Exhibit No. 19) A more complete data set was described in a November 1998 report prepared by the SUS concerning alternative admissions to the SUS. It presents information commencing in the 1989-90 academic year and succeeding academic years through the 1997-98 reporting period. This report describes the reason why alternative admissions were necessary. (Petitioners' Exhibit No. 36) The report shows that in 1989-90, 14.5 percent of student admissions in the SUS were alternative admissions. In 1990-91, 15.3 percent of student admissions in the SUS were alternative admissions. The lowest number of alternative admissions in the data set was for 1992-93. In that year 11.9 percent were alternative admissions. In 1997-98 12.7 percent were alternative admissions. The November 1998 alternative admissions report for the academic year 1997-98 reflects the total of alternative admissions as 53.5 percent female and 46.5 percent male. That is as compared to the overall admissions to the SUS which was 56.4 percent female and 43.6 percent male. According to the November 1998 SUS report on alternative admissions, 61.4 percent of all admissions were non- minority and 38.6 percent were minority in the academic year 1997-98. Limited to alternative admissions, 33.3 percent were non-minorities and 66.7 percent were minorities. The description of non-minorities is in relation to "only white, non-Hispanic." The minorities referred to were described as African-Americans, Hispanics, Asian or Pacific Islanders, American Indians or Alaska natives, and non-resident aliens. In the academic year 1998-99 the number of alternative admissions to the SUS had fallen to 11.7 percent, the lowest number yet reported. In that reporting period 31.77 percent of the alternative admissions, representing 1,039 of the 27,977 overall students admitted to the SUS, were premised upon "diversity" as the alternative criterion for admission. This is contrasted with alternative admissions criteria described in the chart as fine arts, athlete, returning or non-traditional student (including veterans and military), recommendation, institutional mission, direct appeal, unique exception based on potential, first generation college student, non-exception and other. All universities within the SUS, save Florida Agricultural and Mechanical University (FAMU), had alternative admissions in the reporting period based upon diversity. Most alternative admissions for FAMU were related to the criterion described as "institutional mission," which constituted 27.86 percent of the overall alternative admissions in the SUS, totaling 911 students. (Petitioners' Exhibit No. 12) FAMU in its institutional alternative admissions practices, under Code "G," identified the criterion "institutional mission" as one basis for deciding admissions. The form used by FAMU notes that Code "G" constitutes "compliance with 1998 State of Florida agreement with the US Office of Civil Rights." (Petitioners' Exhibit No. 30) Another SUS report reflects that in the academic year 1997-98 in the SUS, 4,398 African-Americans were regularly admitted and 1,513 African-Americans were alternatively admitted. In that same year 3,446 Hispanics were regularly admitted and 451 Hispanics were alternatively admitted. In that year 15,094 students were regularly admitted as whites and 1,041 whites were alternatively admitted. This same report shows information in relation to academic year 1993-94 and intervening academic years leading to the academic year 1997-98. (Respondents' Exhibit No. 7) The SUS Limited Access Monitoring Report 1999 pertains to all limited access programs for the respective universities in the system. The report describes minimum admission standards and the reasons why the programs need limited access designation, based upon lack of resources, proficiency requirements for students, or accreditation requirements. This report does not reflect information about student applications, admissions, or enrollment. (Respondents' Exhibit No. 62) The Fact Book 1997-98, Table 23, reflects the academic degree programs' inventory for programs approved by the Board of Regents as of November 1998, to include an indication of the limited access programs for the respective universities. The degree programs are reported in major categories and sub- categories. Academic programs are further discussed in Table 27 in relation to the SUS and respective universities, in somewhat different terms. Table 27 sets out student headcount by race and sex for fall 1997. It cannot be ascertained from a reading of Table 23 and Table 27 the number of males and females and persons by race who participate in a discrete limited access program. The Fact Book 1997-98 reflects in Tables 30, 31, 32, and 33 baccalaureate degrees, master's degrees, doctoral degrees, and first professional degrees by academic discipline, with a report of numbers and percentages for race and sex. The depiction of gender numbers breaks those numbers down into categories of white, African-Americans, Hispanics, and others. The others refer to Asian or Pacific Islanders, American Indians, and Alaska Natives. The percentage factors describe the percentage of total degrees granted for females, African- Americans, and Hispanics. The data that has been referred to gives a glimpse of information on student demographics leading to the proposed amendments to the rules. University Rules: Non-discriminatory Practices Various universities in the SUS have rules in place which are designed to protect against discrimination in student admissions and/or to promote diversity in the student population. Rule 6C1-1.006, Florida Administrative Code, (Petitioners' Exhibit No. 43), a rule promulgated by the University of Florida states: 6C1-1.006 Non-Discriminatory Policy. The university shall actively promote equal opportunity policies and practices conforming to laws against discrimination. The University is committed to non- discrimination with respect to race, creed, color, religion, age, disability, sex, marital status, national origin, political opinions or affiliations, and veteran status as protected under the Vietnam Era Veterans' Readjustment Assistance Act. This commitment applies in all areas to students, faculty, administrative and Professional staff and Career Service personnel. The University realizes that it must continue to intensify its concern and devote itself to the elimination of conditions from which discrimination spring. In this respect the University accepts the responsibility for solving problems related to these matters. Accordingly, the University will continue to search for the most appropriate ways and means to provide an effective and enduring contribution to the improvement of these relationships. See 6C-5.103, Florida Administrative Code. (Emphasis supplied) Rule 6C3-2.015, Florida Administrative Code, (Petitioners' Exhibit No. 44), refers to the admissions at FAMU where it states: Admissions in general (a) Admission of students to Florida Agricultural and Mechanical University (FAMU) is within the jurisdiction of the University and subject to standards promulgated by the Board of Regents. In all admissions the University will give attention to the need to satisfy equal opportunity/affirmative action goals. (See 6C-6.002(3), Florida Administrative Code.) (Emphasis supplied) Rule 6C5-2.001, Florida Administrative Code (Petitioners' Exhibit No. 45), refers to the admissions requirements at Florida Atlantic University where it states: Florida Atlantic University (FAU) encourages applications from qualified applicants and is committed to non- discrimination regardless of race, creed, color, sex, ethnic origin, age or physical handicap. . . . * * * (2)(a) If the number of qualified applicants exceeds the number that the University is permitted to enroll admissions will be on selective basis. The selection process may include such factors as grades, test scores, educational objectives, class rank, pattern of courses completed, school recommendations, personal recommendations, and personal records. Priorities for admission will be as outlined in Rule 6C5- 2.004, Enrollment Priorities and Limitations. In addition, maximum numbers of credit hours allowed may be limited. Application of these criteria to prospective students will be made in such a way as to avoid reducing the proportion of minority students. Waiver of admission criteria up to the maximum allowed by the Board of Regents may be utilized for minority students. FAU is committed to realizing the goals established under the Equal Opportunity Plan of Florida (See Section 110.112, F.S. re Affirmative Action). (Emphasis supplied) Rule 6C7-2.001, Florida Administrative Code (Petitioners' Exhibit No. 46), refers to admissions requirements for the University of Central Florida where it states: Admissions (a) Admission of Students to UCF is within the jurisdiction of the University, but subject to the minimum standards adopted by the Board of Regents. (See 6C-6.001 FAC) In all admission activity, the University will give attention to the need to satisfy equal opportunity affirmative action goals. (Emphasis supplied) Rule 6C9-1.0025, Florida Administrative Code (Petitioners' Exhibit No. 47), refers to equal opportunity and affirmative action at the University of North Florida, where it states: Equal Opportunity -- The University will actively promote equal opportunity policies and practices which conform to all laws against discrimination and is committed to non-discrimination with respect to race, religion, age, political affiliation, handicap, sex, marital status, national origin and veteran status as protected under the Vietnam Era Veterans' Readjustment Assistance Act. This commitment applies in all areas with students, faculty, Administrative and Professional staff and Career Service personnel. This policy also applies to the University's procedures for the selection of contractors, suppliers of goods and services and to the use of University facilities. Affirmative Action in the Recruitment of Students, Faculty and Other Personnel -- The University is committed to the equalization of educational and employment opportunities by encouraging applications for qualified applicants of all cultural, racial, religious, and ethnic groups. The University shall issue an annual report on the status of the Affirmative Action Plan to the Board of Regents. (Emphasis supplied) University Admissions Policies (Diversity) The proof in this case provides examples concerning the manner in which universities actively pursue diversity in admissions policies. The law schools at the University of Florida and Florida State University consider race as a factor in admissions decisions. The Florida State University College of Law through its Bylaws, revised June 3, 1997, states its admissions standards at I.B.5.c.(14). to include an "applicant's contribution to a diverse academic environment in terms of race . . . ethnic background . . . ." This criterion is considered among numerous other criteria in deciding the outcome. Moreover, in Appendix II to the Statement of Admissions Requirements Florida State University, the College of Law Bylaws refer to "The Faculty Statement on Diversity" as follows: Diversity is essential to the mission and values of educational institutions. The bylaws of the Association of American Law Schools (AALS) require that member schools "seek to have a faculty, staff, and student body which are diverse with respect to race, color and sex." The purpose of such diversity is "to create an educational community that incorporates the different perspectives necessary to a more comprehensive understanding of the law and its impact on society" and "to produce a legal profession prepared to meet the needs of American society." Thus, the College of Law has a compelling interest in seeking actively to ensure a diverse student body. * * * Therefore, the recruitment and admission of persons from different racial and ethnic backgrounds is [sic] appropriate to enrich legal education and to make the learning experience more vibrant for both majority and minority students. (Petitioners' Exhibit No. 13) In the past Florida State University in considering admissions for undergraduate enrollment had assigned a plus (+) for applicants who were racial or ethnic minorities, specifically in the categories of African-American and Hispanic. Commencing with the classes for summer and fall of 2000, the university plan was to replace the race and ethnic plus (+) policy with consideration of socio/economic circumstances of applicants and other considerations such as fee waiver eligibility for minority admissions. As reported, in the summer of 1999, 89 African-American and 133 Hispanic students were admitted to the university. In the fall of 1999, 527 African- American and 557 Hispanic students were admitted to the university. By contrast for the summer of 2000, 177 African- American and 164 Hispanic students have been admitted. For the fall of 2000, 582 African-American and 570 Hispanic students have been admitted to the university. These are comparisons of information known at the end of January 2000 to the year before. In his remarks prepared February 2, 2000, Lawrence Abele, the Florida State University Provost commented that departments within the university responsible for graduate admissions had not changed anything in relation to the use of race as a factor for graduate admissions procedures for the summer or fall of 2000. According to Provost Abele, gender and national origin have not been used in the university admissions process. (Respondents' Exhibit No. 59) Minutes pertaining to the October 20, 1999, Florida State University Admissions Committee for undergraduate studies indicate the continuing practice to provide a plus (+) for minority status in admissions. The November 19, 1999, minutes for that committee show a change in policy removing the plus (+) indicator for race. The December 15, 1999 minutes for the committee indicated that applications and acceptances for all race and ethnic categories for fall and summer of 2000 had increased compared to 1999. The above changes in admissions policies of Florida State University anticipate the changes to admissions practices under the proposed rules. David R. Colburn, Provost of the University of Florida, prepared a memorandum on the removal of race and ethnicity as considerations in admissions practices for "summer B" and fall classes of 1999 at the university. (Petitioners' Exhibit No. 59) The memorandum stated: Attached is the review of this year's freshman class that was conducted by our Admissions Office. Where is says "Summer 99" that, of course, is the number we admitted and the number who enrolled. Where it says "Summer 00" that indicates the number who would have been admitted and the number who would have likely enrolled if race and ethnicity were removed as factors. The standard for the summer to be admitted to UF was 3.80; for the fall 4.20. We admitted in our freshmen classes every minority student who was in the top 20 and who applied to UF. Minority Admits with and without ethnic considerations African American Hispanic American Indian Admits Enrolls Admits Enrolls Admits Enrolls Summer 99 783 400 484 302 20 15 *Summer 99 134 87 258 144 8 7 Fall 99 546 211 1008 407 35 20 *Fall 99 329 117 847 348 24 4 Total 99 1329 611 1492 709 55 35 Total 00 11@ 463 204* 1105 492# 32 *56 African-Americans who were admitted for fall in '99 would not be admitted for fall '00 would be offered summer. If all enrolled, our total freshman African-American enrollment for academic year 2000 could reach as high as 260. #53 Hispanics who were admitted for fall '99 would not be admitted in fall '00 would be offered summer. If all enrolled out total freshman American Indian enrollment for academic year 2000 could reach as high as 545. @3 American Indians who were admitted for fall '99 would not be admitted in fall '00 would be offered summer. If all enrolled our total freshman American Indian enrollment for academic year 2000 could reach as high as 14. This memorandum demonstrates a considerable reduction in minority admissions and prospective enrollment for the academic year 2000 in the scenario portrayed when removing race and ethnic considerations. The FTIC admissions policy for the University of North Florida dated August 1998, sets forth enrollment goals for the university. (Respondents' Exhibit No. 82) It details the basis for admissions. It notes "no exceptions to the UNF admission policy will be made without approval from the Faculty Admissions Committee, the Provost and/or the Assistant Provost. No student who requires English and/or Reading remediation will be admitted. A minimum of 20 SAT I Verbal or 16 ACT Reading and English score are required." No mention is made concerning use of admission factors related to race or gender. The University of North Florida has instituted programs to assist students within the region served by the University who come from low socio-economic backgrounds. The intent is to allow those families to learn about access and opportunities for attending the University of North Florida or other universities and colleges. A pamphlet describes those pre-college programs. Through this outreach minority students, in particular African Americans, are encouraged to pursue formal education. (Respondents' Exhibit No. 84) Highlights of some of the programs described are as follows: UNF/Duval County Public School System Junior Horizons Program: This program is offered in local high schools which serve primarily students from low socio-economic families. All junior-level students are provided with "Countdown to College" information including the college prep high school courses and standardized tests required for admission, information about selecting a college, and paying for college. Over 1,200 students participate in this program each year. UNF and Duval/Clay County Public School System Minority Recognition Program: This annual event hosted by UNF recognizes outstanding minority students in 11th grade. Approximately 800 students are recognized each year. William Raines High School-Alliance for Education: Project Hope is a joint business partnership among UNF, Raines High School, and 20 Jacksonville businesses. These businesses provide career awareness programs and parent information sessions, student mentoring, and academic assistance. UNF/Duval County Public School SAT Preparation Programs: Free after-school SAT prep programs are offered at schools primarily economically disadvantaged students and in regional community centers. Since its inception in 1992, this program has served over 700 students. UNF/African-American Church SAT Programs: Since 1994, six churches have offered test prep programs with over 600 students participating. All churches reported that students benefited from these programs. Bethel Baptist Institutional Church and St. Paul A.M.E. are currently participating in this program. Pathways Program: The Pathways Scholarship Program primarily targets minority economically disadvantaged students (approximately ten million dollars in funding). Specific scholarship programs target the following high schools: William M. Raines, Andrew Jackson, Paxon School for Advanced Studies, Robert E. Lee, and Ribault. The David and Hicks Scholarship targets students living in Section 8, Habijax, and public and federal assisted housing projects. UNF currently has approximately 100 students receiving scholarships through this program. INROAD/UNF Sponsored Summer Overnight college Experience Program: Approximately 130 high school minority students spend four nights and five days on the campus of UNF. The program includes SAT preparation, college planning, and leadership training. These programs are designed to assist minorities in preparing to attend universities or colleges, without rewarding minority status when reviewing applications for admission to the University of North Florida. Assistance is given to minorities in college preparation. Special recognition is not provided when determining admissions. A chart was prepared which reflects ethnicity at the University of North Florida in the fall of 1989 compared to the fall of 1999. (Respondents' Exhibit No. 83) It depicts the following: Fall 1989 Fall 1999 White 87.3% 79.7% Black 6.9% 9.9%* Hispanic 2.0% 3.5%* Asian/ Pacific Islander 2.7% 4.8%* American Indian Alaskan Native .2% .3% Other .8% 1.8% *Total Minority 12.0% 18.6% 112. In promulgating the proposed amendments to the rules, the Board of Regents took into account the experience by the University of North Florida in its outreach and recruitment of minorities to attend the university, while disallowing special consideration in admissions decisions as a means to promote participation by minorities in formal education in the SUS. Against the background of specific policies in admissions pursued by the universities that have been described, together with data compiled by the SUS, and other sources, the Board of Regents has undertaken proposed amendments to Rules 6C- 6.001, 6C-6.002, and 6C-6.003, Florida Administrative Code. It removes "preferences" in the admissions process for applicants to the universities on the basis of race, national origin, or sex. The proposed amendments promote other approaches which the Board of Regents contends will continue "to advance opportunities for minorities and women" to receive formal education in the SUS. The Proposed Amendments: The Process On November 9, 1999, Governor Jeb Bush issued Executive Order No. 99-281 (Respondents' Exhibit No. 1), in which he declared: WHEREAS, the Florida Constitution provides that all natural persons, females and male alike, are equal before the law and that no person shall be deprived of any right because of race or national origin; and WHEREAS, Florida's government has a solemn obligation to respect and affirm these principles in its policies relating to employment, education and contracting; and WHEREAS, the use of racial and gender set- asides, preferences and quotas is generally inconsistent with the obligation of government to treat all individuals as equals without respect to race or gender; and WHEREAS, the use of racial and gender set- asides, preferences and quotas is considered divisive and unfair by the vast majority of Floridians, produces few, if any, long-term benefits for the intended beneficiaries, and is of questionable legality; and WHEREAS, the laudable goal of increasing diversity in Florida's government and institutions of Higher Education, and in the allocation of state contracts, can and should be realized without the use of racial and gender set-asides, preferences and quotas; and WHEREAS, the obligation of Florida's government to root out vestiges of discrimination can and should likewise be accomplished without resort to remedies involving the use of racial and gender set- asides, preferences and quotas. The Governor went on to make known his intentions through Section 1: Non-discrimination in Government Employment, Section 2: Non-discrimination in State Contracting and Section 3: Non-discrimination in Higher Education. Relevant to this cause Section 3: Non-discrimination in Higher Education stated: It is the policy of my Administration to support equal educational opportunities for all qualified Floridians, to prohibit discrimination in education because of race, gender, creed, color or national origin, and to promote the full realization of equal educational opportunities throughout the State. I hereby request that the Board of Regents implement a policy prohibiting the use of racial or gender set-asides, preferences or quotas in admissions to all Florida institutions of Higher Education, effective immediately. The Office of Policy and Budget is hereby ordered to develop an implementation strategy for all other aspects of my Equity in Education Plan by December 31, 1999. (Emphasis supplied) Given this charge the Board of Regents pursued a course leading to the proposed rules amendments in controversy. On November 9, 1999, Governor Bush in furtherance of the "One Florida Initiative" contemplated in the Executive Order released a document entitled, "Governor Bush's Equity in Education Plan." (Respondents' Exhibit No. 2) The plan describes efforts at expanding opportunities for students in low-performing secondary schools through: the implementation of the A+ Plan making the PSAT test available to all tenth graders establishment of a partnership with the College Board increasing availability in advanced placement courses targeting utilization of Florida's On-Line High School creation of post-secondary "opportunity alliances" a mentoring initiative, and the creation of an Equity in Education Opportunity Task Force. Details concerning the assistance to be provided the secondary school students is set forth in Respondents' Exhibit No. 2. Most relevant to this inquiry, the Governor's Equity in Education Plan contained an element setting forth the means for expanding diversity in state universities without race or ethnic-based preferences wherein it stated: Eliminate Race and Ethnicity as a Factor in Admissions Decisions. Florida's SUS is committed to diversity. However, diversity can be achieved without having to make race or ethnicity a factor in admissions decisions. State universities now rely on other race-neutral socio-economic factors in admissions decisions that can be indicative of race or ethnicity - factors such as income level, geography, special talents and whether an applicant is a first generation college student. Utilizing these factors without regard to race or ethnicity, Florida universities can continue to achieve the level of diversity desired, while providing a legally sound statewide policy of admissions. The Talented 20 Percent: In a further effort to bolster diversity - and to replace race and ethnic-based admissions policies with achievement-based admissions policies - Florida will create the Talented 20 program. This initiative will guarantee admissions to one of our state universities to the Top 20% of each graduating public high school class in Florida without regard to SAT or ACT scores, and boost need-based financial aid by 43% - a $20 million increase. By casting this broad net, students attending low performing schools or schools with heavy minority enrollment will see their chances for admissions improve, and Florida's commitment to diversity will continue. As a result of the Talented 20 program, approximately 1,200 additional minority high school graduates will be given the opportunity to attend a state university. We already know that 410 of these minority students are qualified now by virtue of completing the required college preparatory curriculum. The remaining 800 will be admitted if they can complete missing threshold credits prior to admission. We will not penalize high performers who might not otherwise qualify for university admissions because they attend low performing schools. The Board of Regents placed Governor Bush's Equity in Education Plan on its meeting agenda for November 18 and 19, 1999, for discussion. At this session Dr. Adam W. Herbert, SUS Chancellor, explained steps necessary to facilitate the Board's implementation of the Governor's education initiative. Dr. Herbert indicated that at a subsequent meeting the Board would have before it the proposed amendments to admissions rules designed to implement the Governor's program. Dr. Herbert explained that he intended to set forth key elements of the program to give further guidance to the Board staff. (Respondents' Exhibit No. 33) Board of Regents' Chairman Thomas F. Petway, III, acknowledged members of the public in attendance at the November 18 and 19, 1999 meeting and the Board's willingness to hear from those persons concerning the Governor's initiative calling for elimination of race and ethnicity as factors in admissions decisions. In particular, State Representative Denise Lee and State Senator Betty Holzendorf were recognized. Senator Holzendorf addressed the Board concerning her sentiments on issues of race as a factor in university admissions. She cautioned the Board of Regents against acting too quickly. Messrs. Jose Gonzalez and Jose Amaro who represented the University of Florida Hispanic Student Association spoke to the Board of Regents on this occasion, asking that the Board table consideration of the admissions issue pending the opportunity for students to see its impact. Others who addressed the Board of Regents on this occasion were Mr. Thane Gordon, a pre-med student at the University of Florida; Ms. Jennifer Lin, representing the U.F. Student Association; Mr. Cornelius Minor, II, president of FAMU's student government; Mr. Dev Gilrose, a student at the University of Florida; Ms. Kim Fedele, president of the student government of Florida State University; Mr. David Jarvic, Club Creole at the University of Florida; Mr. Gil Sanchez, University of Florida graduate; Mr. Issiah Rumlin, Jacksonville NAACP; Mr. Brent Gordon, president of student government of the University of Florida; and Ms. Jocelyn Moore, vice-president of student government of the University of Florida. United States Representative Corrine Brown addressed the Board of Regents at the November 1999 meeting. Representative Brown was concerned about the influence of the Governor's Executive Order related to the compliance agreement between the State of Florida and OCR previously described in these facts. She urged the Board of Regents to slow down the process concerning changes in the admissions policies. Representative Brown noted that she was joined in her remarks by United States Representatives Carrie Meek and Alcee Hastings. At the November 1999 meeting State of Florida Education Commissioner Tom Gallagher, as member of the Board of Regents, addressed the Board of Regents stating that the issue before the Board of Regents was to instruct the Chancellor and staff to work on expanding diversity. Regent McLin spoke to the need for more opportunity for input. Regent Henriques also addressed the need for further study. Chairman Petway then recognized Dr. Herbert for more extensive remarks. Those remarks are reported in the appendix to the index of minutes for the Board of Regents' meetings on November 18 and 19, 1999. They highlight the Governor's Plan calling for changes in admissions policies of the Board of Regents for undergraduate, graduate, and professional students. (Respondents' Exhibit No. 33) Commissioner Gallagher moved the Board of Regents to approve measures to: Support Governor Bush's 'One Florida' education initiatives of the 'Talented 20' Program and the elimination of race and ethnicity as a factor in admissions decisions. Authorize Chancellor Herbert and his staff to work collaboratively with the universities to: Modify a System and University Admissions standards consistent with the Governor's 'One Florida' initiative; Modify BOR and University rules which guide universities in their admissions policies and practices; Modify the SUS enrollment plan to accommodate additional students; Amend the Legislative Budget Request to incorporate additional lower level FTE; and Make other changes if necessary to be in compliance with the Governor's policy. The motion was seconded and eventually the Gallagher motion was approved as amended by Chairman Petway adding the phrase "action would be subject to final approval of the Board." During this session the Board of Regents entered into extensive discussion concerning changes to Board policy for university admissions. This discussion is reflected in Board of Regents' minutes for the November 18 and 19, 1999 meeting, pages 32 through 38. (Respondents' Exhibit No. 33) On December 9, 1999, a meeting was held between Dr. Herbert and the Council of University Presidents to discuss the "Talented 20" aspect of the Governor's Education Initiative. (Respondents' Exhibit No. 47) This discussion was supported by information available to the council members to include preliminary text to the proposed amendments to Rules 6C-6.001, 6C-6.002, and 6C-6.003. (Respondents' Exhibit No. 48) The Board of Regents met December 10, 1999, and considered the Governor's "One Florida" initiative pertaining to university admissions criteria. Extensive support and documentation on this subject provided the Regents for their meeting are reflected in appendices to the amended agenda. Included for consideration was the Executive Order 99-281, the Equity in Education Plan, data on distribution of FTIC students by ethnicity, high school enrollment projections, analysis of public high school graduates, graduates from low-performing schools, preliminary report of "Talented 20" (top 20 percent) Implementation Task Force, graduate and professional admissions, OCR correspondence, and a draft of proposed amendments to Rules 6C-6.001, 6C-6.002, and 6C-6.003. (Respondents' Exhibit No. 34) At the meeting Chancellor Herbert described the documentation as a series of data and related materials to be considered by the Board of Regents in formulating admissions criteria to implement the Governor's plan. (Respondents' Exhibit No. 38) During the December 10, 1999 meeting Mary-Anne Bestebreurtje, Corporate Secretary and Associate General Counsel for the Board of Regents, made a presentation concerning the rule promulgation process. She indicated that the Regents were to treat the session as a workshop to afford Board of Regents members the opportunity to "wordsmith" changes to the rule. The intent was for the rules amendments to be presented to the Board of Regents in a further session allowing comment and discussion by the public on January 21, 2000. At the December 1999 session Debi Gallay, Associate Vice Chancellor, Planning and Policy Analysis, described components of the "One Florida" initiative to include the end to racial preferences in admissions to the universities and the guarantee of admissions to students graduating in the top 20 percent of their respective school classes without regard for test scores, taken to mean SAT or ACT scores. Ms. Gallay reviewed materials in the agenda. Chancellor Herbert introduced Dr. Lynda Lewis, Assistant Provost at the University of North Florida, to the Board. Dr. Lewis headed the task force for implementation of the "Talented 20" Program, part of the process for ascertaining the best approaches for admitting the top 20 percent FTIC students. Dr. Lewis reported on task force activities in relation to the process engaged in by the Board of Regents in considering amendments to admissions rules for freshmen. Representatives from the universities also attended the December 1999 meeting, to include some university presidents. These officials were allowed to enter into the discussion conducted by Board of Regents members and presenters. The particulars concerning the December 10, 1999 meeting to consider the "One Florida" initiative in relation to university admissions policies are found at pages 4 through 14 in the index of the minutes. (Respondents' Exhibit No. 38) In a related process, discussion of admissions pertaining to the "Talented 20" Program took place as agendaed for the January 11, 2000 meeting of the SUS Council of Academic Vice Presidents. (Respondents' Exhibit No. 49) On February 17 and 18, 2000, the Board of Regents met to consider proposed amendments to Rules 6C-6.001, 6C-6.002, and 6C-6.003, Florida Administrative Code. Following discussion and public comment, the Board of Regents voted in favor of amendments to the rules. The remarks of persons who testified at the meeting and discussion by Board of Regents members were reflected in the index of minutes at pages 21 through 33. Although not invited to be intricately involved in the rule development, representatives from NAACP and Now addressed the Board of Regents at its February 17th and 18th session. (Respondents' Exhibit No. 40) Persons who testified at this session included Congresswoman Corrine Brown, members of the Florida Legislature, and state university presidents. Details of the proposed amendments were discussed in this session and changes were made to the final text. On February 22, 2000, the Board of Education met, discussed and approved the proposed amendments offered by the Board of Regents to Rules 6C-6.001, 6C-6.002, and 6C-6.003, Florida Administrative Code. (Respondents' Exhibit No. 42) Before the vote was taken legislators, regents, educators, and others addressed the Board of Education. The Board of Education session approving the proposed amendments was transcribed. (Respondents' Exhibit No. 44) The Board of Regents' rule development within the SUS is a collaborative effort involving the Council of Academic Vice Presidents, comprised of Chief Academic Officers within the ten SUS institutions; the Council Presidents, comprised of the presidents of the SUS institutions; the Board of Regents and its staff; and ultimately the Board of Education. In promulgating the proposed rules amendments that collaborative process was carried out. The Rules: Proposed Amendments 6C-6.001 Admissions. Based on minimum standards adopted by the Board, through rule, the uUniversities shall establish the criteria by rule for the admission of students. In the admission of students, the universities shall take into consideration the applicant's academic ability, and may also consider creativity, talent, and character. If determined not to be in the best interest of the university to deny admission to admit an applicant because of past misconduct, the university may do so. The Board affirms its commitment to equal educational opportunity and to increasing student diversity in each of the state universities. (4)(3) Applicants denied admission shall be given notice of denial within a reasonable period of time following the decision. Upon the applicant's written request, the university shall provide the reasons for the rejection in writing. (5)(4) Each student accepted for admission shall, prior to registration, submit on a form, provided by the institution, a medical history signed by the student. Documentation of appropriate immunization for measles and rubella is required. Proof of immunization must be provided. This shall be a minimum requirement, and institutions may require in addition such other evidence of examination as they may determine necessary. Where physician examinations or certificates are required, they must be signed by a doctor of medicine or a doctor of osteopathy. The universities reserve the right to refuse registration to any student whose health record or report of medical examination indicates the existence of a condition which may be harmful to members of the university community. (6)(5) The universities may return to the applicant without action any application and fees received after the closing date for applications designated by each institution in its official calendar. (7)(6) False or fraudulent statements - In addition to any other penalties which may be imposed an individual may be denied admission or further registration, and the universities may invalidate college credit for work done by a student at an SUS institution and invalidate the degree based upon such credit if it finds that the applicant has made false or fraudulent or incomplete statements in his application, residence affidavit, or accompanying documents or statements in connection with, or supplemental to, his application for admission to, or graduation from one of the SUS institutions. (8)(7) Students may be required to have immunizations and to have undergone diagnostic procedures prior to registration. (9)(8) Each university shall provide registration opportunities for admitted transfer students that allow these students access to high demand courses comparable to that provided to native students. (10)(9) Each university shall provide orientation programs for first-time-in- college and transfer students. (11)(10) Enrollment limitations--The Board shall establish a plan for the enrollment of the SUS, consistent with the Strategic Master Plan. The Board shall recommend each budget cycle to the Legislature an enrollment plan in which each university's future State University System FTE enrollment shall be specified by level. The Board will establish an assigned FTE enrollment plan limit for each university for each fiscal period. This assigned FTE enrollment plan limit will be based upon the enrollment plan described in (a) and upon the funding decisions of the Legislature. This assigned FTE enrollment limit will constitute the maximum enrollment within five percent for that fiscal period. If actual student credit hours productivity exceeds funded enrollment, course enrollment in subsequent terms shall be controlled by the university and may be reduced by limiting admission of new students, limiting course loads of enrolled students and/or other measures as may be necessary to stay within funded enrollment levels. Each university shall establish, by rule, procedures and criteria to manage limit enrollments to meet to be within five percent (above and below) of planned enrollment established pursuant to (b) above. These rules shall not be inconsistent with Board rules. Programs at the University of Florida and the University of South Florida in the Health Centers receive separate appropriations from the Legislature; therefore, students enrolled in such programs will be excluded from the above enrollment limitations. Upper level programs registered as limited access programs with the Board and the Articulation Coordinating Committee (competitive admission due to limited space or other resources, or due to higher standards) and rules limiting enrollment as provided in (c) above shall observe the following guidelines in the selection of students for the spaces available in the program: There will be a documented justification for the program to be classified as limited access. This documentation should be submitted by the university requesting limited access to the Board for review and approval at least 6 months prior to the start of limiting access to the program. Annually, each university will reevaluate the need to continue to classify the program as limited access. The university will report to the Board by October 1 of each year a list of all limited access programs, the minimum admissions standards for each program, the reasons the program is designated as limited access, and a copy of the most recent review demonstrating the need for retention of limited access status. An annual report shall include for each limited access program the following categories, by race and gender: the number of applicants, the number of applicants granted admission, the number of applicants who are granted admission and enroll, the number of applicants denied admissions, and the number of applicants neither granted admission nor denied admission (no action taken). Each category shall be reported by type of student, including the following subcategories: native students (students who started at the university as first-time- in-college students with less than 12 semester hours of transfer credit), community college Associate in Arts degree transfer students, and all other students. Each category and subcategory shall further be reported according to the number of students who meet the minimum eligibility requirements for admission to the program and the number of students who do not meet the minimum eligibility requirements for admission to the program. Programs assigned limited access status will be reviewed by the Board in the course of its cyclical systemwide program review process. All criteria shall be approved by the Board and registered with the Articulation Coordinating Committee prior to implementation. Any criteria used to select students shall not discriminate against community college transfers with Associate in Arts degrees from Florida public community colleges in favor of SUS students who are applying for admission or plan to continue enrollment after the completion of 60 semester credits at the lower division level. Any criteria used to select students shall be appropriate indicators of academic ability, creativity or talent to perform required work within the program and of the potential for success. Any criteria used shall be publicized in catalogues, counseling manuals, and other appropriate publications in accordance with Rule 6A-10.024(14)(13), FAC, with sufficient time for prospective students to adjust programs to meet criteria. Where necessary to achieve established equal access enrollment goals, up to ten percent of the students may be admitted to a limited access program with different criteria. 6.7. Each university shall advise students who meet the minimum requirements for admission to the upper division of a state university, but are denied admission to limited access programs, of the availability of similar programs at other SUS institutions and the admissions requirements of such programs. 7.8. Associate in Arts degree graduates from Florida community colleges and university students who have successfully completed 60 or more credit hours of course work and met the requirements of Section 240.107, Florida Statutes, shall receive priority over out-of-state students for admission to limited access programs. The Board may declare certain degree programs as limited access programs, upon request by a university. In the case of programs for which prerequisite courses are required for admission, the prerequisites, and grades for the prerequisite courses determined acceptable by the program, by themselves, will not cause a program to be declared limited access. That is, if all the applicants completing the prerequisite courses, with any specified grade requirement, are admitted to the program, the program need not be designated a limited access program. Associate of Arts graduates from Florida public community colleges and universities who have not completed prerequisite courses for a given major shall be admitted to a university in order to complete those prerequisite courses, after which program admission can be determined. University degree programs may be declared as limited access programs for the following reasons: The number of students who have met all the requirements for admission to the university and to the program is in excess of available resources (examples are: space, equipment or other instructional facilities; clinical facilities; adequate faculty to meet acceptable student-faculty ratios; fiscal or other resource limitations). In the case of such programs, selection for admissions shall be competitive. The selection criteria shall be determined by the program, recognizing that the standards applied to the criteria may vary from term to term depending on the number of student spaces available and the quality of the applicant pool. The selection criteria shall be published in the university catalogue along with the standards used for admissions decisions at the time the catalogue is published. The program is of such a nature (normally in the fine or performing arts) that applicants must demonstrate through an audition or submission of a portfolio that they already have the minimum skills necessary for them to benefit from the program. The program is of such a nature that in order to demonstrate potential for success in the program, applicants must attain a grade point average (GPA) and/or other standard (e.g. standardized test scores) that are above those required for admission to the university offering the program. Note: teacher preparation programs are mandated by Section 240.529, F.S., to maintain certain admission requirements, and, therefore, will be classified and reported as limited access programs only if enrollment is limited for reasons (e.g. limited resources) that exceed statutory requirements. Teacher preparation programs will be monitored for compliance with requirements of Subsection 240.529(3), F.S., through a report which is separate from the limited access reports. When the institution has exceeded its upper-level FTE enrollment limit as assigned by the Legislature by more than five percent, programs which have not normally been designated as limited access programs may need to limit enrollment. If the institution's actual student credit hour productivity exceeds the institution's funded enrollment to this extent, the institution may take corrective actions in subsequent terms such as limiting admission of new students into upper level programs, limiting course loads of enrolled students and/or other measures as may be necessary to stay within funded enrollment levels. Florida community college Associate in Arts graduates and university students who have successfully completed 60 credit hours of course work and met the requirements of Section 240.107, Florida Statutes, shall receive priority for admission to such limited access programs over out-of-state and transfer students from private institutions. Specific Authority 240.209(1)(3)(r) F.S. Law Implemented 240.209(1)(3)(s), (4)(5)(a), 240.227(8), 240.233, 240.2097, 240.529, 240.271, F.S. History Formerly 6C-2.41, 11-18-70, Amended and Renumbered 12-17-74, Amended 1-6-76, 7- 13-77, 3-21-82, 12-13-83, 8-11-85, Formerly 6C-6.01, Amended 8-31-86, 4-9-87, 1-7-91, 9-15-91, 11-27-95, 8-12-96, . 6C-6.002 Entering Freshmen. Normally a diploma from a Florida public or regionally accredited high school, from an accredited out-of-state high school or if foreign, its equivalent, or a diploma pursuant to Section 229.814, Florida Statutes, shall be required for admission of beginning freshman students to a state university. Students admitted under acceleration mechanisms in accordance with Rule 6C-6.006 are exempted from this requirement. Students applying for admission will submit test scores from the Scholastic Assessment Test of the College Entrance Examination Board or from the American College Testing program. Students may be considered eligible for admission to any of the state universities in one each of the following three alternative ways, except as provided in subsection (4) below: A student applying for admission who has a satisfactory high school record, including at least a "B" average (3.0 on a 4.0 scale) in the required high school academic units normally offered in grades 9 through 12, and who submits other appropriate evidence that the student can be expected to carry out successful academic progress in the university, is academically eligible for admission to any of the universities. In computing the high school grade point average for purposes of admission to a state university, additional weights will be assigned to grades in Honors, International Baccalaureate, and Advanced Placement courses. The high school academic unit requirements are as follows: English1 4 Math 2 3 Natural Science3 3 Social Science4 3 Foreign Language5 2 Additional Academic Electives from the Above Five Subject Areas 4 TOTAL 19 1 Three of which must have included substantial writing requirements. 2 At the Algebra I and above levels. 3 Two of which must have included substantial laboratory requirements. 4 Includes: History, Civics, Political Science, Economics, Sociology, Psychology and Geography. 5 Both credits must be in the same language. (For the purposes of this admissions requirement, American sign language will be accepted in place of a foreign language). An alternative method for students to demonstrate equivalent foreign language competence by examination to meet admissions requirements is described in Rule 6C-6.004(1)(c). A student applying for admission who has less than a "B" average in the required academic units described in (a) above, must present a combination of high school GPA and admission test scores as indicated on the list below. Academic eligibility for admission will be determined according to the following Admissions Scale: If the High School GPA the SAT/Recentered SAT I*/ACT in the required academic Score must equal or exceed courses equals any entry the corresponding entry in the in this column, appropriate column below. Recentered GPA SAT SAT* ACT 2.0 1,050 1140 25 2.1 1,020 1110 24 2.2 990 1090 23 2.3 960 1060 22 2.4 930 1030 22 2.5 900 1010 21 2.6 890 1000 21 2.7 880 990 21 2.8 870 980 20 2.9 860 970 20 *SAT taken after March 1995 A student applying for admission who does not meet these requirements may be eligible for admission through a student profile assessment which considers additional factors, including but not limited to, the following: family educational background, socioeconomic status, graduate of a low performing high school, international baccalaureate program graduate, geographic location and special talents. These additional factors shall not include preferences in the admissions process for applicants on the basis of race, national origin or sex. The student bring to a university other important attributes or special talents and may be admitted if, in the judgment of an appropriate faculty committee, it is determined from appropriate evidence that the student can be expected to do successful academic work as defined by the institution to which the student applies. The number of first time in college students admitted through profile assessment at each university is determined by the Board: the system is limited each year to ten percent of the total system first-time-in-college-students. Changes in the portion of a university's entering freshmen admitted under this alternative, based upon a university validation study with a 50 percent probability of success in the first year, may be approved by the Board. However, the annual number of applicants enrolled at a university under profile assessment this alternative without the equivalent of two high school credits in foreign language must not exceed 5 percent of the total number of freshmen (students who had not completed their first year of college or university) who entered the university the prior year. Upon request by the president, the Board may approve a one year increase in a university's 5 percent limitation as long as the SUS as a whole maintains the 5 percent limit. Any freshman student admitted without meeting the foreign language requirement must earn 8 to 10 semester hours in a foreign language or American sign language, or demonstrate equivalent competence in either a foreign language as described in Rule 6C-6.004(1)(c) prior to completing 60 credit hours at the state university. The university will provide an individual learning plan for each student enrolled who does not meet the normal admissions requirements listed in Rules 6C-6.002(1) and 6C-6.002(3). The Board will review and will submit annual follow=up reports of the success of those students admitted under the profile assessment process. this alternative for Board review. In determining eligibility for admission, a university will provide for reasonable substitution for any requirement or high school unit distribution requirement for any student with a disability, as prescribed in Rule 6C-6.018. A student applying for admission who is participating in a non-traditional program must present credentials equivalent to those described in Rule 6C-6.002(3) as judged by the individual SUS institution to which the student has applied. A student whose educational program is not measured in Carnegie Units must present a test score of at least 1010 on the recentered SAT I, or the equivalent on the ACT, or the SAT taken prior to April, 1995. A student applying for admission who is a graduate of a public Florida high school, has completed nineteen required high school units as listed in Rule 6C-6.002(3)(a) and who ranks in the top 20% of his/her high school graduating class shall be admitted to a university in the SUS. The SUS will use class rank as determined by the Florida Department of Education. The Board reaffirms its Equal Educational Opportunity (EEO) commitments. Universities may utilize the above alternative admission methods to increase the enrollment of a diverse student body. The universities have the authority to adopt and promulgate rules which have the effect of increasing the standards for eligibility for admission, as listed in alternatives (3)(a) and (b) above, or to provide additional criteria in making admissions decisions. Changes to these institutional rules will be reviewed annually by the Board prior to September 1. Neither SUS nor individual university admissions criteria shall include preferences in the admissions process for applicants on the basis of race, national origin or sex. Specific Authority 240.209(1),(3)(r) F.S. Law Implemented 240.209(1), (4)(5)(a). 240.227(8), 240.115(4), 240.152, 240.233, 232.246 F.S. History - Formerly 6C-2.42, 11-18-70, Amended 5-27-74, Amended and Renumbered 12- 17-74, Amended 6-25-80, 3-21-82, 4-16-84, Formerly 6C-6.02, Amended 4-14-86, 4-20-87, 10-19-88, 1-23-90, 1-7-91, 9-15-91, 8-4-92, 5-17-95, 11-27-95, . 6C-6.003 Entering or Transferring Graduate Students and Post-baccalaureate Professional Students. Each applicant to a graduate degree program or to a post-baccalaureate professional program shall be required to meet minimum systemwide requirements. Each applicant to a graduate degree program or to a post-baccalaureate professional program must have a bachelor's degree or equivalent from a regionally accredited institution and meet at least one of the following criteria: Earned a "B" average or better in all work attempted while registered as an upper division student working for a baccalaureate degree, or A total Quantitative-Verbal Graduate Record Examination score of 1000 or higher or an equivalent score on an equivalent measure approved by the Board, or A graduate degree from a regionally accredited institution. Each applicant to a graduate program or a post-baccalaureate professional program shall be required to present his/her score on the Aptitude Test of the Graduate Record Examination, or an equivalent score on an equivalent measure approved by the Board. The university may waive this requirement in individual cases. Applicants denied admission shall be given notice of denial within a reasonable period of time following the decision. Upon the applicant's written request, the university shall provide the reasons for the rejection in writing. Applicants denied admission who meet the minimum systemwide standards may request reconsideration by written request to the university within thirty days of the date of denial. The request shall contain reasons why reconsideration is warranted. Each university shall establish the method for reconsideration by rule. The Board encourages each university to impose more restrictive admission requirements than the above established for post-baccalaureate programs. Effective for Fall of 2001 admissions, these requirements shall not include preferences in the admissions process for applicants on the basis of race, national origin or sex. These criteria shall be published, and the university catalog shall give notice where copies of such criteria may be obtained. In any academic year, up to 10 percent of the graduate students may be admitted as exceptions to these criteria. The university may develop criteria for students admitted as exceptions. Students who do not meet the systemwide criteria and who wish to enroll in courses but not degree programs at the post- baccalaureate level may enroll under the classification of special post-baccalaureate non-degree students. Universities wishing to admit special post-baccalaureate non- degree students to graduate degree programs after the students have satisfactorily completed a specified number of credits may do so provided that the number so admitted is included as part of the 10 percent exception, as defined in (6) above. Specific Authority 240.209(1),(3)(m), 240.233 F.S. Law Implemented 240.209(1),(3)(m) (4)(5)(a), 240.227(8), 240.233 F.S. History - Formerly 6C-2.43, 11-18-70, Amended 11-20-70, Amended and Renumbered 12-17-74, Amended 1-24-77, 2-28- 78, 10-17-78, 8-11-85, Formerly 6C- 6.03, . Challenged Provisions The Petitioners and the Intervenor challenge the portions of the proposed rules identified below. The proposed repeal of Rule 6C-6.001(10)(e)6 which states: Where necessary to achieve established equal access enrollment goals, up to ten percent of the students may be admitted to a limited access program with different criteria. The proposed addition to Rule 6C-6.002(3)(c) that states: These additional factors shall not include preferences in the admissions process for applicants on the basis of race. The proposed addition to Rule 6C-6.002(3)(c) that states: The number of first time in college students admitted through profile assessment at each university is determined by the Board; the system is limited each year to ten percent of the total system first-time-in college students. The proposed addition of a new Rule 6C- 6.002(5) that states: A student applying for admission who is a graduate of a public Florida high school, has completed nineteen (19) required high school units as listed in Rule 6C- 6.002(3)(a) and who ranks in the top 20% of his/her high school graduating class shall be admitted to a university in the SUS. The SUS will use class rank as determined by the Florida Department of Education. The proposed repeal of existing Rule 6C-6.002(5) that states: The Board reaffirms its Equal Educational Opportunity (EEO) commitments. Universities may utilize the above alternative admission methods to increase the enrollment of a diverse student body. The proposed addition of Rule 6C-6.002(7) that states: Neither State University System nor individual university admissions criteria shall include preferences in the admission process for applicants on the basis of race, national origin or sex. The addition to Rule 6C-6.003(5) that states: Effective for Fall, 2001 admissions, these requirements shall not include preferences in the admission process for applicants on the basis of race, national origin, or sex. Support and Rationale Early on, John Lee Winn, Coordinator for Education Policy, and Budget, Executive Office of the Governor, was involved in the "One Florida Initiative" related to education, as it pertains to the proposed rules on admissions. He looked at experiences in the states of California, Washington, and Texas where admissions policies had changed by virtue of voter ballot initiatives or court decision prohibiting consideration of race in admission decisions for applicants to public universities. The experiences in those states were examined to determine if similar changes in admissions practices in those jurisdictions in response to the prohibitions would be feasible in Florida. Mr. Winn also examined Florida Department of Education data concerning high school graduates, high school course work, GPAs for those students, the availability of college preparatory course work in Florida high schools, together with SUS admissions policies and practices. The data Mr. Winn reviewed for the other states concerned enrollment in the state university systems. In particular, Mr. Winn examined information concerning the "Talented 10" in Texas that allows the top 10 percent of students in Texas high schools to be accepted in Texas public universities with emphasis on the opportunities for minority students to be enrolled under that program. Mr. Winn was not alone in looking at the experiences in the other states. Additional persons who had input in the Florida effort to change admissions policies were involved. The information gathered from other states was through conversation with persons in those jurisdictions as well as exposure to data. This data collection and analysis took place in August, September, and October 1999. After the "One Florida Initiative" was announced on November 9, 1999, Mr. Winn and others continued to examine data from other places. (Respondents' Exhibit No. 13) In performing his analysis Mr. Winn was also cognizant of court actions in Georgia and Michigan concerning admissions issues in universities. Ultimately, Mr. Winn in the interest of the Governor, was concerned that Florida not experience the reductions in minority student enrollment in Florida's public universities that had occurred in the state university systems in California and Texas following voter ballot initiative and court decision respectively. The Texas court case is in reference to the University of Texas Law School, in Austin, Texas. The court disallowed the consideration of race in admissions decisions at the law school in Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996). The California voter initiative calling for race-blind admissions policies in the university system was in accordance with Proposition 209. Mr. Winn was also pursuing research concerning changes to the admissions policies for the Florida universities knowing that a ballot initiative in Florida was being attempted as a constitutional amendment that would influence admissions policies in the SUS. In trying to determine the existing use of race and gender in the SUS admissions process, Mr. Winn relied upon research by the Board of Regents staff. Mr. Winn looked into the experience at the University of North Florida when Chancellor Herbert served as the President of the institution. At that time, the approach described in the facts was promoted in which minority outreach and recruitment before deciding on admissions were emphasized. Race was not considered in admissions decisions. Mr. Winn, through information provided by the Board of Regents staff, determined that race was being considered in the admissions process, although not specifically required by rule of the Board of Regents or individual university rule. Nonetheless, as exemplified in the university rules referred to in the fact-finding, some university rules allow some consideration of race in admissions practices in promoting diversity in the student body at those universities. In addition, Rules 6C-6.001(10)(e)6, and 6C-6.002(5), Florida Administrative Code, as they currently exist, contemplate promotion of diversity. Mr. Winn in his research was unable to discover the Florida Statutes which specifically required the use of race or gender in the admissions process. The term Mr. Winn used to describe his research on the use of race or gender in the admissions process was "race or gender preferences." In his research, Mr. Winn, similar to the fact- finding here, discovered that universities were pursuing "non- rule policy" that took into account race or gender in admissions decisions. Mr. Winn pointed to attempts to improve the performance in the K-12 public school system, in particular for students in low-performing schools, as constituting the long- term solution for establishing diversity in higher education. This refers to the goals in the Governor's Equity in Education Plan. Mr. Winn found that typically the demographic characteristics in low-performing high schools in Florida, D and F schools, show that 70 percent of the student body in those schools were minority students. Information on the racial and ethnic composition of low-performing high schools in Florida is maintained by the Department of Education. (Respondents' Exhibit No. 16) Mr. Winn perceived a relationship between expanding opportunities in the low-performing schools as described in the Equity in Education Plan and changes to Board of Regents' admissions policies in the SUS. Mr. Winn in explaining the policy choice to implement the "Talented 20" program described the expectation that the number of students in D and F schools who would attend the SUS would increase from previous levels. A graph illustrates the previous experience taken from the Readiness For College, 1997- 1998 Florida Department of Education report. (Respondents' Exhibit No. 15) That exhibit shows the percentage of students in the 1997-1998 reporting period from D and F schools attending the SUS is much lower than 20 percent, closer to 10 percent. Mr. Winn identified attempts that would accompany implementation of the "Talented 20" program to provide need- based state financial aid. Mr. Winn made mention of previously existing financial aid programs such as Bright Futures and Federal Pell Grants as means to assist students admitted under the "Talented 20" program. Mr. Winn identified assumptions that with the advent of the "Talented 20" program, 400 minority students who did not meet regular admissions criteria could be admitted, with another prospective 1,200 admissions subject to the latter group's taking one or two courses to make them eligible. In his research, Mr. Winn became aware of the difference in graduation rates between students regularly admitted and those admitted by alternative means. Proposed changes to the alternative admissions Rule 6C-6.6002(3)(c), Florida Administrative Code, contemplate additional factors not articulated before, which Mr. Winn, from the policy perspective, cited as being indicators of the ability of students to perform in the university. Mr. Winn described the proposed 10 percent limitation of persons admitted under the alternative admissions provisions in Rule 6C-6.002(3)(c) as justified by the reduction in need for alternative admissions due to increases brought about through the "Talented 20" program, a new admissions program. There was also the concern that a number of universities within the system had high numbers of alternative admissions as a means to bolster enrollment. This occurrence was in a setting wherein the Legislature was concerned about the policy of admitting students who were not being successful in their academic endeavors. Mr. Winn described the policy explanation for postponing until the fall of 2001 proposed amendment to Rule 6C- 6.003, prohibiting "preferences in the admissions process for applicants on the basis of race, national origin, or sex." The postponement was needed to allow more study to be done in those programs at the graduate and post-baccalaureate professional level to "increase diversity in graduate programs," as Mr. Winn explains it. Ultimately Mr. Winn was persuaded that the experience of Chancellor Herbert, while president of the University of North Florida, is a predictor of the ability to promote diversity through the "One Florida" plan, including the rules amendments, without race as a factor. Mr. Winn described the lack of consideration of race in admissions at the same time Dr. Herbert embarked on an active recruitment and outreach effort, mentoring, financial need matching, and privately matched scholarships to bring about diversity. Leading to the promulgation of proposed amendments to the rules, Mr. Winn discussed pending changes to the admissions rules two or three times a week with the Board of Regents. Dr. George Russell Perkins, Board of Regents Director of Research and Policy Analysis, was charged with analyzing data from the Florida Department of Education to ascertain the impact of the "Talented 20" program. The data he analyzed also included information from the SUS. (Respondents' Exhibit No. 31) The process Dr. Perkins engaged in was one in which a student's unweighted GPA formed the basis for the analysis. Contrary to these assumptions, the Board of Regents anticipates resort to both weighted and unweighted GPA ranking, depending upon the school district, in applying proposed Rule 6C-6.002(5), Florida Administrative Code. That is, some school districts report weighted GPAs and some report only unweighted GPAs. Class rank under the proposed rule will be determined by the Department of Education in relation to the "Talented 20" program by taking the results of school district systems for ranking. Dr. Perkins recognizes this distinction and the possibility that weighted GPAs might change the relative ranking of students within a school, in the school districts where weighted GPA would be assigned in determining the eligibility for participation in the "Talented 20" program. An unweighted system for assigning GPA counts all the units earned regardless of the subject matter and the rigors of the courses. The weighted systems take into account the relative rigor of classes taken in assigning GPA. Weighted systems give a grade received in the college-preparatory curriculum greater value when compared to a less rigorous curriculum. In performing his analysis Dr. Perkins referred to data on all completers in public high schools in the academic year 1997-1998. This included 95,958 standard diplomas, 2,729 special education diplomas, and 1,541 GED diplomas. These students were tracked in accordance with admissions applications to the SUS for the Summer term 1998, Fall 1998, Spring 1999, and Fall 1999. Having in mind proposed Rule 6C-6.002(5), Dr. Perkins sought to hypothetically identify high school students graduating in the academic year 1997-1998, who would have benefited from the "Talented 20" program admissions opportunity. In addition to determining class rank, the analysis made by Dr. Perkins depended upon a student's complying with the 19 required high school academic units as specifically set forth in Rule 6C- 6.002(3)(a), Florida Administrative Code. That meant that additional academic electives must have been completed in the five specific subject areas identified in the rule. From the information gathered and considered Dr. Perkins created tables to depict the hypothetical influence of the "Talented 20" program in creating admissions opportunities. Tables 1 through 15 (Respondents' Exhibit No. 34, Appendix H). The tables below reflect the following: Table 1 Ethnicity Distribution of All Completers1 Public High School Graduates, 1997-98 Unweighted Ethnicity Completers Percent GPA African-Amer 21,325 21.28% 2.44 Asian 2,764 2.76% 3.06 Hispanic 14,409 14.38% 2.56 Native Indian 197 0.20% 2.84 Not Reported 190 0.19% 2.80 White 61,343 61.20% 2.81 Total 100,228 100.00% 2.70 1 Includes 95,958 standard, 2,729 special education and 1,541 GED diplomas Table 2 Ethnicity Distribution of All Completers Who Had 19 Required Academic Credits Unweighted Ethnicity Completers Percent GPA African-Amer 9,152 15.85% 2.73 Asian 2,065 3.58% 3.19 Hispanic 5,838 10.11% 2.87 Native Indian 127 0.22% 3.04 Not Reported 128 0.22% 3.01 White 40,445 70.03% 3.04 Total 57,755 100.00% 2.98 Table 3 Percentage of All Completers Who Had 19 Required Academic Credits Ethnicity Percent African-Amer 42.92% Asian 74.71% Hispanic 40.52% Native Indian 64.47% Not Reported 67.37% White 65.93% Total 57.62% Table 4 Ethnicity Distribution of Top Twenty Percent Who Did Not Have the 19 Required Academic Credits Unweighted Ethnicity Completers Percent GPA African-Amer 793 21.28% 2.98 Asian 152 4.08% 3.44 Hispanic 998 26.78% 3.20 Native Indian 9 0.24% 3.30 Not Reported 7 0.19% 3.06 White 1,768 47.44% 3.12 Total 3,727 100.00% 3.12 Table 5 Ethnicity Distribution of Top Twenty Percent Who Had the 19 Required Academic Credits1 Unweighted Ethnicity Completers Percent GPA African-Amer 1,525 9.41% 3.36 Asian 970 5.99% 3.61 Hispanic 1,557 9.61% 3.46 Native Indian 39 0.24% 3.59 Not Reported 44 0.27% 3.57 White 12,071 74.48% 3.59 Total 16,206 100.00% 3.56 1Includes 16,201 standard, 2 special education and 3 GED diplomas. Table 6 Ethnicity distribution of top Twenty Percent Who Had 19 Required Academic Credits OR Students Who Had at Least 2.9 GPA Over All Courses And Who Had 19 Required Academic Credits Unweighted Ethnicity Completers Percent GPA African-Amer 3,341 10.13% 3.21 Asian 1,494 4.53 3.45 Hispanic 2,848 8.63% 3.30 Native Indian 83 0.25% 3.35 Not Reported 81 0.25% 3.37 White 25,142 76.21% 3.36 Total 32,989 100.00% 3.34 Table 7 Unweighted GPA Distribution of Top Twenty Percent Who Had 19 Required Academic Credits Unweighted GPA Cumulative Range Number Percent Number Percent ========================================================= 4.0 517 3.19% 517 3.19% 3.90 - 3.99 1,187 7.32% 1,704 10.51% 3.80 - 3.89 1,515 9.35% 3,219 19.86% 3.70 - 3.79 1,812 11.18% 5,031 31.04% 3.60 - 3.69 2,296 14.17% 7,327 45.21% 3.50 - 3.59 2,598 16.03% 9,925 61.24% 3.40 - 3.49 2,221 13.70% 12,146 74.95% 3.30 - 3.39 1,732 10.69% 13,878 85.63% 3.20 - 3.29 1,082 6.68% 14,960 92.31% 3.10 - 3.19 610 3.76% 15,570 96.08% 3.00 - 3.09 356 2.20% 15,926 98.27% 2.90 - 2.99 160 0.99% 16,086 99.26% 2.90 120 0.74% 16,206 100.00% Note: This table is based on the GPA earned on all high school credits as opposed to the GPA on the 19 required credits as specified in the Board of Regents admissions rule. Data on the GPA on the required 19 credits were not immediately available. Table 8 Ethnicity Distribution of Top Twenty Percent Who Had 19 Required Academic credits Who Applied to an SUS Institution Unweighted Ethnicity Completers Percent GPA African-Amer 1,130 10.16% 3.38 Asian 752 6.76% 3.63 Hispanic 1,027 9.23% 3.48 Native Indian 25 0.22% 3.67 Not Reported 29 0.26% 3.61 White 8,163 73.37% 3.62 Total 11,126 100.00% 3.58 Table 9 Ethnicity Distribution of Top Twenty Percent Who Had 19 Required Academic Credits But Did Not apply to an SUS Institution Unweighted Ethnicity Completers Percent GPA African-Amer 395 7.78% 3.28 Asian 218 4.29% 3.56 Hispanic 530 10.43% 3.42 Native Indian 14 0.28% 3.45 Not Reported 15 0.30% 3.51 White 3,908 76.93% 3.54 Total 5,080 100.00% 3.51 Table 10 Ethnicity Distribution of Top Twenty Percent Who Had 19 Required Academic Credits Who applied to an SUS Institution Ethnicity And Completers Were Accepted Percent Unweighted GPA African-Amer 1,022 10.90% 3.38 Asian 631 6.73% 3.62 Hispanic 908 9.68% 3.46 Native Indian 21 0.22% 3.66 Not Reported 24 0.26% 3.58 White 6,773 72.21% 3.61 Total 9,379 100.00% 3.57 Table 11 Ethnicity Distribution of Top Twenty Percent Who Had 19 Required Academic Credits Who Applied to an SUS Institution And Registered for Classes Unweighted Ethnicity Completers Percent GPA African-Amer 843 10.62% 3.38 Asian 506 6.38% 3.60 Hispanic 709 8.93% 3.47 Native Indian 19 0.24% 3.65 Not Reported 22 0.28% 3.56 White 5,838 73.55% 3.61 Total 7,937 100.00% 3.57 Table 12 Ethnicity Distribution of Top Twenty Percent Who Had 19 Required Academic Credits Percentage of Those Who Applied Who Were Accepted Ethnicity Accepted_ Percentage African-Amer 1,022 90.44% Asian 631 83.91% Hispanic 908 88.41% Native Indian 21 84.00% Not Reported 24 82.76% White 6,773 82.97% Total 9,379 84.30% Table 13 Ethnicity Distribution of Top Twenty Percent Who had 19 Required Academic Credits Percentage of Those Who Were Accepted Who Subsequently Registered for Classes Ethnicity Enrolled Percentage African-Amer 843 82.49% Asian 506 80.19% Hispanic 709 78.08% Native Indian 19 90.48% Not Reported 22 91.67% White 5,838 86.20% Total 7,937 84.63% Table 14 Ethnicity Distribution of Top Twenty Percent Who had 19 Required Academic Credits Who Applied to an SUS Institution Were Accepted, Enrolled and Required Remediation Ethnicity Completers Percent of Total Unweighted of Enrolled GPA African-Amer 105 50.24% 12.46% 3.22 Asian 16 7.66% 3.16% 3.42 Hispanic 34 16.27% 4.80% 3.35 Native Indian 0 0.00% 0.00% N/A Not Reported 2 0.96% 9.09% 3.30 White 52 24.88% 0.89% 3.41 Total 209 100.00% 2.63% 3.30 Table 15 Ethnicity Distribution of Top Twenty Percent Who had 19 Required Academic Credits Who Applied to an SUS Institution Were Denied Admission Percent Unweighted Ethnicity Completers of Total of Applicants GPA African-Amer 22 12.57% 1.95% 3.20 Asian 10 5.71% 1.33% 3.47 Hispanic 13 7.43% 1.27% 3.42 Native Indian 0 0.00% 0.00% N/A Not Reported 0 0.00% 0.00% N/A White 130 74.29% 1.59% 3.44 Total 175 100.00% 1.57% 3.41 These tables were an integral part of the materials presented to the Board of Regents for its deliberations in considering the influence of the "Talented 20" program on university admissions. It is significant that the tables reflect not only the hypothetical opportunities for admission in accordance with the "Talented 20" program but indicate the actual experience of students who applied in the relevant periods. With this in mind, Table 8 compared with Table 10 reflects slight increases in the number of minorities, African-Americans and Hispanics, who would be hypothetically entitled to admission under the "Talented 20" program compared to the actual experience of application and acceptance. There would be 108 additional African-Americans and 119 additional Hispanics. Consideration is given to the explanation of increases for those minorities, in that those persons responsible for changes to the admissions policies contemplated by the rules amendments are persuaded that the "Talented 20" program will bring about significant future opportunities for minority admissions in those cohorts. Table 9 reflects 5,080 students in the hypothetical, among those 395 African-Americans and 530 Hispanics who would be entitled to admission under the "Talented 20" program, but who did not apply to the SUS. The reasons for not applying under preexisting admissions procedures were not explained in the hearing record. How many similarly situated students might apply in the future should the proposed amendment creating the "Talented 20" program be allowed is uncertain. As Dr. Perkins describes it, Table 9 reflects the opportunity for the "Talented 20" program to bring additional students into the SUS; however, no attempt has been made to predict how many students might take advantage of the opportunity for admission. Dr. Perkins did establish that the "Talented 20" program would create potential opportunities for students in low performing schools, schools graded D and F, who met requirements for the program to be admitted, assuming compliance with the 19 required academic credits and top 20 percent. Exercising the hypothetical in relation to the 1997-1998 class 1,842 graduates from D and F schools would have the opportunity for admissions under the proposed rule. (Respondents' Exhibit No. 34, I-1) Substantial numbers of those students in D and F schools in that academic year were minorities. Unlike the portrayal of the application process identified in the "Talented 20" program, proposed Rule 6C- 6.002(5), no increases are foreseen in African-American and Hispanic minorities under the "student profile assessment" admissions policy described in proposed Rule 6C-6.002(3)(c). In the latter process the system is limited to 10 percent of total FTIC students. This reflects a reduction in the absolute numbers of alternative admissions by history, most of whom have traditionally been minority admissions. The prohibition against consideration of race and national origin in a setting where race and ethnicity have played a role in alternative admissions, as already described, creates a change in the outcome. The possibility exists that minority groups might suffer further reductions in numbers of minority students admitted pursuant to this rule as a result of competition with all applicants. The effect is tempered in recognition that factors such as family educational background, socio-economic status, and graduate of a low-performing high school, would assist minorities as much, or perhaps more, than others in their application for admission. When Dr. Lewis worked for then-president Herbert at the University of North Florida, she was charged with overseeing enrollment services at the university. She pursued admissions policies at the university consistent with Dr. Herbert's expectations by not referring to race at the point in time when students were admitted. All students were treated the same. The emphasis for increasing diversity was directed to activities prior to the point when a student's application was being considered in competition with other applicants, regardless of race. These pre-collegiate programs associated with outreach and recruitment have been discussed and are basically comparable to the ideas contemplated for the SUS under the Governor's Equity in Education Plan for expanding opportunities for students in low performing schools. Based upon her association with the University of North Florida admissions activities, Dr. Herbert called upon Dr Lewis to chair the "Talented 20" Task Force. Dr. Lewis accepted that responsibility in recognition that the program would be pursued in conjunction with a "profile assessment" method of alternative admissions. The "Talented 20" Task Force formed was constituted of university representatives and representatives from public schools in Florida. University students were invited to be members of the task force. Board of Regents staff, Department of Education staff, and persons from the Florida Community College system were also invited. Within this group were admissions personnel from the universities, guidance personnel from the high schools, and persons responsible for financial aid to benefit university students. Teams were established to consider issues promoted by the "Talented 20" program. Efforts by the "Talented 20" Task Force eventuated in a report of recommendations dated December 8 and 9, 1999. (Respondents' Exhibit No. 70) That report was provided to Chancellor Herbert. It was highlighted by recommendations that identification of the "Talented 20" students be made at the seventh semester in high school, creation of a "Talented 20" office within the Board of Regents to assist in dealing with problems of admissions to the universities under the plan, and calculation of GPA premised upon the ranking process already in place in the school districts. These recommendations were made known to the Board of Regents at its December 9 and 10, 1999 meeting, and were discussed by Dr. Lewis at that meeting, together with an explanation of the function of the "Talented 20" Task Force. As envisioned through the process leading to rule adoption, the proposed "Talented 20" admissions standards do not require SAT and ACT tests. This deletion is perceived by proponents of the program as having the potential to benefit students. According to Dr. Lewis, within her knowledge, recently 86 students in D-rated schools in Jacksonville would be eligible for admissions under the "Talented 20" program, proposed rule 6C-6.002(5), without having taken SAT or ACT tests. Dr. Judith G. Hample, Vice Chancellor for Planning Budgeting and Policy Analysis, Board of Regents had principal responsibility for developing the proposed rules. She was assigned that obligation by Dr. Herbert. The rule development was with the knowledge that universities were considering race and ethnicity as factors in admissions. No such policies were being pursued in relation to gender. No proof at hearing demonstrated that gender was being considered as a factor in either aiding or hindering admissions. Certain data available to Dr. Hample and staff lent credence to the statements by university personnel that race and ethnicity were considered in admissions. Data consisted of the alternative admissions statement from the SUS November 1998. (Petitioners' Exhibit No. 36) The universities reported on their alternative admissions under the preexisting rule. Approximately one-third of those students were described as admitted for reason of "diversity." Diversity was taken by Dr. Hample and her staff to mean consideration for admission based on race or ethnicity, in some cases. Dr. Hample and her staff observed universities reporting that extra points were given for race, such as University of Florida 0.6 points and Florida State one point when considering applications for admissions. In performing her duties, Dr. Hample took her lead from the Governor's Equity in Education Plan, the components for improving the education received by high school students and admissions practices for universities. In the latter category, the two major considerations were first, the prohibition of race, ethnicity, or sex as factors in admissions and second, creation of the "Talented 20" program. The "Talented 20" program allows admission to a university in the SUS without guaranteeing the choice of a particular university. Dr. Hample conducted research on the question of whether there was a requirement that race or gender be considered in admissions practices, not whether those practices were allowed. Given the demographics for minorities and females entering the 1999 fall term in the SUS, approximately 38 percent and 57 precent respectively, Dr. Hample and staff felt that this was a reasonable performance in meeting the educational needs for those groups, and it would be a reasonable and sound educational policy to implement amendments calling for elimination of race, ethnicity, or sex in undergraduate admissions. This conclusion was reached with a view toward the past performance in the State of Florida in which desegregation orders had been entered under federal law to increase the number of minorities and women in the university student population. Dr. Hample and staff wanted to make certain that there was no present evidence of past discrimination that needed to be addressed, as it influenced the rights of minorities and women to receive a public education. In preparing the draft language for the proposed amendments to the rules Dr. Hample was unconvinced, and remains so today, that there are any present effects of past discrimination in the admissions practices of the SUS. Nothing presented in the hearing created a different impression. As Dr. Hample explains, the proposed amendments to Rule 6C-6.0002(3)(c), establishing factors for student "profile assessment" in alternative admissions were not designed solely to capture minorities in the admissions process, although as previously found some factors described in the proposed rule might be especially beneficial to minorities. The 10 percent limitation in alternative admissions under proposed Rule 6C-6.0002(3)(c), had its origins before the Governor announced his Equity in Education Plan, according to Dr. Hample. As she explained, the State of Florida relies on community colleges to educate the majority of students coming out of high schools. Given the expectation that those students will then transfer for their final two years to a four-year college, the Legislature has invested in the two systems, lower division education (community colleges) and upper division education (universities). The Legislature has expressed concern that universities not use alternative admissions as a means to expand their student populations. As Dr. Hample understood, the Legislature was worried that FTIC students were being admitted who did not meet all entrance requirements and had to undergo remediation to succeed in their educational pursuits at the university, students more appropriately placed in community colleges. These concerns and the desire to remove race and gender as a factor in admissions influenced the Board of Regents' decision to limit the number of alternative admissions under the proposed rule. Dr. Hample in drafting the proposed language to the rules amendments did not proceed with the expectation that the changes would affect scholarship awards, outreach programs, enrichment programs, and the like, offered through the SUS. Dr. Hample understands that the university admissions rules as they exist and are intended for amendment involve the process of reviewing a student's application to determine whether the student is accepted or denied admission to the university solely. This is an appropriate reading of the preexisting rules and the proposed amendments. Any assistance or consideration given to prospective applicants for admission to the universities, or students enrolled in the universities, by way of scholarships, outreach programs, recruitment, enrichment programs, financial aid, or similar assistance upon grounds of race, ethnicity, or gender, to promote diversity, is not the subject of the admissions rules as they now exist or would exist with the amendments. Those practices are not at issue in this proceeding. Dr. Hample, who authored the language which prohibits "preferences," interprets that word to mean that universities should not give advantage to one student over another in reviewing a student's application through consideration of race or ethnicity or gender as a factor. The giving of extra points in the evaluation process involved with admissions constitutes such advantage. This interpretation is a reasonable and appropriate reading limited to the admissions process per se. Rule 6C-6.001(10)(e)6, Florida Administrative Code, is subject to repeal. The limited access programs described in that provision are upper level programs. To this point universities have not identified criteria to the Board of Regents for approval which would establish up to 10 percent of admissions to the limited access programs with different criteria in the interest of establishing equal access enrollment goals. Rule 6C-6.0001(10)(e)2, Florida Administrative Code. As Dr. Hample discovered, in practice, some universities were considering race in admissions to limited access programs without the formality of Board approval. Dr. Hample does not view retention of Rule 6C-6.001(10)(e)6 as necessary at present, given the basic opportunity for universities to establish limited criteria, taken to mean under other provisions within Rule 6C-6.001(10)(e), Florida Administrative Code. By her analysis of the data Dr. Hample was persuaded that minorities and women already have sufficient access to limited access programs. How those persons gained access is less apparent. Dr. Hample concedes that there is a link between Rule 6C- 6.001(10)(e)6, Florida Administrative Code, in the establishment of the 10 percent equal access enrollment opportunity under different criteria and the Florida/OCR Partnership Agreement 1998. At page 7, there is a description of the 1983 adoption of a policy to apply a 10 percent admissions exception to the limited access programs to benefit minorities and others in admissions to those programs. (Petitioners' Exhibit No. 2 and Respondents' Exhibit No. 68) Dr. Hample explains that the prohibition against preferences in the admissions process for applicants on the basis of race, national origin, or sex, effective fall of 2001 in proposed rule 6C-6.003(5) was intended to establish consistency for admissions at any level in the SUS. The review that Dr. Hample and her staff performed pointed out that in the graduate and post-baccalaureate professional programs, much attention had been paid to diversity, so much so, that the demographics for minorities in those programs exceeds the demographic breakdown for minorities in the overall state population. In the research Dr. Hample and her staff performed did not have detailed information as to all graduate and professional programs and their respective criteria for admissions. Postponement of the prohibition against consideration of race, national origin, or sex until 2001 recognizes the decentralized nature of those programs at the graduate and professional level, institution-to-institution and within the institution themselves, as to criteria used for admissions decisions and the need to prepare for the change. Dr. Hample points to the belief that the "Talented 20" program, in its terms, does not require SAT or ACT tests to be admitted. In her analysis this is a significant consideration in dealing with students from D and F schools who are not always encouraged to take those tests but would still comply with proposed rule 6C-6.002(5). In preparing proposed amendments to the rules, Dr. Hample discovered that not all universities were requiring compliance with the selection of four electives from the listed subject area within Rule 6C-6.002(3)(a), Florida Administrative Code, when considering student admissions. This dilemma was caused by university admissions offices using information from a high school guidance counseling manual that was less rigorous in establishing the curriculum for high school students compared to the Rule. This led to students being admitted to the universities without rule compliance in the electives, about 60 percent of all students. The problem was addressed when the 10 universities petitioned the Board of Regents for a variance from the requirement in Rule 6C-6.002(3)(a), Florida Administrative Code, for entering freshmen to possess four additional academic electives in the five subject areas. The petition in accordance with Section 120.542, Florida Statues, was submitted on April 11, 2000. (Respondents' Exhibit No. 45) It requested relief from compliance until summer of 2003. On April 21, 2000, an order was entered granting the Petition. (Respondents' Exhibit No. 46) By these arrangements the counseling information could form the basis for compliance with Rule 6C-6.002(3)(a), Florida Administrative Code, with the expectation that counseling information would be modified to reflect the literal requirements in the Rule concerning compliance with electives by students seeking admission for summer of 2003. The variance for the electives changed the expectation in proposed rule 6C-6.002(5), the "Talented 20" program, in that the proposed rule relies upon the requirements in Rule 6C-6.002(3)(a), Florida Administrative Code, pertaining to the four electives. As envisioned by the rule adoption process, until the summer of 2003, students who would be admitted under proposed rule 6C-6.002(5), would receive the same treatment as students admitted under Rule 6C-6.002(3)(a), Florida Administrative Code. OCR AWARENESS From the inception the Board of Regents made OCR aware of the Governor's Executive Order 99-281 and Equity in Education Plan by copies provided on November 10, 1999. This was followed by correspondence on November 23, 1999, from Chancellor Herbert directed to Ms. Norma V. Cantu, Assistant Secretary for Civil Rights, U.S. Department of Education, and Suong Mai Cavalli, Chief Civil Rights Attorney, U.S. Department of Education, explaining the further development of those initiatives through the Chancellor's presentation to the Board of Regents on November 19, 1999. (Respondents' Exhibit No. 135B). On December 7, 1999, a meeting was held between the Board of Regents staff, the Governor's office, and OCR. On January 14, 2000, Gary S. Walker, Director Atlanta Office for Civil Rights, Southern Division, United States Department of Education, wrote Chancellor Herbert to express the preliminary assessment which OCR had concerning the Governor's Executive Order and Equity in Education Plan, with emphasis on the implementation of the "Talented 20" program, profile assessment and graduate and professional admissions contemplated by the proposed amendments to the admissions rules. This preliminary assessment indicated that the Executive Order and Equity in Education Plan could be reconciled with the partnership commitments between Florida and OCR expanding access for minority students to higher education. (Respondents' Exhibit No. 60) On February 18, 2000, Director Walker wrote to Chancellor Herbert commenting on the need to meet to discuss how the State of Florida intended to ensure the goals of the partnership commitments would be met for the undergraduate and graduate level students, with the adoption of the proposed rules changes. (Respondents' Exhibit No. 61) Topics to be discussed in the meeting, among others, would be: 1. The impact of the 19-course credit requirements for college admission on minority students; 2. plans for ensuring access for minority students to the "Flagship Institutions" in Florida; and 3. graduate and professional school admissions. On March 3, 2000, before the meeting was held, Mr. Walker sent correspondence to Ms. Regina E. Sofer, Chairperson, Florida/OCR Partnership Team, State University System of Florida, reference Monitoring- Florida/United State Office for Civil Rights Partnership Commitments Interim Report 1999. (Respondents' Exhibit No. 63A) The March 3, 2000, correspondence from Mr. Walker to Ms. Sofer established a list of subjects to be discussed at the upcoming meeting between Florida officials and OCR officials. Although not exhaustive, the list mentioned the following subjects: How the 19 course credit requirements for college admissions will impact on minority students? How the SUS will ensure access for minority students to the Flagship Institutions in Florida? How will capping the profile assessments student admissions at 10% affect those students who may have been admitted previously under the Alternative Admission standards? How will the SUS seek to maintain an increased minority enrollment in the graduate/professional schools within the SUS? How will the "Talented 20" students be distributed among the SUS institutions? What kinds of information OCR will need concerning the implementation of the new admissions rules in the time table for providing this information. On March 8, 2000, Ms. Sofer wrote to Ms. Cavalli to confirm the upcoming March 2000 meeting to be held between Florida officials and OCR representatives. The subject matter to be considered, according to the correspondence was: 1. the impact of the 19-course credit requirements for college admission on minority students; 2. plans for ensuring access to minority students to the Flagship Institutions in Florida; and graduate and professional school admissions. (Respondents' Exhibit No. 64) The March 2000 meeting between the Board of Regents staff and OCR took place. That meeting was not followed by further written comment from OCR concerning the proposed amendments. Critique Dr. Barbara Newell was recognized as an expert in university admissions and affirmative action. Dr. Newell has had an extensive career as educator and administrator. Dr. Newell served as SUS chancellor in the years 1981-1985. Dr. Newell correctly criticizes the admissions policy in proposed rule 6C-6.002(5), in which the SUS relies upon the Florida Department of Education to determine class rank for participation in the program. She offers her opinion realizing that the Department of Education at the inception intends to rely upon the class-ranking systems in the various school districts which employ weighted and unweighted grading systems. Dr. Newell expressed concerns about the "unevenness, unreasonableness and unfairness" for students between schools, taken to mean between school districts, where a course in physics compared to a course in physical education is a non- equivalent measurement of academic achievement. In her opinion, Dr. Newell thinks that the process should be as transparent as possible when considering the basis for admissions under the "Talented 20" program and that the citizenry expects equitable treatment of people with similar track records, taken to mean measuring student performance under similar grading systems. Program Enrollment By Gender As pointed out by Florida Now, in SUS programs such as mathematics, computer and information sciences, and engineering, a noticeable disparity exists between male and female enrollment. Female numbers at every academic level, bachelor's, master's, and doctoral degree programs reflect this disparity. Substantially more males than females participate in those programs. This is not reflected in the overall experience within the SUS. No proof was offered that the explanation for the disparities in the select programs pointed out by Florida Now is premised upon discrimination in admissions practices that penalizes females. House Bill 1567 Pending a decision in this case the Legislature made significant amendments to Sections 240.209, 240.227, and 240.33, Florida Statutes, when it passed House Bill 1567. That act took effect July 1, 2000. It creates legal consequences for the Board of Regents in adopting the proposed amendments to the rules. It changes the outcome in some of the assumptions made by the Board about the manner in which the proposed amendments would be allowed to function. Its effect is discussed in the conclusions of law.
The Issue Whether the Education Practices Commission may revoke or suspend John T. Guzalak's Florida teaching certificate, or otherwise discipline Mr. Guzalak, for violations alleged in an Administrative Complaint entered September 21, 1992?
Findings Of Fact The Parties. The Petitioner, Betty Castor, as Commissioner of Education, on behalf of the EPC, is authorized to discipline individuals holding Florida teaching certificates. The Respondent is John T. Guzalak. At all times relevant to this proceeding, Mr. Guzalak held Florida teaching certificate number 615516. Mr. Guzalak is certified to teach English and Speech. Mr. Guzalak's teaching certificate is valid through June 30, 1995. From approximately August of 1987, until June of 1992, Mr. Guzalak served as a teacher for the Okaloosa County School Board (hereinafter referred to as the "School Board"). Mr. Guzalak's Attendance at Choctawhatchee Senior High School. Mr. Guzalak attended, and graduated from, Choctawhatchee Senior High School (hereinafter referred to as "Choctaw"). Mr. Guzalak graduated from Choctaw in 1981. Choctaw is a high school located in Okaloosa County, Florida. Choctaw has approximately 2,000 students, 117 to 120 teachers and a total of approximately 160 employees. While a student at Choctaw, Mr. Guzalak was active in debate and drama. His drama teacher was Mary Jo Yeager. Ms. Yeager was so impressed with Mr. Guzalak's acting ability that she cast him in the male leading role of essentially every play produced at Choctaw while Mr. Guzalak was a student there. Ms. Yeager and Mr. Guzalak developed a friendship and still remain friends. Mr. Guzalak's Employment by the School Board. After Mr. Guzalak had graduated from Choctaw and was attending college, Mr. Guzalak informed Ms. Yeager that he was interested in becoming a teacher. Ms. Yeager, who was planning to retire in a few years, talked to Richard G. Bounds, the Principal at Choctaw, about the possibility of Mr. Guzalak replacing her when she retired. Prior to August, 1987, Mr. Guzalak applied for a teaching position with the School Board as a teacher at Meigs Junior High School (hereinafter referred to as "Meigs"). Ms. Yeager recommended that Mr. Guzalak be hired. Mr. Guzalak was hired to teach at Meigs and began his employment with the School Board in August, 1987. Mr. Guzalak taught speech/drama and English during the 1987-1988 school year at Meigs. The Stage Crafters' Party. In January, 1988, Mr. Guzalak was involved with a local theatre group known as Stage Crafters. The group presented a play in which Mr. Guzalak participated during that month. Mr. Guzalak organized and gave a party for the cast of Stage Crafters after the presentation of the play. The party was held at the home of Mr. Guzalak's parents, where Mr. Guzalak lived until approximately August, 1991. Mr. Guzalak invited all students in his speech/drama classes at Meigs to attend the Stage Crafters' party. Mr. Guzalak invited his students because he thought it would be beneficial for his students to meet and talk to individuals who were involved in drama and who had more experience with acting. Mr. Guzalak had alcoholic beverages available for his guests during the Stage Crafters' party. A table was set up where guests were able to obtain alcoholic drinks. Adults drank alcoholic beverage in front of Mr. Guzalak's students during the party. Alcohol was consumed in the presence of students who were under the legal age required to consume alcoholic beverages. The evidence failed to prove that students who were not legally old enough to drink alcohol who were at the Stage Crafters' party were encouraged or allowed to drink alcoholic beverages. The evidence also failed to prove that underage students were in fact drinking in the presence of Mr. Guzalak or that Mr. Guzalak drank alcoholic beverages in front of any underage students. The testimony of Chris Hutcherson, a student at Meigs at the time of the party, concerning the party was contradicted by the testimony of Aaron Utley, another student at Meigs at the time, and is rejected. Mr. Guzalak testified that the underage students who attended the Stage Crafters' party were mainly relegated to half of the house and the adults and alcohol were located, and the consumption of alcoholic beverages took place, in the other half of the house. Mr. Guzalak testified that this separation of his underage students from the adults consuming alcohol was deliberate and intended to mitigate the extent to which alcohol would be consumed in front of his underage students. This testimony contradicts the purpose for which Mr. Guzalak indicated the students were invited to the Stage Crafters' party and is rejected. Mr. Guzalak simply failed to exercise good judgement when he allowed his underage students to attend a party without also inviting their parents when he knew that alcoholic beverages would be consumed. Mr. Guzalak was counseled by Bobby Smith, Principal at Meigs and Mr. Guzalak's supervisor, after Mr. Smith learned of the party. Mr. Guzalak told Mr. Smith that he had not consumed alcohol in the presence of his students at the party. Mr. Guzalak did admit that alcoholic beverages had been consumed in front of his students, although he minimized the extent to which alcohol had been consumed. Mr. Smith counseled Mr. Guzalak about his lack of judgement in allowing his underage students to attend a party where alcohol was being consumed. Meigs Student-Cast Dinner. In May, 1988, Mr. Guzalak was involved with a play presented at Meigs. The cast of the play consisted of Meigs students. After the play, Mr. Guzalak took the cast of the play to dinner at a restaurant. Some parents also attended the dinner. Mr. Guzalak failed to inform Mr. Smith or anyone else in the Meigs administration about the dinner. During the dinner Mr. Guzalak drank a glass of wine in the presence of the students, who were too young to legally consume alcoholic beverages, and the parents who attended the dinner. After the dinner about five students stayed to talk to Mr. Guzalak after everyone else had departed. When Mr. Guzalak was ready to take the students home who had stayed, he let one of the students drive his automobile. The student driver was 15 years of age at the time. The student driver had a learners' driving permit which allowed her to drive with an adult in the automobile. The student driver took the other students home and then drove to her own home. Mr. Guzalak then drove himself home from the home of the student that had driven his automobile. Mr. Guzalak testified that he had allowed the student driver to drive his automobile because he was concerned about the fact that he had consumed a glass of wine. This testimony is inconsistent with Mr. Guzalak's testimony that he did not give the drinking of the glass of wine with dinner in the presence of the students any thought, one way or the other, and is not credible. Mr. Guzalak allowed the student to drive his automobile that evening because Mr. Guzalak wanted to be accepted by students as a friend and not just a teacher. Consuming alcoholic beverages in front of students is against the policies of the School Board. Mr. Smith and Mr. Guzalak had previously discussed the inappropriateness of a teacher consuming alcohol in front of students as a result of the Stage Crafters' party. Despite this prior warning, Mr. Guzalak again exercised poor judgement and failed to adhere to School Board policy. Mr. Smith was informed of the dinner and spoke to Mr. Guzalak about it. Mr. Smith admonished Mr. Guzalak for drinking alcohol in front of his students. A few days after their discussion, Mr. Guzalak was given a formal, written reprimand by Mr. Smith. See Petitioner's Exhibit 2. Mr. Guzalak was specifically reprimanded for drinking alcohol in front of his students. He was also informed that he was required "to discuss any and all school sponsored activities with [Mr. Smith] before they occur." See Petitioners' Exhibit 2. During Mr. Smith's conference with Mr. Guzalak, Mr. Guzalak expressed concern to Mr. Smith about why it was improper for him to consume alcohol in front of students under the circumstances of the cast dinner. Mr. Guzalak found it difficult to understand why the drinking of a glass of wine with dinner in the presence of students by a teacher was inappropriate. Mr. Guzalak's Employment at Choctaw. Ms. Yeager decided to retire from Choctaw after the 1988-1989 school year. She recommended that Mr. Bounds hire Mr. Guzalak to be her replacement. Mr. Bounds questioned Mr. Smith about Mr. Guzalak's performance at Meigs. Mr. Smith informed Mr. Bounds of the dinner incident when Mr. Guzalak drank a glass of wine in the presence of students and provided Mr. Bounds with a copy of the written reprimand, Petitioner's Exhibit 2, that Mr. Smith had given to Mr. Guzalak. Mr. Bounds, Mr. Guzalak's supervisor at Choctaw, discussed Mr. Smith's written reprimand with Mr. Guzalak prior to, or soon after, Mr. Guzalak's employment at Choctaw. Mr. Bounds cautioned Mr. Guzalak about consuming alcohol in front of underage students. This was the third time that Mr. Guzalak had been cautioned about the inappropriateness of consuming alcohol in front of underage students. Mr. Guzalak was hired to teach at Choctaw. Mr. Guzalak began his employment at Choctaw in August of 1989. Mr. Guzalak taught at Choctaw during the 1989-1990, 1990-1991 and 1991-1992 school years. Part of his duties included coaching the forensic teams. The 1990-1991 School Year--Student Visits to Mr. Guzalak's Home. Mr. Guzalak developed and maintained relationships with several Choctaw students which went beyond the appropriate and acceptable teacher- student relationship. Those relationships were more typical of the relationships that students develop among themselves. During the 1990-1991 school year students would go to Mr. Guzalak's home to visit. Students who went to Mr. Guzalak's home during the 1990-1991 school year included Sarah Stimac, David Barron, Bobby Arnold, Steve Bucci, Patrick Peavy, Eric Gaul, Kevin Mock, Richard "Matt" Schoditsch, David Hodges, Thomas Ignas and Ross Foster. Sarah Stimac, Bobby Arnold, Steve Bucci, Patrick Peavy, Eric Gaul and Kevin Mock were seniors at Choctaw during the 1990-1991 school year. David Barron was a sophomore at Choctaw. David Hodges and Thomas Ignas were juniors at Choctaw. Matt Schoditsch and Ross Foster were also students at Choctaw. Initially, students began going to Mr. Guzalak's home for school- related purposes. They went for assistance from Mr. Guzalak with school subjects, to practice for plays and to practice for forensic team competitions. Students eventually began visiting Mr. Guzalak's home primarily for social reasons. Mr. Guzalak allowed students to come to Mr. Guzalak's home to visit without invitation, without informing Mr. Guzalak they were coming and without asking for Mr. Guzalak's permission. While at Mr. Guzalak's home, students would watch movies, listen to music, play music, play chess, talk and "just hang out." Mr. Guzalak's characterization of student visits as tending to be "academic in nature" is rejected. At some time during the Fall of 1990, Mr. Guzalak invited a group of students who had formed a rock band to come to his home to practice for an upcoming pep rally. Bobby Arnold was one of the first students to be invited to practice at Mr. Guzalak's home. Eventually, the students included Steve Bucci, Kevin Foster and John Randall. A few other students would join in on occasion. At some point, students, including those mentioned in the foregoing finding of fact, would go to Mr. Guzalak's home and just play music as opposed to practicing for some upcoming event. Other students, including Patrick Peavy, Eric Gaul and Kevin Mock would listen. The music sessions were social in nature and were not school related. Bobby Arnold's suggestion that the students and Mr. Guzalak, in addition to playing music, would talk about books is rejected to the extent that Bobby Arnold was suggesting an academic purpose for his visits. As Steve Bucci described the visits, they were "jam sessions." Bobby Arnold went to Mr. Guzalak's home at least five to seven times during the 1990-1991 school year. Steve Bucci indicated that the music sessions at Mr. Guzalak's home took place two times a month and more often if he was getting ready for a talent show. Matt Schoditsch went to Mr. Guzalak's home at least six times. Matt Schoditsch's testimony that he only went to Mr. Guzalak's home for academic purposes and not for social reasons was contradicted by many of the other witnesses in this proceeding, including Mr. Guzalak, and is rejected. Mr. Schoditsch's suggestion that students would "be sitting there reading a book or something . . . Magazines" is rejected. Even Mr. Guzalak admitted that students came for social reasons. David Barron went to Mr. Guzalak's home more than twelve times and less than twenty times. During three to five of those visits by David Barron went to Mr. Guzalak's home, beer was consumed by underage students in Mr. Guzalak's presence. Matt Schoditsch, Kevin Foster, Patrick Peavy and others were at Mr. Guzalak's home at times that David Barron saw beer consumed by underage students in front of Mr. Guzalak. Mr. Guzalak also consumed beer in David Barron's presence and the presence of other underage students. The beer consumed by David Barron was either provided by Mr. Guzalak or Mr. Barron brought his own beer. On one of the occasions where Mr. Guzalak provided beer to David Barron at Mr. Guzalak's home, it was a type of beer that David Barron had not seen before. Mr. Guzalak said that he got the beer when he had gone north to visit his parents. On one occasion Mr. Guzalak drank a glass of wine in front of Kevin Mock. This took place despite the fact that Mr. Guzalak had previously been counselled by Mr. Smith (twice) and Mr. Bounds about the impropriety of drinking alcohol in front of students. Mr. Guzalak offered Kevin Mock a drink of the wine and Mr. Mock took it. Sarah Stimac also went to Mr. Guzalak's home during the 1990-1991 school year. Patrick Peavy started taking Ms. Stimac to Mr. Guzalak's. Mr. Peavy was Ms. Stimac's boy friend during the 1990-1991 school year. Mr. Peavy and Ms. Stimac had started doing things with a group of their friends during the summer of 1989 and by the end of the summer they had developed a relationship. Sarah Stimac began going to Mr. Guzalak's home because Patrick Peavy and his friends, primarily Eric Gaul and Kevin Mock, liked to go there and they went there often. On one occasion during the 1990-1991 school year, Sarah Stimac saw Mr. Guzalak and Eric Gaul smoke marijuana at Mr. Guzalak's home in the guest rest room. They used a "bong", a pipe-like device used for smoking marijuana. Ms. Stimac also witnessed Patrick Peavy and Kevin Mock smoke marijuana at Mr. Guzalak's home. Mr. Mock admitted to Martha Clemons, his girl friend during part of the 1990-1991 school year, that he had smoked marijuana at Mr. Guzalak's home. Sarah Stimac also saw marijuana smoked and alcoholic beverages consumed on at least one other occasion at Mr. Guzalak's home. Patrick Peavy, Eric Gaul and Kevin Mock visited Mr. Guzalak's home more frequently than other students. By their own admissions, they went to Mr. Guzalak's home, on average, from two to three times a week. Contrary to Mr. Guzalak's testimony that Mr. Peavy, Mr. Gaul and Mr. Mock were rarely at his home at the same time, Mr. Peavy, Mr. Gaul and Mr. Mock went to Mr. Guzalak's together or were at Mr. Guzalak's home at the same time often based upon their own admissions. Based upon the weight of the evidence, it is concluded that Mr. Peavy, Mr. Gaul and Mr. Mock went to Mr. Guzalak's home on a frequent and regular basis. Sarah Stimac substantiated the fact that Patrick Peavy went to Mr. Guzalak's home frequently. She went with him approximately six times. She also picked him up at Mr. Guzalak's and she telephoned Mr. Peavy at Mr. Guzalak's home. Mr. Peavy told Ms. Stimac and his parents that he was going to Mr. Guzalak's home more often than he actually went. Mr. Peavy lied to Ms. Stimac and his parents so that he could do other things without Ms. Stimac or so that he could do things that his parents would not let him do if he told them the truth. This gave Ms. Stimac the impression that Mr. Peavy was at Mr. Guzalak's home more often then he actually was. Despite this fact, the weight of the evidence proved that Mr. Peavy was at Mr. Guzalak's home on a frequent and regular basis for non-academic purposes. The 1990-1991 School Year Initiation Night. At some time during the Fall of 1990, an annual event, referred to as "Initiation Night," took place at Choctaw. Groups of students at Choctaw traditionally go out together on Initiation Night. On Initiation Night during the Fall of 1990, Sarah Stimac drove Angie Smallwood to Mr. Guzalak's home at approximately 9:00 p.m. to pick up Patrick Peavy. Mr. Peavy had told Ms. Stimac that he would be there. Mr. Peavy, Eric Gaul and Kevin Mock were at Mr. Guzalak's home and were picked up by Ms. Stimac. After Sarah Stimac picked up Patrick Peavy, he told Ms. Stimac that he had been drinking and that he had smoked marijuana and taken LSD. The evidence, however, failed to prove where these events took place. More importantly, the evidence failed to prove that Mr. Guzalak was present when these events took place or that he was aware of what had happened. After leaving Mr. Guzalak's home, Ms. Stimac and the students she picked up went to a local pizza restaurant and met other students, including Matt Schoditsch. The students then went to a bayou where they built a fire. Eric Gaul had a bottle of spiced rum. At some point during the evening Okaloosa County sheriff's deputies appeared. When they did, despite the cold evening, Patrick Peavy, who had been swinging on a rope swing over the water, fell into the water. Whether Mr. Peavy did so because he was startled (as he testified) or because he was trying to get rid of the marijuana and LSD he had in his pocket (as Ms. Stimac testified) need not be decided. The evidence failed to prove that Mr. Guzalak was directly involved in this incident. It is also not necessary to decide whether Mr. Peavy had drugs in his pocket because the evidence failed to prove that Mr. Guzalak had anything to do with any such drugs. After Eric Gaul admitted that the bottle of spiced rum he had, and which the deputies had found, was his and he had convinced the deputies that he had a stranger buy the rum for him at a liquor store, the students were allowed to leave. Although Mr. Gaul, after getting into Ms. Stimac's automobile, stated that he had been given the rum by Mr. Guzalak, the evidence failed to prove the truth of this hearsay statement. After the incident at the bayou the students went back to Mr. Guzalak's home. The 1990-1991 School Year Senior Prom. The day of the 1990-1991 school year senior prom, Sarah Stimac and Patrick Peavy had a fight and broke off their relationship. They did, however, go to the prom together that night. The prom was held at a local motel. Sarah Stimac and Patrick Peavy rented a room at the motel. At some time before the prom was over, Sarah Stimac and Patrick Peavy went to the room they had rented. Mr. Guzalak came to the room to visit. Mr. Peavy had invited Mr. Guzalak. Mr. Guzalak left after Ms. Stimac gave Mr. Peavy an ultimatum that either Mr. Guzalak leave or she would, and Mr. Peavy asked Mr. Guzalak to leave. Mr. Guzalak stayed approximately five to fifteen minutes. Although there was alcohol in Ms. Stimac's and Mr. Peavy's room, the evidence failed to prove that Mr. Guzalak was aware of the alcohol or that anyone was drinking while Mr. Guzalak was there. The 1990-1991 Spring Break Canoe Trip. During the spring break of April, 1991, a student party was organized. The party consisted of a canoe trip down a local river. The party was not a school-sponsored event. Mr. Guzalak was invited to come on the 1991 canoe trip. Although Mr. Guzalak remembered that he was invited by one or more students, Mr. Guzalak, who had an excellent memory for most details, could not remember the names of any student that invited him. Mr. Guzalak spent most of the trip with Patrick Peavy, Eric Gaul and Kevin Mock. There were about 120 students who participated in the canoe trip. They met at the Choctaw parking lot the morning of the trip. During the canoe trip, underage students were drinking beer. They did so openly and in Mr. Guzalak's presence. Mr. Guzalak was offered beer at least ten times by underage students. Kevin Mock admitted that he drank beer in front of Mr. Guzalak during the trip. Mr. Guzalak did not make any effort to stop any of the underage students from drinking alcoholic beverages. Mr. Guzalak's testimony that there was nothing he could do about students drink beer on the trip is not credible. Mr. Guzalak had a duty and responsibility to attempt to stop underage students from drinking beer. Even if Mr. Guzalak's testimony that he did not attempt to stop the drinking because of the number of students involved was credible (which it is not), his testimony did not explain why he did not say something to those students who were bold enough to offer him a beer and then students who he came into contact with that were drinking beer By allowing the consumption of alcohol in his presence by students who were under the legal drinking age, Mr. Guzalak condoned their illegal behavior. When a teacher allows the violation of one law, it becomes difficult for the teacher to enforce other laws and rules governing student conduct. Mr. Guzalak failed to report the incident to Mr. Bounds or any other administrative employees at Choctaw. Mr. Guzalak should not have just ignored the fact that students, some of whom were his students, had blatantly violated the law in his presence. The 1991-1992 School Year--Mr. Bounds Second Warning. In approximately August of 1991, Patrick Peavy's father spoke to Mr. Bounds about his belief that his son was drinking alcohol and using drugs at Mr. Guzalak's home. The evidence failed to prove what basis, if any, Mr. Peavy had for his suspicions at the time he made his complaint. As a result of the concerns raised by Patrick Peavy's father, Mr. Bounds spoke to Mr. Guzalak. The conversation took place on approximately September 19, 1991. Among other things, Mr. Bounds told Mr. Guzalak that a parent had reported that students were frequenting Mr. Guzalak's home and that alcohol and drugs were being used there. Mr. Bounds told Mr. Guzalak that the parent had followed his child to Mr. Guzalak's home. While Mr. Guzalak admitted to Mr. Bounds that students were frequenting his home, he denied that alcohol was being consumed or that drugs were being used. Mr. Bounds explained to Mr. Guzalak why it was not a good idea to allow students to come to his home. Mr. Guzalak, however, did not agree with Mr. Bounds' concerns over the possible pitfalls of forming personal, social relationships with his students. On September 24, 1991, Mr. Bounds wrote a memorandum to Mr. Guzalak "to reiterate my position regarding our conversation in my office on Thursday, September 19, 1991." Petitioner's Exhibit 3. Mr. Bounds also stated the following in the memorandum: During our conversation you related to me that students from our school were invited and allowed to visit your home for non-academic reasons. Furthermore, you related to me that students from our school are not discouraged by you to establish a personal friendship with you. These personal friendships are encouraged by your participating in non-school related activities. You are hereby notified that all future contact with students from our school should be exclusively of a professional and academic nature. Moreover, meetings with our students should be held on our school property exclusively unless express permission is obtained from me. Petitioner's Exhibit 3. Mr. Bounds also arranged for Mr. Guzalak to meet with Annette Lee (formerly, Annette Francis), Personnel Director of the School Board. Ms. Lee, who was Assistant Superintendent, Human Resource Division, at the time, met with Mr. Guzalak. On October 9, 1991, Ms. Lee wrote Mr. Guzalak a letter memorializing this meeting and provided him with a copy of a document titled "How to Use Common Sense and Professional Judgement to Avoid Legal Complications in Teaching," a form containing some School Board expectations for teacher conduct. See Petitioner's Exhibits 4 and 5. Ms. Lee also discussed the inappropriateness of Mr. Guzalak's behavior and stressed to him the importance of maintaining a professional relationship with students. Mr. Guzalak again admitted that he had developed friendships with some of his students and that he had seen them on occasion socially. Among other things, Ms. Lee stressed the following portions of the "How to Use Common Sense and Professional Judgement to Avoid Legal Complications in Teaching" form she had provided to Mr. Guzalak: Interaction with Students: Maintain a professional barrier between you and students. You are the adult, teacher and the professional; act like the expert not like another one of the "kids." . . . . 3. Refer students to the appropriate resource person for counseling and/or discussions about personal matters. . . . . 5. Do NOT discuss your personal life or personal matters with students. Do NOT discuss your husband, boyfriend, dates or controversial issues with students. . . . . 10. Chaperone only school sponsored functions. Do NOT socialize with students. If you chaperone a field trip, put in writing what your responsibilities will be. Do NOT drink alcoholic beverages in front of students. Do NOT take children home with you. . . . . C. Reputation in the Community. . . . . Communicate with parents and document your communications. Dress and act appropriately but professionally. You are a role model in the community as well as in the school; be a good example for students. Use common sense and good judgement. Ask yourself how someone else could perceive your comments or actions. Ask yourself if your comments or actions could be taken out of context and/or misinterpreted. Avoid putting yourself in a position where you have to defend, explain, or justify your behavior or actions. Avoid putting yourself in a position where it's your word against another person's word. . . . . Petitioner's Exhibit 5. Continued Student Visits to Mr. Guzalak's Home. Mr. Guzalak was very concerned about what Mr. Bounds had told him about students coming to his home. Mr. Guzalak thought that he was being watched (by a parent) and he was concerned because some of the allegations about alcohol and drug use were true. Initially, Mr. Guzalak told students who dropped by or who asked if they could come by, not to come or that they could not stay. For example, Mr. Guzalak told Thomas Ignas and David Hodgson they should not come to his home. On at least one occasion, however, Mr. Guzalak allowed students to visit him at his home during the 1991-1992 school year after Mr. Bounds had instructed Mr. Guzalak to stop such visits. The incident took place during the first three months of 1992. Aaron Utley was told to come to Mr. Guzalak's home by either David Hodges or Thomas Ignas. When Mr. Utley arrived at Mr. Guzalak's home, Mr. Hodges and Mr. Ignas were there with Mr. Guzalak. There were empty beer cans on the coffee table. Mr. Hodges was drunk. Mr. Guzalak did not request that any of the students leave. The weight of the evidence failed to prove, however, that alcohol was consumed by Mr. Guzalak in front of the students or that the students consumed alcohol in front of Mr. Guzalak. The Florida State University Trip--September, 1991. At some time after Mr. Guzalak spoke to Mr. Bounds in September 1991, Mr. Guzalak took a group of students who were participating in the forensic program to Florida State University in Tallahassee, Florida, for a forensic competition. Among others on the trip were Chris Hutcherson, Mark Bradshaw, David MacCarroll and Josh Mickey. These Choctaw students stayed in the same motel room while on the trip. One evening, Mark Bradshaw, David MacCarroll and Josh Mickey came into the motel room where they were staying and smelled marijuana smoke. Mr. Hutcherson was in the room. Mr. Hutcherson had smoked marijuana just before the other students came into the room. Mr. Guzalak came into the motel room shortly after the students arrived and he smelled the marijuana smoke also. Mr. Guzalak asked what was going on, but no one admitted anything at that time. At some point during the trip, Chris Hutcherson admitted to Mr. Guzalak that he had smoked marijuana in the motel room. At no time did Mr. Guzalak report Chris Hutcherson's admission to Mr. Hutcherson's family, Mr. Bounds or any other administrative official. Nor did Mr. Guzalak take any disciplinary action against Mr. Hutcherson. Failing to report the use of illicit drugs was against school policy. Mr. Guzalak did not even explain to Chris Hutcherson why he should not have been using marijuana. Instead, Mr. Guzalak told Mr. Hutcherson that he had put Mr. Guzalak in an untenable position by his actions. Because Mr. Bounds had spoken to Mr. Guzalak only a few days before this incident, Mr. Guzalak's concern was not for Mr. Hutcherson or even the forensic team--"[i]t was for myself." See line 11, page 595, Transcript of the Final Hearing. Mr. Guzalak, by his use of marijuana and alcohol with students prior to this incidental, had placed himself in a position of action in a manner similar to that of Mr. Hutcherson. Therefore, it became difficult for Mr. Guzalak to carry out his responsibility as a teacher to report Mr. Hutcherson's admission. The Pensacola Trip--November, 1991. In November, 1991, the Choctaw forensic team went to Pensacola, Escambia County, Florida, to participate in a competition. Since the competition was out of Okaloosa County, students were prohibited by School Board policy from driving their own vehicles. Students who participated in the competition were required to have their parents sign a form granting permission for their child to travel on the trip. See Respondent's Exhibit 1. On the permission form it indicated that "students' may not drive themselves to out of county school-sponsored activities . . . ." The students who were going on the Pensacola trip were told to be at Choctaw at 6:15 a.m. They were scheduled to leave at 6:30 a.m. Chris Hutcherson, who was to participate in the Pensacola competition, did not want to get up as early as he would have to arise to be at Choctaw at 6:15 a.m. Therefore, Mr. Hutcherson asked his mother, Sharon Philbrook, if he could drive his automobile to Pensacola. She told him no. She also spoke to Mr. Guzalak who confirmed the School Board policy that students were not allowed to drive their own vehicles on the trip and that transportation would be provided for students for the trip. The morning of the Pensacola trip, Ms. Philbrook found a note from Chris Hutcherson indicating he had taken his stepbrother's automobile despite her instructions to the contrary. Ms. Philbrook reported the incident to Mr. Bounds who suggested that she go to Pensacola and get Mr. Hutcherson. She did so. Upon arriving at the competition site, Ms. Philbrook introduced herself to Mr. Guzalak and explained what had happened. She also told him that she had reported the incident to Mr. Bounds and that Mr. Bounds wanted Mr. Guzalak to telephone him. Mr. Guzalak was very upset about what Ms. Philbrook told him and told her he wished she had not telephoned Mr. Bounds. In light of Mr. Bounds' admonishment of Mr. Guzalak in September and Chris Hutcherson's admission to Mr. Guzalak that he had smoked marijuana on the Florida State University trip (which Mr. Guzalak had not reported), Mr. Guzalak's reaction is understandable. Mr. Guzalak's reaction and the other evidence presented by the EPC concerning this incident, however, failed to prove that Mr. Guzalak was responsible for Chris Hutcherson's violation of School Board policy against students driving their own vehicles out of the county. As a result of Mr. Hutcherson's actions, Mr. Guzalak informed Mr. Hutcherson that he could no longer travel with the forensic team. Mr. Hutcherson's testimony concerning whether Mr. Guzalak told him that it was okay to drive his own automobile to Pensacola was not credible and is rejected. The Rush Concert--February, 1992. In February, 1992, Mr. Guzalak was responsible for the production of a play at Choctaw. During the week before the play was to begin, Mr. Guzalak cancelled a rehearsal. The rehearsal was cancelled because Mr. Guzalak and several students involved in the play wanted to attend a concert by a musical group, Rush, in Pensacola. The evidence failed to prove that Mr. Guzalak went to the concert with any students from Choctaw, although he did see and speak to at least one student at the concert. The evidence failed to prove that Mr. Guzalak acted improperly or violated School Board policy in cancelling the rehearsal. Matt Schoditsch's Party--February, 1992. On a Friday evening in February, 1992, Mr. Guzalak spoke to Matt Schoditsch on the telephone. Mr. Schoditsch invited Mr. Guzalak to come to his home. Mr. Schoditsch told Mr. Guzalak that there would be other students at his home, students that Mr. Guzalak knew, and that they would be grilling food. Mr. Guzalak knew that Mr. Schoditsch was having a student get-together. Mr. Guzalak's and Mr. Schoditsch's testimony that Mr. Guzalak was invited and came to Mr. Schoditsch's home only to discuss his participation in a play is not credible. The weight of the evidence proved that Mr. Schoditsch invited Mr. Guzalak for social reasons, and that Mr. Guzalak accepted the invitation for social reasons. Mr. Guzalak accepted the invitation and went to a student's house contrary to Mr. Bounds' directive to him and contrary to Ms. Lee's advice. Mr. Guzalak testified that he had assumed that Mr. Schoditsch's parents would be there. Mr. Guzalak also testified that it was not until after students starting showing up with beer that he realized that Mr. Schoditsch's parents were not there. This testimony is not credible. In light of Mr. Bounds' directive, which Mr. Guzalak indicated he was very concerned about, a reasonable person would have inquired. Additionally, a reasonable person, especially a teacher and one who had previously been accused of being too friendly with students, would seek out a student's parents soon after arriving at their home to introduce himself or to say hello if the teacher thought the parents were home. Even if Mr. Guzalak did not know that Mr. Schoditsch's parent would not be home before he arrived, he should have realized soon after arriving that they were not there and left. Shortly after arriving at Mr. Schoditsch's home, Mr. Guzalak saw students start to arrive with beer which they began drinking. According to Mr. Guzalak and Mr. Schoditsch, Mr. Guzalak expressed concern to Mr. Schoditsch about students drinking in front of him. They also testified that Mr. Schoditsch attempted to stop the drinking, but too many students started coming, and there was too much beer. This testimony is not credible. According to Mr. Barron, who also attended the party, there were only fifteen to twenty people at the party. If Mr. Schoditsch had really wanted to, he could have stopped the drinking. Mr. Schoditsch had no intention of stopping the beer drinking. And Mr. Guzalak did not expect him to. Even after Mr. Guzalak saw students drinking beer he did not leave immediately. According to his own testimony, he stayed another twenty-five to thirty minutes after he saw students drinking and even took time to go speak to a student, Jodie Brooks, before leaving. The weight of the evidence failed to prove whether Mr. Guzalak drank alcohol while at Mr. Schoditsch's home. Although Mr. Barron thought Mr. Guzalak was drinking a mixed drink because he was drinking out of Mr. Schoditsch's cup or glass, Mr. Barron did not testify about how he knew that Mr. Schoditsch was drinking a mixed drink. Use of Profanity. It is against the policy of the School Board for a teacher to use profanity in the presence of students. Mr. Guzalak used the term "fucking" in front of several students when he became angry about their use of squirt guns on a forensic competition trip. The weight of the evidence failed to prove that Mr. Guzalak used profanity in the classroom. Supervision of Students on Trips. The weight of the evidence failed to prove that Mr. Guzalak failed to provide adequate or required supervision of students while on school trips. Mr. Guzalak's Resignation from the School Board. Ultimately, several teachers became aware of various rumors about Mr. Guzalak and some of his inappropriate behavior with students. Those comments were reported to Mr. Bounds, who spoke to a few students and then reported the problem to Ms. Lee. The Superintendent of Okaloosa County Schools met with Mr. Guzalak in March 1992, and discussed the various allegations against him. Mr. Guzalak subsequently resigned, effective at the end of the 1991-1992 school year. Credibility of the Witnesses. Mr. Guzalak and the students who were most involved in the incidents at issue in this proceeding denied that most of the more serious accusations against Mr. Guzalak are true. In addition to denying the accusations against him, Mr. Guzalak also suggested that he is the victim of unfounded rumors. Finally, Mr. Guzalak questioned the credibility and motives of some of the witnesses who testified in this proceeding. The denials of Mr. Guzalak and those students who supported his version of events have been rejected. Based upon the weight of the evidence, Mr. Guzalak's testimony was not convincing. The denial of the accusations by several (but not all) of the witnesses called by Mr. Guzalak was also not credible and has been rejected. Many of those witnesses are young men who have developed a close relationship to Mr. Guzalak. They consider Mr. Guzalak to be their "friend." Their testimony reflected their desire not to betray their "friend" and has been rejected in large part based upon the weight of all of the evidence. The efforts to suggest that Mr. Guzalak is merely a victim of rumors also failed. Rumors were caused, in part, because of the perception that Mr. Guzalak was different or eccentric, and, in part, because of the incidents described in this Recommended Order. While there were no doubt rumors concerning this matter and Mr. Guzalak, the incidents which have been found to have occurred in this Recommended Order are based upon the specific knowledge of those witnesses found to be credible. Many of those incidents were confirmed or substantiated by more than one witness. Finally, the efforts of Mr. Guzalak to discredit some of the witnesses also failed. Most of those efforts were directed at Sarah Stimac, Chris Hutcherson and Aaron Utley. The testimony of Ms. Stimac, Mr. Utley and most of the other witnesses called by the Petitioner was credible. It is true, however, that Mr. Hutcherson's testimony contained inconsistencies and that Mr. Hutcherson evidenced an extremely bitter and judgemental attitude against Mr. Guzalak. Consequently, Mr. Hutcherson's testimony has not been accepted except to the extent that it has been corroborated by other evidence. Attacks on Ms. Stimac's credibility are rejected. The suggestion that Sarah Stimac was not credible fails to consider, among other things, the fact that Ms. Stimac's actions in this matter were taken at some personal expense and aggravation. Mr. Guzalak, during the investigation of this matter by the EPC, allowed several students to read confidential statements that Ms. Stimac and other students had given during the investigation. He did so without regard to the consequences to Ms. Stimac or the other students. As a result, Ms. Stimac has faced hostility and ridicule from those misguided students who believe that not telling, or "ratting," on a friend is admirable. Despite such hostility, Ms. Stimac refused to compromise her integrity. The weight of the evidence proved that other students, such as Aaron Utley and David Barron made the same choice that Sarah Stimac made. Rather than lacking credibility, Ms. Stimac's testimony, Mr. Barron's testimony, and the testimony of most of the other students who spoke out about Mr. Guzalak's inappropriate conduct is admirable. The Impact of Mr. Guzalak's Actions on His Ability to Perform His Duties Effectively. There was no direct evidence to prove that Mr. Guzalak was not effective in the classroom. Most of the witnesses agreed that Mr. Guzalak was very effective in the classroom. Several of the witnesses spoke of Mr. Guzalak's intelligence and ability with some admiration. Unfortunately, Mr. Guzalak, by his own admission and based upon the facts presented in this case, has evidenced a lack of the judgement necessary for him to be entrusted with the education of young people. This fact is based upon the nature of the improper acts which Mr. Guzalak has been found to have committed in this case and by his attitude about the warnings he received from Mr. Smith, Mr. Bounds, Ms. Lee and even Mr. Guzalak's coworkers. A teacher that drinks alcohol in the presence of students and provides alcohol to, or condones the use of, alcoholic beverages by students has lost his or her effectiveness as a teacher because of the high standard of conduct expected of teachers. A teacher that uses marijuana in the presence of students or allows students to use marijuana in his or her presence has also lost his or her effectiveness as a teacher. Mr. Guzalak's conduct was, therefore, contrary to the conduct expected of him by the School Board and the community. Mr. Guzalak's conduct is sufficiently notorious in the community that he has lost his effectiveness as a teacher. Mr. Guzalak's inability to follow the directions of his supervisors has also reduced his effectiveness as a teacher. Mr. Guzalak probably has begun to take too much stock in the praise he has received concerning his intelligence and abilities. He has begun to believe his "reviews." As a result, Mr. Guzalak believes that he knows more about how to be an effective teacher than his supervisors and fellow teachers. Mr. Guzalak was asked during the hearing why he had a problem with Mr. Bounds' directive concerning his student friendships. Mr. Guzalak's response, which evidences his attitude about the appropriate role of a teacher with his or her students, was as follows: Because I was used to the idea at that point of having some social contact with students. It was important to me. I was, basically, disturbed because I felt that Richard Bounds was asking me to suddenly make some sort of major capitulation, not in my life-style, but in my mode of thought, in the way I viewed my relationship with students. He wanted me to be an authoritarian clone, if I must. Lines 18-25, Page 627 and Lines 1-2, Page 628, Vol. IV of the Transcript. Additionally, Mr. Guzalak answered the following questions: Q. [Mr. Bounds is] your principal. Shouldn't he be allowed to tell you how you should behave with your students? A. No. Q. He shouldn't be able to tell you how you conduct yourself with your students? A. No. Q. Why not? A. Because I'm an adult and because I'm a professional. And I'm capable of making those decisions on my own. . . . . Lines 17-25, Page 628 and Lines 1-2, Page 629, Vol. IV of the Transcript. Rather than being an "authoritarian clone," Mr. Guzalak attempted to reach some of his students by being their friend on their level. To some extent, he was influenced by Ms. Yeager, who developed friendships with her students. Ms. Yeager, however, was more mature, married, had a family and had been teaching for some time. As Ms. Yeager put it: . . . . Of course, I have an advantage, being an old, married woman. I mean, I had a husband. I had a family. I had a track record when I came here, Ms. O'Sullivan. I taught seven years junior high and two more years in high school. So I think age -- Not all people are respected because they're older, as you know. But, I'm saying I sort of had an edge there on John [Guzalak], plus experience. Lines 19-25, Page 375 and Lines 1-2, Page 376, Vol. III of Transcript. More importantly, Ms. Yeager, by her actions, her character and her good judgement, was able to develop a certain level of friendship with her students while maintaining her distance and her professionalism. Mr. Guzalak has not evidenced the ability to do the same because of his lack of judgement and his inability to heed the advice and experience of his supervisors and peers.
The Issue Did Respondent Siebelts commit the offenses set forth in the petition for dismissal (Case No. 88-4697) and the amended administrative complaint (Case No. 89-0189) filed against her? If so, what discipline should she receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Karen Siebelts has held a State of Florida teaching certificate since 1976. Her current certificate was issued May 1, 1986, and covers the areas of elementary education, elementary and secondary reading, and secondary social studies and psychology. For the past thirteen years Siebelts has been employed by the School Board of Broward County as a classroom teacher. During the early stages of her employment, she taught at Melrose Park Middle School. She then moved to Perry Middle School, where she taught a class of emotionally disturbed sixth graders. Her performance at these two schools was rated as acceptable. In November, 1979, Siebelts was assigned to teach at Charles Drew Elementary School, a neighborhood school located in the predominantly black Collier city area of Pompano Beach. The charges lodged against Siebelts are based on specific acts she allegedly committed while she was a Chapter I Reading/Math and Computer teacher at Charles Drew providing remedial instruction to students whose test scores reflected a need for such special assistance. On January 22, 1985, while seated with her fifth grade students at a table during a reading lesson, Siebelts inadvertently kicked one of the students in the shin. The incident occurred as Siebelts was moving her legs to a more comfortable position. The force involved was minimal and produced no visible injuries. The student immediately demanded an apology from Siebelts. Siebelts responded to this demand with silence. She neither apologized nor said anything to suggest that she had intended to kick the student. Earlier in the lesson, Siebelts had directed the student to stop talking. The student had defied the directive and continued to talk. It was not until approximately three minutes after the student's initial defiance of the directive, however, that the kicking incident occurred. Nonetheless, the student suspected that Siebelts had intentionally kicked her because of her failure to obey Siebelts' order that she not talk. When the student came home from school that day she told her mother that Siebelts had intentionally kicked her during class. The mother immediately reported the incident to the principal of the school, Hubert Lee. The matter was referred to the School Board's Internal Affairs Unit for investigation. The requested investigation was conducted. Following the completion of the investigation, a written report of the investigator's findings was submitted to the administration. No further action was taken regarding this incident until approximately three and a half years later when the instant petition for dismissal was issued. Siebelts was annoyed when she learned that the student and her mother had accused her of wrongdoing in connection with the January 22, 1985, kicking incident. On February 19, 1985, she expressed her annoyance in front of her fifth grade class and in their presence threatened to take legal action against those students and parents who had made libelous or slanderous statements about her or had otherwise verbally abused her. She told the students that they and their parents would be subpoenaed to court and if they did not appear they would be incarcerated. The principal of the school was informed of these remarks shortly after they were made, but it was not until the instant petition for dismissal was issued on August 22, 1988, that Siebelts was first formally charged with having made the remarks. Before coming to work on January 28 1986, Siebelts took a codeine pain medication that her physician had prescribed. When classes started that morning she was still under the influence of the medication. She was listless and drowsy. Her speech was slurred and she appeared incoherent at times. She also had difficulty maintaining her balance when she walked. Because Siebelts had been taking this medication "on and off" since 1979, she had been aware of these potential side effects of the medication when ingesting it on this particular occasion. A teacher's aide in Siebelts' classroom concerned about Siebelts' condition summoned the principal, Hubert Lee, to the classroom. When he arrived, Lee observed Siebelts seated at her desk. She was just staring and seemed "to be almost falling asleep." The students were out of control. They were laughing and making fun of Siebelts. After questioning Siebelts and receiving an answer that was not at all responsive to the question he had asked, Lee instructed Siebelts to come to his office. Siebelts complied, displaying an unsteady gait as she walked to Lee's office. In Lee's office, Siebelts insisted that she was fine, but conceded that she was "on" prescribed pain medication. Throughout their conversation, Siebelts continued to slur her words and it was difficult for Lee to understand her. Pursuant to Lee's request, Dr. Lorette David, Lee's immediate supervisor, and Nat Stokes, a School Board investigator, came to Lee's office to observe and assess Siebelts' condition. A determination was thereafter made that Siebelts was not capable of performing her instructional duties that day, which was an accurate assessment. She therefore was sent home for the day. Because of her impaired condition, rather than driving herself home, she was driven to her residence by Dr. David. Although she believed that she was not suffering from any impairment, Siebelts did not protest the decision to relieve her of her duties because she felt that any such protest would have fallen on deaf ears. Following this incident, Siebelts was issued a letter of reprimand by Lee. She also was referred to the School Board's Employee Assistance Program because it was felt that she might have a substance abuse problem. Siebelts agreed to participate in the program and received counselling. At no time subsequent to January 28, 1986, did Siebelts report to work under the influence of her pain medication or any other drug. During the 1987-1988 school year, Siebelts and two other Chapter I teachers, Rosa Moses and Mary Cooper, occupied space in Charles Drew's Chapter I reading and math laboratory. Their classrooms were located in the same large room and were separated by makeshift partitions. Siebelts is white. Moses and Cooper, as well as the aides who were assigned to the laboratory during that school year, are black. In October, 1987, Moses complained to Principal Lee that Siebelts was not teaching her students, but rather was constantly engaging in loud verbal confrontations with them that disrupted Moses' lessons. Lee had received similar complaints about Siebelts from others. He therefore asked Moses to advise him in writing of any future classroom misconduct on Siebelts' part. Siebelts continued to engage in conduct in her classroom which Moses deemed inappropriate and disruptive. On November 4, 1987, for the last five minutes of one of her classes, she loudly exchanged verbal barbs with her students. Her yelling made it difficult for Moses and Cooper to teach their lessons. On November 5, 1987, throughout an entire 45-minute class period, Siebelts was embroiled in a verbal battle with a student during which she made derogatory remarks about the student's size. She called the student "fat" and told her that she "shake[d] like jelly." The student, in turn, called Siebelts "fruity" and likened her to a "scarecrow." On that same day during a later class period, Siebelts took a student by the arm and, following a tussle with the student, placed him in his seat. Thereafter, she made belittling remarks to the other students in the class. She said that they were "stupid" and "belonged in a freak show." She also referred to them as "imbeciles." Siebelts further told her students that their "mothers eat dog food." On November 25, 1987, Siebelts commented to the students in one of her classes that they would be able to move around the classroom with greater ease if they were not so fat. As she had been asked to do, Moses provided Lee with a written account of these November, 1987, encounters between Siebelts and her students, but Lee did not take any immediate action to initiate disciplinary action against Siebelts. Although she did not so indicate in her report, Moses believed that the unflattering remarks that Siebelts had made to the students on these occasions constituted racial slurs inasmuch as all of the students to whom the remarks had been addressed were black and in addressing these remarks to the students as a group she had referred to them as "you people." Moses thought that "you people" had meant black people in general, whereas Siebelts had intended the phrase to refer to just the students in the classroom. At no time during any of these reported incidents did Siebelts make specific reference to the students' race, nor did she specifically attack black people in general. The target of her demeaning and insulting remarks were those of her students whose unruly and disrespectful behavior she was unable to control. Her efforts to maintain discipline and promote learning in the classroom had failed. She had become frustrated with the situation and verbally lashed out at her students. Unfortunately, these outbursts only served to further reduce her effectiveness as a teacher. On March 1, 1988, Siebelts was involved in an incident similar to the one which had occurred more than three years earlier on January 22, 1985. As on the prior occasion, Siebelts was sitting at a classroom table with her students. Her legs were crossed. When she repositioned her legs, her foot inadvertently came in contact with the top of the head of a student who was crawling under the table to retrieve a pencil the student had dropped. The student had been told by Siebelts not to go under the table but had disobeyed the instruction. She had been under the table for approximately a minute and a half before being struck by Siebelts foot. The blow to the student's head was a light one and produced only a slight bump. Nonetheless, after getting up from under the table, the student, a brash fourth grader who had had confrontations with Siebelts in the past, threatened to physically retaliate against Siebelts. Siebelts did not say anything to the student and the class ended without the student following through on her threat. Following this incident, Siebelts telephoned the student's mother at home to discuss the student's classroom behavior. The call was placed sometime before 9:00 p.m. The conversation between Siebelts and the mother soon degenerated into an argument. They terminated the discussion without settling their differences. Lee subsequently met with the mother. He suggested that a meeting with Siebelts at the school be arranged. The mother indicated to Lee that she would not attend such a meeting unless school security was present. She explained that she was so angry at Siebelts that she was afraid that she would lose her composure and physically attack Siebelts if they were in the same room together.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission issue a final order suspending Karen Siebelts' teaching certificate for two years and that the School Board of Broward County issue a final order suspending Siebelts until the reinstatement of her teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-4687 AND 89-0189 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Commisioner of Education's Proposed Findings of Fact Accepted and incorporated in substance in the Findings of Fact portion of this Recommended Order. Rejected as contrary to the greater weight of the evidence. Rejected as beyond the scope of the charges. Siebelts was not charged with having made threatening remarks the day after the January 22, 1985, kicking incident. These threats were allegedly made, according to the charging documents, on February 19, 1985. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Insofar as it asserts that Siebelts engaged in name-calling on dates other than those specfied in the petition for dismissal and amended administrative complaint otherwise, it is accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Furthermore, the witness whose testimony is recited in this proposed finding later clarified her testimony and conceded that Siebelts did not use the precise words quoted in this proposed finding. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as not supported by the greater weight of the evidence to the extent that it suggests that Siebelts made "racial comments" on the dates specified in the petition for dismissal and amended administrative complaint. Insofar as it states that such comments were made on other occasions, it is rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. According to the petition for dismissal and amended administrative complaint, Siebelts threatened her students with legal action on February 19, 1985. This proposed finding, however, relates to alleged threats of legal action made by Siebelts during the 1987-1988 school year. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as unnecessary. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as irrelevant and immaterial. Rejected as irrelevant and immaterial. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Siebelts' Proposed Findings of Fact First unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance. Second unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Rejected as irrelevant and immaterial; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and :incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; ninth sentence: Accepted and incorporated in substance. Third unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as unnecessary; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance. Fourth unnumbered paragraph: Rejected as more in the nature of a statement of opposing parties' position than a finding of fact; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as subordinate; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance. Fifth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as subordinate; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance; tenth sentence: Accepted and incorporated in substance; eleventh sentence: Accepted and incorporated in substance; twelfth sentence: Accepted and incorporated in substance. Sixth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: rejected as a summary of testimony rather than a finding of fact based on such testimony. Seventh unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony (The exculpatory testimony of Siebelts which is summarized in the first three sentences of this paragraph has not been credited because it is contrary to the more credible testimony of other witnesses) fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Eighth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as subordinate; fourth sentence: Accepted and incorporated in substance; fifth sentence: Rejected as subordinate; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as subordinate; ninth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Ninth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Tenth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Accepted and incorporated in substance; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Superintendent of School's Proposed Findings of Fact Accepted and incorporated in substance, except for the fourth sentence, which has been rejected as contrary to the greater weight of the evidence. Accepted and incorporated in substance except to the extent that it asserts that Siebelts "advised the students that they and their parents would be placed in jail because of the lies and the slander." The preponderance of the evidence reveals that she actually told them that they and their parents would be incarcerated if they did not appear in court when summoned. First sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as subordinate. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as more in the nature of argument concerning relatively insignificant matters than findings of fact addressing necessary and vital issues. Accepted and incorporated in substance, except to the extent that it suggests that Siebelts had alcohol on her breath. Any such suggestion has been rejected because it is contrary to the testimony of Investigator Stokes. Stokes, who has been employed by the School Board as an investigator for the past 20 years, testified that he was standing one or two feet away from Siebelts and did not detect the odor of alcohol on her breath. In view of his experience regarding the investigation of these matters, his testimony has been credited. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. To the extent that this proposed finding states that Siebelts made inappropriate remarks regarding the students' clothing or other matters on dates other than those specified in the petition for dismissal and amended administrative complaint, it has been rejected as outside the scope of the charges. Insofar as it asserts that Siebelts made derogatory remarks about black people in general on the dates specified in these charging documents, it has been rejected as contrary to the greater weight of the evidence. To the extent that this proposed finding indicates that Siebelts otherwise insulted the students in her class on the dates specified in the charging documents, it has been accepted and incorporated in substance. Rejected as beyond the scope of the charges. The "disparaging remarks" which are the subject of this proposed finding were purportedly made during the 1984-1985 school year. The "disparaging remarks" referenced in the petition for dismissal and amended administrative complaint were allegedly made, according to these charging documents, during the 1987-1988 school year, more specifically, on November 4, 5, and 25, 1987. Rejected as beyond the scope of the charges. The "critical" remarks referred to in this proposed finding were allegedly made prior to the 1987-1988 school year. First sentence: Rejected as irrelevant and immaterial to the extent it references reactions to "disparaging" and "critical" remarks that were purportedly made prior to the 1987-1988 school year. Otherwise, it has been accepted and incorporated in substance; second sentence: Rejected as a summary of the testimony of Siebelts' former students and colleagues rather than a finding of fact based on such testimony. First sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance, except to the extent that it reflects that Moses actively monitored Siebelts classroom conduct "through December of 1987." The preponderance of the evidence establishes that such active monitoring actually ceased November 25, 1987; third sentence: Accepted and incorporated in substance, except to the extent it indicates that Noses heard Siebelts tell her students that they "were dirty and needed baths." This comment was purportedly overheard, not by Moses, but by Margaret Cameron, a teacher's aide who had left Charles Drew prior to the commencement of the 1987- 1988 school year; fourth and fifth sentences: Rejected as beyond the scope of the charges. These proposed findings are based on Cameron's testimony regarding offensive comments she had allegedly overheard while an aide in Siebelts' classroom. These pre-1987-1988 school year comments, however, are not mentioned in either the petition for dismissal or the amended administrative complaint. First sentence: As this proposed finding correctly points out, Siebelts' insulting comments only served to heighten the students' hostility and anger toward her. There is no persuasive competent substantial evidence, though, to support the further finding that these comments "resulted in several physical altercations between the students;" second sentence: Rejected inasmuch as there no persuasive competent substantial evidence that there was any "heated verbal exchange" on November 5, 1987, between Siebelts and the student which preceded their "altercation." The preponderance of the evidence establishes that the verbal battle with her students occurred immediately after this incident; third sentence: Rejected as contrary to the greater weight of the evidence. Although she may used physical force during her encounter with this student, it is unlikely that she actually "tossed" him into his seat. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected inasmuch as there is no persuasive competent substantial evidence to support a finding that Siebelts telephoned the student's mother as a result of the incident near the air-conditioner. The preponderance of the evidence does establish that Siebelts did telephone the mother on a subsequent occasion, but there is no indication that Siebelts threatened the mother or otherwise acted inappropriately during this telephone conversation. Although the mother asked to have security personnel present during a parent-teacher conference with Siebelts, the preponderance of the evidence reveals that this request was not the product of any threats that Siebelts had made against the mother. First sentence: Rejected as not supported by the greater weight of the evidence. Siebelts' testimony that the contact was unintentional is plausible and has been credited. The circumstantial evidence presented by Petitioners (including evidence of prior confrontations between Siebelts and the student) raises some questions regarding the veracity of Siebelts' testimony on this point, but such evidence is not sufficiently compelling to warrant the discrediting this testimony. Given her penchant for verbalizing to her students her thoughts about them, had Siebelts intended to kick the student as a disciplinary measure, she undoubtedly would have made this known to the student, rather than remain silent as she did; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance, except to the extent that it suggests that immediately after kicking the student, Siebelts had a "smirk on her face." To this limited extent, this proposed finding is not supported by any persuasive competent substantial evidence; fourth sentence: Accepted and incorporated in substance. First sentence: Rejected as not supported by any persuasive competent substantial evidence; second, third, fourth and fifth sentences: Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. To the extent that this proposed finding suggests that Siebelts' behavior at school on January 28, 1986, and her verbal attack of her students on November 4, 5, and 25, 198', reduced her effectiveness as a teacher, it has been accepted and incorporated in substance. Insofar as it indicates that other conduct in which she engaged resulted in a reduction or loss of effectiveness, it has been rejected as either contrary to the greater weight of the evidence (other conduct specified in charging documents) or beyond the scope of the charges (other conduct not specified in charging documents). COPIES FURNISHED: Charles Whitelock, Esquire 1311 S.E. 2nd Avenue Fort Lauderdale, Florida 33316 Edward J. Marko, Esquire Suite 322, Bayview Building 4,1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Thomas P. Johnson, Ed.D. Associate Superintendent Human Resources Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Craig R. Wilson, Esquire Suite 315 1201 U.S. Highway One North Palm Beach, Florida 33408-3581 Karen B. Wilde Robert F. McRee, Esquire Executive Director Post Office Box 75638 Education Practices Commission Tampa, Florida 33675-0638 125 Knott Building Tallahassee, Florida 32399
