The Issue Is Petitioner entitled to receive developmental services from the Department of Children and Family Services (the Department), due to his developmental disability based on retardation, pursuant to Chapter 393, Florida Statutes.
Findings Of Fact Petitioner was born on June 21, 1979, and at the time of the hearing was 21 years of age. Petitioner was evaluated at the University Hospital of Jacksonville in Jacksonville, Florida, in 1982, at two and one- half years of age. A report from that evaluation indicated that Petitioner was afflicted with a seizure disorder, speech delay, and right-sided dysfunction. During September, 1985, at age six years, three months, he was evaluated at the Hope Haven Children's Clinic, in Jacksonville, Florida. His hearing was tested and determined to be normal. A psychological evaluation noted that his communication skills were below his age level. A report of this evaluation indicates he was a slow learner with weaknesses in processing, retaining, and retrieving information, particularly in the area of speech and language development. On January 21, 1986, Petitioner was again evaluated at the Hope Haven Children's Clinic in Jacksonville, Florida. It was noted at that time he had difficulty in following directions and performing in a regular school environment. He was far behind his classmates academically. During this evaluation he was administered a Peabody Individual Achievement Test and received a standard score of 75 on both mathematics and reading recognition. These scores are above the range of retardation. Petitioner was examined by the School Psychology Services Unit, Student Services, of the Duval County School Board, on February, 17, 1987, when he was seven years and seven months of age. At the time he was receiving "specific learning disabilities full time services" while at Englewood Elementary School in Jacksonville, Florida. It was noted that he was difficult to evaluate because he was easily distracted. During the evaluation, on the Wechsler Intelligence Scale for Children-Revised, Petitioner received a full-scale intelligence quotient (IQ) of 74. This score indicated that he was below average within his verbal abstract reasoning, verbal expression and practical knowledge, visual attentiveness, visual analysis and visual synthesis. He was determined to be within the "slow learner's" range of development. Petitioner was referred to School Social Work Services, Duval County School Board in Jacksonville, Florida, on January 9, 1990. He was referred to the School Psychology Services Unit, where a Wechsler Intelligence Scale for Children-Revised was administered on June 11, 1990. His full-scale IQ was determined to be 74. He was also administered a Vineland assessment, which measures adaptive behavior rather than intelligence. In this case, Petitioner's mother provided answers regarding Petitioner's behavior and adaptability. At the time of this assessment, he was almost 11 years of age. On December 18, 1996, Petitioner was evaluated by the Sand Hills Psychoeducational Program in Augusta, Georgia, when he was 17 years of age. He was administered a battery of tests. The WAIS-R indicated borderline intellectual ability, but not retardation. The Stanford-Binet was 56. This score included a verbal reasoning score of 58 and an abstract visual reasoning score of 72. The split in the scores generates doubt as to the validity of the test. Psychologist Cydney Yerushalmi, Ph.D., an expert witness for the Department, and psychologist Barbara Karylowski, Ph.D., an expert witness for the Petitioner, opined that the Stanford Binet was inappropriate for a person who had attained the age of 17 because it would tend to produce lower scores. Dr. Karylowski tested Petitioner's IQ in February and March 2000. She concluded that Petitioner had a full-scale IQ of 68, which is mild retardation. At the time of that test Petitioner was 20 years of age. Dr. Karylowski opined that the scores she obtained were consistent with all of the scores she had obtained in prior testing because the confidence interval for his IQ was 68 to 77. This would place Petitioner within the range of retardation. Two standard deviations from the mean IQ is 70. It is Dr. Karylowski's opinion that Petitioner is mildly retarded. Her opinion is based on criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), published by the American Psychiatric Association. The DSM-IV definition of retardation requires significantly subaverage general intellectual functioning that is accompanied by significant limitations in adaptive behavior. The onset must occur before the age of 18 years. Accordingly, she believes that Petitioner was retarded before attaining the age of 18. Luis Quinones, M.D., was accepted as an expert witness in the field of psychiatry. Dr. Quinones opined that Petitioner meets the definition of mental retardation under DSM-IV. This means that he believes Petitioner was retarded before attaining the age of 18. He gave great weight to the Petitioner's lack of adaptive functioning in forming this opinion. Dr. Quinones opined that the definition of retardation in the DSM-IV is essentially the same as that found in Section 393.063(44), Florida Statutes. Dr. Yerushalmi evaluated Petitioner and reviewed his medical records. She administered the Wechsler Adult Intelligence Scale, Third Edition, to Petitioner, on August 11, 1999. Petitioner had a verbal score of 74, a performance score of 75, and a full-scale score of 72. She opined that Petitioner was not retarded under the definition set forth in Section 393.063(44), Florida Statutes. The aforementioned statute requires that one must meet a threshold of two or more standard deviations from the mean IQ, in order to be classified as retarded. All measures of IQ have a statistical confidence interval or margin of error of approximately five points, according to the DSM-IV. If one accepts the lower range of the confidence interval of the scores Petitioner has attained over the years, then he meets the two or more standard deviation threshold. Acceptance of the upper limits of the confidence interval would indicate that Petitioner clearly does not fall within the range of retardation. The significance of the confidence interval is reduced substantially when test results produced over a long period of time, by different test administrators, all indicate that Petitioner's IQ is not two or more standard deviations from the mean. Petitioner was diagnosed with many disorders by a variety of practitioners prior to the age of 18. No diagnosis of mental retardation was ever made. At age 21, Petitioner often behaves as if he were much younger, has focused on an 11-year-old as a girlfriend, and may become violent when not properly medicated. He likes to play pretend games of the sort that one would think would entertain a child. For instance, he likes to pretend that he is a law enforcement officer when he rides in a car. He prefers interacting with children who are five or six years younger. He is deficient in the area of personal hygiene. He likes to act silly. He is incapable of holding a driver's license. At the time of the hearing, Petitioner lived with his aunt, Ms. Mary Margaret Haeberle, who is a special education school teacher. She has provided a nurturing environment for Petitioner. Although Petitioner's parents divorced when he was a child, they have worked to address his needs. His younger sister understood Petitioner's problems and attempted to ameliorate them. Upon consideration all of the evidence, it is found that Petitioner was not possessed of an IQ which was two or more standard deviations from the mean. Therefore, there is no need to consider his adaptive function in concluding that he is not retarded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order finding that Petitioner is not entitled to receive developmental services due to a developmental disability based on retardation. DONE AND ENTERED this 4th day of January, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2001. COPIES FURNISHED: Michael R. Yokan, Esquire 1301 Riverplace Boulevard, Suite 2600 Jacksonville, Florida 32207 Robin Whipple-Hunter, Esquire Department of Children and Family Services 5920 Arlington Expressway Jacksonville, Florida 32231-0083 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue to be determined is whether Respondent, Tunisia Hairston, violated the provisions of section 1012.795(1)(d), (j), or (k), Florida Statutes (2010), and/or Florida Administrative Code Rule 6A-10.081(3)(a) and (5)(a). If any violations of these provisions are found, then it must be determined what penalty may be appropriate.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent, Tunisia Hairston, holds Florida Educator’s Certificate 886347, covering the areas of elementary education and English for speakers of other languages, which is valid through June 30, 2017. At all times relevant to the allegations in the Second Amended Administrative Complaint, Respondent was employed as a fifth-grade teacher at Greensboro Elementary School in the Gadsden County School District (District). In April of 2011, Respondent was teaching fifth grade. Her mother, Annette Jones Walker, taught fifth grade in the classroom adjacent to hers. Respondent is in her thirteenth year of teaching and currently teaches first grade at the same school. The Florida Comprehensive Assessment Test (FCAT) is a state-wide assessment administered pursuant to section 1008.22(3)(c), Florida Statutes (2010). For the 2010-2011 school year, the reading component was given to grades three through ten; math was given to grades three through eight; science was given to grades five and eight; and writing was given to grades four, eight, and ten. At issue in this case is the administration of the science portion of the FCAT to fifth graders in Ms. Hairston’s and Ms. Walker’s classrooms at Greensboro Elementary. Pearson, Inc., was the company with whom the State of Florida contracted to provide the 2011 FCAT. The evidence presented indicates that Pearson provided the test booklets to each county, which then distributed the test booklets to each school. The school’s test assessment coordinator would then distribute the tests to each teacher, matched with a list of the students each teacher was supposed to test. After the tests were completed, they were returned by the teacher to the assessment coordinator, who in turn returned the test booklets to the district. Pearson picked up each district’s test booklets and transported them to either Austin, Texas, or Cedar Rapids, Iowa, for scoring. There is no allegation or evidence presented to indicate that there was any irregularity with regard to the test booklets before they arrived at Greensboro Elementary or after the test was completed. Test booklets are “consumable,” meaning that there is no separate answer sheet. Multiple-choice answers are recorded in the test booklet itself. A subcontractor of Pearson’s, Caveon Data Forensics (Caveon), ran an analysis on the erasure marks on the answer portion of the test booklets for each grade, in order to set baseline data for similarities of answers in a particular test group code or school with respect to erasures. Generally, erasure analysis is performed to identify potential anomalies in the testing and to identify potential questions for review in terms of question validity. Standing alone, the erasure analysis provides nothing useful. It must be viewed in conjunction with other information. The erasure analysis performed by Caveon identified 21 Florida schools with scores that were above the threshold set for erasures. Gadsden County had three schools fitting within that category: Stewart Street Elementary School for third-grade reading, Greensboro Elementary School for fifth-grade science, and West Gadsden High School for tenth-grade reading retake. The science classes affected at Greensboro Elementary were those of Ms. Hairston and Ms. Walker. The Superintendent for each district with a high erasure index, including Superintendent Reginald James of Gadsden County, was notified by letter dated June 9, 2011, of the testing groups involved. The letter requested the Superintendent to conduct an internal investigation to examine the administration of the affected tests for any testing irregularities, including testing conditions and test security protocols at the schools. The Superintendent was notified that each school would initially receive an “I” for its 2010-2011 accountability outcomes until the erasure issue was resolved, or the Commissioner determined that sufficient data was available to accurately assign the schools a grade. Deputy Superintendent Rosalyn Smith conducted an internal investigation for Gadsden County, with the assistance of the District’s testing coordinator, Shaia Beckwith-James. According to Ms. Smith, the two of them collected documents and submitted them to the Department of Education, with Ms. Beckwith- James performing a lot of “legwork” on the investigation.3/ Both Ms. Hairston and Ms. Walker were interviewed and the interviews recorded. Ms. Smith testified that she did not find that either teacher had violated any testing protocols, but could not explain the high erasures. Both Ms. Walker and Ms. Hairston were removed as administrators from future administrations of the FCAT, a move that both teachers welcomed. No evidence was presented to indicate that the District considered, or that either teacher was notified, that removal as a test administrator was considered discipline. On June 16, 2011, Superintendent James forwarded to DOE information collected as part of the District’s internal investigation related to those schools with high erasure indexes. Superintendent James asked that the Department exclude the scores of any students with an erasure index of 1.3 or higher from the school’s letter grade calculation in order to assign the schools a letter grade as opposed to an “I” rating. On June 29, 2011, Deputy Commissioner Chris Ellington wrote back to Superintendent James regarding the schools in Gadsden County with high erasure indexes. With respect to Greensboro Elementary, he stated, While your investigation found no improprieties for Grade 5 Science at Greensboro Elementary School, there is sufficient statistical evidence that student test results may have been advantaged in some way. . . . Because this high percentage of three or more net wrong-to-right erasures is extremely unusual, the Department’s decision is to remove these test results from the 2010-2011 accountability outcomes for this school. Consequently, the “I” designation will be removed and the accountability outcomes will be calculated without these student test results. Greensboro Elementary subsequently received an A grade for the year. On March 6, 2012, then-Commissioner Gerard Robinson notified Superintendent James that he was requesting the Department’s Office of Inspector General to investigate whether there was any fraud with respect to the administration of the 2011 FCAT. The Inspector General’s Office then conducted an administrative investigation of four schools state-wide: Chaffee Trail Elementary; Charter School of Excellence; Greensboro Elementary; and Jefferson County Elementary. The Inspector General’s investigation was conducted by Bridget Royster and Anthony Jackson. They received the results from the District’s investigation, and requested testing booklets from the Division of Accountability and Research Management, who had the students’ test booklets for fifth-grade science shipped from Texas. Ms. Royster counted the number of erasures on each test booklet and created answer keys for each student. She also developed questions to ask each student to determine if the erasures were theirs. She and Mr. Jackson interviewed some, but not all, of the students from the two classes based upon their availability at the time, and interviewed Principal Stephen Pitts; Cedric Chandler, the school’s guidance counselor who served as the testing coordinator; and Tamika Battles and Valorie Sanders, who both served as proctors for the 2011 FCAT. They attempted to interview Ms. Walker and Ms. Hairston, who both declined to be interviewed,4/ preferring instead to seek counsel. Ms. Royster and Mr. Jackson recorded answers from the students on the questionnaire form they had developed. However, a review of the handwriting on the forms submitted into evidence reveals that they were filled out by Ms. Royster and Mr. Jackson, as opposed to being filled out by the students themselves. The statements made also refer to the students in the third person, supporting the belief that these are statements as understood by the investigators, as opposed to the actual statements of the students. Based on these interviews, the investigative report prepared by Ms. Royster and Mr. Jackson states in part: “although evidence does not support that fifth-grade teachers, Annette Walker and Tunisia Hairston, altered student answer tests, statements taken during the investigation reveal that they did coach or interfere with their students’ responses during the administration of the FCAT.” Ms. Royster acknowledged that erasures can be caused by students going over their answers a second time; by cheating; by a student’s confusion; by a student changing his or her mind about the answer; and by other unspecified reasons. She also acknowledged that they did not ask the students whether they cheated, as that was not the focus of the investigation. Respondent administered the 2011 Science Comprehensive Assessment Test (FCAT) for students in her classroom on April 19 and 20, 2011. The science portion of the FCAT was the last portion to be administered. It consisted of two sessions on successive days, with 29 questions on one day and 31 questions on the other. Both sessions were 55 minutes long. All 60 questions are in the same booklet. There may be one or two questions per page, depending on the question, so the test booklet is approximately 50-60 pages long. There are different forms of the test, but the core items are the same for each student. Teachers were trained regarding testing protocols and security measures by Cedric Chandler, Greensboro Elementary’s Guidance Counselor and Assessment Coordinator. Each teacher responsible for administering the FCAT was provided with a testing administration manual, including a copy of Florida Administrative Code Rule 6A-10.042, which governs the administration of the test. There is also a form that is signed by educators when they attend the training that indicates that they understand and have read the rules. The FCAT/FCAT 2. Administration and Security Agreement signed by Respondent states in pertinent part: Florida State Board of Education Rule 6A- 10.042, F.A.C., was developed to meet the requirements of the Test Security Statutes, s. 1008.24, F.S., and applies to anyone involved in the administration of a statewide assessment. The Rule prohibits activities that may threaten the integrity of the test. . . . Examples of prohibited activities are listed below: Reading the passages or test items Revealing the passages or test items Copying the passages or test items Explaining or reading passages or test items for students Changing or otherwise interfering with student responses to test items Copying or reading student responses Causing achievement of schools to be inaccurately measured or reported * * * All personnel are prohibited from examining or copying the test items and/or the contents of student test books and answer documents. The security of all test materials must be maintained before, during, and after the test administration. Please remember that after ANY test administration, initial OR make-up, materials must be returned immediately to the school assessment coordinator and placed in locked storage. Secure materials should not remain in classrooms or be taken out of the building overnight. The use of untrained test administrators increases the risk of test invalidation due to test irregularities or breaches in test security. I, (insert name), have read the Florida Test Security Statute and State Board of Education Rule in Appendix B, and the information and instructions provided in all applicable sections of the 2011 Reading, Mathematics, and Science Test Administration Manual. I agree to administer the Florida Comprehensive Assessment Test (FCAT/FCAT 2.0) according to these procedures. Further, I will not reveal or disclose any information about the test items or engage in any acts that would violate the security of the FCAT/FCAT 2.0 and cause student achievement to be inaccurately represented or reported. Respondent signed the Security Agreement on April 7, 2011. Teachers are also given a specific script to read for every grade and subject being tested. For the fifth-grade science test, the script is approximately five pages long. Teachers are instructed that they are to read the script and that their actions should comport with the directions in the script. Victoria Ash is the bureau chief for K-12 assessment at the Florida Department of Education. Her office is charged with the development, administration, assessment, scoring, and reporting of the FCAT. Ms. Ash indicated that there are no stakes attached to the science test at the state level. When asked about protocols to follow in the administration of the FCAT, Ms. Ash indicated that it is not permissible for teachers to assist students, as teacher interference would cause results not to be an accurate measure of the students’ ability. It is not permissible to walk up to a student, point to a question and answer and tell the student to take another look at that question. Such behavior is not permitted either verbally or by some other physical cue. When a student calls a teacher over during the FCAT to ask a question, the teacher is to avoid any specific response. However, it is acceptable, according to Ms. Ash, for a teacher to say things such as “just keep working hard,” “think about it more, you will eventually get it,” or “do your best.” To say something like “just remember the strategies we discussed” would be, in Ms. Ash’s view, “going right up to the edge” of permissible responses. As long as the response is not to a specific question, a teacher would not be violating the protocols to tell students to read over their answers again, and to make sure the students answered every question. The Second Amended Administrative Complaint alleges that Respondent provided inappropriate assistance to students in her fifth-grade class as they took the 2011 Science FCAT by pointing to incorrect test answers or telling students to look again at certain answers. Eight students from Ms. Hairston’s 2011 fifth-grade class testified at hearing. Of those 8 students, two testified that they had received assistance from Ms. Hairston during the test. T.W. was a male student in Ms. Hairston’s class. He testified that “in a certain period of time, she would point out answers for me.” He testified that she did not say anything to him, but “I just got the meaning that she was telling me to check it over again.” He also stated that she told the whole class to go over their tests again at the end of the test. L.T. was a female student in Ms. Hairston’s class. She referred to Mr. Pitts or Ms. Dixon being in the room. She testified that after Ms. Dixon or Mr. Pitts left the room, Ms. Hairston would walk around and “point out questions that maybe we would get wrong.” She testified that Mr. Pitts or Ms. Dixon came in 3-4 times. L.T. also stated that while Ms. Hairston told the class at the beginning of the test they could go back and recheck their answers when they were finished, she did not make a similar statement at the end of the test. On the other hand, students K.M., A.F., R.A., M.C., D.Y., and A.C. all testified that they did not remember Ms. Hairston giving any type of hints during the science FCAT, and that she did not point to answers on the tests. None of the students, including T.W. and L.T., had incredibly clear memories of the test, which is understandable given that they took the test over three years prior to the hearing. To the extent that these six students remembered Ms. Hairston saying anything, they remember her telling them to go back and read the questions over, in terms of the whole test. Tamika Battles was the proctor assigned to Ms. Hairston’s room. Although there was some dispute about how many days she was present during the science part of the FCAT, it is found that she was present for one of the two testing sessions.5/ Ms. Battles does not recall Ms. Hairston saying anything out of the ordinary, but rather simply walked around telling students to stay on task, and making general statements about test taking. She did not ever see her point to a particular student’s test. Ms. Battles had been trained in testing protocols, and believed that they were followed. Ms. Hairston also denied coaching any of the students or pointing out incorrect answers. She acknowledged pointing toward test booklets on occasion, not to point to a specific answer but to remind a student to focus or stay on task. Her testimony was credible. After careful review of the evidence, it is found that Ms. Hairston did not violate testing protocols by providing assistance to students during the 2011 science FCAT. She did not point to specific questions/answers or tell a student (or indicate without talking) that the student should change the answer to any particular question. T.W. was in Ms. Hairston’s class for the second time, having failed fifth grade the year before. He testified that Ms. Hairston did not say anything to him, but rather that he understood her to mean something that she never verbalized. While L.T. testified that Ms. Hairston would point to a question and say, “check your answers again,” she tied these actions to times when Ms. Dixon or Mr. Pitts came in the room. Neither Mr. Pitts nor Ms. Dixon signed the security log for Ms. Hairston’s class for either day of the science examination. Ms. Dixon signed in for one testing session on April 13, but not for either day of science testing, and Mr. Pitts is not signed in for any session at all. Credible testimony was also presented to indicate that while perhaps Ms. Dixon was present at some time during testing (and not necessarily science), Mr. Pitts was not. In addition, L.T.’s written statement focuses more on math questions than science questions. It is entirely possible, given the vague nature of her answers, that she was confusing the science FCAT with some other testing experience. In any event, T.W. and L.T.’s testimony, taken together or apart, does not rise to the level of credible, clear and convincing evidence of providing inappropriate assistance to students during the FCAT. Further, the type of coaching alleged in the Second Amended Administrative Complaint would be quite difficult to do, given the structure of the test and the testing environment. There is no answer key to the test, and according to Ms. Ash, there are different forms of the test. Some pages have one question while others have two. Students are given a set amount of time to complete the test, but worked at different speeds. Many finished early, while some may not have completed it. In order for Ms. Hairston to give the kind of assistance alleged, she would have to stand by the testing student, read the question on the page, see the answer given, recognize it as wrong, and point out the error to the student. Such a scenario is improbable at best, given that testimony is uniform that she walked around the room, not that she stopped for significant periods at any student’s desk. Ms. Hairston’s explanation that she commonly points in order to gain a child’s attention and get them to focus is reasonable. Several years of Respondent’s performance evaluations were submitted. Only those that were complete were considered. Those evaluations indicate that Ms. Hairston consistently has achieved effective, highly effective, or outstanding evaluations during her tenure at Greensboro Elementary School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Education Practices Commission enter a Final Order dismissing the Second Amended Administrative Complaint. DONE AND ENTERED this 6th day of February, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2015.
Findings Of Fact M.G., as he is now known, was born on May 30, 1966. He attended kindergarten at Rainbow Park Elementary School. After beginning first grade in the fall of 1972, at Miami Baptist Temple, a private school, he entered Westview Elementary, one of Respondent's schools, in 1973. On May 3, 1974, he transferred to South Miami Elementary, another public school. Even before the transfer, his mother realized M.G. could not read, but she approached his teachers only after the family had moved and M.G. was settled in his new school. Ms. Mitchell, the second grade teacher with whom Mrs. G. conferred in the spring of 1974, told her that the school system would arrange various tests and interviews that might shed some light on M.G.'s academic difficulties. Among Respondent's records is a note from Ms. Mitchell dated June 13, 1974, saying, "M.G.'s Mother has requested a psychological evaluation. She is very much concerned as to why M. [h]as not been able to make more academic progress (and so am I)." Respondent caused psychological testing to be done in the middle of the following school year. On January 27, 1975, Elizabeth I. Smith, a psychologist in Respondent's employ, finished her psychological evaluation of M.G. Ms. Smith decided that M.G. had "a poor self-concept", "dependency needs", and "paranoid tendencies"; and that he was "a rather lonely child" and "ha[d] too strong a tendency to delay emotional satisfaction." Joint Exhibit No. 7. At this time, administration of Wechsler Intelligence Scale for children indicated that M.G. had normal "full scale" intelligence (101), with subtest scores ranging from 5 (coding) to 16 (object assembly). Contemporaneous Wide Range Achievement Test (WRAT) scores put him a year or more behind the average child at his grade level, with scores ranging from 1.8 (spelling) to 2.1 (reading) to 2.4 (arithmetic). On the WRAT, he mistook "41" for "14". Errors on the Wepman Auditory Discrimination Test indicated inadequate auditory discrimination. Ms. Smith concluded that M.G. had perceptual difficulties that should be evaluated, but decided that his main problems were emotional. Inter alia, she recommended "[r]esource into an Emotionally Disturbed Class . . . [and a]dministration of the Illinois Test of Psycholinguistic Abilities" (ITPA). Joint Exhibit No. 7. The ITPA is administered to children (up to ten years old) in an effort to measure auditory and visual process deficits, among other things. After talking to Ms. Smith, Mrs. G. signed a form on February 21, 1975, authorizing Respondent to place M.G. in a class for emotionality disturbed children for part of the day. At the time, she was unaware that Respondent had full-time classes for children with specific learning disabilities. The teacher of the class for emotionally disturbed children told M.G.'s parents that "she would be working with him with his LD problem." (T. 153.) Respondent never administered the ITPA to M.G.. Dr. Ronald I. Cantwell, a pediatrician who limits his practice to developmental disabilities, first examined M.G. in January of 1975. He found that M.G. confused left with right, had difficulty copying foot patterns, was unable to distinguish between "12" and "21" or between "b" and "d", and could not remember a sequence of five numbers or letters. Codeine acted to excite rather than to sedate M.G. Dr. Cantwell felt M.G.'s principal problems were academic rather than emotional, and recommended tutoring. With tutoring during the summer of 1975, M.G. learned multiplication tables, which he forgot after school began that fall, even though his tutoring continued. In the middle of the following school year, H.U. Puryear, a psychologist in Respondent's employ, concluded, on a psychological referral form dated February 3, 1976, that M.G.'s tutoring should be rescheduled so as not to conflict with school hours, if tutoring was really needed, and that "assignment to another E.D. setting requires no additional professional [psychological] procedures." Joint Exhibit No. 8. M.G. spent the latter part of the fourth grade in a varying exceptionalities class at South Miami Elementary. M.G. is tutored at Dr. Cantwell's Pediatric Achievement Center the summer following fourth grade, just as he had been the summer before. In addition to this tutoring, M.G. had the help of his mother and an uncle, who between them spent four hours a night with M.G., during the first semester of the fifth grade. M.G. and his mother grew increasingly disturbed about his slow progress in school, especially in light of his performance at home. In December of 1976, Mrs. G. attended a conference which Dr. Marshall, head of Respondent's Southwest Area office, Mr. Torano, principal of South Miami Elementary, Lenora Hays, M.G.'s "regular fifth grade teacher," and Ms. Jackson, who had begun two weeks earlier as the teacher of M.G.'s varying exceptionalities class, also attended. At the conference, Ms. Hays undertook to locate either a science or a social studies textbook on a more appropriate level. Mrs. G. sought to persuade the school authorities to transfer M.G. to Ms. Patterson's "continuing LD class," but she was unable to. (T. 168.) After Christmas vacation, in January of 1977, M.G. began at Gables Academy, a private school for children with learning disabilities, where he finished fifth grade and spent sixth and seventh grades. At Gables Academy, M.G. won "an award for advancing two years in every subject . . . an award for reading" (T. 93) , and other awards. The evidence did not reveal the qualifications of Gables Academy's staff, what its school day and school year are, whether it maintains current sanitation, health, or fire inspection certificates, what its procedures to protect the confidentiality of student records are, what written policies it has, if any, and whether it has filed required assurances or reports. Ms. Evelyn Orkney, who was certified as a school psychologist in Connecticut before she moved to Miami, saw M.G. on April 22 and May 13, 1977, before she prepared her initial "psychoeducational evaluation." Joint Exhibit No. 2. She reported WRAT scores of 2.9 (spelling), 3.5 (reading recognition), and 3.9 (arithmetic), and full scale I.Q. of 106. Ms. Orkney observed that M.G.'s "dialogue revealed bitter memories of public school." Joint Exhibit No. 2. She concluded that M.G. "Possesses average aptitude . . . [with] residuals of visual motor problems . . . [and] a significant problem in auditory sequential memory." Joint Exhibit No. 2. Ms. Orkney again evaluated M.G. on August 9, 1979, at which time she observed that he "virtually never experiences depression or bitterness." In the 1979 "psychoeducational re-evaluation," Ms. Orkney reported WRAT scores of 3.5 (spelling), and 6.3 (arithmetic). The Detroit Tests of Learning Aptitude, the ITPA, the Slosson Drawing Coordination, Bender Visual-Motor Gestalt, and other tests were also administered. Ms. Orkney concluded that the "Detroit and ITPA tests confirm severe deficit in the auditory memory area and recommended "special instruction in spelling, as well as auditory sequential memory training and design integration exercises." On the basis of second-hand information, some of which was erroneous, Ms. Orkney recommended that M.G. remain at Gables Academy rather than return to public school. M.G. was evaluated at Respondent's Diagnostic and Resource Center on August 29 and 30, 1979, and a report dated September 27, 1979, was prepared. A number of tests were administered, including the Stanford-Binet Intelligence Scale, various psychological projective tests, the Peabody Individual Achievement Test, Durrell Analysis of Reading Difficulty and Woodcock Johnson Psycho-Educational Battery: Test of Cognitive Ability, Memory for Sentences. M.G.'s vision and hearing were also tested. The diagnostic team concluded that M.G. was "somewhat rigid hut d[id] not have a primary emotional handicap for educational programming purposes." They recommended a specific learning disability program with "primary emphasis in the auditory and visual attention skill areas," and conferences with the school counselor. In their view, his weakest skills were reading and spelling, reflecting "specific process deficits in the visual aid auditory attention areas," as well as in visual memory of words, while arithmetic and general information were strengths. The team made detailed recommendations regarding teaching techniques. Richard Maisel, a clinical psychologist, evaluated M.G. on January 14 and 23 and February 5 and 14, 1980. Joint Exhibit No. 5. He reported WRAT scores of 2.7 (spelling), 4.1 (reading) and 5.6 (arithmetic). Dr. Maisel concluded that M.G. has average intelligence with "very significant auditory and visual attention, memory and sequencing problems." Joint Exhibit No. 5. Dr. Maisel reported "emotional difficulties . . . superimposed upon the underlying learning disability" for which he recommended "psychotherapeutic intervention." He recommended "full-time placement in a learning disabilities program." Joint Exhibit No. 5. M.G. himself wanted, at the time of the hearing, to go to Gables Academy. He remembered assignments at public school that he felt were insultingly simple; and the taunts of children in regular classes; and he did not get along with one of his teachers in public school. He did not want to go to South Miami Junior High because he had "seen injection needles and pill bottles" (T. 91) there as he rode home from Gables Academy. He wanted to "look over a learning disabilities program at Ponce de Leon Junior High School, another public school, but felt he would "really like to go back to Gables Academy]." (T. 92) On November 7, 1979, public school officials, in conjunction with M.G. and his parents, drew up an IEP for the 1979-1980 school year, recommending a full-time learning disabilities placement. Joint Exhibit No. 6. By that time, however, the G.s were obligated for tuition for the 1979-1980 school year, so M.G. stayed the school year there. No IEP had been prepared for the 1980-1981 school year, at the time of the hearing, but Myra Silverstein, a placement specialist in Respondent's employ, testified that a full-time learning disabilities placement would still be appropriate. Such a program is available at Ponce de Leon Junior High. It would include four hours of specific learning disabilities instruction daily by use more teachers along with "mainstream" classes in physical education and shop, art, or some other elective. At Ponce de Leon Junior High School, there is a counselor who works only with student in special education classes.
The Issue Is Petitioner entitled to receive supported living services from Respondent? See Section 393.066, Florida Statutes.
Findings Of Fact Petitioner is 18 years old. He lives with his paternal grandmother and step-grandfather at 3109 Brandywine Drive, Tallahassee, Florida. On March 23, 1994, the Petitioner applied for developmental services. Petitioner's natural mother was institutionalized for retardation for an indeterminate length of time at a Sunland Center. Shortly after the Petitioner's birth, his mother left the Petitioner and his father. Petitioner has lived with his paternal grandmother since he was 13 weeks old. Petitioner's grandmother raised her own three children and has experience in child rearing and the development of children. She noticed that Petitioner's development was slow when Petitioner did not begin walking at age 17 months and did not begin to speak intelligible words until 30 months of age. Petitioner was taken to the Florida State University Psychology Clinic at age 4 years 3 months (4.3 years) in an effort to determine why his development was slow. This was the first time the Petitioner's Intelligence Quotient (IQ) was tested. He obtained a 77 on the Stanford-Binet L-M test, and an 87 on the Vineland Adaptive Behavior Scales. FSU advised the Petitioner's grandmother that Petitioner might have developmental problems and to observe him closely and retest him if he had problems in school. As a result, Petitioner's IQ was tested several times between ages 5 and 17. Testing dates and scores of these test are as follows: October 80 4.3 Stanford-Binet FSU Psy. Clinic IQ 77 Vineland Adaptive FSU Psy. Clinic 87 July 81 5.0 FSU Psy. Clinic Stanford-Binet IQ 84 May 84 7.10 WISC-R FSIQ 84-87 85 9.0 WISC-R FSIQ 80 April 86 9.9 WISC-R Psych. Assoc., Dr.Cook FSIQ 69 June 86 9.11 WISC-R Leon Cty. School, Barnes FSIQ 72 March 91 14.8 WISC-R Leon Cty. School, Popp FSIQ 69 April 92 15.9 Vineland Adapt. Psych. Assoc. Dr. Clark 62 July 93 17.0 WAIS-R, Psych. Assoc. Dr. Deitchman 70 Dr. Thomas Clark, who holds a doctorate in clinical psychology and is a board certified clinical psychologist, testified regarding intelligence testing and his examination of the Petitioner and the records of Petitioner's intelligence testing. The numbers in the far right column in Paragraph 5, above, all reflect the IQ of the Petitioner. IQ scores of 70 or lower placed a person two or more standard deviations below the mean on standardized intelligence tests. Individuals with mental retardation, who may exhibit higher IQ test scores when they are younger, may have their scores decrease as they get older. This is a recognized phenomenon in the mildly retarded. Scores on IQ tests may be inflated by a practice factor which occurs when the test is administered more than once within a six-month period. The record reflects that the Petitioner was tested two times in 1986, and his second score of 72 was higher because of the practice factor. The increase of Petitioner's score was within 2 to 3 points above his general performance on the first test in 1986 and his subsequent tests in 1991, 1992, and 1993, which is the predicted increase due to the practice factor. Since age 9.9, with the exception of the 72 due to the practice factor, the Petitioner has not scored above 70 on an IQ test. Based upon his examination and testing of the Petitioner and his review of the Petitioner's records, Dr. Clark's professional opinion was that the Petitioner was more than two standard deviations below the average in intellectual performance. Although the Petitioner suffers from Attention Deficit Disorder and has some emotional problems, Dr. Clark stated this did not alter his opinion regarding the Petitioner's IQ or his intellectual performance. Dr. Clark found that Petitioner's adaptive behavior was low for Petitioner's IQ. The parties stipulated that the measurement of Petitioner's general intellectual functioning existed concurrently with deficits in his adaptive behavior as manifested during the period from conception to age 18. Based upon its assessment, the Leon County Schools recommended that the Petitioner be placed in the community-based educational program which is designed for students who are mentally retarded within the educable range. The Petitioner has been awarded Supplemental Security Income under Title XVI of the Social Security Act upon a determination that he is mentally retarded. Since his completion of school, the Petitioner has been attending workshops conducted by Goodwill Industries to develop job skills and job coping skills. He has been unable to maintain employment, and has been discharged from all of the positions to which he has been referred. Petitioner was referred to the Department of Health and Rehabilitative Services Developmental Services by officials of Vocational Rehabilitation (Composite Exhibit 1-C). Petitioner's grandparents take him shopping, assist the Petitioner in maintaining his daily life, live with Petitioner on a daily basis, and give him support and try to assist him in controlling his "excessive loud talking". Without the care of his grandparents, the Petitioner would not be able to maintain the activities of daily living. Petitioner's friends include neighborhood children whose ages range from 3 years to 12 years. Their parents have requested Petitioner no longer play with them due to his size, age and conduct. Petitioner's testimony and demeanor while testifying reveal a young adult who is mentally retarded and whose adaptive skills are consistent with his IQ. Petitioner's grandmother testified that even though he is 18 1/2 years old, the Petitioner acts like a boy between 9 and 10 years old. The Respondent's position was that Petitioner's earlier test scores indicated that he was not two deviations below average intellectual performance, and the Petitioner's later test scores were adversely impacted by his emotional and attention deficit problems; therefore, Petitioner was ineligible for developmental services. The testimony of Dr. Clark clearly refuted the assertion that the Petitioner's earlier high test scores indicated a higher IQ, and refuted the alleged negative impact upon IQ testing of Petitioner's attention deficit and emotional disorder. Petitioner presented competent evidence and expert testimony concerning Petitioner's intellectual function to establish that Petitioner's performance was two or more standard deviations from the mean score on a standardized intelligence test. Petitioner's showing was unrebutted by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is; RECOMMENDED: That a Final Order be entered approving Petitioner's eligibility for developmental services. DONE and ENTERED this 23rd day of March, 1995, in Tallahassee, Florida. STEPHEN F. DEAN 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 23rd day of March, 1995. APPENDIX TO RECOMMENDED ORDER Both parties submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 1 Paragraph 2 Subsumed in Paragraph 14 Paragraph 3 Paragraph 15 Paragraph 4 Subsumed in Paragraph 14 Paragraph 5 Subsumed in Paragraph 16 Paragraph 6 Paragraph 17 Paragraph 7 Paragraph 2 Paragraph 8 Paragraph 3 Paragraph 9 Paragraph 4 Paragraph 10 Paragraph 5 Paragraph 11 Subsumed in Paragraph 9 Paragraph 12 Irrelevant Paragraphs 13,14 Subsumed in Paragraphs 16-19 Paragraphs 15-17 True, but made part of Statement of Case Paragraphs 18-21 Subsumed in Paragraph 20 Paragraphs 22-25 Subsumed in Paragraphs 6-10,21 Paragraph 26 Paragraph 11 Paragraph 27 Paragraph 22 Respondent's Recommended Order Findings Paragraph 1 Paragraph 1 Paragraph 2 Rejected as contrary to the more credible evidence summarized in Paragraph 20. Paragraph 3 Paragraph 5 in which the typographical error regarding the test of October 1980 is corrected. The facts set forth in the footnotes are rejected, particularly the assertion that Dr. Cook's reference to a "recent" administration of an IQ test did not fix the date of the test sufficiently to say whether the practice effect would impact its administration. Paragraph 5 Subsumed in Paragraphs 7 and 21 Paragraph 6 See comments for Paragraph 3. As stated in the findings, this premise was specifically rejected. Paragraph 8 Paragraph 1 Paragraph 9 Irrelevant Paragraph 10 Subsumed in various other findings. Paragraph 11 True; however, the Petitioner's application is based solely upon his allegation that he is mentally retarded. COPIES FURNISHED: Daniel W. Dobbins, Esquire 433 North Magnolia Drive Tallahassee, FL 32308 John R. Perry, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street, Suite 252A Tallahassee, FL 32399-2949 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue is whether Respondent failed to maintain honesty in all her professional dealings by coaching her students by instructing them, prior to the test, on specific questions that were to be included in the Comprehensive Tests of Basic Skills.
Findings Of Fact Respondent is a certified teacher, holding certificate number 640974. She is certified in elementary education, and her certificate is valid through June 30, 2000. After earning her bachelor of science degree in education in 1988, Respondent was first hired in late January 1989 to teach fulltime at Lehigh Elementary School, where she taught first grade. Starting in the 1990-91 school year, Respondent taught six years at San Carlos Park Elementary School. During her first two years, she taught third grade. During her next two years, she taught first grade. During her last two years, she taught fifth grade. The incident in question took place during Respondent's last year at San Carlos Park Elementary School. Largely, if not entirely, as a result of the incident, Respondent requested a transfer following the 1995-96 school year. The Lee County School District granted the request, and Respondent taught at Dunbar Middle School for the next two school years. During the 1998-99 school year, Respondent served as a tech specialist in the Lee County School District. Petitioner alleges that Respondent committed an act of dishonesty in March 1996, while employed as a fifth-grade teacher. Specifically, Petitioner focuses upon Respondent's methods of preparing her fifth-grade students for the upcoming Comprehensive Tests of Basic Skills (CTBS). The CTBS is a norm- referenced assessment test to evaluate the progress of students compared to national standards. Although the CTBS results may be used for placement of students into gifted and other exceptional student education programs, the results, in March 1996, were generally not used for the evaluation of students or their teachers or schools. In March 1996, the CTBS was one of several tests that school districts could use to measure the achievement level of their students as compared to nationalized standards. Although its practices have since changed, Lee County School District had purchased the fifth-grade CTBS five years earlier, rather than pay annually for a new test, so fifth-grade students in Lee County public schools had taken the identical test for the five years preceding the March 1996 administration. Petitioner has alleged that Respondent committed an act of dishonesty by teaching five specific questions from the CTBS to her fifth-grade students. These questions are drawn from the CTBS--Fourth Edition, published in 1989 by McGraw-Hill, Inc. The questions are as follows: Item 23, p. 41: Which of these rules could you use to find the number missing from this number pattern? 1, 4, 10, 13, 19, 22, , 31 add 3 to 22 add 6 to 22 add 3 to 19 add 8 to 19 Item 33, p. 42: Which of these would probably be weighed in ounces? A a child B a piano a can of peas a bag of oranges Item 48, p. 44: Marsha dipped one end of a wooden cylinder into ink. Then she stamped a piece of paper with the inked end. What did the stamped figure probably look like? [a circle] [a rectangle] H [a triangle] J [a square] Item 50, p. 45: Which pair of angles is congruent? [The four alternatives are diagrammed in the form of four protractors with angles superimposed upon them in dark ink. This question tests the ability of the student to identify as congruent angles two angles oriented in opposite directions so as to require the student to recognize that a 55-degree angle to the right is congruent with a 55-degree angle to the left.] Item 13, p. 61: The writers of the Constitution decided that our country should hold a presidential election every 2 years 4 years 6 years 8 years Four fifth-grade teachers administered the CTBS at San Carlos Park Elementary School in March 1996. The scores of their students on these and several other items are set forth in the following paragraphs. For Item 23, which is a pre-algebra question, 74 percent of Respondent's students gave the correct answer. Sixty-one percent of the students of Teacher 1 and Teacher 2 gave the correct answer, and 59 percent of Lisa Shirey's students gave the correct answer. Generally, Respondent's students scored well in the six other items comprising pre-algebra. They were first in two items, tied for first (with Ms. Shirey's students) in one item, second in one item, and third in two items. For Item 33, which is a measurement question, 81 percent of Respondent's students gave the correct answer. Eighty-six percent of Ms. Shirey's students gave the correct answer, as did 64 percent and 79 percent of Teacher 1 and 2's students, respectively. Generally, Respondent's students scored well in the seven other items comprising measurement. They were first in one item, tied for first (with Ms. Shirey's students) in one item, second in three items (with Ms. Shirey's students first--in one case by 20 percentage points), and third in two items. For Item 48, which is a geometry question, 74 percent of Respondent's students gave the correct answer. Seventy-four percent of Ms. Shirey's students gave the correct answer, as did 61 percent of Teacher 1 and 2's students. For Item 50, which is also a geometry question, 42 percent of Respondent's students gave the correct answer. Forty- one percent of Ms. Shirey's students gave the correct answer, as did 36 percent and 25 percent of Teacher 1 and 2's students, respectively. Generally, Respondent's students scored well in the four other items comprising geometry. They were first in two items and third in two items. For Item 13, which is a political science question, 90 percent of Respondent's students gave the correct answer. Fifty- nine percent of Teacher 1 and Ms. Shirey's students gave the correct answer, and 71 percent of Teacher 2's students gave the correct answer. Generally, Respondent's students scored slightly lower in the four other items comprising political science, as compared to their performance in mathematics, measurement, and geometry. They were first in one item, third in one item, and fourth in two items. Examined in isolation, the scores of Respondent's class reflect varying levels of superior performance over the scores of the other fifth-grade classes. In Item 33, Respondent's class was five percentage points worse than the best score. In Item 50, Respondent's class was one percentage point better than the second class and 17 percentage points better than the fourth class. In Item 48, Respondent's class was 12 percentage points better than the second class and 13 percentage points better than the fourth class. In Item 23, Respondent's class was 13 percentage points better than the second class and 15 percentage points better than the fourth class. In Item 13, Respondent's class was 20 percentage points better than the second class and 31 percentage points better than the fourth class. Other teachers enjoyed similar performance advantages on other items. In Item 14 in measurement, Ms. Shirey's class scored 20 percentage points higher than the second class and 37 percentage points higher than the fourth class. In Item 18 in geometry, Ms. Shirey's class scored 11 percentage points higher than the second class and 18 points percentage points higher than the fourth class. In Item 28 in sociology/anthropology, Ms. Shirey's class scored 20 points higher than the second class and 28 points higher than the fourth class. In isolation, then, the scoring of Respondent's class on the five CTBS questions in question does not offer much support that Respondent cheated in some fashion by giving her class the questions and answers in advance. Respondent and the other fifth-grade teachers, as well as the administration at the school and district office, attached great importance to the performance of the students on the CTBS. School personnel at all levels altered the timing and delivery of curriculum to prepare better the fifth-grade students for the CTBS. For example, the school administrators, with the approval of district administrators, furnished the fifth-grade teachers with practice tests. The teachers administered the tests and then went over in class the questions and correct answers. The publication used by San Carlos Park Elementary School is called Scoring High, which is also published by McGraw- Hill, Inc. Scoring High contains questions that resemble two of the subject questions. Item 9, p. 47, on Scoring High asks the student to recognize a pattern of numbers with increases of three. CTBS Item 23 asks a student to recognize alternating patterns of increases of three followed by increases of six. Item 3, page 48, on Scoring High asks the student which of four items would be measured in tons: water in a lake, coal in a shipment, fuel in a plane, or air in a balloon. CTBS Item 33 asks a student to recognize that a lighter item would be measured in ounces. Item 9, page 49, on Scoring High asks the student to slice in half a cylinder to convert a depicted three-dimensional item to a two-dimensional rectangle. CTBS Item 48 asks a student to convert a cylinder's base into a two-dimensional circle. Additionally, the fifth-grade team, which was chaired by Ms. Shirey, decided to accelerate the teaching of percentages, fractions, and decimals from the normal point in the school year, which was after March, to a point before the CTBS administration. Sherry Lane, the guidance counselor at San Carlos Park Elementary School, approved this change in the timing of the delivery of this instruction. One textbook publisher even highlights CTBS Item 48 and Scoring High Item 9 in its textbook. The record does not indicate whether this is evidence of publishing to the CTBS or evidence of the universality of the concepts tested by the CTBS. San Carlos Park Elementary School administered the CTBS over a period of one week. Accordingly, the school administration delivered the test booklets to Respondent up to one week prior to the portions of the test involving the questions that Petitioner claims Respondent to have improperly taught. Respondent missed school due to illness on the Thursday and Friday preceding the week of testing of mathematics and social science. So, early in the next week, prior to the administration of the mathematics section, Respondent quickly reviewed mathematics with her class. Respondent had scanned the test booklet prior to administering the test. Petitioner failed to prove that this was an act of dishonesty. In any event, given the fact that the Lee County School District had administered the same test for five years, it was likely that experienced teachers, such as Respondent, already were largely aware of individual questions on the CTBS. In the case of geometric shapes and their conversion from three-dimensional to two-dimension representations, for instance, Respondent realized that she had taught this material months earlier, but had not reviewed it. So when she returned to class following her illness, she asked her students if the substitute teacher had covered this material. They replied that the substitute had tried to review the material, but had left them confused. Thus, Respondent decided to conduct a quick review devoted to various material, including material that would be on the CTBS. She conducted this review openly in her classroom, which is located in a pod with the other fourth- and fifth-grade classrooms. Her classroom was divided from the adjoining classrooms by thin dividers, not walls. Her classroom had doorless entries that were the width of two doors and always open to the hall. The problem that led to this case arose when Ms. Shirey was walking her class to lunch and saw Respondent reviewing mathematics with some transparencies that Respondent had prepared. Ms. Shirey knew that they were to administer the mathematics section of the CTBS two days later. Ms. Shirey was immediately troubled by the fact that Respondent was using a transparency that was different from the ones that the fifth- grade teachers had all agreed to use. After leaving her students at lunch, Ms. Shirey took a copy of the CTBS and listened at the wall to Respondent teaching her class. As to Item 48, Ms. Shirey heard Respondent ask her students what shape they would get if they stamped one end of cylinder onto a flat surface. In fact, Respondent asked her students this question as to a variety of objects that she found in her room and not all of them were cylinders. As to Item 50, Ms. Shirey heard Respondent remind her students that they could measure from both sides of a protractor. As with the geometry material, Respondent spoke to her class in a normal tone and volume and made no attempt to conceal the material that she was reviewing. When she finished the review, she directed a student to clean the transparencies so that she could use them for instruction after lunch. Alarmed, Ms. Shirey reported what she had seen and heard to Ms. Lane, who also listened from the empty classroom adjoining Respondent's classroom and heard Respondent ask what kinds of things would be measured in ounces. She heard the students name numerous things that would be measured in ounces. She heard Respondent go over the shapes of items, including the end of a cylinder. In ten minutes, she heard Respondent cover three or four items that she thought were on the CTBS. A curriculum technical specialist summoned to the room overheard the part of the review devoted to what students would measure in ounces. Last to arrive at the scene were the assistant principal and principal. They heard Respondent talk about what students would measure in grams and centimeters and the shape of an end of a cylinder. The principal entered Respondent's classroom and Respondent, who smiled at her, continued her review session. The issue of how Respondent could ethically prepare her students for the CTBS has supplied many more questions than answers. For example, Ms. Shirey, who has since realized her then-ambition to become an assistant principal at another school, testified that it was dishonest merely for Respondent to depart from the methods and materials that the fifth-grade team had agreed upon. No other witness called by Petitioner has joined her in this definition of dishonesty. Ms. Lane testified that she did not recall if anyone told the teachers not to look at the CTBS after they had received the test booklets, but before they had administered the test. Ms. Lane conducted an inservice meeting with the teachers on what was and was not legal in terms of test preparation. Ms. Lane opined that teachers could not take the material from the CTBS and insert it into a review because, professionally, this would put them "on dangerous ground." Ms. Lane thought that a teacher could teach previously taught concepts, but she would have stayed away from ounces, for example, in the days before the test. In her inservice meeting, Ms. Lane warned the teachers about reviewing test material shortly before the test. However, she conceded that sample tests, such as Scoring High, were acceptable to use, presumably at anytime. There was animosity between Ms. Lane and Respondent. Respondent was the union representative at San Carlos Park Elementary School. Although a member of the union, Ms. Lane had disagreed deeply with a union recommendation that members vote against a contract with a raise. She had written the following note to be read by her fellow union members: "Fuck you all. None of you deserve it." Undoubtedly, Petitioner's strongest witness in discussing the issue of what teachers should and should not do in test preparation was Don Campbell, the Director of District Operations for the Lee County School District. He was the program administrator for assessment and testing in the 1995-96 school year. Mr. Campbell testified that the district allows each school to decide how to prepare students for tests like the CTBS. Mr. Campbell trained test coordinators for each school, such as Ms. Lane for San Carlos Park Elementary School. Mr. Campbell explained that McGraw-Hill publishes an examiner's manual for the CTBS. This manual recommends that teacher take the CTBS prior to giving it to their students. The manual also recommends administering and reviewing practice tests a day or two prior to the testing or even early on the day of testing. The manual's prohibitions against coaching all involve improper activities by the teacher or proctor during the actual administration of the CTBS. Mr. Campbell also gave Ms. Lane a handout entitled, "Preparing Students to Take Standardized Achievement Tests." Authors Mehrens and Kaminski, in Understanding Achievement Tests: A Guide for School Administrators (1989), offer seven test- preparation strategies on a continuum from acceptable to unacceptable. The seven points are: giving general instruction on district objectives without referring to the objectives that the standardized tests measure; teaching test-taking skills; providing instruction on objectives where objectives may have been determined by looking at the objectives that a variety of standardized tests measures (The objectives taught may or may not contain objectives on teaching test-taking skills.); providing instruction based on objectives (skills and subskills) that specifically match those on the standardized test to be administered; providing instruction on specifically matched objectives (skills and subskills) where the practice or instruction follows the same format as the test questions; providing practice or instruction on a published parallel form of the same test; and providing practice or instruction on the test itself. Authors Mehrens and Kaminski agree that Point 1 is always ethical and Point 2 is typically ethical, and Points 6 and 7 are never ethical. The handout concludes: Thus, the point at which you cross over from a legitimate to an illegitimate practice on the continuum is somewhere between Points 3 and 5. The location of the point changes depending on the inferences you want to make from the test scores. Mr. Campbell has given considerable thought to the ethical restraints upon teaching to the test. He acknowledges that this is a common phenomenon, as is evidenced by part of the increase in scores in the statewide Florida Writes test. He acknowledges that imposing restrictions upon teachers in preparing their students for standardized testing necessarily conflicts, to some degree, with the responsibilities already imposed upon teachers to teach their students effectively. Turning his attention to the five subject questions, Mr. Campbell testified cautiously and conditionally. He hesitatingly drew a line somewhere between the positions of Petitioner and Respondent, but it was apparent that his standard was more aspirational than it was descriptive of a norm that, if violated, constitutes a failure to maintain honesty in professional dealings. This record contains no mention of any policies of Petitioner or the Florida Department of Education delineating or even describing the specific test-preparation behavior that constitutes a departure from the requirement to maintain honesty. Respondent has admitted teaching to the test, although it is not at all clear that she has admitted to dishonesty. For the sake of convenience and on the inadequate advice offered by a union representative, she withdrew her grievance on a district reprimand for the matters described in this order. The conflict perceived by Mr. Campbell between the teacher's role in restricting herself in preparing her students for a standardized test and still trying to maximize the opportunity for her students to score well on the test is accompanied by another conflict, as recognized by Ms. Lane: even a standardized test serves secondarily as a tool of instruction, in addition to its primary role as a tool of assessment. These twin conflicts pose a grave risk to the education of students in public schools as long as Petitioner fails to create a "bright-line" test for dishonesty in test preparation. Many teachers will follow Ms. Lane's advice and avoid, especially in the days preceding a standardized test and perhaps all term, covering such material as the bidirectionality of a protractor, the number of years in a presidential term, or the process of converting three-dimensional forms to two-dimensional forms (actually, since they are on a flat page, a two-dimensional form to a three-dimensional form to a two-dimensional form in a different plane). Any teacher knows that coaching during a test is dishonest and a ground for discipline, just as any teacher knows that physically or sexually abusing his students is also a ground for discipline. The present record reveals no similar common understanding, even among Petitioner's witnesses, concerning what constitutes dishonesty in test preparation. It even seems that school districts that can afford test-preparation guides, published by the same publisher as the publisher of the standardized test, can safely teach to the test, using carefully selected practice questions that, in some cases, closely resemble the actual questions, and do so even on the morning of the test, because the examiner's manual recommends it.
Recommendation It is RECOMMENDED that Petitioner dismiss the Administrative Complaint against Respondent. DONE AND ENTERED this 20th day of September, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1999. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 224E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Bruce P. Taylor Attorney Post Office Box 131 St. Petersburg, Florida 33731-0131 Robert J. Coleman Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089
Findings Of Fact Steven Frank (Petitioner) is legally incompetent and his adoptive father, Edward Frank, is his guardian. At the time of the hearing, Petitioner, a 37-year-old male, was a patient at South Florida State Hospital 1/ in West Palm Beach, Florida, on a unit for persons who have been dually diagnosed with developmental disabilities and mental illness. At the facility he is receiving treatment for his mental illness. He has not been given an IQ test since being admitted. As a child, Petitioner was determined to be mentally retarded. Before he was eight years old, Petitioner had been given IQ tests on several occasions, and his IQ ranged from 52 (moderate mental retardation) to 58 (mild mental retardation). At age eight, he tested at 68 (mild mental retardation). As a teenager, Petitioner began to receive psychiatric treatment. Around the age of seventeen, he began to have violent outbursts. Throughout his adult life, Petitioner has received psychiatric treatment at a number of facilities. At some of the facilities, his IQ was tested. In 1983, around the age of twenty-seven, Petitioner was a psychiatric patient at Sharon General Hospital. He was given an IQ test and tested at 72, which equated to general intellectual functioning in the borderline range. In late 1986, Petitioner was admitted to Jackson Memorial Hospital in Miami, Florida, for diagnosis purposes to determine if alternative treatment would be beneficial. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. In 1987, around the age of thirty-one, Petitioner was a psychiatric patient at Montanari Residential Treatment Center, a residential treatment facility in Hialeah, Florida. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. Petitioner was diagnosed, among other things, as being a chronic, residual schizophrenic and as having borderline intellectual functioning and pervasive developmental disorder. He also showed signs of organic brain damage. In 1989, Petitioner was discharged from Montanari, even though there was no improvement in his condition, because of the decision by Developmental Services of the Department of Health and Rehabilitative Services (Respondent) to place Petitioner in a group home setting. In 1987, Petitioner was determined eligible for the Developmental Services Program by Respondent's District XI, the Dade County area, even though he tested 75 on the IQ test. Petitioner has not been given an IQ test since 1987. The accepted criteria used for determining mental retardation and used by Respondent to determine eligibility for its Developmental Services Program is as follows: Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning). Concurrent deficits or impairments in present adaptive functioning (i.e., the person's effective- ness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. The onset is before age 18 years. Code based on degree of severity reflecting level of intellectual impairment: 317 Mild Mental Retardation: IQ level 50-55 to approximately 70 Moderate Mental Retardation: IQ level 35-40 to 50-55 Severe Mental Retardation: IQ level 20-25 to 35-40 Profound Mental Retardation: IQ level below 20 or 25 319 Mental retardation, Severity Unspecified: when there is strong presumption of Mental Retardation but the person's intelligence is untestable by standard tests On the IQ tests there is a three-point margin of error. In determining an individual's eligibility for its Developmental Services Program, Respondent has a two-step process. First, it determines whether the individual meets the IQ requirement for mental retardation. If, and only if, the individual satisfies this first step, does Respondent proceed to the second step which is determining whether the individual meets the adaptive functioning requirements. In making determinations regarding mental retardation, Respondent does not consider IQ test results prior to age nine because such tests results are not considered reliable for placing a child. Environmental factors may interfere with test results and labeling children as mentally retarded may interfere with the child receiving an appropriate education. The basis for placement is clinical judgment. At the request of Respondent's District IX, the Palm Beach County area, in October 1993, while a patient in the psychiatric unit at the University Medical Center in Jacksonville, Florida, a psychological evaluation of Petitioner was performed. The purpose of the evaluation was to assist District IX in determining Petitioner's eligibility for its Developmental Services Program. The evaluation was completed in one day with no intelligence testing being performed due to Petitioner's mental condition at that time. 2/ The psychologist reviewed Petitioner's past records, observed Petitioner, and interviewed staff. She determined that Petitioner was not mentally retarded based upon him testing at 72 and 75 on the IQ tests previously administered as an adult, which was beyond his developmental years, and that he was, therefore, not eligible for Respondent's Developmental Services Program. Respondent's evaluator determined that Petitioner failed to satisfy the IQ requirements and, therefore, it was not necessary to examine Petitioner's adaptive functioning. At the request of Petitioner's parents, in January 1994, a psychological examination was performed on Petitioner, while he was a patient at South Florida State Hospital, by a psychologist. The examination occurred over several occasions, on different days and at different times of the day. Additionally, Petitioner's records were examined and interviews of the hospital staff on Petitioner's unit and his parents were conducted. Again, no IQ test was administered. The psychologist's diagnosis was consistent with that expressed by South Florida State Hospital: Petitioner suffered from both developmental disabilities and mental illness. The psychologist determined that Petitioner was eligible for Respondent's Developmental Services Program and for psychiatric services. Petitioner's IQ results in his late twenties and early thirties should be evaluated from the lower tested result, i.e., at 72, and the margin of error should be placed at the lower, not the higher, spectrum. The lower tested result now becomes 69. Petitioner has a significant delay in social/adaptive skills and has deficits or impairments in adaptive functioning in the following areas: communication, self-care, home living, social/interpersonal skills, self- direction, work, leisure, health, and safety. His strong area is functional academic skills. Petitioner has both developmental and psychiatric needs. One need is not more important than the other; Petitioner requires assistance in both. An intermediate care facility for the mentally retarded is best suited to address Petitioner's dual needs. Respondent's Developmental Services Program is not an entitlement program. Even though an individual may be eligible for the Program, the individual may not be admitted to the program if funds are not available. There is no dispute regarding the onset of Petitioner's condition before eighteen years of age.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order declaring Steven Frank eligible for the Developmental Services Program and placement in the intermediate care facility for the mentally retarded. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of October 1994. ERROL H. POWELL 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 20th day of October 1994.
The Issue The issues are whether Respondent is guilty of committing gross immorality or moral turpitude, in violation of Section 231.2615(1)(c), Florida Statutes; violating the Principles of Professional Conduct for the Education Profession, in violation of Section 231.2615(1)(i), Florida Statutes; or failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has held Florida Educator's Certificate 615429. Respondent is certified in business, drivers' education, and physical education. The School District of Palm Beach County hired Respondent to teach high-school business at Jupiter High School for the 1995-96 or 1996-97 school year. After changing schools with another teacher, the assistant principal of Respondent's new high school, Palm Beach Lakes High School, assigned Respondent to teach mathematics. Respondent has a very limited background in mathematics. Although he objected that he was not qualified to teach mathematics, he had no option but to accept the new assignment, or terminate his employment. Respondent reluctantly agreed to teach mathematics starting in the 1998-99 school year, but he was justifiably concerned about his ability to meet the needs of his mathematics students. In January 1999, Respondent walked past an unsecured room and saw a large number of test booklets in boxes stacked on a table in the school library. Respondent entered the room, picked up and examined a test booklet, and made a copy of the booklet before returning it to the table. The test booklet was the High School Competency Test (HSCT) that was being administered that year. Respondent claims to have copied the test booklet innocently, unaware that the test questions were not to be disclosed, except as was necessary to administer the test. Respondent also claims that he took the booklet to learn what generally he was supposed to be teaching and that he did not know that a future HSCT would be identical to the one that he had copied. Respondent's claims that he did not know that the test booklet was not to be removed or copied and that he took the booklet merely to learn what he was supposed to teach in general are discredited as highly unlikely. If Respondent had thought that the test booklets were freely available to teachers, he would have merely taken one, not copied one and returned it to the table. Respondent never asked for a booklet, nor did he ever disclose to anyone else at the school that he had taken a copy of a booklet. From the start, Respondent knew that his possession of the test booklet was improper. Respondent's claim that he did not know anything about the HSCT, such as its importance or confidentiality, undermines his claim that he took a copy of the test booklet to learn what to teach in mathematics. At the time, students had to pass the HSCT to graduate from high school. Respondent likely knew this fact, otherwise, he would not have relied so heavily upon this test booklet as the source of information as to what he had to teach in mathematics. Rather than taking his cue as to what to teach from the mathematics textbook or from other mathematics teachers, Respondent took the shortcut of obtaining the ultimate test instrument and relying on the test contents for deciding what to teach in his mathematics class. On the other hand, Respondent did not know that the identical test would be administered again. This fact was not widely known by teachers or even administrators. Once he had examined the test booklet, Respondent worked out the answers, although he required assistance to do so. He then cut and pasted questions onto worksheets for use by his students, who would complete the worksheets in class and turn them into Respondent, who would go over the answers in class. The investigator of The School District of Palm Beach County concludes that Respondent's rearranging of questions is part of his attempt to conceal his wrongdoing. This conclusion is incorrect, as the rearranging of questions allowed Respondent to save copying costs. The evidence likewise fails to establish that Respondent told his students not to disclose the worksheets. Thus, the sole evidence of concealment is Respondent's failure to disclose his possession of the HSCT booklet to administrators or other teachers. In fact, once confronted with his possession of the HSCT, Respondent admitted to his wrongdoing and cooperated with the investigation. However, it is impossible to harmonize Respondent's claims of innocence and good faith with the proximity of his use of the copied test with the test date. If, as Respondent claims, he intended only to learn what he should be teaching in mathematics, he could have examined the copied test booklet, noted the areas covered, and covered them in an orderly fashion through the school year, using different questions from those found in his copy of the test booklet. Instead, Respondent gave his students numerous questions from his copy of the test booklet on September 24 and 26-29 and October 1. The presentation of a variety of mathematical concepts in such close proximity to the HSCT test date suggest a knowing misuse of the copied test booklet. Respondent's knowing misuse of the test, combined with the chance occurrence of the administration of the same test in October 2000, led to distorted results among his students, many of whom recognized that questions on the real test were identical with questions with which Respondent had prepared them. After an investigation, the Florida Department of Education and The School District of Palm Beach County decided to invalidate the mathematics scores of the hundreds of students at Respondent's high school who had taken the October 2000 HSCT and require them to retake a different version of the mathematical portion of the test. The question naturally arises whether October 2000 marked the first time that Respondent used the HSCT booklet that he had taken in January 1999. Respondent claims that he filed the test booklet and forgot about it until shortly before the October 2000 test. The investigation revealed that the scores of Respondent's students on the mathematics portion of the HSCT during the 1999-2000 school year were considerably better than the scores of similarly situated students, but investigators lacked the evidence to pursue this matter further. Thus, the evidence fails to establish that Respondent improperly used the copied test material more than once. Petitioner's reliance on Respondent's training as a proctor does not tend to establish Respondent's knowledge of his misuse of the test booklet that he copied. The training materials do not directly address older testing materials in the possession of a proctor, and Respondent possesses only limited ability to draw the inferences that Petitioner claims were inescapable. Also, the late recollection of one of Petitioner's witnesses that Respondent had inquired whether he might obtain a bonus if his students performed well on the HSCT is discredited. Petitioner has proved that Respondent obtained a copy of an HSCT under circumstances that he knew were improper, and he knowingly misused the copied test materials to prepare his students to take the HSCT. Undoubtedly, Respondent did not know that the October 2000 HSCT would be identical to the test that he had copied. Also, Petitioner has failed to prove that Respondent tried to conceal his misuse of the copied HSCT materials, other than by not mentioning to an administrator or other teacher that he possessed these materials. Lastly, Petitioner has failed to prove that Respondent's actions were motivated by self-interest. Respondent doubted his ability to teach mathematics, and he misused the test materials to serve the interests of his students, although at the expense of thousands of other students whose preparation did not include exposure to HSCT prior to taking it. Undoubtedly, this commitment to his students is partly responsible for the testimony of Respondent's principal, who described him as an "outstanding teacher," although Respondent received a decidedly mixed review from the four students whom he called as witnesses on his behalf. After an investigation, the Superintendent of The School District of Palm Beach County recommended to the School Board that it suspend Respondent without pay for ten days. The School Board adopted this recommendation. This is the only discipline that Respondent has received as a teacher, and he proctored last school year the Florida Comprehensive Assessment Test, which has replaced the HSCT.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of failing to maintain honesty in all professional dealings, in violation of Rule 6B-1.006(5)(a), Florida Administrative Code; suspending his Educator's Certificate for six months; and placing his certificate on probation for three years. DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Director Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Matthew E. Haynes Chambleee, Johnson & Haynes, P.A. The Barrister's Building, Suite 500 1615 Forum Place West Palm Beach, Florida 33401
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed by Petitioner against Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a Florida teacher, holding Florida Educator's Certificate 780153 (covering the area of Emotionally Handicapped education) valid through June 30, 2007. At all times material to this case, Respondent was employed as a teacher of emotionally handicapped third-grade students at Skycrest Elementary School in the Pinellas County School District. Respondent was employed by the Pinellas County School Board as a teacher of emotionally handicapped students for more than six years. The Pinellas County School District assessed student and instructional performance through the use of the "Pinellas Instructional Assessment Portfolio." The portfolio consisted of two tests administered three times each school year. The tests were known as the "Parallel Reading-Florida Comprehensive Assessment Test" and the "Parallel Math-Florida Comprehensive Assessment Test." The portfolio tests were used by the school district to gauge progress towards meeting the Sunshine State Standards established by the Florida Department of Education (DOE) to determine the academic achievement of Florida students. The portfolio tests, administered over a two-day period, also served to prepare students to take the Florida Comprehensive Assessment Test (FCAT). The FCAT was administered according to requirements established though the DOE and was designed to measure progress towards meeting Sunshine State Standards. Third-grade students were required to achieve a passing score on the FCAT in order to move into the fourth grade. One of the purposes of the portfolio tests was to measure student progress and provide information relative to each student's abilities. Based on test results, additional instruction was provided to remedy academic deficiencies and further prepare students to pass the FCAT. Emotionally handicapped students were required to take the reading and the math portfolio tests. The school district had specific procedures in place related to administration of the tests. Teachers responsible for administration of the tests received instruction on appropriate test practices. Respondent was aware of the rules governing administration of the tests. The procedures permitted teachers to offer general encouragement to students, but teachers were prohibited from offering assistance. Teachers were not allowed to read questions to students. Teachers were not permitted to provide any information to students related to the content of test responses. During the December 2002 testing period, Respondent provided improper assistance to the nine emotionally handicapped students he taught. During the test, Respondent reviewed student answers to multiple-choice questions and advised students to work harder on the answers, indicating that the answers were incorrect. Respondent assisted students by reading questions, helping students to pronounce words and phrases, and advising students as to the location in the test materials where answers could be found. Some of Respondent's students were apparently overwhelmed by the test process and ceased working on the tests. Respondent reviewed their progress and advised the students to continue answering questions. There is no evidence that Respondent directly provided answers to students, but Respondent clearly assisted students to determine which responses were correct. The assistance provided by Respondent to his students exceeded that which was allowed under test rules. Respondent acknowledged that the assistance was inappropriate, but asserted that he did so to provide confidence to the students that they could take and pass the FCAT, and advance to the fourth grade. Respondent's improper assistance to his students prevented school officials from obtaining an accurate measurement of the academic abilities of his students. The test results were invalidated and the students were retested. According to the parties, a newspaper article related to the matter was published in a local newspaper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order reprimanding Respondent for violating Florida Administrative Code Rule 6B-1.006(3)(a), and placing him on probation for a period of one year. DONE AND ENTERED this 18th day of May, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, Esquire Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues presented are whether check marks that Respondent placed on the test booklets of some students during the second day of a Florida Comprehensive Assessment Test violated Subsections 1008.24(1)(c) and 1012.795(1)(c), (f), and (i), Florida Statutes (2003), and Florida Administrative Code Rules 6A-10.042(1)(c), (d), and 6B-1.006(3)(a), (b), (d), and , (4)(b), and (5)(a), and, if so, what penalty should be imposed against the teaching certificate of Respondent.
Findings Of Fact Respondent holds Florida Educator's Certificate No 484481 (teaching certificate). Respondent is certified to teach physical education through June 30, 2009. The Hillsborough County School District (District) has employed Respondent as a physical education teacher for 10 years. In March 2004, the District employed Respondent as a physical education teacher at Gorrie Elementary School (Gorrie). At Gorrie, Respondent proctored the math and science portions of the Florida Comprehensive Assessment Test (FCAT) for some fifth grade students sometime in March 2004. Ms. Jacquelyn Cross was the teacher and test administrator for the class. As a proctor, Respondent's responsibilities during the FCAT were minimal. Respondent was responsible to assist the test administrator and to be available in the event of an emergency. It is undisputed that during the second day of testing Respondent made check marks in the test booklets of some students. The check marks coached the affected students during the FCAT test in violation of Subsection 1008.24(1)(c), Florida Statutes (2003). Neither Petitioner nor the legislature has defined the term "coach" for the purpose of the cited statute. Nor did Petitioner adduce evidence to support a finding that the definition is a matter within the scope of agency expertise. The plain and ordinary meaning of the term "coach," in relevant part, is to "train or tutor" a student. The American Heritage Dictionary of the English Language, 353 (4th ed. Houghton Mifflin Company 2000) (American Heritage). Respondent tutored the affected students because the check marks had the effect of instructing the affected students. American Heritage at 1860. Respondent "knowingly or willfully" coached the affected students in violation of Subsection 1008.24(1)(c), Florida Statutes (2003). Respondent intended a check mark to signal a student that the student should reread the particular question or passage. No aggravating factors are evidenced in the record. However, several mitigating factors are in evidence. For reasons discussed hereinafter, no finding is made that Respondent had actual knowledge that her actions violated the relevant statute. The evidence to support such a finding is less than clear and convincing. Similarly, the evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rules 6B-1.006(3)(d), (e), (4)(b), and (5)(a), respectively, by intentionally suppressing or distorting subject matter relevant to a student's academic program, intentionally exposing a student to unnecessary embarrassment or disparagement, intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression, or by failing to maintain honesty in all professional dealings. The evidence is less than clear and convincing that Respondent received any training from either her employer or Petitioner in how to proctor an FCAT. Gorrie administrators assigned Respondent to proctor approximately a week before the scheduled test. During the first day of testing, the test administrator walked through the classroom and pointed to incorrect answers recorded by some of the students. The test administrator also used verbal prompts such as, "you obviously haven't read that passage," and "you need to go back and reread that." During the second day, Respondent followed the example set by the test administrator during the first day of the FCAT and chose check marks as a means of prompting the students to recheck their answers. The test administrator had received training in the administration of the FCAT. Respondent's reliance on the example of the test administrator was reasonable under the circumstances. Nothing in the record shows that the check marks made by Respondent on the test booklets intentionally distorted or misrepresented facts concerning an educational matter within the meaning of Florida Administrative Code Rule 6B-1.006(4)(b). Respondent would not accept similar assistance from a proctor during a test Respondent was taking and was concerned about the actions she took during the second day of testing. That night during a class attended by Respondent, she asked a peer if the actions of the test administrator and Respondent were appropriate. The peer stated the actions were inappropriate and explained that Respondent could be disciplined for her actions. When Respondent proctored the FCAT on the third day of testing, Respondent did not coach the examinees. Another teacher reported to the assistant principal that some of the students proctored by Respondent had received assistance during the FCAT. When the assistant principal questioned Respondent, Respondent freely admitted her actions, but denied that she knew at the time that her actions were inappropriate. Nothing in the record shows that Respondent failed to maintain honesty in all her professional dealings within the meaning of Florida Administrative Code Rule 6B-1.006(5)(a). Although Respondent had proctored the FCAT in previous years, the evidence is less than clear and convincing that Respondent had received any training in how to proctor an FCAT. Respondent's name does not appear on the sign-in sheet for the FCAT training session in March of 2003. The evidence is less than clear and convincing that Respondent did anything in previous years except follow the lead of the test administrator. Respondent did not receive a copy of the 2004 FCAT test manual. Gorrie administrators did not ask Respondent to read the manual or instruct Respondent as to its contents. The evidence is less than clear and convincing that the check marks provided by Respondent were a material violation. It is less than clear and convincing that the check marks altered or interfered with the responses of the affected students within the meaning of Subsection 1008.24(1)(c), Florida Statutes (2003). Although some test booklets showed changes in student answers, it is less than clear and convincing that any check mark by Respondent caused a student to change his or her answer. None of the affected students testified. In the absence of clear and convincing evidence that Respondent's actions affected the answers of examinees, no finding is made that Respondent assisted examinees in answering test questions in violation of Florida Administrative Code Rule 6A-10.042(1)(c). For the same reasons, no finding is made that Respondent violated Florida Administrative Code Rules 6A- 10.042(1)(d) and 6B-1.006(3)(a) and (b), respectively, by interfering with an examinee's answers to questions, failing to make a reasonable effort to protect examinees from conditions harmful to learning, or unreasonably restraining a student from independent action in his or her pursuit of learning. Nothing in the record shows that the check marks on test booklets were intended to suppress or distort subject matter within the meaning of Florida Administrative Code Rule 6B-1.006(3)(d). Gorrie administrators invalidated the test results of the 15 students in the test administrator's class. However, the invalidation of those tests did not invalidate the FCAT as a whole and did not prevent students with invalidated results from progressing to a higher grade. It is less than clear and convincing that the violation committed by Respondent was an act of "moral turpitude" or "gross immorality" within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2003). No rule applicable to the discipline of a teaching certificate defines the quoted terms. However, rules applicable to teacher dismissal proceedings provide definitions that are instructive. The evidence is less than clear and convincing that the violation was a base, vile, or depraved act within the meaning of moral turpitude in Florida Administrative Code Rule 6B-4.009(6). Nor did the violation satisfy the definition of immorality in Florida Administrative Code Rule 6B-4.009(2). In relevant part, the violation did not impair Respondent's service in the community. It is clear and convincing that Respondent continues to be an effective employee of the District within the meaning of Subsection 1012.795(1)(f), Florida Statutes (2003). Although Respondent's employer issued a letter of reprimand to Respondent, suspended her without pay for two days, and transferred Respondent to a different school, the District continues to employ Respondent. The testimony of District personnel, including fellow teachers and parents, makes it clear that Respondent has been and continues to be an effective teacher. Although the incident received attention in two newspaper articles, the articles are not in evidence, and no finding can be made concerning the adverse effect of the publicity. For similar reasons, no finding is made that the check marks on test booklets violated Florida Administrative Code Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment or disparagement. None of the affected students testified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of coaching students in violation of Subsection 1008.24(1)(c), Florida Statutes (2003), not guilty of the remaining charged violations, issuing a written reprimand to Respondent, and requiring Respondent to complete relevant training before proctoring another FCAT. DONE AND ENTERED this 21st day of December, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2005. COPIES FURNISHED: Robert F. McKee, Esquire Kelly and McKee Post Office Box 75638 Tampa, Florida 33675-0638 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
