99-001297 Frank T. Brogan, As Commissioner Of Education vs. Lauri M. Mcmahon Status: Closed Recommended Order on Monday, September 20, 1999.

Summary: Petitioner failed to prove the standards governing when teaching to standardized tests becomes dishonest or that Respondent violated those standards.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 99-1297

)

LAURI M. MCMAHON, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in Fort

Myers, Florida, on June 16, 1999.

APPEARANCES

For Petitioner: Bruce P. Taylor

Attorney

Post Office Box 131

St. Pet ersburg, Florida 33731-0131

For Respondent: Robert J. Coleman

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902-2089

STATEMENT OF THE ISSUE

The issue is whether Respondent failed to maintain honesty

in all her professional dealings by coaching her students by

instructing them, prior to the test, on specific questions that

were to be included in the Comprehensive Tests of Basic Skills.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 14, 1998,

Petitioner alleged that Respondent violated testing security by

coaching her students on the questions for the Comprehensive

Tests of Basic Skills prior to the administration of the test.

The Administrative Complaint alleges that this action constitutes

a failure to maintain honesty in all professional dealings, in

violation of Rule 6B-1.006(5(a), Florida Administrative Code.

At the hearing, Petitioner called eight witnesses and

offered into evidence 18 exhibits. Respondent called eight

witnesses and offered into evidence 12 exhibits. All exhibits

were admitted except Respondent Exhibit 12, which was proffered.

The court reporter filed the Transcript on August 2, 1999.

FINDINGS OF FACT

1. Respondent is a certified teacher, holding certificate

number 640974. She is certified in elementary education, and her

certificate is valid through June 30, 2000.

2. After earning her bachelor of science degree in

education in 1988, Respondent was first hired in late January

1989 to teach fulltime at Lehigh Elementary School, where she

taught first grade. Starting in the 1990-91 school year,

Respondent taught six years at San Carlos Park Elementary School.

During her first two years, she taught third grade. During her

next two years, she taught first grade. During her last two

years, she taught fifth grade.

3. The incident in question took place during Respondent's

last year at San Carlos Park Elementary School. Largely, if not

entirely, as a result of the incident, Respondent requested a

transfer following the 1995-96 school year. The Lee County

School District granted the request, and Respondent taught at

Dunbar Middle School for the next two school years. During the

1998-99 school year, Respondent served as a tech specialist in

the Lee County School District.

4. Petitioner alleges that Respondent committed an act of

dishonesty in March 1996, while employed as a fifth-grade

teacher. Specifically, Petitioner focuses upon Respondent's

methods of preparing her fifth-grade students for the upcoming

Comprehensive Tests of Basic Skills ( CTBS). The CTBS is a norm-

referenced assessment test to evaluate the progress of students

compared to national standards. Although the CTBS results may be

used for placement of students into gifted and other exceptional

student education programs, the results, in March 1996, were

generally not used for the evaluation of students or their

teachers or schools.

5. In March 1996, the CTBS was one of several tests that

school districts could use to measure the achievement level of

their students as compared to nationalized standards. Although

its practices have since changed, Lee County School District had

purchased the fifth-grade CTBS five years earlier, rather than

pay annually for a new test, so fifth-grade students in Lee

County public schools had taken the identical test for the five

years preceding the March 1996 administration.

6. Petitioner has alleged that Respondent committed an act

of dishonesty by teaching five specific questions from the CTBS

to her fifth-grade students. These questions are drawn from the

CTBS--Fourth Edition, published in 1989 by McGraw-Hill, Inc. The

questions are as follows:

Item 23, p. 41: Which of these rules could

you use to find the number missing from this

number pattern?

1, 4, 10, 13, 19, 22, __, 31

A add 3 to 22

B add 6 to 22

C add 3 to 19

D add 8 to 19

Item 33, p. 42: Which of these would

probably be weighed in ounces?

A a child

B a piano

C a can of peas

D a bag of oranges

Item 48, p. 44: Marsha dipped one end of a

wooden cylinder into ink. Then she stamped a

piece of paper with the inked end. What did

the stamped figure probably look like?

F [a circle]

G [a rectangle]

H [a triangle]

J [a square]

Item 50, p. 45: Which pair of angles is

congruent?

[The four alternatives are diagrammed in the

form of four protractors with angles

superimposed upon them in dark ink. This

question tests the ability of the student to

identify as congruent angles two angles

oriented in opposite directions so as to

require the student to recognize that a

55-degree angle to the right is congruent

with a 55-degree angle to the left.]

Item 13, p. 61: The writers of the

Constitution decided that our country should

hold a presidential election every

A 2 years

B 4 years

C 6 years

D 8 years

7. Four fifth-grade teachers administered the CTBS at San

Carlos Park Elementary School in March 1996. The scores of their

students on these and several other items are set forth in the

following paragraphs.

8. For Item 23, which is a pre-algebra question, 74 percent

of Respondent's students gave the correct answer. Sixty-one

percent of the students of Teacher 1 and Teacher 2 gave the

correct answer, and 59 percent of Lisa Shirey's students gave the

correct answer.

9. Generally, Respondent's students scored well in the six

other items comprising pre-algebra. They were first in two

items, tied for first (with Ms. Shirey's students) in one item,

second in one item, and third in two items.

10. For Item 33, which is a measurement question, 81

percent of Respondent's students gave the correct answer.

Eighty-six percent of Ms. Shirey's students gave the correct

answer, as did 64 percent and 79 percent of Teacher 1 and 2's

students, respectively.

11. Generally, Respondent's students scored well in the

seven other items comprising measurement. They were first in one

item, tied for first (with Ms. Shirey's students) in one item,

second in three items (with Ms. Shirey's students first--in one

case by 20 percentage points), and third in two items.

12. For Item 48, which is a geometry question, 74 percent

of Respondent's students gave the correct answer. Seventy-four

percent of Ms. Shirey's students gave the correct answer, as did

61 percent of Teacher 1 and 2's students.

13. For Item 50, which is also a geometry question, 42

percent of Respondent's students gave the correct answer. Forty-

one percent of Ms. Shirey's students gave the correct answer, as

did 36 percent and 25 percent of Teacher 1 and 2's students,

respectively.

14. Generally, Respondent's students scored well in the

four other items comprising geometry. They were first in two

items and third in two items.

15. For Item 13, which is a political science question, 90

percent of Respondent's students gave the correct answer. Fifty-

nine percent of Teacher 1 and Ms. Shirey's students gave the

correct answer, and 71 percent of Teacher 2's students gave the

correct answer.

16. Generally, Respondent's students scored slightly lower

in the four other items comprising political science, as compared

to their performance in mathematics, measurement, and geometry.

They were first in one item, third in one item, and fourth in two

items.

17. Examined in isolation, the scores of Respondent's class

reflect varying levels of superior performance over the scores of

the other fifth-grade classes. In Item 33, Respondent's class

was five percentage points worse than the best score. In Item

50, Respondent's class was one percentage point better than the

second class and 17 percentage points better than the fourth

class. In Item 48, Respondent's class was 12 percentage points

better than the second class and 13 percentage points better than

the fourth class. In Item 23, Respondent's class was 13

percentage points better than the second class and 15 percentage

points better than the fourth class. In Item 13, Respondent's

class was 20 percentage points better than the second class and

31 percentage points better than the fourth class.

18. Other teachers enjoyed similar performance advantages

on other items. In Item 14 in measurement, Ms. Shirey's class

scored 20 percentage points higher than the second class and 37

percentage points higher than the fourth class. In Item 18 in

geometry, Ms. Shirey's class scored 11 percentage points higher

than the second class and 18 points percentage points higher than

the fourth class. In Item 28 in sociology/anthropology,

Ms. Shirey's class scored 20 points higher than the second class

and 28 points higher than the fourth class.

19. In isolation, then, the scoring of Respondent's class

on the five CTBS questions in question does not offer much

support that Respondent cheated in some fashion by giving her

class the questions and answers in advance.

20. Respondent and the other fifth-grade teachers, as well

as the administration at the school and district office, attached

great importance to the performance of the students on the CTBS.

School personnel at all levels altered the timing and delivery of

curriculum to prepare better the fifth-grade students for the

CTBS.

21. For example, the school administrators, with the

approval of district administrators, furnished the fifth-grade

teachers with practice tests. The teachers administered the

tests and then went over in class the questions and correct

answers.

22. The publication used by San Carlos Park Elementary

School is called Scoring High, which is also published by McGraw-

Hill, Inc.

23. Scoring High contains questions that resemble two of

the subject questions. Item 9, p. 47, on Scoring High asks the

student to recognize a pattern of numbers with increases of

three. CTBS Item 23 asks a student to recognize alternating

patterns of increases of three followed by increases of six.

Item 3, page 48, on Scoring High asks the student which of four

items would be measured in tons: water in a lake, coal in a

shipment, fuel in a plane, or air in a balloon. CTBS Item 33

asks a student to recognize that a lighter item would be measured

in ounces. Item 9, page 49, on Scoring High asks the student to

slice in half a cylinder to convert a depicted three-dimensional

item to a two-dimensional rectangle. CTBS Item 48 asks a student

to convert a cylinder's base into a two-dimensional circle.

24. Additionally, the fifth-grade team, which was chaired

by Ms. Shirey, decided to accelerate the teaching of percentages,

fractions, and decimals from the normal point in the school year,

which was after March, to a point before the CTBS administration.

Sherry Lane, the guidance counselor at San Carlos Park Elementary

School, approved this change in the timing of the delivery of

this instruction.

25. One textbook publisher even highlights CTBS Item 48 and

Scoring High Item 9 in its textbook. The record does not

indicate whether this is evidence of publishing to the CTBS or

evidence of the universality of the concepts tested by the CTBS.

26. San Carlos Park Elementary School administered the CTBS

over a period of one week. Accordingly, the school

administration delivered the test booklets to Respondent up to

one week prior to the portions of the test involving the

questions that Petitioner claims Respondent to have improperly

taught.

27. Respondent missed school due to illness on the Thursday

and Friday preceding the week of testing of mathematics and

social science. So, early in the next week, prior to the

administration of the mathematics section, Respondent quickly

reviewed mathematics with her class.

28. Respondent had scanned the test booklet prior to

administering the test. Petitioner failed to prove that this was

an act of dishonesty. In any event, given the fact that the Lee

County School District had administered the same test for five

years, it was likely that experienced teachers, such as

Respondent, already were largely aware of individual questions on

the CTBS.

29. In the case of geometric shapes and their conversion

from three-dimensional to two-dimension representations, for

instance, Respondent realized that she had taught this material

months earlier, but had not reviewed it. So when she returned to

class following her illness, she asked her students if the

substitute teacher had covered this material. They replied that

the substitute had tried to review the material, but had left

them confused.

30. Thus, Respondent decided to conduct a quick review

devoted to various material, including material that would be on

the CTBS. She conducted this review openly in her classroom,

which is located in a pod with the other fourth- and fifth-grade

classrooms. Her classroom was divided from the adjoining

classrooms by thin dividers, not walls. Her classroom had

doorless entries that were the width of two doors and always open

to the hall.

31. The problem that led to this case arose when Ms. Shirey

was walking her class to lunch and saw Respondent reviewing

mathematics with some transparencies that Respondent had

prepared. Ms. Shirey knew that they were to administer the

mathematics section of the CTBS two days later. Ms. Shirey was

immediately troubled by the fact that Respondent was using a

transparency that was different from the ones that the fifth-

grade teachers had all agreed to use. After leaving her students

at lunch, Ms. Shirey took a copy of the CTBS and listened at the

wall to Respondent teaching her class.

32. As to Item 48, Ms. Shirey heard Respondent ask her

students what shape they would get if they stamped one end of

cylinder onto a flat surface. In fact, Respondent asked her

students this question as to a variety of objects that she found

in her room and not all of them were cylinders.

33. As to Item 50, Ms. Shirey heard Respondent remind her

students that they could measure from both sides of a protractor.

As with the geometry material, Respondent spoke to her class in a

normal tone and volume and made no attempt to conceal the

material that she was reviewing. When she finished the review,

she directed a student to clean the transparencies so that she

could use them for instruction after lunch.

34. Alarmed, Ms. Shirey reported what she had seen and

heard to Ms. Lane, who also listened from the empty classroom

adjoining Respondent's classroom and heard Respondent ask what

kinds of things would be measured in ounces. She heard the

students name numerous things that would be measured in ounces.

She heard Respondent go over the shapes of items, including the

end of a cylinder. In ten minutes, she heard Respondent cover

three or four items that she thought were on the CTBS.

35. A curriculum technical specialist summoned to the room

overheard the part of the review devoted to what students would

measure in ounces.

36. Last to arrive at the scene were the assistant

principal and principal. They heard Respondent talk about what

students would measure in grams and centimeters and the shape of

an end of a cylinder. The principal entered Respondent's

classroom and Respondent, who smiled at her, continued her review

session.

37. The issue of how Respondent could ethically prepare her

students for the CTBS has supplied many more questions than

answers.

38. For example, Ms. Shirey, who has since realized her

then-ambition to become an assistant principal at another school,

testified that it was dishonest merely for Respondent to depart

from the methods and materials that the fifth-grade team had

agreed upon. No other witness called by Petitioner has joined

her in this definition of dishonesty.

39. Ms. Lane testified that she did not recall if anyone

told the teachers not to look at the CTBS after they had received

the test booklets, but before they had administered the test.

Ms. Lane conducted an inservice meeting with the teachers on what

was and was not legal in terms of test preparation. Ms. Lane

opined that teachers could not take the material from the CTBS

and insert it into a review because, professionally, this would

put them "on dangerous ground." Ms. Lane thought that a teacher

could teach previously taught concepts, but she would have stayed

away from ounces, for example, in the days before the test. In

her inservice meeting, Ms. Lane warned the teachers about

reviewing test material shortly before the test. However, she

conceded that sample tests, such as Scoring High, were acceptable

to use, presumably at anytime.

40. There was animosity between Ms. Lane and Respondent.

Respondent was the union representative at San Carlos Park

Elementary School. Although a member of the union, Ms. Lane had

disagreed deeply with a union recommendation that members vote

against a contract with a raise. She had written the following

note to be read by her fellow union members: "Fuck you all.

None of you deserve it."

41. Undoubtedly, Petitioner's strongest witness in

discussing the issue of what teachers should and should not do in

test preparation was Don Campbell, the Director of District

Operations for the Lee County School District. He was the

program administrator for assessment and testing in the 1995-96

school year.

42. Mr. Campbell testified that the district allows each

school to decide how to prepare students for tests like the CTBS.

Mr. Campbell trained test coordinators for each school, such as

Ms. Lane for San Carlos Park Elementary School.

43. Mr. Campbell explained that McGraw-Hill publishes an

examiner's manual for the CTBS. This manual recommends that

teacher take the CTBS prior to giving it to their students. The

manual also recommends administering and reviewing practice tests

a day or two prior to the testing or even early on the day of

testing. The manual's prohibitions against coaching all involve

improper activities by the teacher or proctor during the actual

administration of the CTBS.

44. Mr. Campbell also gave Ms. Lane a handout entitled,

"Preparing Students to Take Standardized Achievement Tests."

Authors Mehrens and Kaminski, in Understanding Achievement Tests:

A Guide for School Administrators (1989), offer seven test-

preparation strategies on a continuum from acceptable to

unacceptable. The seven points are:

1. giving general instruction on district

objectives without referring to the

objectives that the standardized tests

measure;

2. teaching test-taking skills;

3. providing instruction on objectives where

objectives may have been determined by

looking at the objectives that a variety of

standardized tests measures (The objectives

taught may or may not contain objectives on

teaching test-taking skills.);

4. providing instruction based on objectives

(skills and subskills) that specifically

match those on the standardized test to be

administered;

5. providing instruction on specifically

matched objectives (skills and subskills)

where the practice or instruction follows the

same format as the test questions;

6. providing practice or instruction on a

published parallel form of the same test; and

7. providing practice or instruction on the

test itself.

45. Authors Mehrens and Kaminski agree that Point 1 is

always ethical and Point 2 is typically ethical, and Points 6 and

7 are never ethical. The handout concludes:

Thus, the point at which you cross over from

a legitimate to an illegitimate practice on

the continuum is somewhere between Points 3

and 5. The location of the point changes

depending on the inferences you want to make

from the test scores.

46. Mr. Campbell has given considerable thought to the

ethical restraints upon teaching to the test. He acknowledges

that this is a common phenomenon, as is evidenced by part of the

increase in scores in the statewide Florida Writes test. He

acknowledges that imposing restrictions upon teachers in

preparing their students for standardized testing necessarily

conflicts, to some degree, with the responsibilities already

imposed upon teachers to teach their students effectively.

47. Turning his attention to the five subject questions,

Mr. Campbell testified cautiously and conditionally. He

hesitatingly drew a line somewhere between the positions of

Petitioner and Respondent, but it was apparent that his standard

was more aspirational than it was descriptive of a norm that, if

violated, constitutes a failure to maintain honesty in

professional dealings.

48. This record contains no mention of any policies of

Petitioner or the Florida Department of Education delineating or

even describing the specific test-preparation behavior that

constitutes a departure from the requirement to maintain honesty.

49. Respondent has admitted teaching to the test, although

it is not at all clear that she has admitted to dishonesty. For

the sake of convenience and on the inadequate advice offered by a

union representative, she withdrew her grievance on a district

reprimand for the matters described in this order.

50. The conflict perceived by Mr. Campbell between the

teacher's role in restricting herself in preparing her students

for a standardized test and still trying to maximize the

opportunity for her students to score well on the test is

accompanied by another conflict, as recognized by Ms. Lane: even

a standardized test serves secondarily as a tool of instruction,

in addition to its primary role as a tool of assessment.

51. These twin conflicts pose a grave risk to the education

of students in public schools as long as Petitioner fails to

create a "bright-line" test for dishonesty in test preparation.

Many teachers will follow Ms. Lane's advice and avoid, especially

in the days preceding a standardized test and perhaps all term,

covering such material as the bidirectionality of a protractor,

the number of years in a presidential term, or the process of

converting three-dimensional forms to two-dimensional forms

(actually, since they are on a flat page, a two-dimensional form

to a three-dimensional form to a two-dimensional form in a

different plane).

52. Any teacher knows that coaching during a test is

dishonest and a ground for discipline, just as any teacher knows

that physically or sexually abusing his students is also a ground

for discipline. The present record reveals no similar common

understanding, even among Petitioner's witnesses, concerning what

constitutes dishonesty in test preparation. It even seems that

school districts that can afford test-preparation guides,

published by the same publisher as the publisher of the

standardized test, can safely teach to the test, using carefully

selected practice questions that, in some cases, closely resemble

the actual questions, and do so even on the morning of the test,

because the examiner's manual recommends it.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1), Florida

Statutes. (All references to Sections are to Florida Statutes.)

54. Section 231.28(1)( i) authorizes Petitioner to

discipline Respondent for violating the principles of

professional conduct.

55. Rule 6B-1.006(5)(a), Florida Administrative Code,

requires a teacher to maintain honesty in all professional

dealings.

56. Section 6A-10.042(1)(b) and (f) prohibit persons, such

as Respondent, from revealing tests or individual questions or

encouraging any activity that could result in the inaccurate

measurement of the performance of the person taking a test.

57. Petitioner must prove the material allegations by clear

and convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla. 1996) and

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

58. Petitioner has failed to prove by clear and convincing

evidence either the specific standards, on which discipline may

be predicated, applicable to teaching to standardized tests or

that Respondent violated these standards.

RECOMMENDATION

It is

RECOMMENDED that Petitioner dismiss the Administrative

Complaint against Respondent.

DONE AND ENTERED this 20th day of September, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of September, 1999.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

224E Florida Education Center

325 West Gaines Street

Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Program Director

Professional Practices Services

Department of Education

224-E Florida Education Center

325 West Gaines Street

Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

Bruce P. Taylor

Attorney

Post Office Box 131

St. Petersburg, Florida 33731-0131

Robert J. Coleman

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902-2089

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order must be filed with the agency that will

issue the final order in this case.