09-006375PL Dr. Eric J. Smith, As Commissioner Of Education vs. Ashley Jason Richards Status: Closed Recommended Order on Friday, August 20, 2010.

Summary: Distribution of an inappropriate play script to a middle school drama class was a violation of requirement to protect students from conditions harmful to learning. The material was not appropriate for middle school students.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-6375PL

)

ASHLEY JASON RICHARDS, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 25, 2010, a hearing in this case was conducted by

video teleconference in Tallahassee and Orlando, Florida, by

William F. Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Todd P. Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Ashley Jason Richards

13630 First Avenue

Winter Garden, Florida 34787

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations set

forth in the Administrative Complaint are correct, and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated June 5, 2009,

Dr. Eric J. Smith, as Commissioner of Education (Petitioner),

alleged that Ashley Jason Richards (Respondent) violated

specified statutes and rules by distributing the script of a

play the Petitioner asserted was inappropriate to middle school

students in the Respondent's drama class.

The Respondent disputed the allegations and requested a

formal hearing. On November 16, 2009, the Petitioner forwarded

the request to the Division of Administrative Hearings. The

hearing was scheduled and was twice continued without objection

at the Respondent's request. By Amended Notice of Hearing by

Video Teleconference dated June 1, 2010, the hearing was

scheduled to commence on June 25, 2010. On June 10, 2010, the

case was transferred to the undersigned Administrative Law

Judge.

At the hearing, the Petitioner presented the testimony of

one witness and had Exhibits identified as A through D admitted

into evidence. The Respondent testified on his own behalf.

The Transcript of the hearing was filed on July 8, 2010.

The Petitioner filed a Proposed Recommended Order on July 19,

2010.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

employed as a seventh and eighth-grade drama teacher at Lakeview

Middle School, a unit of the school system of Orange County,

Florida.

2. At the time of his employment, the Respondent held a

Temporary Florida Educator's Certificate numbered 1019741. The

Respondent's certification was for grades 6 through 12 drama and

was valid from July 1, 2006, to June 30, 2009.

3. The drama class historically produced two shows

annually, one in the fall and another in the spring. The drama

class teacher was responsible for selection of the theatrical

material to be produced by the students.

4. The Respondent was hired after the commencement of the

school year, and course materials were already present in the

classroom. Also included in the materials present in the

classroom were scripts of a play titled "The Compleat Wks of

Willm Shkspr (Abridged)."

5. During the 2007-2008 school year, the Respondent

distributed the scripts of "The Compleat Wks of Willm Shkspr

(Abridged)" to the students in his drama class.

6. The play, a script of which was admitted as an exhibit

at the hearing, is a comedic re-telling of well-known excerpts

from 37 plays written by William Shakespeare (Shakespeare).

7. The cast of the play is composed of three male actors,

who, as was the practice during the time the original plays were

written, perform all the roles in the play. The actors also

play "themselves," and there are improvisational opportunities

in the material, allowing the actors to vary from the script.

8. As written, the actors' dialogue includes recurring

references to the supposedly diminutive size of Romeo's erect

penis, as well as to sexual activity by characters in

Shakespeare's plays ( i.e. Romeo's efforts to "get into Juliet's

pants," other characters "playing hide the salami," and

participating in a "lovely bisexual animalistic orgy").

9. Additionally, the script contain numerous footnotes,

apparently included for the amusement of the script reader, as

there is nothing to suggest that the footnotes were to be

performed by the actors.

10. The footnotes include sardonic suggestions to the

"children or teenagers who may be reading this book" to avoid

alcohol and drug use ("Don't drink. And, if you drink, don't

drive. Drinking is not cool." But "drugs, however, are great.

Do lots of them.").

11. The footnotes include sarcastic instructions to comply

with parental authority ("Never question authority" and "Don't

think for yourself and above all, don't have any fun.") and

disparaging references to homosexuality ("butt-love," "rump-

ranger," and "rear admiral"). Finally, the footnotes include a

mocking religious reference, when, in asserting a belief that

Shakespeare wrote all the works attributed to him, the footnote

writer also states "the editor firmly believes that Jesus Christ

was actually a transvestite sackcloth salesman from a small

planet in the lesser spiral arm of the Andromeda Galaxy, so

reader beware."

12. One of the parents of a student in the Respondent's

drama class obtained the script from the child, reviewed the

material, and then, offended by the material, contacted Shirley

Fox, the principal at Lakeview Middle School.

13. Ms. Fox reviewed the material and determined it to be

inappropriate, given the age of the students to whom the script

was provided.

14. Ms. Fox testified at the hearing that the material was

harmful to the health and safety of the students who were

required to read the script. She also testified that the

material could expose the students to unnecessary embarrassment

or disparagements.

15. After reading the material, Ms. Fox contacted the

Respondent and discussed the issue with him. The Respondent

subsequently resigned his employment, but his resignation was at

least in part because he had obtained employment as a high

school drama teacher and intended to leave the middle school in

any event.

16. At the hearing, the Respondent admitted he did not

seek authorization from any school official prior to

distributing the material to the students in his class. He

testified that he believed that the text of the play had been

approved for distribution to the students, because the script

was present in the classroom materials when he arrived.

17. At the hearing, the Respondent read into the record

vaguely-erotic passages of various materials obtained from the

Lakeview Middle School library, suggesting that the materials

were no less offensive than the text and footnotes of the play

he distributed to his students. However, nothing about the

passages read by the Respondent was overtly offensive. More

importantly, there was no evidence offered to establish that any

student had been required to read the library materials.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

19. The Petitioner has the burden of proving, by clear and

convincing evidence, the allegations set forth in the

Administrative Complaint against the Respondent. Ferris v.

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

20. As cited in the Administrative Complaint, Subsection

1012.795(1)(d), Florida Statutes (2008), provides as follows:

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3)

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

21. The terms "gross immorality" and "an act involving

moral turpitude" are not defined in Chapter 1012, Florida

Statutes (2008). Florida Administrative Code Rule 6B-4.009

provides guidance as to the meaning of the terms as they are

used in Section 1012.795, Florida Statutes (2008). Castor v.

Lawless , 1992 WL 880829 (EPC Final Order 1992).

22. "Immorality" is defined by Florida Administrative Code

Rule 6B-4.009(2) as follows:

Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual's

service in the community.

23. "Gross immorality" has been described as misconduct

that is more egregious than mere "immorality." As stated in

Brogan v. Mansfield , Case No. 96-0286 (DOAH August 1, 1996)

(EPC Final Order 1996):

The term "gross" in conjunction with

"immorality" has heretofore been found to

mean "immorality which involves an act of

misconduct that is serious, rather than

minor in nature, and which constitutes a

flagrant disregard of proper moral

standards." Education Practices Commission

v. Knox , 3 FALR 1373-A (Department of

Education 1981).

24. "Moral turpitude" is defined by Florida Administrative

Code Rule 6B-4.009(6) as follows:

Moral turpitude is a crime that is evidenced

by an act of baseness, vileness or depravity

in the private and social duties, which,

according to the accepted standards of the

time a man owes to his or her fellow man or

to society in general, and the doing of the

act itself and not its prohibition by

statute fixes the moral turpitude.

25. Moral turpitude has also been defined as anything done

contrary to justice, honesty, principle or good morals, though

it often involves the question of intent as when unintentionally

committed through error of judgment when wrong was not

contemplated . State ex rel. Tullidge v. Hollingsworth , 108 Fla.

607, 146 So. 660 (Fla. 1933).

26. In determining whether any teacher is guilty of gross

immorality or an act involving moral turpitude, it must be

remembered that "[b]y virtue of their leadership capacity,

teachers are traditionally held to a high moral standard in a

community." Adams v. Professional Practices Council , 406 So. 2d

1170, 1172 (Fla. 1st DCA 1981).

27. In this case, the evidence established that the

Respondent's distribution of the material constituted

"immorality," because the distribution of the script was

inconsistent with the standards of public conscience and good

morals, given the age of the students in the Respondent's

classroom.

28. However, the evidence failed to establish that the

distribution of the script constituted the "gross immorality" or

an "act involving moral turpitude" alleged in the Administrative

Complaint. The evidence failed to establish that the

Respondent's distribution of the theatrical script displayed a

flagrant disregard of proper moral standards or was an act of

baseness, vileness or depravity.

29. Florida Administrative Code Rule 6B-1.006 sets forth

the Principles of Professional Conduct for the Education

Profession in Florida. Violation of any of these principles may

subject the individual to revocation or suspension of the

individual educator’s certificate, or the other penalties as

provided by law. See Fla. Admin. Code R. 6B-1.006(2).

30. As cited in the Administrative Complaint, Florida

Administrative Code Rule 6B-1.006(3) provides as follows:

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student’s mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

31. Given the age and educational level of the students to

whom the Respondent distributed the material, the evidence

established that the Respondent failed to make a reasonable

effort to protect his middle school students from conditions

harmful to learning. The Respondent failed to ascertain whether

the theatrical material distributed in class was acceptable to

the school's administrators and the students' parents or

appropriate for the students in his drama class.

32. There was no credible evidence presented to establish

that any student was intentionally exposed to unnecessary

embarrassment or disparagement by the Respondent's distribution

of the material. Other than a student's parent, who complained

to the school's principal after obtaining the script from the

student, and the principal herself, there was no credible

evidence presented that anyone other than the Respondent even

read the script.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

issue a final order reprimanding the Respondent for a violation

of Florida Administrative Code Rule 6B-1.006(3)(a) and,

otherwise, dismissing the Administrative Complaint filed in this

case.

DONE AND ENTERED this 20th day of August, 2010, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of August, 2010.

COPIES FURNISHED :

Ashley Jason Richards

13630 First Avenue

Winter Garden, Florida 34787

Todd P. Resavage, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

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

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 should be filed with the agency that

will issue the Final Order in this case.