The Issue The issue in this matter is whether the Department of Children and Families should revoke Respondent’s license to operate a child care facility.
Findings Of Fact The Department is the state agency charged with regulating providers that are licensed or registered to provide child care in the state of Florida. See § 402.305(1), Fla. Stat. Ms. Wright is the owner and operator of Little Learners. On January 9, 2017, Ms. Wright completed, signed, and submitted an application to the Department for Little Learners to operate as a child care facility in the state of Florida. Section E of the application is entitled “On-Site Director Information.” Section E instructs the applicant to identify the director of the child care facility. Section E further states that, “An On-site Director holds a Director Credential and is responsible for the day-to-day operation of the facility and is required to be on-site the majority of operating hours.” On her application, Ms. Wright wrote in the name of Shavol Spaulding as the director for Little Learners. Just above the applicant signature line, the application states: Falsification of application information is grounds for denial or revocation of the license to operate a child care facility. Your signature on this application indicates your understanding and compliance with this law. Based on the information contained in the application, the Department determined that Little Learners met all the requirements necessary to receive a license to operate a child care facility. Therefore, in January 2017, the Department issued a license to Little Learners. However, in or about May 2017, the Department received information that Ms. Spaulding never worked for Little Learners as its on-site director. Consequently, in June 2017, the Department initiated this action to revoke the license it issued to Little Learners in January 2017. The Department alleges that Ms. Wright misrepresented on the application that Little Learners had hired Ms. Spaulding to serve as its director. At the final hearing, the Department presented Christina Bryant, its Childcare Regulations Supervisor. In her role, Ms. Bryant reviews child care license applications. Ms. Bryant testified that in order for a child care facility to receive a license from the Department, the facility must employ a credentialed, on-site director.4 A director with the appropriate credentials assures the Department that someone who is trained in the required child care standards is overseeing the facility. Requiring the director to remain “on-site the majority of operating hours” ensures that the facility will provide the safest environment for the children who attend. The Department will not issue a license to a facility that does not identify a director or indicates that the director position is pending. Ms. Bryant relayed that around May 2017, the Department received a report from the Early Learning Coalition that Ms. Spaulding was not the director of Little Learners. Subsequently, on May 15, 2017, the Department obtained a letter signed by Ms. Spaulding confirming this fact. As a result, Ms. Bryant initiated an investigation to determine whether the Department appropriately issued a child care license to Little Learners. In the course of her investigation, Ms. Bryant contacted Ms. Wright. Ms. Wright expressed to Ms. Bryant that Ms. Spaulding was the director of her facility. However, Ms. Wright was not able to provide any documentation to Ms. Bryant verifying Ms. Spaulding’s employment as Little Learners’ director, such as personnel records, time sheets, or sign-in sheets. Consequently, Ms. Bryant concluded that Ms. Spaulding was not, in fact, the director of Little Learners. Ms. Bryant later learned that Ms. Spaulding was actually employed as the director of another child care facility. Ms. Bryant asserted that a credentialed child care director is required to be present at a single facility during a majority of the operating hours. Consequently, a director is not permitted to serve in such a capacity at more than one facility. Ms. Bryant conveyed that, rather than immediately initiating an action to revoke Petitioner’s license, the Department elected to allow Ms. Wright additional time to hire a director. Therefore, on May 19, 2017, the Department issued Little Learners a six-month, provisional license.5/ During this time period, Little Learners was allowed to operate without a designated director. Whitney Ricks, a Family Services Counselor, also testified for the Department. As part of her responsibilities, Ms. Ricks inspected the Little Learners facility in January and April 2017. Ms. Ricks reported that she met with Ms. Wright during both inspections. However, she never observed nor saw Ms. Spaulding at the facility. Ms. Ricks commented that Ms. Wright specifically represented to her that Ms. Spaulding did work at Little Learners, but was not present at the time of either inspection. Ms. Spaulding testified at the final hearing. Ms. Spaulding declared that she has never served as the director for Little Learners. Ms. Spaulding explained that, in October 2016, she applied for a director position with Ms. Wright. However, she never heard back regarding the job after her interview. Consequently, she never worked for Little Learners in any capacity. Ms. Spaulding confirmed that she wrote a statement in May 2017 informing the Department that she was not the director of Little Learners. Ms. Spaulding also stated that she currently works as the director of another child care facility, and did so on January 9, 2017, as well. Ms. Spaulding represented that she holds the required credentials to work as a child care director. She repeated Ms. Bryant’s testimony that a child care facility is required to employ a credentialed, on-site director in order to obtain a license to operate in the state of Florida. Ms. Spaulding also acknowledged that a child care director may only be employed by one facility at a time. Ms. Wright testified on behalf of Little Learners. Ms. Wright purchased the Little Learners center in October 2015. She was new to the child care business and has had to learn how to operate her facility as she gained experience. Ms. Wright insisted that, contrary to Ms. Spaulding’s testimony, she did hire her as Little Learners’ director. Ms. Wright further declared that she believed that Ms. Spaulding was serving as Little Learners’ director on January 9, 2017, when she applied for a child care license. Ms. Wright claimed that she did not find out that Ms. Spaulding was not working for Little Learners until three days after she submitted her application. It was then that the Early Learning Coalition notified her that Ms. Spaulding was employed as the director of another facility. Ms. Wright stated that she asked Ms. Spaulding to serve as Little Learners’ director within weeks after she opened Little Learners in October 2015.6/ Ms. Wright expressed that Ms. Spaulding started working for Little Learners shortly thereafter, and she saw Ms. Spaulding at her facility every day. Ms. Wright also asserted that Ms. Spaulding never told her that she was working for another child care facility. Ms. Wright further testified that she paid Ms. Spaulding $300 in cash every week since October 2015 for her director services. However, Ms. Wright did not retain (or produce for the Department) any employee documents, bank statements, pay stubs, tax forms, or other written records supporting her claim that Ms. Spaulding worked for Little Learners at any time between 2015-2017. Ms. Wright relayed that, after the Department contacted her, she confronted Ms. Spaulding about her work status. Ms. Wright attested that Ms. Spaulding apologized to her and told her that she had been caught working as the director of another child care business. Ms. Wright claimed that Ms. Spaulding offered to repay the money Ms. Wright had given her. Ms. Wright turned down Ms. Spaulding’s proposal because she did not believe that Ms. Spaulding could pay her back. Ms. Wright revealed that currently Little Learners has no director, no children to care for, and is essentially no longer operating. Ms. Wright explained that she attempted to hire another person as Little Learners’ director during the time she held the provisional license, but the person she sought out did not accept the job. In its Administrative Complaint, the Department alleges that Ms. Wright misrepresented the qualifications or credentials of Little Learner’s child care personnel (i.e., that Little Learners employed a director named Shavol Spaulding). The Department categorized Ms. Wright’s action as a Class I violation of section 402.319(1)(f)3. The Department seeks to revoke the license it issued to Little Learners in January 2017, as well as fine Little Learners in the amount of $500. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record establishes that Ms. Wright misrepresented the fact that Little Learners had a credentialed, on-site director on the date she submitted her application to the Department. Accordingly, the Department met its burden of proving that Little Learners’ application for a child care license should be revoked under section 402.319.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order revoking Respondent’s license to operate a child care facility. DONE AND ENTERED this 7th day of December, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 7th day of December, 2017.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, as the Commissioner of Education, on behalf of the Education Practices Commission, is the state agency charged with the responsibility of disciplining teachers certified by the State of Florida. At all times material to the allegations of this case, Respondent held a Florida Educator’s Certificate, number 615411, covering the areas of physical education and health education which is valid through June 30, 2003. The juvenile justice system operates a facility for incarcerated minor males located in Okeechobee County, Florida. The facility, named the Eckerd Youth Detention Center (Eckerd), contracts with the Washington County School Program to provide educational services for the minor males. At all times pertinent to the allegations of this case, Respondent was employed by Washington County at Eckerd to teach physical education. On or about April 21, 1994, Respondent used inappropriate language toward an employee at Eckerd. Specifically, Respondent called a disciplinary dean a "nigger." During this heated encounter, which was provoked by Respondent, the dean also used inappropriate language toward Respondent and he was subsequently reprimanded for such conduct. Respondent told another employee at Eckerd that the dean "had a body odor that don’t stop." On another occasion, Respondent was unnecessarily loud in accusing an instructor in the Diversified Career Training (DCT) program of providing contraband to one of the students. This incident occurred in the office of the DCT administrator and, despite efforts to get the Respondent to be quiet, resulted in an inappropriate, public accusation of the painting instructor. During the 1993/94 school year, students complained that Respondent called them inappropriate names such as "crack babies." Two Eckerd employees overheard Respondent’s language and confirmed the allegations made by the students. It is not, however, confirmed that all student allegations were accurate. The students at Eckerd were there due to their serious behavioral problems. Many were aggressive. Some were violent. All were deemed less than credible on occasion. Had they been model students, they would not have been placed at Eckerd. Nevertheless, these students were entitled to the same considerations given to all students governed by state rules. That is, they should not be subject to disparaging remarks. Prior to the 1993/94 school year, Respondent was advised that she needed to improve areas of her performance at Eckerd. Specifically, Respondent was told of a need to maintain appropriate interpersonal relationships and to improve in the evaluation of students. Respondent was also advised that her abrasive and inappropriate vocabulary needed improvement. On March 29, 1994, the administrative staff of the Washington County School Board decided to not re-employ Respondent for the following school year. Notification of this decision was provided to Respondent on March 30, 1994. On May 10, 1994, Respondent was suspended from her duties for the remainder of the school year. Respondent argues that the actions of the school to terminate her employment (and inferentially this action) were in retaliation for Respondent’s claims of violations of various requirements concerning exceptional education students. Respondent suggested that various records were not maintained as required by law. Such argument has not been deemed credible or persuasive. Moreover, Respondent’s complaint with regard to these allegations was resolved in favor of the school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding Respondent for the violations set forth above, requiring Respondent to take appropriate remedial courses to improve her interpersonal skills, and imposing an administrative fine in the amount of $1000.00. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 June, 1999. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education Suite 224-E 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, Esquire Post Office Box 131 701 Mirror Lake Drive Apartment 109 St. Petersburg, Florida 33731-0131 Sallie M. Smith 2605 Chesterfield Drive Fort Pierce, Florida 34982
The Issue As to DOAH Case No. 12-2859TTS, whether Rhea Cohen (Respondent), a classroom teacher, committed the acts alleged in the Amended Administrative Complaint filed by Robert Runcie, as Superintendent of the Broward County Schools (Superintendent) and, if so, the discipline that should be imposed against Respondent’s employment. As to DOAH Case No. 13-0704PL, whether Respondent committed the acts alleged in the Administrative Complaint filed by Pam Stewart, as Commissioner of Education (Commissioner) and, if so, the discipline that should be imposed against Respondent’s teacher’s certificate.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida; and Robert Runcie was Superintendent of Schools. At all times material hereto, the Commissioner has been the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida; and Pam Stewart was the Commissioner. Respondent has been employed by the School Board since 2002 and holds a Professional Services Contract, issued in accordance with section 1012.33(3)(a). During the time relevant to this proceeding, Respondent was an ESE classroom teacher at Crystal Lake. During the 2007-2008 school year, Respondent was employed as an ESE classroom teacher at Atlantic West Elementary School teaching students on the autism spectrum. During that school year, the Education Practices Commission (EPC) reprimanded Respondent for sleeping in class while students were present and for using restraints inappropriately to control or manage autistic and exceptional student education students. The EPC imposed an administrative fine against her in the amount of $500.00. Thereafter, Respondent transferred to Crystal Lake. Respondent taught ESE students at Crystal Lake for the 2010-2011 and 2011-2012 school years. The events at issue in this proceeding occurred during either the 2010-2011 school year or the 2011-2012 school year. Exact dates were available for some of the events, but unavailable for other events. Respondent’s classroom at Crystal Lake for those two school years was divided into two halves, separated by tables and rolling chalkboards that did not form a solid wall. For the 2010-2011 school year, Respondent taught her class of ESE students on one side of the divided classroom and a Ms. Knighton taught on the other side. For the 2011-2012 school year Respondent shared the classroom with Mr. Montalbano. On one side of the classroom was Respondent’s class, consisting of 11 ESE students. On the other side of the room was Mr. Montalbano’s class, consisting of seven ESE students. Mr. Montalbano’s class was smaller because his class functioned at a lower level than Respondent’s class. On October 4, 2011, student J., a non-verbal, wheel chair-bound boy, and student D., a boy with Down’s syndrome, were sitting next to each other in Respondent’s classroom. Student D. did something to irritate student J. Student J. balled up his fist as if to strike student D. Respondent, in front of the entire class, Lisa Phillips (an ESE paraprofessional), and Ms. Sorren, made the following statement: “So is the cripple [student J.] going to beat up the retard [student D.]”./4 Other students in the classroom laughed at student J. and student D. Student J.’s wheelchair is motorized. After making the statement quoted above, Respondent attempted to move student J. into a corner. When student J. moved the wheelchair away from the corner, Respondent unplugged the wheelchair’s battery and made the statement: “Now who has the power. I am in control, not you.” The other students laughed at student J. Respondent then moved student J. to the corner./5 On October 11, 2011, Respondent sent student J. to Mr. Montalbano’s classroom and commented that “he’s too much of a bother.” One day at dismissal, student J. asked Respondent three or four times to be taken to the bathroom. Respondent did not respond to student J. The bus arrived, but the driver refused to accept student J. because of his request to go to the toilet. Mr. Montalbano, who overheard student J.’s requests to Respondent, took over the responsibility for student J. Respondent became frustrated while helping student J. with the computer after student J. got the wires to the headphones tangled. Respondent ripped the headphones out of the back of the computer leaving the male connection in the female end of the computer. In a private discussion with Mr. Montalbano, Respondent referred to student D. as being a “moron.” Respondent sent her 11 students to Mr. Montalbano’s side of the classroom, which housed ten computers. There was a disturbance because one student did not have a computer. Respondent came to Mr. Montalbano’s side of the classroom and told student D. to give up his computer. Student D.’s first language is Bulgarian. When student D. muttered in protest, Respondent yelled at him to express himself in English. When student D. left the computer, his place was quickly taken by another student. Student D. began to cry. Respondent walked back to her side of the classroom, leaving student D. crying in Mr. Montalbano’s side of the classroom. On October 11, 2011, student Mi., an 11 year-old female on the autism spectrum, was playing with a puzzle during free time when she spotted an open computer. Student Mi. left the puzzle pieces out to go to the computer. Respondent noted the puzzle on the table and yelled out, “Who left this puzzle out?” Student Mi. hid under a table in reaction to Respondent’s statement. Respondent came to the table, roughly grabbed student Mi., and pulled her out from under the table. Respondent led student Mi. to the table with the puzzle and yelled in front of the class: “I don’t know what your mother teaches you at home, but you’re a little, spoiled brat and I am not going to clean up after you.” Respondent then took student Mi.’s doll away from her and put her in time out for the remainder of the day, approximately 30 minutes. On another occasion, Respondent had the other members of the class imitate student Mi., after student Mi. had engaged in self-stimulatory behavior. The other students laughed at student Mi. In October 2011, Ms. Hudson discovered Respondent and student Mi. in Mr. Montalbano’s half of the classroom with the lights dimmed. Ms. Hudson thought student Mi. had been crying. Ms. Hudson reported the incident to her principal, but she did not question Respondent, nor did Respondent volunteer to Ms. Hudson an explanation of the circumstances that resulted in Respondent being in the darkened classroom with student Mi. At the formal hearing, Respondent explained that student Mi. had run into traffic while waiting to be transported from school. Respondent testified, credibly, that she was trying to calm down student Mi./6 Ms. Sorren testified, credibly, that during the short time she was in Respondent’s classroom (approximately three school days), she heard Respondent address the students as morons, monkeys, jungle monkeys, and animals. That testimony was consistent with the other testimony as to the language used by Respondent in her classroom. Petitioners established that Respondent repeatedly yelled at her students to “shut up,” described a student’s behavior as being “stupid,” and called at least one student a “brat.” Student Mo., a female on the autism spectrum, was new to Respondent’s class. On an unidentified date, Respondent directed student Mo. to go to timeout. After student Mo. refused to go to timeout, Respondent shoved student Mo. into the timeout area. During the 2010-2011 school year, Respondent became upset with student C., a female, and ordered her out of her classroom. When student C. talked back to Respondent, Respondent threw student C.’s backpack and her shoes over the chalkboard that divided the classroom. Ms. Knighton and her class were in the part of the classroom into which Respondent threw the objects. Student C. became very upset. Respondent became upset with Ma., a male student. Ma. had a snack on his desk. Respondent knocked the snack to the floor and smashed it with her foot. Petitioners established that Respondent engaged in a pattern of misconduct. Respondent’s effectiveness in the school system has been impaired.
Recommendation The following recommendations are based on the foregoing findings of fact and conclusions of law: As to Case No. 12-2859TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of Rhea Cohen’s employment and terminate that employment. As to Case No. 13-0704PL, it is RECOMMENDED that the Education Practices Commission enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order suspend Rhea Cohen’s educator’s certificate for a period of five years, to be followed by probation for three years with conditions to be set by the Education Practices Commission. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of July, 2013.
The Issue As stated in the prehearing stipulation, the issue is whether the school board should accept or reject the recommendation by the superintendent of schools to reduce Andrea Childs from continuing contract status to annual contract status for the 1989-90 school year.
Findings Of Fact Andrea Childs was employed by the School Board of Okeechobee County as a teacher in December, 1980. Ms. Childs is certified as a teacher in Social Science. She taught 9th grade Social Science at the Okeechobee Junior High School for the school years 1980-81, 81-82, 82-83, and 83-84. She transferred to Okeechobee High School after the school board moved the 9th grade from the Junior High School to the High School. She has taught continuously at the High School since her transfer. Prior Evaluations Ms. Childs' performance as a teacher was first evaluated on January 16, 1981. While her performance was found to be satisfactory, she had been on staff for such a brief period of time it was difficult to make a meaningful evaluation. She was next evaluated on March 16, 1981, and found satisfactory for all twenty characteristics contained on the school's evaluation form. On December 14, 1981, she was evaluated for the first semester of the 81-82 school years, and again rated satisfactory on all characteristics. Her evaluation at the end of the 1981-82 school year and the first semester of the 1982-83 school year found her satisfactory on all characteristics. Ms. Childs was recommended for continuing contract in April, 1983, at the close of 1982-83 school year, when her evaluation was satisfactory on all characteristics. She obtained a continuing contract on May 19, 1983. When her teaching at the Okeechobee High School was evaluated on February 20, 1984, she was rated satisfactory on all twenty characteristics. Ms. Childs was next evaluated at the end of the second semester of the 1984-85 school year by her new principal, Phoebe Raulerson. The evaluation forms used by the district then changed. The behaviors to be assessed were grouped into six categories, each having subdivisions denominated as indicators. Ms. Raulerson evaluated Ms. Childs' performance as meeting each of the 31 indicators. The new evaluation forms also included a separate assessment of additional factors called employability behaviors, and Ms. Childs was found acceptable on each of those behaviors. On April 1, 1986, Ms. Raulerson again evaluated Ms. Childs, and found that Ms. Childs' teaching performance met all 31 indicators, and that Ms. Childs' performance was acceptable on each of the employability behaviors during the 1985-86 school year. On April 13, 1987, Ms. Raulerson found that Ms. Childs' performance met all 31 indicators and found her service acceptable on all employability behaviors. On March 11, 1988, Ms. Raulerson evaluated Ms. Childs, finding that her performance met all 31 indicators and acceptable on all employability behaviors. At no time from her first employment with the school board in December, 1980 through her annual evaluation on March 11, 1988, was there any finding that Ms. Childs had failed to perform satisfactorily on any characteristic, indicator or employability behavior evaluated by the School Board of Okeechobee County. In February, 1988, as will be discussed in greater detail below, Ms. Raulerson observed Ms. Childs' teaching, determined that her performance was inadequate, and recommended to the superintendent of schools that Ms. Childs be reduced from continuing contract status to annual contract status. When confronted at hearing with the uniformly positive evaluation Ms. Childs had received, including those from Ms. Raulerson herself for each of the school years from 1984-85 through 1987-88, Ms. Raulerson deprecated her own evaluations with the suggestion that Ms. Childs had been in poor health since the birth of her first child in approximately August, 1985, 1/ and explained that the positive evaluations should not be taken at face value. Ms. Raulerson contended that Ms. Childs' performance was evaluated leniently because of her health difficulties. There is no such indication on the evaluation. Ms. Raulerson is obviously a competent principal who does not confuse efforts with results. The evaluations were accurate as written, and there were no deficiencies in Ms. Childs' performance during any prior school year. The Oblique Warning During the teachers' work period before students returned to school in August 1988, Ms. Childs had an informal discussion with Ms. Raulerson, during which Ms. Raulerson told Ms. Childs "this has got to be a good year". Apparently Ms. Raulerson meant to tell Ms. Childs that her performance as a teacher needed to show improvement that year. If that was her intention, her choice of words was so oblique that the message was not conveyed. An ordinary listener would not have understood the comment as a criticism of past teaching performance. The comment was so general that it would not draw the attention of a teacher to any area of deficiency which a teacher could then attempt to correct. There was no criticism of Ms. Childs' performance on her last evaluation which could have served as a focus for any need for improvement. Ms. Raulerson is an experienced administrator, able to draw the attention of teachers, students or others at the school to inadequate performance or misconduct in a direct manner. In the Okeechobee High School, students are grouped for classes by broad ranges of ability. There are classes for slow learners, known as basic classes, as well as for regular students. In 1988-89 school year, Ms. Childs taught two basic classes, and other regular social studies classes. The classes which Ms. Childs taught during the sixth and seventh periods were basic classes. Ms. Childs had some difficulty with the behavior of two students in basic classes, and discussed the problem with an Assistant Principal, Barbara James, on September 15, 1988. One of the problems was tardiness by some of her students. Ms. James' written suggestions to Ms. Childs for dealing with the problem included: In the beginning, you might try some extra, positive reinforcement for the on-time rule until you get going, if tardies are a problem. Always be on time yourself. This advice was a common sense suggestion to a class management problem. It was not any sort of admonition to Ms. Childs that she herself was not arriving to teach her classes on time and that she should make a better effort to be punctual. Tardiness Unknown to Ms. Childs, Ms. James, the Assistant Principal, had mentioned to the Principal, Ms. Raulerson, that Ms. Childs was sometimes arriving late for her classes. Ms. Raulerson told Ms. James to keep track of the times Ms. Childs was late for a class. Ms. James noted 11 instances between September 19, 1988, and February 27, 1989, of apparent tardiness by Ms. Childs. Ms. Childs was not in her classroom at the beginning of first period on 5 of those occasions (all in September of 1988), but there was good reason for this. That class was made up of 11 Junior and Senior students during the first semester, and 9 Juniors and Senior students during the second semester. Ms. Childs taught in a small portable building, separated from the main building. It had no clock, nor a working intercom system with the main building. Ms. Childs left her first period class to go to the school office to listen to the daily school announcements which she could not hear in her classroom. This was important, because those announcement often contained relevant information about subjects such as class meeting and scholarships, and students were charged with notice of the information. This information was not always available from other sources. Ms. Childs ultimately avoided this problem by taking her students to the cafeteria at the opening of first period so they could hear the announcements. No one at the office had ever indicated that she should not be there. The School's Faculty Handbook does tell teachers to remain in their classroom during class periods. Ms. Childs had frequently asked to have the intercom line between her classroom and the main building fixed. There was no adequate explanation for why the intercom had not been fixed. Ms. Childs' actions were common sense accommodations to the problem which confronted her and her students. Other instances when Ms. Childs was seen out of her classroom when first period began occurred during the second semester, in February, 1989. At this time she was team teaching with another teacher, Ms. Audrey. That teacher was in the classroom, and Ms. Childs was using the time to prepare lessons for her sessions of that class on the Holocaust. Those students were not left unattended. Ms. Childs' lateness in arriving for class during the first semester is much less than it seems on its face. The charges with respect to lateness are mere makeweight arguments. The Teaching Evaluation The contract between the school board and the teachers union for Okeechobee County prescribes a procedure for teacher evaluation which is consistent with the Okeechobee County Teacher Assessment System adopted by the school board on June 28, 1988. According to the school board policy and the union contract, teachers are provided with copies of the forms and procedures that will be used in the evaluation process. The teaching performance of continuing contract teachers is assessed by the principal at least once annually. The assessment for Ms. Childs was made on February 27, 1989. She had received the evaluation forms at the beginning of the year, as did all other teachers. The assessment of a teacher is based on observations conducted and other information gathered during the year by the principal, supervisor or assistant principals. The evaluation of teaching is accomplished using the summative evaluation from the Florida Performance Measurement System, i.e., an evaluation used for personnel decisions about a teacher, rather than an evaluation done to assist the teacher in developing good teaching technique, which is know as a formative evaluation. Ms. Raulerson had been trained in the use of the Florida Performance Measurement System summative evaluations. Before February 27, 1989, Ms. Childs received no oral or written notice that she was not performing her duties as a teacher in a satisfactory manner, and had no conference with any school administrator about unsatisfactory performance. Of necessity, she had been given no recommendations about ways in which to remedy any specific areas of unsatisfactory performance. On February 27, 1989, Ms. Raulerson observed Ms. Childs' first period class. This single class period provides the sole basis for Ms. Raulerson's evaluation of Ms. Childs' teaching for the entire year. By its very nature, that sample of teaching is entirely too small to permit Ms. Raulerson validly to generalize a conclusion that Ms. Childs' teaching is inadequate. 2/ After observing Ms. Childs during the first period, Ms. Raulerson had a consultant who is a professor of education at Florida Atlantic University, Dr. Mary Gray, who was at the school that day, observe Ms. Childs during the class period which begins at about 10:50 a.m. Ms. Raulerson had a brief discussion with Dr. Gray following her observation. By the fifth period on February 27, Ms. Raulerson presented Ms. Childs with her evaluation report. Ms. Raulerson informed Ms. Childs that Ms. Raulerson would recommend to the superintendent of schools that Ms. Childs be reduced from continuing contract status to annual contract status for the 1989-90. The whole evaluation process was remarkably swift. Ms. Raulerson was obviously displeased by what she saw during Ms. Childs' first period class, but the summary fashion in which she completed the evaluation is more indicative of pique than of reasoned professional analysis and judgment. Ms. Raulerson became angry, and allowed that anger to guide her actions. During the first period on September 27, 1989, Ms. Childs taught American History. She showed the class a video that she had searched out prepared by the National Geographic Society. The video dealt with the conservation of tigers and other animals in India. It was a story of Jim Corbet, who formerly had been a big game hunter, but who later become a conservationist. At first blush this video seems to have little to do with an American History class, but upon analysis, this is not the case. Ms. Childs was teaching students about the presidency of Theodore Roosevelt, and his personal transformation from a game hunter to conservationist, including his significant role in the establishment of a national parks system in the United States. Drawing the analogy between a contemporary big game hunter who had become a conservationist with the conversion of Teddy Roosevelt was one reasonable way to relate current experience to history and assist the students in comparing and contrasting concepts using different people as examples. Since the student text devoted three of seven and one half pages on Teddy Roosevelt to conservation, Ms. Childs' use of the film is defensible. No doubt, different educators might have different views as to how to approach the subject. To conclude from this single event, however, that Ms. Childs was deficient in the categories of content coverage and utilization of instructional material cannot be sustained. Ms. Childs also used the same video in other classes she taught on February 27, 1989, including World History and four World Geography classes. The video was appropriate for those classes also. It is not unusual for a teacher to show the same video to all of her classes. It makes sense to concentrate the use of audiovisual materials across several classes to minimize the logistical problems inherent in having the equipment delivered on a number of days at different class periods. The use of the video in several classes cannot have been very important in Ms. Childs' evaluation, however, because the only class period which Ms. Raulerson observed was the first period. It is difficult to understand how Ms. Raulerson could criticize the use of the video in other classes which she had not observed. More importantly, the Florida Performance Measurement System is designed to evaluate traditional teaching performance. The materials which make up the performance system point out that the summative evaluation of teaching cannot be performed during a class period if a test is given to students of 20 minutes duration or longer. Similarly here, the attempt to perform a summative evaluation during a class period where the teacher was screening a video renders the teaching evaluation invalid. An administrator trained in the use of the system should have know this. In any case, the expert testimony offered by Dr. Heald on the inappropriateness of using the Florida Performance Measurement System during a class period in which the video was shown is persuasive; the evaluation made is invalid. Ms. Raulerson also criticized Ms. Childs in the evaluation because two students in the class watching the video were "off task". One student removed a compact from her purse and put power on her face while watching the video. She had put powder on her face in other classes without being criticized. The action distracted no one. One could easily put on makeup while still paying attention to the film. It is inappropriate to generalize from this event that Ms. Childs generally fails to "stop misconduct" in her classes. Another student had obtained Ms. Child's permission before class to wrap a box with construction paper which the student was going to use in a peer teaching class. The student was a good student who could easily watch the film while devoting some time to covering the box. Ms. Childs' decision to grant the student permission to cover the box while watching the film is an insufficient basis to determine that Ms. Childs generally fails to stop misconduct in her classes. No misconduct was involved. These same instances also were the basis for determining that Ms. Childs does not orient students to classwork and maintain academic focus. As with the criterion dealing with misconduct, these instances do not support the generalization Ms. Raulerson made from them. Spelling On the area of presentation of subject matter, Ms. Raulerson found Ms. Child deficient for the indicator "treats concept- definition/attributes/examples/non-examples", with the comment "many words incorrectly spelled". This is the result of trivial misspellings contained in forms Ms. Childs completed during the year. One form was a referral slip written by Ms. Childs when a student misbehaved and was being sent to the office; it contained the word "surprize". The other was a note sent in lieu of a referral slip resulting from a fight where the word "cussed" appeared as "cused" and "none" is written "non". Since the notes obviously were written in haste in an effort to correct discipline problems, the misspellings are of no consequence. The spelling Ms. Childs used is, however, one recognized spelling of the word "surprise". In another situation, she wrote in a note on a student progress report that the student was failing "royaly". This was also a handwritten note that was passed from teacher to teacher for comments about the student's performance. Given its nature, the misspelling in this internal memo is of little significance. The Gray Notes Shortly after Ms. Raulerson's first period evaluation, Ms. Childs was evaluated by Professor Mary Gray from Florida International University. Ms. Childs had not been told beforehand that Dr. Gray would be observing her teaching that day. Had she know this, she would have rearranged her lessons so that she would have been providing a more standard lecture format for her class in order to benefit from the observation. Dr. Gray made notes of her observation of Ms. Childs. These five pages of notes written on legal pad sheets were introduced at the hearing as corroboration of the testimony of Ms. Raulerson, who had spoken with Dr. Gray before the summative evaluation was completed and given to Ms. Childs during fifth period on February 27, 1989. While the notes may be technically admissible as corroboration, Ms. Gray did not testify at the final hearing, and review of those notes is unenlightening. Lesson Plans and Punctuality Ms. Raulerson rated Ms. Childs unsatisfactory for dependability and "following policies and procedures" because lesson plans had not been completed before the lesson was presented on February 27, and because of her lateness for classes. Ms. Childs had been specifically instructed by her department chairman that her lesson plans for the week could be completed during her free period on Monday. As a result, she did not have a lesson plan already written out during the first period on Monday, February 27. It is true that the Faculty Handbook distributed to teachers for the 1988-89 school year states, under the heading "Plan Book and Grade Books," the following: Friday afternoon each teacher must hand in a copy of his/her plans for the next week to the Department Chairman. The faculty handbook is a tool created by the school administration, it was not shown to be a rule of the school board, although the board has a similar "policy." Exhibit 15. Having first established the general requirement that lesson plans should be submitted on the Friday before the week of instruction, the school administration also could modify that requirement. The general practice at the school did modify it. Ms. Childs' compliance with her department chairman's instruction and the general practice of the school should not be held against her. Finding that Ms. Childs' punctuality was unacceptable because she was not in class on time has been discussed above. It would be one thing if Ms. Childs had been late in arriving at school, but that was not the case. Her absence from classes early in the year occurred because she was learning announcements which both she and her students were required to know. Her conduct was a reasonable means of dealing with a difficult situation created when the school administration failed to make the speaker in her portable classroom operational. It is also significant that there were no instances of misbehavior by her students while she was spending the first few minutes of her class period in learning the announcements. The class was made up of older students with good records, so that leaving them unattended was not fraught with the peril presented by leaving younger or less responsible students without supervision for a few minutes early in the first class period. Procedural Errors After receiving the evaluation report prepared by Ms. Raulerson, the superintendent of schools recommended to the school board that Ms. Childs be reduced to annual contract for unsatisfactory performance. This would have the effect of terminating her continuing contract status. He sent Ms. Childs' notice of his recommendation on March 6, 1989. The matter was considered by the school board at its meeting on March 14, 1989, despite the requirement in the contract with the teacher's union that: Any teacher terminated from his/her contract shall have an opportunity to be heard before public hearing after at least ten (10) days written notice of the charges against him/her and of the time and place of hearing. Exhibit 13 at page 67 lines 2-5. The recommendation of reduction to annual contract was placed on the consent agenda, which means that the matter was considered favorably but without discussion at the board meeting. As a result of the board's action, Ms. Childs filed an appeal with the District Court of Appeal, Fourth District challenging her reduction to annual contract. By agreement of the parties, the court relinquished jurisdiction to the school board to conduct a full Section 120.57(1) hearing on Ms. Childs' contract status, which lead to this hearing. The Board's Assessment Policies The Okeechobee County Teacher Assessment System During the summer of 1988, the School Board of Okeechobee County adopted a systematic procedure for the evaluation of teacher performance know as the Okeechobee County Teacher Assessment System. That program had been developed by a committee established by the school board; among the members of the committee were the principal of the Okeechobee High School, Ms. Phoebe Raulerson, and the Superintendent of Schools, Mr. Danny Mullins. Under the heading of "Philosophy", the procedure adopted by the school board states: Teachers who experience performance problems should be advised of specific problems and provided assistance. Also, teachers who demonstrate superior performance should be recognized for their talent and diligence. In the substantive portion describing the procedure for assessment of teaching, the school board policy states: In the event that an employee is not performing his duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination and describe such unsatisfactory performance. The evaluator shall thereafter confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and assistance in helping to correct such deficiencies with a reasonable, prescribed period of time. Exhibit 14 at I., General Procedure. The Union Contract The School Board of Okeechobee County had a collective bargaining agreement with the Okeechobee Federation of Teachers which was in effect during the 1988-89 school year. The contract contains provisions governing personnel rights, which give every teacher the right to due process and grievance procedures. The contract also has a provision regarding teacher evaluation, which provides: . . . in the event an employee is not performing his duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination and describe such unsatisfactory performance. The evaluator shall thereafter confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct such deficiencies within a reasonable, prescribed period of time. Exhibit 13 at 43. The provisions on teacher assessment in the County's Teacher Assessment System and the union contract are essentially identical. The question arises whether the employee is entitled to a written description of unsatisfactory performance and the opportunity to correct performance deficiencies within a reasonable, prescribed period of time before the conduct may be embodied in an evaluation having adverse consequences on the teacher's employment status, or whether the adverse evaluation can itself be the written statement of unsatisfactory performance and result in reduction from continuing contract to annual contract status before the teacher has been offered assistance from the school board in correcting deficiencies. Viewed together, both the County Teacher Assessment System, and the Teacher Evaluation portions of the union contract indicate that a teacher will receive written notice of unsatisfactory performance and assistance in correcting deficiencies before adverse employment action is taken by the school board. It would be unreasonable to interpret the provisions of the Assessment System and the union contract quoted above to allow the school board to terminate an employee by following the procedure the board and its administration used here. The action the board has attempted to take with respect to Ms. Childs is less severe than termination, but it is adverse employment action. It was not preceded by delivery of any written statement of unsatisfactory performance to Ms. Childs. No administrator made any recommendations to Ms. Childs about how to improve her performance or established a period of time in which to correct deficiencies before her continuing contract status was threatened with termination. Ms. Raulerson's brief conversation with Ms. Childs at the opening of the year does not suffice, because it was not a written statement of unsatisfactory performance, and was not sufficiently specific to advise Ms. Childs of any failings. The written suggestions given to Ms. Childs by the Assistant Principal, Ms. James, were not criticisms of Ms. Childs putting her on notice that the administration found her performance inadequate. As discussed above, the general admonition in the second paragraph of Exhibit 1, "Always be on time yourself", was not an effort by the administration to put Ms. Childs on notice that her practice of going to the office to learn announcements which could not be heard in her classroom, in order to pass them on to her students, was unacceptable. The proposed reduction in contract status is inconsistent both with the Okeechobee County Teacher Assessment System and the provision of the union contract on teacher evaluation. Summary The basic problem in this case arose from Ms. Raulerson's dissatisfaction with the instruction she observed in Ms. Child's first period class on February 27, 1989. Ms. Raulerson attempted to apply the Okeechobee Teacher Assessment System in her observation, even though that system, and the state system on which it is based, is structured so that it cannot validly be applied when the lesson observed is an audiovisual presentation. Educators may differ over whether the National Geographic film shown in the American History class was appropriate, but Ms. Childs' explanation is cogent, and supported by the expert testimony of Dr. Heald. The use of the film was not improper. Ms. Raulerson completed the teaching evaluation of Ms. Childs based on the single, unrepresentative and invalid observation, and a brief discussion with Dr. Gray, who had observed the third period class. This resulted in a disciplinary recommendation which was unduly severe, and inconsistent with the procedures set out in the Okeechobee County Teacher Assessment System and the Board's contract with the Okeechobee Federation of Teachers.
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final Order be entered by the School Board of Okeechobee County instructing the superintendent to prepare a contract for Andrea Childs for the 1989-90 school year in the usual form for continuing contract teachers. DONE and ORDERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1989. WILLIAM R. DORSEY, JR. 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 3rd day of November, 1989.
The Issue Whether the Respondent, an elementary school teacher, should be disciplined under sections 1012.795 and 1012.796, Florida Statutes (2016),1/ for inappropriately disciplining a student in violation of Florida Administrative Code Rules 6A-10.081(2)(a)1. and 5.2/; and, if so, the appropriate discipline.
Findings Of Fact The Respondent holds Florida Educator Certificate 1197418, covering Elementary Education, English for Speakers of Other Languages (ESOL), Reading, and Exceptional Student Education. The certificate is valid through June 30, 2022. The Respondent began the 2016/2017 school year teaching second grade at Shingle Creek in Orlando, which is in the Orange County Public Schools (OCPS) school district. It was her fourth year of teaching there. Her teacher evaluations were satisfactory. She did not use corporal punishment, and did not yell or scream at her students. She had no disciplinary history. (She had one non-disciplinary directive for blurting out an expletive in pain when she fell in class and hurt her knee.) Shortly after the start of the 2016/2017 school year, the Respondent realized she had a student, B.K., who took things that did not belong to her. B.K. was bright and popular among the children in class, but she could not be relied on to tell the truth. From the beginning of the school year, the Respondent had to take steps to discipline B.K.’s misbehavior and try to correct it. Soon after the start of the school year, B.K. put a laptop computer in her back pack, instead of returning it to the charging cart in the classroom as all the other children did when they finished using it. At the end of the day, B.K. told the Respondent that another student put the laptop in her back pack. The other student denied it, and the Respondent was obliged to refer the matter to the school administration. An assistant principal investigated and interviewed B.K., who admitted to taking it. The Respondent also found her own personal books in B.K.’s back pack. B.K. falsely accused a classmate of putting them there. On another occasion, another teacher caught B.K. with the Respondent’s “Hello Kitty” flash drive. B.K. told the teacher that a friend had given it to her, which was false, and the teacher wrote a referral to administration. As a result of these incidents, the Respondent had a conference with B.K.’s parents. B.K.’s father reported that he had found books at home that did not belong to his daughter. B.K. admitted that she had taken them from the classroom. The Respondent was obliged to make a classroom referral. The Respondent continued to learn of other similar incidents. Once B.K. took two bags of candy the Respondent used to reward good behavior and achievement by her students. Another teacher saw B.K. distributing the candy to classroom friends outside the classroom and reported it to the Respondent, who realized it was her candy that had gone missing. After the candy incident, the Respondent again met with B.K.’s parents and decided to impose consequences in addition to the classroom referral to discipline B.K. for the theft of the candy—namely, she decided to withhold the prize she planned to give students on Thursday, October 13, for good behavior during the preceding month. (Friday, October 14, was a day off school.) She told B.K.’s parents about the consequences she planned to impose. As October 13 approached, B.K. continued to misbehave by taking things that did not belong to her, including a Post-It note dispenser and a bag of erasers. The Respondent reported to the school guidance counselor and assistant principal that B.K.’s misbehavior seemed to be escalating. During the last class period of the day on October 13, while the class was working on a science project, the Respondent called each student up to her desk individually to reward good behavior with points, prizes, candy, and to identify misbehavior to be corrected. Under the “class dojo” behavior system the Respondent was using, class participation was rewarded with points and corresponding “karate” belts. Good behavior was rewarded with candy. When it was B.K.’s turn, the Respondent explained that she was getting points and a belt for class participation but was not getting candy because of her taking things that did not belong to her, and not telling the truth. The Respondent told B.K. that she would have a “clean slate” going forward and would get points and both prizes and candy if she earned them with good behavior in the next month. Not long after the Respondent’s talk with B.K., another student said out loud that B.K. had candy that did not belong to her. The Respondent asked B.K. if she had candy, and B.K. denied it. The Respondent then asked her students to check to see if they had the candy they had just been given. One student, who sat next to B.K. and had put her candy in her desk, said hers was missing. The Respondent then asked B.K., who still denied taking the candy, to show her what was in her desk. B.K. just froze and did not comply. The Respondent repeated herself. B.K. again refused and began to get emotional. Because the desk was a “jumbled mess” of tissues, papers, food, a milk carton, pencils and other things, and because bending down low was difficult for the Respondent, the Respondent tipped the desk over enough for some of items in it to begin falling out on the floor. The missing candy was among the first several items that fell out on the floor. At this point, B.K. claimed that the student whose candy was missing had given it to her, which the other student denied. The Respondent then told B.K. that the Respondent was going to have to write B.K.’s parents a note about the incident. She also told B.K. to pick her things up off the floor and put them back in her desk. During these proceedings, B.K. became emotional and started crying. At one point, she kicked at her desk or chair. The Respondent had her sit up near the chalkboard until she calmed down. The Respondent sat down at her desk facing B.K. and told her she was very disappointed with her because of the talk they just had. Although most of the students had resumed working on their science projects, one child asked out loud if B.K. had stolen the candy. The Respondent did not directly answer the question. Instead, she said something like, “I’m not sure what you just saw and heard, but one thing we don’t do in this class is, we don’t steal, right? What don’t we do?” Some of the students who were listening repeated, “we don’t steal.” When things settled back down, the Respondent wrote a note to B.K.’s parents notifying them about the candy incident and telling them that B.K.’s behavior that day had been “in the red” (i.e., bad). B.K. went back to sitting at her desk, and the rest of the class period was uneventful. In fact, the school principal came to the Respondent’s classroom before the class period ended to deliver notices for the students to take home to their parents. Although she was not in the classroom long, she noticed nothing unusual. At home after school on October 13, B.K.’s mother asked her about the Respondent’s note. B.K. denied stealing candy. She told her parents that the Respondent gave all the other children in the class candy except her and accused her of taking a piece of candy, which she denied. B.K. then told them that the Respondent then kicked her chair, dumped her desk on the floor, made her clean it up and put her desk back in order, and made the other students line up and take turns hitting her hand hard in punishment. Her parents decided to talk to the Shingle Creek principal about it on the next school day, which was Monday. When B.K. and her parents arrived at school on Monday morning, they encountered and talked to several of B.K.’s classmates outside the school. At least two of the classmates were approached by B.K., who brought them to her parents. The evidence was unclear as to how many other classmates were involved, or how the conversations went. The language skills of the students in general were those of second-graders, and several of the children were speakers of English as a second language. B.K.’s parents speak English with a strong Haitian accent. For example, the words “hit” and “hate” sound very similar, and it is not easy to understand their spoken English. It is unclear exactly what was said, but B.K.’s parents came away from the conversations convinced that B.K. was telling the truth about what happened in class on October 13. It is also possible that the children’s memories and recollections were influenced by these conversations. B.K.’s parents then went to speak to the school’s principal. B.K. did not go to class but stayed with her parents in the principal’s office. After talking to the family, the principal telephoned OCPS’s senior manager of employee relations, who advised her to gather witness statements. The principal and several assistants began taking statements, starting with B.K. and her parents. After them, the Respondent was called to the principal’s office. Following the instructions given to all teachers by the teacher union, the Respondent declined to give a written statement without a lawyer or union representative present. She did have a conversation with her principal. The principal asked her to explain the situation with B.K. on Thursday. The Respondent told her about the candy incident, including tipping the desk to find the candy; about being very disappointed with B.K.; and about writing a note to B.K.’s parents. The Respondent recalls the principal asking if anything else happened, and she answered, no. The principal recalled the conversation a bit differently. She thought the Respondent admitted to dumping B.K.’s desk over, raising her voice, and being angry with B.K. She also remembered asking the Respondent if any of the other students hit B.K. and the Respondent answering that she did not see anyone hit her. The principal then began interviewing the Respondent’s students one by one. The interviews continued the rest of the morning and into lunch recess. Some statements were taken the next day. It is unclear to what extent the student witnesses discussed their statements among themselves during the day. The interviews were not video or audio-recorded. The interviewers thought they were asking proper, open-ended questions that did not suggest answers, but studies have shown that interviews usually are not as proper or open-ended as interviewers think they are, especially when the interviewers do not have extensive training. The training of the principal and her assistants in interview techniques was limited. Proper interview techniques help ensure that witness memories and statements are authentic, accurate, and reliable. They are especially important for child witnesses. The statements were not verbatim, or close to verbatim. Two of the statements were written with difficulty by the second- graders themselves and were not very articulate. The rest were written by the adult interviewers and signed by the second- graders so the process would go faster. These statements were written in a summary or conclusory fashion, without much detail, and were similar to one another, suggesting that they were recording the answers to questions of particular interest to the adult interviewers. The statement forms themselves had spaces designated for the “Date of Infraction” and “Location of Infraction,” and had signature blocks that said: “I swear/affirm the above and/or attached statements are true and correct. I understand that providing false information is punishable under the Student Code of Conduct.” It is doubtful that the second- graders would have understood what that meant. Fourteen (all but one) of the statements said that the Respondent told the students to hit or slap B.K.’s hand or hands. Some added that B.K. was crying; some added that the Respondent told them to hit hard, or harder. One statement said they did it because B.K. took candy, one said it was because B.K. was a thief, and one said it was because B.K. steals too much. Some of the statements were surprising because of the capabilities of the child supposedly giving it: one of the students was non-verbal and would not have been comfortable speaking to a stranger; another was autistic and unable to sequence information such as the days of the week; and another had behavioral and emotional issues that made him incapable of giving a statement. Some of the second-graders added remarkable features in their statements that were not mentioned by anyone else, or by just a few: one said the Respondent threw B.K. down to the ground; three, including one attributed to the child with behavioral and emotional issues, said that the Respondent threatened to call the police; one said that the Respondent told B.K. to put her desk by the wall; and one said the Respondent told the class to avoid B.K. During the morning on October 17, several of the Respondent’s students told her that B.K.’s parents had talked to them before school about the Respondent making them hit or slap their child on the hand, and told her that B.K. no longer was in the Respondent’s class. After the second-graders’ statements were gathered, the school principal presented them to the OCPS senior manager of employee relations, who scheduled a pre-determination meeting on October 21. His investigative report stated: 16 student statements were obtained; 15 confirmed being directed by the teacher to hit B.K. on the hand; 3 confirmed the teacher telling the students to repeat “don’t steal”; 8 confirmed the teacher yelling; 5 confirmed the teacher telling them to hit B.K. hard; 3 confirmed the teacher calling B.K. a thief; and 3 confirmed the teacher saying she was going to call the police. The investigative report also stated that the Respondent: admitted getting angry and raising her voice; admitted pouring out the contents of the student’s desk; admitted saying and having the students repeat, “what is it we don’t do in class? We don’t steal”; stated she did not recall directing the students to hit B.K.; did not know if B.K. was hit “on October 17,” but did know that B.K. lies; and did not report the incident to the school administration on October 17. Based on the investigative report, OCPS terminated the Respondent’s employment. The Respondent filed a grievance which was arbitrated under the terms of the teacher union contract. When the matter was referred to the Petitioner, another investigation was conducted. On February 17, 2017, the second- graders were interviewed again by the Petitioner’s investigator. The investigator asked the questions and wrote the answers. The second-graders were asked to confirm that the answers were written down correctly and signed their statements. Like the principal and her assistants, the Petitioner’s investigator believed she asked non-suggestive, open-ended questions. Like the principal and her assistants, the Petitioner’s investigator did not have extensive training in the proper techniques for manner of interviewing children. Like the interviews conducted by the principal and her assistants, the Petitioner’s investigator did not video or audio-record her interviews. Each student interviewed by the Petitioner’s investigator stated that the Respondent told the students to “slap” B.K.’s on the hand as hard as they could and that slapping B.K. made the student feel “sad.” One said that B.K. cried. One said the Respondent made the class stand in a circle and take turns slapping B.K. on the hand. Unlike the school principal and her assistants, the Petitioner’s investigator had the students describe how hard they were supposed to hit B.K. on a scale of 1 to 5. This question elicited several responses that they were told to hit “hard,” one that they were told to hit “as hard as we could,” and one that gave a rating of 5. In the statements gathered by the Petitioner’s investigator, several of the students mentioned that the Respondent told them to pretend B.K. was a ghost, and several said the Respondent told them not to tell anyone about what happened. Oddly, neither of these remarkable details was mentioned in any of the statements taken by the principal and her assistants. The Respondent’s grievance was arbitrated in May 2017. After a three-day hearing, the termination was upheld, despite testimony from another teacher that she overheard B.K. admit to stealing candy and to lying to get the Respondent in trouble because she was tired of getting caught stealing by the Respondent. Several of the students who gave statements testified at both the arbitration hearing and the hearing in this case. Several were deposed before testifying. The Petitioner in her Proposed Recommended Order suggested that credibility issues arising from the prior events should be ignored because they were cured by the live testimony. That is not true. Issues remain as to whether the students’ live testimony was influenced by what preceded. In addition, their testimony at the hearing was confusing and inconsistent in many respects. Two of the students testified that the students formed a circle around B.K., while three said they formed a line. One said the line was in the shape of a C or J. One specified that they hit B.K.’s hand while she was either in a corner or by a desk where the sink was located. One said B.K. was standing in front of another student’s desk. Two said B.K. was standing in the middle of the classroom. One said B.K.’s hand was held out palm down. Another said it was palm up. One said the Respondent held B.K.’s hand out. The evidence, taken as a whole, is not clear and convincing that the Respondent had her students hit or slap B.K. as punishment for taking the candy. While several children made statements that included some version of this alleged incident, they all started with B.K., who was overheard saying she was lying, and the other children’s statements are fraught with questions that make them unreliable and insufficient to prove those facts clearly and convincingly. Meanwhile, the Respondent’s version of what happened, while self-serving, is more persuasive. Her refusal to give a written statement, and her manner of answering questions, may have raised suspicions on the part of the school principal, and may have contributed to a number of misunderstandings by the principal and B.K.’s parents, but they do not prove that the Respondent was lying. The Respondent’s conduct that was proven by the evidence did not rise to the level of a disciplinable failure to make reasonable effort to protect B.K. from conditions harmful to learning and/or to her mental and/or physical health and/or safety, and did not intentionally expose B.K. to unnecessary embarrassment or disparagement. What the Respondent actually did was within the realm of making reasonable efforts to correct B.K.’s problem behaviors and to teach her and her classmates how to behave properly and acceptably, while at the same time trying to keep order in the classroom and continue delivering academic instruction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding the Respondent not guilty and dismissing the Amended Administrative Complaint. DONE AND ENTERED this 1st day of May, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 1st day of May, 2018.
The Issue Whether Respondent committed any of the offenses alleged in the Amended Administrative Complaint dated March 26, 2014, and, if so, what is the appropriate disciplinary penalty?
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates accused of violating section 1012.795, Florida Statutes, and related rules. Respondent Erin S. Scheumeister holds Professional Educator’s Certificate 982133. Valid through June 30, 2015, the certificate covers the areas of Elementary Education, English for Speakers of Other Languages, Exceptional Student Education, and Autism Spectrum Disorders. At all times material to this proceeding, the St. Lucie County School District (District) employed Ms. Scheumeister as an Exceptional Student Education teacher at Samuel S. Gaines Academy K-8 (“Samuel Gaines” or “Gaines Academy”). During the 2012-2013 school year, a typical school day in Ms. Scheumeister’s class ended with a science or social studies lesson which would be presented jointly with the class of Ms. Madelina. Ms. Madelina was another Exceptional Student Education teacher at Gaines Academy, and she and Ms. Scheumeister would co-teach the class. For the science lesson, Ms. Madelina would bring her class to Ms. Scheumeister’s classroom. Ms. Madelina’s self-care aide, Jane Alice Waite, assisted with the joint science lesson. During the 2012-2013 school year, two support staff members, a behavior tech and a paraprofessional, were assigned to Ms. Scheumeister’s class. Ms. Scheumeister is charged with violations that flow from an incident that occurred during a joint science class on Friday, March 8, 2013. The joint science class was conducted, as was customary, at the end of the school day but in Ms. Madelina’s absence because she was absent from school the entire day. In her place was Amy Crossland, a frequent substitute teacher at Gaines Academy. Ms. Crossland also substituted on occasion for Ms. Scheumeister when she was absent and had filled in for Ms. Scheumeister’s paraprofessional aide on more than one occasion so that she was familiar both with Ms. Scheumeister’s class and Ms. Madelina’s class and the arrangement for joint science or social studies classes at the end of the day. As Ms. Crossland put it at the hearing, “It [Ms. Scheumeister’s class] was a challenging classroom, so they [the Administration] would put me in there frequently because they knew I [could] do it.” Hr’g Tr. 11. One of the students in Ms. Scheumeister’s class was R.W., a nine-year-old male student with Autism Spectrum Disorder and Language Impairments. Described by Ms. Crossland as “a sweet kid but . . . a handful,” Hr’g Tr. 12, R.W. exhibited aggressive behavior on a regular, if not daily, basis. Ms. Scheumeister summed this behavior up as follows: He would hit, kick, punch staff, students, knock over desks, fall on the floor, roll around on the floor, knock over furniture. He would do self-injurious behavior such as pinching himself on the arm or he would run over into the kitchen and hit his head on . . . the counter where we have to block him from hurting himself. Hr’g Tr. 102. R.W.’s aggressive behavior was triggered when his routine was disrupted or he became upset. Whenever the trigger occurred, R.W.’s behavior became aggressive quickly. An example of R.W.’s aggressive behavior involved a sink in an island in the kitchen that is either adjoining the classroom or part of the classroom. The sink had a faucet that could be rotated away from a position above the sink into a position above the floor. In moments of acting out, R.W. would swivel the faucet and turn the water on so that water would pour onto the floor. Over the course of the several times that Ms. Crossland was present in Ms. Scheumeister’s class, she saw R.W. turn the faucet on above the floor. Ms. Scheumeister’s response usually consisted of attempts to redirect R.W. to appropriate behavior. By the time of the incident on March 8, 2013, R.W. had swiveled the faucet and turned it on to spill water onto the floor more than once that day. These spills occurred during the joint science class in the presence of students from the two classes of Mses. Scheumeister and Madelina. Immediately after the first time, R.W. ran from the sink and dropped to the floor, which was common behavior for R.W. when he did not get his way or was disciplined. Ms. Scheumeister “raised her voice a little bit,” Hr’g Tr. 13, and her facial expression indicated that her patience with R.W. was wearing thin. Ms. Crossland attributed Ms. Scheumeister’s less-than calm reaction to R.W.’s misbehavior, plus the added stress of the joint science lesson with so many students present in the classroom at once. Ms. Scheumeister did not do anything to R.W. physically the first time he ran the water onto the classroom floor on March 8, 2013. Her reaction became physical, however, when R.W. did it again. Ms. Scheumeister grabbed R.W.’s shoulders with both of her hands. With R.W. kicking and screaming, Ms. Scheumeister sat him on the floor. Ms. Scheumeister pushed and pulled R.W. through the water in what witnesses described as a mopping action. His shirt and shorts became wet. Ms. Scheumeister followed this physical discipline with words to R.W. with the effect that if he thought it was funny to spill water on the floor, she thought it would be funny for him to have to explain to his parents why his clothes were wet. Jane Alice Waite, a paraprofessional aide assigned to Ms. Madelina’s class, observed Ms. Scheumeister push and pull R.W. through the water on the classroom floor. Ms. Waite’s response was immediate. She gathered Ms. Madelina’s students, left Ms. Scheumeister’s classroom with them, and returned the students to Ms. Madelina’s classroom. Ms. Waite did not want her students to remain in the presence of Ms. Scheumeister’s actions with R.W. for fear that they would be upset or become over-excited, a tendency of autistic students. Ms. Waite appreciates that maintaining order in a classroom of autistic students can be a task that is “overwhelming.” Hr’g Tr. 46. Nonetheless, Ms. Waite found Ms. Scheumeister’s method of discipline of R.W. to amount to a loss of control and to be unjustifiable and inappropriate. Morgan Kelly was the behavior tech in Ms. Scheumeister’s classroom the day of the incident. Ms. Kelly confirmed the testimony of Mses. Crossland and Waite. She saw Ms. Scheumeister “proceed with the mopping action dragging [R.W.] back and forth across the water.” Hr’g Tr. 53. Ms. Kelly’s immediate reaction was to offer to change R.W.’s clothing. Ms. Scheumeister reiterated that R.W. could go home wet and his parents can wonder why. R.W. responded to the comment by again turning on the faucet and running water onto the floor. Ms. Scheumeister grabbed R.W. and dragged him through the water again and then instructed Ms. Kelly to put R.W. on the bus wet without a change in clothing. R.W. rode the bus home in wet clothing. The incident with R.W. was not the first time Ms. Kelly had observed Ms. Scheumeister act inappropriately with the autistic students in her classroom. On one occasion, Ms. Scheumeister disparaged her students for their inability to answer questions about a topic at kindergarten level that she had just read to them. On other occasions, Ms. Scheumeister said to some of her students that she intended to “choke them out.” Ms. Scheumeister also on more than one occasion pulled a student’s tee shirt over the back of the chair in which they were sitting so that the student could not get up. Ms. Kelly reported the incident with R.W. to Carolyn Wilkins, the principal of Gaines Academy at approximately 5:30 p.m. on the evening of March 8, 2013, a few hours after it occurred. Ms. Crossland also reported the matter. Rather than to the principal, Ms. Crossland submitted the report to the Exceptional Student Education Department chairperson. In the investigation that ensued, Mses. Kelly, Crossland, and Waite provided written statements. Ms. Waite’s view of the incident with R.W. differed from Ms. Crossland’s in one respect. Ms. Waite was “not sure” how R.W. ended up in the water. But her statement was consistent with the other two statements in that Ms. Waite wrote that Ms. Scheumeister “pulled him in the water two or three time[s] and stated she was not going to change him and he was going home wet and he got on the bus wet.” Pet’r’s Ex. 4. In the wake of the report from Ms. Kelly, Ms. Wilkins called the assistant superintendent of Human Resources. The assistant superintendent directed Principal Wilkins to call the Department of Children and Families and the school resource officer. Ms. Wilkins did so. She followed up the reports with a call to Ms. Scheumeister. In the conversation with Ms. Scheumeister, the principal informed her of the allegations, and ordered Ms. Scheumeister to report to the District office on the following Monday. The District followed its procedures dictated by reports of a teacher’s inappropriate conduct with a student. The District commenced an investigation, and Ms. Scheumeister was transferred to the District office on what the District refers to as a “temporary duty assignment,” Hr’g Tr. 81, or “TDA.” See Pet’r’s Ex. 7. In keeping with standard procedure, the District hand-delivered to Ms. Scheumeister a copy of a written document entitled “Notice of Investigation and TDA” dated March 11, 2013, the Monday after the incident with R.W. In May 2013, Principal Wilkins sent a letter dated May 29, 2013, to Ms. Scheumeister. It informed her that Principal Wilkins had decided not to recommend Ms. Scheumeister for reappointment for the 2013-2014 school year. An Administrative Complaint was executed on November 7, 2013. On March 26, 2014, Petitioner moved to amend the Administrative Complaint. The motion was granted following Respondent’s notice of withdrawal of her opposition to the amendment. A section of the Amended Administrative Complaint entitled “MATERIAL ALLEGATIONS” contains three paragraphs, numbered 3, 4, and 5. Paragraph 3 alleges: Respondent twice grabbed R.W., a 9-year-old student diagnosed with Autism Spectrum Disorder and Language Impairment, and dragged him across the floor in an attempt to mop up a puddle of water that R.W. had spilled. During this, Respondent stated to the student, “You think it is funny to flood the room? Well, I think its funny your clothes are wet.” When another school personnel offered to change R.W.’s clothes, Respondent refused to allow it and commented she wanted R.W. to go home with wet clothes. Paragraph 4 alleges: Respondent made inappropriate comments or actions to her nine (9) students, who are diagnosed with Autism, including but not limited to, “I’m going to choke you out”; “That’s a kindergarten book and you (students) are not as smart as kindergarteners”; “It’s ok his (student’s) pants are too tight, he shouldn’t reproduce,”; putting student’s over their chairs to prevent them from getting out of their chair and yelling at students. Amended Administrative Complaint, executed March 26, 2014, EPC Case No. 123-2596. Paragraph 5 alleges that following an investigation, Ms. Scheumeister’s “employment contract was non- renewed for the 2013-2014 school year.” On the basis of the material allegations, the Amended Administrative Complaint charged Ms. Scheumeister as follows: STATUTE VIOLATIONS COUNT 1: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. COUNT 2: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. COUNT 3: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. RULE VIOLATIONS COUNT 4: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety. COUNT 5: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. Ms. Scheumeister requested a formal hearing before DOAH on an Election of Rights form in which she disputed all allegations of the Administrative Complaint. On March 10, 2014, the Office of Professional Practices Services filed the case with the EPC, and the EPC announced in a letter dated March 11, 2014, that it would forward the case to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be revoked for a period of not less than five years and that an appropriate fine be levied for each count. If Respondent, when eligible, reapplies for an educator’s certificate and receives one, a condition of the certificate should be probation for a period of five years with additional conditions appropriate to the facts of this case to be set by the Education Practices Commission. DONE AND ENTERED this 8th day of September, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2014. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Carol R. Buxton, Esquire Florida Education Association 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 (eServed)
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. Keith O'Neil Vinson (date of birth November 1, 1968) was a student enrolled in the regular school program at Arvida Junior High school during the 1982/83 school year as an eighth grader. By letter dated August 18, 1983, Petitioner, the School Board of Dade County, Florida, advised the parent, Mrs. Yvonne Vinson, that Respondent, Keith D. Vinson, was being administratively assigned to Youth Opportunity School South based on his disruption of the educational process in the regular school program and his failure to adjust thereto. Keith is physically well-developed for his age. That is, he is approximately 6 feet 5 inches and weighs approximately 200 pounds. During the 1982-83 school year, Respondent was the subject of more than 10 suspensions and was called in for numerous teacher conferences based on his defiant and assaultive conduct with other students while enrolled at Southwood and Arvida Junior High School. (Testimony and admission of parent, Yvonne Vinson) From 1981 through 1983, Respondent engaged in repeated acts wherein he was involved in fights and assaults of other students. Despite repeated efforts to attempt to control Respondent's defiant behavior, his same pattern of conduct persisted. Although Respondent's mother, Mrs. Yvonne Vinson, testified that the Respondent's conduct has been exaggerated by school officials and that he was singled out for "petty matters," the evidence herein reveals and it is specifically found that the Respondent's conduct was disruptive of the regular school program throughout his enrollment therein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's appeal of the Petitioner's assignment of Respondent to an opportunity school program be DENIED. RECOMMENDED this 10th day of February, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1984. COPIES FURNISHED: Mark A. Valentine, Esquire Jesse J. McCrary, Jr., Esquire 3050 Biscayne Blvd., Suite 800 Miami, Florida 33137 Mrs. Yvonne Vinson 11610 South West 140 Terrace Miami, Florida 33176 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Lindsey Hopkins Building 1410 North East 2nd Avenue Miami, Florida 33132
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.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: I.B. ("student"), daughter of Petitioners, was a seventh grade student attending Henry H. Filer Junior High Community School prior to placement (which is here being challenged) in the educational alternative program located at Jan Mann Opportunity School. (Testimony of Eliot M. Berman) Between September 4, and December 30, 1979, the student engaged in frequent behavior at Filer Junior High which disrupted the classroom environment. Specific instances of reported disruptive behavior occurred on or about September 5, 27, October 5, 9, 10, 11, November 29, December 3, 10, and 30, 1979. Usually her behavior involved physical or verbal hostility toward her teachers and other students. Each incident was followed by conferences with the student's parents, vice principal, or guidance counselor. Between September 5, 1979, and December 30, 1979, 9 parental and 8 counselor conferences were held in an effort to modify the student's disruptive behavior pattern. The student is an aggressive child who becomes easily frustrated in a regular classroom environment, frequently rebels against authority, exhibits hostility toward and argues with her peers and engages in disruptive behavior in order to get attention. Several of her teachers have concluded that she is unwilling, or unable to adapt to a regular classroom environment. (Testimony of Eliot Berman, Respondent's Exhibits 1-2) Due to her disruptive behavior in the school environment, the student was twice placed for several days in the Filer Junior High School's Center for Special Instruction (SCSI)-on October 9, 1979, for disruptive behavior during exchange of classes and inflammatory comments to the instructor, and on November 30, 1979, for slapping a female student in Physical Education class. A child is placed in SCSI, in lieu of suspension from school, in order to receive special teacher instruction and supervision. The teacher-student ratio is increased to one teacher for each fifteen students, and a concentrated effort is made to modify a child's unsatisfactory behavior patterns and clarify his or her values. In this case, the student's placement in SCSI does not appear to have modified her disruptive behavior in the normal classroom setting. Her behavior not only detracts from her own learning experience, but interferes with the educational process of other children. (Testimony of Eliot Berman, Respondent's Exhibits 1-2) The student was frequently absent from her classrooms between August 27, 1979, and January 23, 1980. She missed Social Studies class-19 times, Mathematics and Language Arts classes-7 times each, and Life Science class-11 times. Such absences, in combination with her behavior problems, have seriously impaired her academic progress. (Testimony of Eliot Berman, Respondent's Exhibits 1-2) The student, in conjunction with her SCSI placement, has made a conscious effort to improve her behavior, but her disruptive classroom behavior has continued. (Respondent's Exhibits 1-2) The student's mother and brother believe that placement in the Jan Mann Opportunity School educational alternative program will not benefit the student and that she should, instead, be placed in a regular junior high school close to her home where her behavior can be more closely monitored by family members. The student does not share in her family's desire that she be placed in a regular school closer to her home. (Testimony of Mrs. A.B., E.B., and I.B.) Placement of the student in the Jan Mann Opportunity School educational alternative program will provide the student with an opportunity for intensive counseling, a better student- teacher ratio, and an opportunity to improve her self-esteem and basic educational skills which cannot be provided in the regular classroom setting. (Eliot M. Berman)
Recommendation While at Filer Junior High School, I.B. has been a disruptive, unsuccessful, and disinterested student and meets the criteria for placement in an educational alternative program. Accordingly, the School Board should uphold the placement of this student in the Jan Mann Opportunity School educational alternative program and deny the appeal of such placement by Petitioners.
