04-002081 St. Lucie County School Board vs. Kim Littrell Status: Closed Recommended Order on Friday, April 1, 2005.

Summary: Profane language created an environment harmful to learning and embarrassed Respondent`s students.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. LUCIE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2081

)

KIM LITTRELL, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case

on November 30, 2004, in Fort Pierce, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Elizabeth Coke, Esquire

David Miklas, Esquire

Richeson & Coke, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

For Respondent: Thomas L. Johnson, Esquire

Chamblee, Johnson & Haynes, P.A.

215 West Verne Street, Suite D

Tampa, Florida 33606

STATEMENT OF THE ISSUE

Whether the Respondent, Kim Littrell, committed the acts

complained of and should be terminated from her employment

with the School District.

PRELIMINARY STA TEMENT

This case began on May 18, 2004, when the Petitioner,

St. Lucie County School Board, initiated action against the

Respondent. The Respondent timely challenged the action to

terminate her employment. The case was forwarded to the

Division of Administrative Hearings for formal proceedings on

June 15, 2004.

The case was promptly scheduled for hearing and by

unopposed motion was continued. At the hearing conducted on

November 30, 2004, the Petitioner presented testimony from

Katie Owens, Lindsay S mith, David Allen Martin, Linn Bushore,

Maurice Bonner, Russell Anderson, and Sue Ranew. The

Petitioner’s Exhibits A through I were admitted into evidence.

The Respondent testified on her own behalf and offered

Respondent’s Exhibits 1 and 2 that were also received in

evidence.

The transcript of the proceeding was filed with the

Division of Administrative Hearings on December 20, 2004. By

Order entered January 21, 2005, the parties were granted leave

to file proposed recommended orders no later than Ja nuary 26,

2005. Both parties timely filed Proposed Recommended Orders

that have been fully considered.

FINDINGS OF FACT

1. The Petitioner, St. Lucie County School Board, is the

entity charged pursuant to Florida law to operate, govern and

administer school personnel employed by the St. Lucie County

School District (Petitioner or School District).

2. At all times material to the allegations of this

case, the Petitioner employed the Respondent to serve as a

teacher at Westwood High School. The Responden t has been a

teacher with the School District for 16 years.

3. At all times material to the allegations of this

case, Respondent held a professional services contract with

the Petitioner.

4. The Respondent’s seventh - period class on March 5,

2004, was composed of ninth - grade students. The class was

designated as a creative writing course. The purpose of the

class was to assist students with the Florida assessment known

in this record as the “FCAT.” Students in the class were

encouraged to develop “cri tical thinking” skills. Presumably

such skills enhance performance on the FCAT examination.

5. The Respondent was responsible for developing the

curriculum for the class but was assisted by aides and

instructive materials available through the school, the School

District, as well as state resources. Although Respondent did

not have a textbook for the “critical thinking” component of

the class, appropriate resources were available from which

appropriate educational materials could be prepared.

6. For the subject lesson (seventh - period class, March

5, 2004), the Respondent elected to offer an assignment that

she hoped would encourage “critical thinking.” In substance,

the Respondent asked a series of questions and the students

were asked to formulate an answer.

7. The title of the subject lesson, “Is Your Mind

Clean?” sought to elicit answers that were not profane or

“dirty.” Respondent thought the subject lesson would be

challenging and “fun.”

8. The Respondent advised the students that none of the

answers required the students to answer with profanity or

improper language. The students were not supposed to verbally

respond to the questions but were to write their answers on a

sheet of paper.

9. Although perhaps not verbatim, it is found that

Respondent posed the following questions, in substantially

this form, to her class during the “Is Your Mind Clean?”

assignment:

What is a four - letter word that ends in “k”

and means the same as intercourse?

What is it that a cow has four of and a

woman has on ly two of?

What can you find in a man’s pants that is

about six inches long, has a head on it,

and that women love so much that they often

blow it?

What word starts with “F” and ends with “u -

c - k”?

Name five words that are each four letters

long, end in “u - n - t” one of which is a word

for a woman?

What does a dog do that you can step into?

What four - letter word begins with “F” and

ends with “k,” and if you can’t get one you

can use your hands?

What is hard, six inches long, has two

nuts, and can make a girl fat?

What four - letter word ends in “i - t” and is

found on the bottom of birdcages?

What is it that all men have one of; it’s

longer on some men than on others; the pope

doesn’t use his; and a man gives it to his

wife after they’re married?

10. Inappropriate responses were verbalized during the

administration of the assignment.

11. In many instances the most apparent answer to the

question posed could be considered profane. The Respondent

should have foreseen that students would react inappropr iately

to the questions. The students thought the assignment was

unusual. The assignment made the students feel uncomfortable.

Some students were unable to come up with any non - profane

response. Some students were fearful their responses would

get them in trouble.

12. One student yelled out an inappropriate answer.

13. Some students thought the answers to the assignment

were the profane words.

14. Teachers are required to get prior approval from

school administrators if they want to use any teachin g

material that might be considered “controversial.” The

Respondent was aware of the procedure to obtain such approval.

15. The Respondent did not get prior approval before

delivering the “Is Your Mind Clean?” assignment.

16. When students responded with inappropriate answers,

the Respondent laughed.

17. The parent of one of the students complained to the

principal regarding the “Is Your Mind Clean?” assignment. The

complaint was the first notice the school administrators had

regarding the subject les son.

18. The use of inappropriate words in the Respondent’s

class was not permitted. Nevertheless, on more than one

occasion the Respondent elected to explain the origins of

certain words. For example, the Respondent lectured on the

origin of the word “fuck.” Respondent claimed the word was an

acronym for “fornication under command of the king” or “for

unlawful carnal knowledge.” The Respondent believed that

setting the record straight on the origin of the word would

take the amusement value out of usi ng the word such that usage

would be deterred.

19. Similarly, the Respondent instructed the class

regarding the origin of the word “shit.” According to

Respondent, historically, it was important that manure be

“shipped high in transport.” Manure left in the lower cargo

holds created problems.

20. The origins of inappropriate words were not part of

the Respondent’s curriculum. Moreover, the Respondent did not

have approval to discuss the origins of such words with her

class.

21. When the school adminis tration began to investigate

the “Is Your Mind Clean?” assignment complaint, the Respondent

confronted a student and claimed another student (the first

student’s friend whose parent had made the complaint) was

trying to get her in trouble. This encounter made the

confronted student uncomfortable.

22. The Respondent did not understand that the use of

inappropriate words could and did make some students

uncomfortable. Additionally, the Respondent did not

comprehend that challenging the student about the c omplaint

would also intimidate a student.

23. The Respondent was disciplined in the past regarding

her failure to create a learning environment that does not

embarrass or disparage students. The Respondent knew or

should have known that embarrassing students is not acceptable

professional conduct. The Respondent knew or should have

known that efforts to intimidate a student are not

appropriate.

24. In fact, reprimands issued to Respondent during 2000

cited unprofessional conduct directed toward studen ts. In

connection with prior conduct, the Respondent was required to

complete a course on professionalism or ethics.

25. The Respondent had a responsibility to protect

students from conditions that would be harmful to learning.

26. The Respondent had a responsibility to refrain from

exposing students to unnecessary embarrassment or

disparagement.

27. After being fully apprised of the facts of this

case, the Superintendent recommended that the Petitioner take

action to suspend the Respondent from her emp loyment without

pay. In fact, the Petitioner approved that recommendation and

initiated the instant action to terminate Respondent’s

employment.

28. The Respondent timely responded to the action and

requested an administrative hearing to challenge the proposed

action.

29. The Respondent maintained that the “Is Your Mind

Clean?” assignment was a reasonable effort to teach “creative

thinking” and that none of the students were unduly

embarrassed, disparaged, or humiliated by the assignment.

Such assertion is contrary to the persuasive weight of the

evidence presented in this matter.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

these proceedings. §§ 120.569 and 120.57(1), Fla. Stat.

(2004).

31. The Petitioner bears the burden of proof in this

case to establish by a preponderance of the evidence the

allegations against the Respondent. See Dileo v. School Board

of Dade County , 569 So. 2d 883 (Fla. 3rd DCA 1990). The

Petitio ner has met that burden.

32. Section, 1012.33(1)(a), Florida Statutes (2004),

provides:

Each person employed as a member of the

instructional staff in any district school

system shall be properly certified pursuant

to s. 1012.56 or s. 1012.57 or employed

pursuant to s.1012.39 and shall be entitled

to and shall receive a written contract as

specified in this section. All such

contracts, except continuing contracts as

specified in subsection (4), shall contain

provisions for dismissal during the term of

the contract only for just cause. Just

cause includes, but is not limited to, the

following instances, as defined by rule of

the State Board of Education: misconduct in

office, incompetency, gross

insubordination, willful neglect of duty,

or conviction of a crime involving moral

turpitude.

33. The “just cause” in this case arose from violations

of the guidelines set forth in Florida Administrative Code

Rules 6B - 1001 and 6B - 1006. More specifically, it is concluded

that the Respondent failed to use profess ional judgment,

engaged in a learning exercise that was inappropriate and

caused the students embarrassment or disparagement, attempted

to intimidate a student and did intimidate a student regarding

the complaint associated with the inappropriate assignment,

and failed to make a reasonable effort to protect students

from conditions harmful to learning. Additionally, the

Respondent failed to abide by the Petitioner’s rules by using

and engaging in activities that centered on discourteous and

inappropriate l anguage.

34. Sexual content and vulgarity - centered assignments,

even if intended to promote “creative thinking,” are not

acceptable. The Respondent’s explanations re garding the

discussions of the “Is Your Mind Clean?” assignment as well as

the origins of profane words has not been deemed persuasive or

credible.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the St. Lucie County School

Board enter a Final Order sustaining the termination of

Respond ent’s employment.

DONE AND ENTERED this 1st day of April, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

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 1st day of April, 2005.

COPIES FURNISHED :

Mich ael Lannon, Superintendent

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947 - 0000

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

Thomas L. Johnson, Esquire

Chamblee, Johnson & Haynes, P.A.

215 West Verne Street, Suite D

Tampa, Florida 33606

David Miklas, Esquire

J. David Richeson & Associates, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All partie s have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.