10-000549 Ciciel Ghobrial vs. Dr. Eric J. Smith, As Commissioner Of Education Status: Closed Recommended Order on Monday, July 12, 2010.

Summary: Petitioner was not guilty of cheating on her teacher's certification exam.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CICIEL GHOBRIAL, )

)

Petitioner, )

)

vs. ) Case No. 10-0549

)

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on May 21, 2010, in Winter Park, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ciciel Ghobrial, pro se

Robert Ghobrial, Qualified Representative

2328 Middleton Avenue

Winter Park, Florida 32792

For Respondent: Bonnie Wilmot, Esquire

Department of Education

Turlington Building, Room 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner cheated or

otherwise acted inappropriately during the Florida Teacher

Certification Examination on July 25, 2009.

PRELIMINARY STATEMENT

Petitioner, Ciciel Ghobrial (hereinafter "Ghobrial"), took

the Florida Teacher Certification Examination (the "Exam"),

given by the Department of Education, on July 25, 2009. By way

of a letter dated August 27, 2009, Respondent notified Ghobrial

that her essay portion of the Exam had been given a grade of

"Invalid" due to Respondent's belief that Ghobrial had cheated

on the Exam. Ghobrial timely filed a request for a formal

hearing, which was forwarded to the Division of Administrative

Hearings so that a formal hearing could be conducted. The

hearing was held on the date set forth above, and both parties

were in attendance.

At the final hearing, Ghobrial (for whom English is a

second language) appeared pro se , but allowed her son, Robert

Ghobrial, to verbalize the majority of her testimony. Ghobrial

and her son each testified on Ghobrial's behalf. Ghobrial's

Exhibits 2 through 20 were offered and accepted into evidence.

Respondent called five witnesses: Phil Canto, Virginia

D'Attoma, Diorah Nelson, Elizabeth Griffey, and Ada Yahner.

Respondent's Exhibits 1 through 10 and 12 were offered and

accepted into evidence.

The parties advised that a transcript of the final hearing

would be ordered. The Transcript was filed on June 14, 2010.

Ghobrial asked for an extension of time to file her proposed

recommended order, and the request was granted without

opposition. Each party timely submitted a Proposed Recommended

Order, and each was duly considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Ghobrial is a native of Sudan, who migrated to the

United States in November 1993. Her native language is Arabic.

Ghobrial has a bachelor's degree in philosophy, with a minor in

child psychology from the University of Cairo, Egypt. Ghobrial,

her husband, and all four of her children have advanced college

degrees. Education is important to Ghobrial.

2. Within months of her arrival in the United States,

Ghobrial obtained employment as a pre-kindergarten teacher at

Creative Learning Center in Winter Park, Florida. Inasmuch as

Ghobrial was at that time still trying to master the English

language, her primary responsibilities were caring for infants

and toddlers. Ghobrial worked at the center for six years,

during which time she became assistant director of the child

care center. She then worked as a paraprofessional in the

Orange County School System for four years. In 2006, Ghobrial

was given the opportunity to teach first and second grades at

Arbor Ridge Elementary School in Orlando, Florida, under a

temporary teaching certificate. That certificate had expired as

of the date of the final hearing in this matter.

3. Beginning in March 2003, Ghobrial began her efforts to

pass the Exam so that she could obtain a permanent teaching

license. The paper-based version of the Exam is offered several

times throughout the year in different locations. The Exam

consists of four subtests, one of which involves the writing of

an original essay on one of two possible topics. The purpose of

the essay portion of the Exam is to "demonstrate an examinee's

ability, in the time allotted, to compose and write an original

essay that completely addresses the topic in an effective,

well-organized manner, with good grammar and spelling."

4. Ghobrial quickly realized that the Exam was written in

such a way that her unfamiliarity with the English language was

a large impediment. It took several tries before she began to

obtain passing grades for any portions of the Examy as she

may, however, Ghobrial was unable to master the essay portion of

the Exam.

5. Ghobrial took the essay portion of the Exam 12 times

prior to the test at issue. During the time she was taking the

essay portion, she took the other portions as well. She passed

the Prekindergarten/Primary 3K Examination on October 22, 2005.

On January 20, 2007, she passed the Professional Education

portion of the Exam. On January 12, 2008, Ghobrial passed the

General Knowledge Subtest 4: Mathematics, portion of the Exam.

The General Knowledge Subtest 2: English Language Skills was

passed on October 25, 2008. Then, on April 4, 2009, Ghobrial

passed the General Knowledge Subtest 3: Reading, portion of the

Exam. All that remained was to pass the General Knowledge

Subtest 1: Essay.

6. Ghobrial took every step available to her to ensure

ultimate passage of the essay portion. She practiced her

writing using on-line test-taking sites. She enrolled in an

English prep course at Valencia Community College ("Valencia")

in 2008 and a college prep reading course in 2009. She also

enrolled in a Freshman Comp I course at Valencia for additional

education and training. Meanwhile, she obtained private

tutoring as part of her unyielding efforts to pass the essay

portion of the Exam.

7. Each person taking the Exam is provided with

registration materials which sets forth how the Exam will be

administered and the purpose of the Exam and prescribes what

actions or behaviors will be deemed improper. One portion of

the registration materials (which Ghobrial admittedly received)

defines the following activity as cheating: "During the

examination administration, writing an essay that shows evidence

of having been prepared before the examination; that is,

presenting an essay that is not an original essay composed by

the examinee during the test in direct and specific response to

an essay topic presented on the test."

8. The Essay portion of the Exam was set up to test the

exam takers' ability to organize, write, spell, and correctly

insert grammar into a composition of their own creation. Each

time the test was given, there would be two essay topics from

which to choose. The topics were general and open-ended. It

was not the intent of the test to measure one's knowledge about

a particular subject; rather, it was to determine how well the

person could correctly put their thoughts and ideas on paper.

Essay topics would be general topics from which each examinee

could narrow the focus as much as he or she saw fit.

9. It was important for the Exam graders to be consistent

with their review of the essays. The graders had to calibrate

their reviews so that each grader was looking for the same

grammatical and structural content. In order to do that, the

list of essay topics had to be fairly limited so that graders

could be trained as to those particular essay questions. Having

too many different topics would not allow for a uniform review

of all essays.

10. At the July 25, 2009, Exam, two essay topics were

offered; one of them was "An invention in the field of science

or technology that influences people's lives." Ghobrial had

seen this topic several times in past exams, and it was even a

topic she had seen during her private tutoring practice

sessions. She had even practiced writing a similar essay in the

recent past. Thus, the essay topic was very familiar to her and

gave her some hope that this familiarity would result in a

passing score. 1 As she had done in her practice essays, Ghobrial

narrowed the scope of the essay down by focusing on one

particular invention--computers. When Ghobrial took the essay

portion of the Exam on October 25, 2008, this same topic was

offered. Ghobrial's essay in that exam concentrated on the

television as an invention influencing people's lives.

11. On the July 25, 2009, exam, Ghobrial wrote about

computers as an invention that had influenced people's lives.

When Ghobrial saw this topic during her exam preparation

courses, she switched to computers as the influential invention.

She wrote the essay at the Exam site without benefit of notes or

other aids. She did, however, remember some of what she had

written on practice essays and surely that may have influenced

what she wrote in her Exam essay on the day in question.

12. Ghobrial's essay was reviewed by two graders: One

gave her a grade of three and the other gave her a grade of

five. A combined grade of six is considered passing. However,

any time there is a discrepancy of more than one number by two

graders, another grader must review the essay as well. That

being the case, Ghobrial's essay was selected for review by the

chief grader assigned to that particular grading session.

13. During the time that Ghobrial's essay was being graded

by the chief grader, Respondent was made aware that there

appeared to be some essays written by examinees that were too

similar in content to be coincidence. That being the case,

graders were cautioned to be on the lookout for any essay

bearing similarity to the suspected copies. When the chief

grader did her re-review of Ghobrial's essay, she found there to

be similarities between Ghobrial's essay and two other essays.

As a result Ghobrial was given a grade of Invalid for her essay.

(The other two essays were also given a grade of Invalid, but

neither of those examinees contested their grade.)

14. Ghobrial's essay contained the following sentences or

phrases that were deemed suspect because of their similarity to

certain on-line essays (and presumably to the two other suspect

essays, as well):

"'Computer is an electronic brain' as compared to

the on-line version of the essay which included the

term 'computer is a wonderful electronic brain'."

"'Has changed our lives through dramatic advances in

science and medicine, business, and education'

versus 'has significantly changed our world through

advances in science and medicine, business and

education'."

"'Clearly, so many advances in science and medicine

are due to computers in the last fifty years' versus

'in the last fifty years'," which Ghobrial had

written in a practice exam.

"'Clearly, no modern office could operate as

efficiently without a variety of computer equipments

[sic]' versus 'Indeed, offices and banks can't

operated as efficiently, without a variety of

computers'."

"'Thus, both teachers and students have come to rely

on computers in a way which was not possible 40

years ago' versus 'Thus, both students and teachers

have come to rely on computers to enhance learning

in a way not possible years ago'."

"'We landed on the moon and returned safely all

because of computers' versus 'landed men on the moon

because of computers'."

15. The structure of the three essays was also similar.

Each contained the following:

An introductory paragraph identifying computers

as the topic of the essay;

Paragraph 2 discussing science and medicine;

Paragraph 3 referring to business;

Paragraph 4 with a reference to education; and

A summary paragraph with an almost identical

phraseology.

16. Those phrases and sentences, when compared to the

organization of the on-line essay, caused the graders to take a

longer look at Ghobrial's essay. They found too many

similarities to be deemed a coincidence, thus drawing the

conclusion that Ghobrial must have cheated. Of the 32 sentences

in Ghobrial's essay, about 12 of them had some similarity to the

on-line essay. (Respondent asserts there are 20 sentences with

similarities, but that contention is not completely borne out by

the facts when reviewing the essays subjectively.)

17. Ghobrial admittedly used on-line practice exams to

prepare for the Exam. There is nothing inherently wrong with

doing that; it is absolutely important for a person to prepare

for the Exam using all means within his or her grasp. One of

the on-line services called "123helpme.com," included an essay

entitled "Computers of the World." Some of the language in the

on-line essay is strikingly similar to what Ghobrial wrote

during the Exam. The two essays are not verbatim, nor is there

complete similarity of content. But they are similar.

18. Ghobrial does not deny that she may have seen the

on-line essay. She was preparing for the Exam as best she could

and would have relied on any available source. There is no

evidence as to whether the other two suspect examinees saw the

same on-line essay practice test, but that inference could be

drawn from the similarity of their work.

19. However, Ghobrial did not memorize the essay, nor is

there any indication she had a copy of the essay to refer to

while she was taking the Exam. Rather, Ghobrial had some recall

of the topic based on the fact that she had studied it as part

of her preparation.

20. It is a very close call as to whether the essay

written at the time of the July 25, 2009, Exam was "original" in

all aspects. The essay was obviously influenced by Ghobrial's

preparation for the Exam; but just as obviously, she drafted the

essay without benefit of notes, and it was "original" in the

form submitted for the Exam. That is, the essay was drafted

during the Exam time under close supervision and monitoring.

21. Ghobrial, when testifying on her own behalf, was very

credible and sincere. She is still working to master the

English language, but showed sufficient understanding to have

crafted the essay as it was submitted.

22. Respondent's witnesses were no less credible. Each of

them expressed their opinions based on their training and

experience. And although Respondent's witnesses established the

basis for their determination that Ghobrial had "cheated" by

memorizing the essay, there is no direct evidence to support

their final contention.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Sections 120.57 and 120.569, Florida

Statutes (2009).

24. Section 1012.56, Florida Statutes (2009), sets forth

the educator certification requirements for all teachers in the

State of Florida and says in pertinent parts:

(2) Eligibility Criteria--To be eligible to

seek certification, a person must:

* * *

(g) Demonstrate mastery of general

knowledge, pursuant to subsection (3);

* * *

(3) Mastery of General Knowledge --

Acceptable means of demonstrating mastery of

general knowledge are:

(a) Achievement of passing scores on basic

skills examination required by state board

rule; . . . .

25. Clearly, Ghobrial would need to demonstrate mastery of

general knowledge by successfully passing the essay portion of

the basic skills examination.

26. Section 1008.24, Florida Statutes (2009), is

entitled "Test Security" and states in pertinent part:

(1) It is unlawful for anyone knowingly

and willfully to violate test security rules

adopted by the State Board of Education for

mandatory tests administered by or through

the State Board of Education or the

Commissioner of Education to students,

educators, or applicants for certification

or administered by school districts pursuant

to s. 1008.22, or, with respect to any such

test, knowingly and willfully to:

* * *

(f) Fail to follow test administration

directions specified in the test

administration manuals; . . . .

27. Ghobrial was aware of and appeared to fully understand

the content of the test administration manuals prior to

commencement of the essay portion of the Exam.

28. The burden of proof in this matter is on Respondent to

prove, by a preponderance of the evidence, that Ghobrial is

guilty of cheating on the Exam. See Division of Banking and

Finance, Division of Securities and Investor Protection

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

29. It is, therefore, incumbent on Respondent to provide

evidence that Ghobrial knowingly and willfully violated the test

security rules for the Exam. That would include proof that

Ghobrial entered the test site with the willful intention of

writing an essay that was not original in content. In order to

do that, Ghobrial would have had to have known the topics that

would be offered during the essay portion of the Exam. There

has been no showing that Ghobrial, or anyone else, knew what the

topics would be. The mere fact that one of the topics had found

its way to an on-line test preparation site does not implicate

Ghobrial.

30. Based upon a careful review of the evidence and the

demeanor of the witnesses, Respondent has not proven that

Ghobrial did anything more than create a new, original essay

using knowledge she had gleaned from prior exposure to the essay

topic.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Respondent,

Dr. Eric J. Smith, as Commissioner of Education, deeming

Petitioner, Ciciel Ghobrial's, essay to have been an original

composition deserving of a passing grade.

DONE AND ENTERED this 12th day of July, 2010, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

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 12th day of July, 2010.

ENDNOTE

1/ Respondent does not know how the essay topic became part of

an on-line training session. The essay topics are protected

from dissemination to the public so that the topics can be used

multiple times. The fact that the topic was part of an on-line

essay preparation course is of concern to Respondent, but that

fact is not an issue in the current proceeding.

COPIES FURNISHED :

Dr. Eric Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Lynn Abbott, Agency Clerk

Department of Education

Turlington Building, Room 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Bonnie Ann Wilmot, Esquire

Department of Education

Turlington Building, Room 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Ciciel Ghobrial

Robert Ghobrial

2328 Middleton Avenue

Winter Park, Florida 32792

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.