18-002333 Abbie Andrews, Easter Brown, Cherry Deaton, Donna Foster, And Danielle Pericelli vs. Clay County School Board Status: Closed Recommended Order on Monday, March 18, 2019.

Summary: Two of five disappointed applicants found eligible for $1,200 scholarship under 2017 Florida Best and Brightest Teacher Scholarship Program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ABBIE ANDREWS, EASTER BROWN,

CHERRY DEATON, DONNA FOSTER, AND

DANIELLE PER R ICELLI,

Petitioners,

vs. Case No. 18 - 2333

CLAY COUNTY SCHOOL BOARD,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on December 14, 2018, in Green Cove Springs, Florida, before

Lawrence P. Stevenson, the designated Administrative Law Judge

of the Division of Administrative Hearings (ÐDOAHÑ) .

APPEARANCES

For Petitioner s : H. B. Stivers, Esquire

Levine & Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

For Respondent: Nicole Smit h, Esquire

Leonard J. Dietzen III, Esquire

Rumberger, Kirk & Caldwell

101 North Monroe Street, Suite 120

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whe ther Petitioners are entitled to the Best

and Brightest Scholarship as established and defined by section

1012.731(3)(c), Florida Statutes (2017) .

PRELIMINARY STATEMENT

Petitioners, Abbie Andrews, Easter Brown, Cherry Deaton,

Donna Foster, and Danielle Per ricelli (ÐPetitionersÑ), each

timely applied to the Clay County School Board (the ÐSchool

BoardÑ) for a $1,200 scholarship under the 2017 Florida Best and

Brightest Teacher Scholarship Program (the ÐBest and Brightest

ProgramÑ). Between October 11, 2017, and November 14, 2017,

each Petitioner received an email from School Board

R epresentative Brenda Troutman stating that they were not

eligible for the s cholarship.

Ms. TroutmanÓs emails did not provide Petitioners with a

clear point of entry to challenge th e School BoardÓs decision.

On April 20, 2018, Petitioners filed a collective Petition for

Formal Hearing contesting the determination that they were

ineligible for the scholarship. On May 9, 2018, the School

Board referred this matter to DOAH for the ass ignment of an

Administrative Law Judge and the conduct of a formal hearing.

On May 31, 2018, the School Board filed a Motion to

Dismiss, arguing that the proper responding party in this case

should be the Florida Department of Education, because it sets

th e standards for and is statutorily mandated to administer the

Best and Brightest Program. See § 1012.731(2), Fla. Stat. The

Motion to Dismiss was denied by Order dated June 11, 2018.

The case was originally scheduled for final hearing on

August 22 and 23 , 2018. A joint motion for continuance was

granted on August 16, 2018, and the case was rescheduled for

October 10, 2018. On October 8, 2018, the parties filed a joint

motion again seeking continuance due to the hurricane watch then

in effect along the N ortheast Florida coast. The continuance

was granted and the case was ulti mately rescheduled for

December 14, 2018, on which date it was convened and completed.

At the outset of the hearing, the parties stipulated to the

admission of Joint Exhibits 1 throu gh 18, which included the

depositions of each Petitioner and of Msoutman. At the

hearing, each of the Petitioners testified on her own behalf.

The School Board presented the testimony of Msoutman, who is

the School BoardÓs d irector of Instruction al Personnel ; Mallory

McConnell, the principal of Lakeside Junior High School o f

Orange Park ; and Janice Tucker, assistant principal at Orange

Park H igh School. The School BoardÓs Exhibits 4, 6 through 9,

19, 22, and 23 were admitted into evidence.

The one - volume Transcript of the hearing was filed at DOAH

on January 9, 2019. An unopposed extension of the time for

filing proposed recommended orders was granted ore tenus on

January 17, 2019. In compliance with the deadline set by the

oral extension Orde r, Petitioners filed their Proposed

Recommended Order on January 31, 2019. The School Board filed

its Proposed Recommended Order on February 1, 2019, along with

an unopposed motion to deem its p roposed r ecommended o rder

timely filed. Given the minimal ta rdiness of the School BoardÓs

filing and the lack of opposition from Petitioners, the School

BoardÓs motion is hereby granted. The School BoardÓs Proposed

Recommended Order has been duly considered in the writing of

this Recommended Order.

FINDING S OF FAC T

1. In 2015, the Legislature enacted, by way of a line item

in the annual appropriations bill, the Best and Brightest

Program to award cash scholarships to Florida teachers who have

been evaluated as Ðhighly effectiveÑ by their school districts

and who s cored at or above the 80th percentile (top 20%) on the

SAT or ACT when they took the test. Ch. 2015 - 232, § 2, line

item 99A, Laws of Fla. 1/

2. In 2016, the Legislature enacted a stand - alone statute

for the Best and Brightest Program, codifying the approp riations

bill language and providing that the program is to be

administered by the Department of Education (the ÐDepartmentÑ).

Ch. 2016 - 62, § 25, Laws of Fla., codified at § 1012.731, Fla.

Stat. (2016). Rather than enacting a statutory scholarship

amount , subsection (5) of the 2016 version of section 1012.731

provided that the scholarships would be awarded to every

eligible classroom teacher Ðin the amount provided in the

General Appropriations Act. Ñ 2/

3. The 2016 statute also explained that the Best a nd

Brightest Program was intended to provide Ðcategorical funding

for scholarships to be awarded to classroom teachers, as defined

in s. 1012.01(2)(a), who have demonstrated a high level of

academic achievement.Ñ £ 1012.731(2), Fla. Stat. (2016).

4. Sect ion 1012.01(2) defines Ðinstructional personnel,Ñ

including Ðclassroom teachers,Ñ as follows:

(2) INSTRUCTIONAL PERSONNEL. Ï

ÐInstructional personnelÑ means any K - 12

staff member whose function includes the

provision of direct instructional services

to st udents. Instructional personnel also

includes K - 12 personnel whose functions

provide direct support in the learning

process of students. Included in the

classification of instructional personnel

are the following K - 12 personnel:

(a) Classroom teachers . -- Classroom teachers

are staff members assigned the professional

activity of instructing students in courses

in classroom situations, including basic

instruction, exceptional student education,

career education, and adult education,

including substitute te achers.

(b) Student personnel services . -- Student

personnel services include staff members

responsible for: advising students with

regard to their abilities and aptitudes,

educational and occupational opportunities,

and personal and social adjustments;

providing pla cement services; performing

educational evaluations; and similar

functions. Included in this classification

are certified school counselors, social

workers, career specialists, and school

psychologists.

(c) Librarians/media specialists . --

Librarians/medi a specialists are staff

members responsible for providing school

library media services. These employees are

responsible for evaluating, selecting,

organizing, and managing media and

technology resources, equipment, and related

systems; facilitating acces s to information

resources beyond the school; working with

teachers to make resources available in the

instructional programs; assisting teachers

and students in media productions; and

instructing students in the location and use

of information resources.

(d) Other instructional staff . -- Other

instructional staff are staff members who

are part of the instructional staff but are

not classified in one of the categories

specified in paragraphs (a) - (c). Included

in this classification are primary

specialists, learning resource specialists,

instructional trainers, adjunct educators

certified pursuant to s. 1012.57, and

similar positions.

(e) Education paraprofessionals . -- Education

paraprofessionals are individuals who are

under the direct supervision of an

in structional staff member, aiding the

instructional process. Included in this

classification are classroom

paraprofessionals in regular instruction,

exceptional education paraprofessionals,

career education paraprofessionals, adult

education paraprofession als, library

paraprofessionals, physical education and

playground paraprofessionals, and other

school - level paraprofessionals.

5. In 2017, the Legislature amended section 1012.731(3) to

establish that the scholarship award would be $6,000 for those

class room teachers rated Ðhighly effectiveÑ who also had the

requisite SAT or ACT scores:

(3)(a) To be eligible for a scholarship in

the amount of $6,000, a classroom teacher

must:

1. Have achieved a composite score at or

above the 80th percentile on either the SAT

or the ACT based on the National Percentile

Ranks in effect when the classroom teacher

took the assessment and have been evaluated

as highly effective pursuant to

s. 1012.34 in the school year immediately

preceding the year in which the scholarship

will be awarded, unless the classroom

teacher is newly hired by the district

school board and has not been evaluated

pursuant to s.1012.34.

* * *

(b) In order to demonstrate eligibility for

an award, an eligible classroom teacher must

submit to the school district, no later than

November 1, an official record of his or her

qualifying assessment score and, beginning

with the 2020 - 2021 school year, an of ficial

transcript demonstrating that he or she

graduated cum laude or higher with a

baccalaureate degree, if applicable. Once a

classroom teacher is deemed eligible by the

school district, the teacher shall remain

eligible as long as he or she remains

emp loyed by the school district as a

classroom teacher at the time of the award

and receives an annual performance

evaluation rating of highly effective

pursuant to s. 1012.34 or is evaluated as

highly effective based on a commissioner -

approved student learni ng growth formula

pursuant to s. 1012.34(8) for the 2019 - 2020

school year or thereafter.

Ch. 2017 - 116, § 46, Laws of Fla.

The 2017 amendment to section 1012.731 also added a new

subsection (3)(c), providing that lesser amounts could be

awarded to teache rs rated Ðhighly effectiveÑ or Ðeffective , Ñ

even if they could not demonstrate scores at or above the 80 th

percentile on the SAT or ACT:

(c) Notwithstanding the requirements of

this subsection, for the 2017 - 2018, 2018 -

2019, and 2019 - 2020 school years, any

classroom teacher who:

1. Was evaluated as highly effective

pursuant to s. 1012.34 in the school year

immediately preceding the year in wh ich the

scholarship will be awarded shall receive a

scholarship of $1,200, including a classroom

teacher who received an award pursuant to

paragraph (a).

2. Was evaluated as effective pursuant to

s. 1012.34 in the school year immediately

preceding the ye ar in which the scholarship

will be awarded a scholarship of up to $800.

If the number of eligible classroom teachers

under this subparagraph exceeds the total

allocation, the department shall prorate the

per - teacher scholarship amount.

This paragraph ex pires July 1, 2020.

Id .

6. By December 1 of each year, each school district must

submit to the Department the number of eligible classroom

teachers who qualify for the scholarship, as well as identifying

information regarding the schools to which the el igible

classroom teachers are assigned. § 1012.731(4)(a) - (c), Fla.

Stat.

7. For the 2017 - 2018 school year, the December 1, 2017,

submission deadline was extended to January 2, 2018, due to a

hurricane. The School BoardÓs deadline for teachers to apply

f or the scholarship was accordingly extended from November 1,

2017, to December 1, 2017.

8. By February 1 of each year, the Department is required

to disburse scholarship funds to each school district for each

eligible classroom teacher to receive a schola rship.

§ 1012.731(5), Fla. Stat. By April 1, each school district is

required to award the scholarship to each eligible classroom

teacher. § 1012.731(6), Fla. Stat.

9. In 2018, the Legislature amended section 1012.731 to

provide that a school district employee who is no longer a

classroom teacher may receive the $6,000 award if the employee

was a classroom teacher in the prior school year, was rated

highly effective, and met the requirements of this section as a

classroom teacher. § 1012.731(3)(b)2 ., F la. Stat. (2018). The

Legislature did not add a similar provision stating that former

classroom teachers who are still school district employees

remain eligible for the $1,200 and $800 awards.

§ 1012.731(3)(c)2 . , Fla. Stat. (2018).

10. The Legislature f unds the Best and Brightest Program.

The School Board had no role in creating the Best and Brightest

Program.

11. The School Board is required to determine the

eligibility of classroom teachers who qualify for the Best and

Brightest Program pursuant to the requirements of the statute.

12. Petitioners in this case claim entitlement only to the

$1,200 award established by the 2017 version of the statute.

13. Brenda Troutman, d irector of Instructional Personnel,

is the School Board employee in charge of the Best and Brightest

Program application and submission process. Msoutman has

worked for the School Board for 17 years. She has been a junior

high classroom teacher and an assistant principal and vice

principal at the high school level. Though no longer teaching

in the classroom, Msoutman retains her certifications in

math grades 5 - 9, exceptional student education (ÐESEÑ),

educational leadership , and school principal.

14. When working as a high school administrator,

Ms. Troutman was the maste r scheduler for her school, meaning

that she built the schedule for every teacher at the school.

This task required that she become very familiar with the School

BoardÓs course code directory.

15. Msoutman also had to understand the certification

s ystem in order to hire and assign teachers. If a teacher asked

to teach a certain course, Msoutman had to know both the

course requirements and the teacherÓs certifications to

determine whether the teacher was eligible to teach the course.

16. As p art of her current position in the School BoardÓs

human resources department, Msoutman is required to know the

School BoardÓs various job titles and descriptions. She is

responsible for replacing obsolete job descriptions and posting

current job descr iptions on the School BoardÓs website.

17. Msoutman testified as to how she manages the

application and submission process of the Best and Brightest

Program. She starts by making herself familiar with any changes

the Legislature may have made to the program. She then issues a

notice to teachers about the program and the current eligibility

requirements. For the 2017 - 2018 Best and Brightest Program,

Ms. Troutman prepared a draft email that Superintendent Addison

Davis reviewed and sent to all of the school districtÓs teachers

and administrators on September 28, 2017. The email explained

that to be eligible for the $6,000, $1,200 or $800 scholarship,

an applicant must meet the definition of classroom teacher as

set forth in section 1012.01(2)(a).

18. Ms. Troutman developed the School BoardÓs application

for the Best and Brightest Program, based upon her understanding

of the statutory requirements. All completed applications for

the Best and Brightest Program come into Ms. TroutmanÓs office.

Mso utman testified that s he received approximately

2,000 applications for the 2017 - 2018 award.

19. Msoutman, with the aid of her assistant, reviews

and verifies the information on the applications. If

Ms. Troutman has any questions about an application, she seeks

the opinion of her direct supervisor David Broskie, the d irector

of Human Resources. In some cases, they also have discussions

with Superintendent Davis and School Board A ttorney David

DÓAgata.

20. The School Board employs two major data pro grams.

FOCUS is the program/database that holds all student

information, including attendance, grades, disciplinary actions,

test information , and demographics. TERMS is the

program/database that houses all employee information. When

verifying informati on on the Best and Brightest Program

applications, Msoutman uses both FOCUS and TERMS , and on

occasion conducts additional investigation.

21. The School BoardÓs application asks for the teacherÓs

assignment. Because the application was titled Ð2017 - 2 018 Clay

County Application: Florida Best & Brightest Teacher

Scholarship,Ñ Ms. Troutman believed that the teachers were

required to provide their 2017 - 2018 teacher assignments.

22. As will be discussed in more detail below, the year of

the teacher assign ment was a major point of disagreement between

Petitioners and the School Board. The application provided a

checkmark system for the teacher to indicate which scholarship

was being sought. The $1,200 scholarship line provided as

follows:

I am applying fo r the $1,200.00 highly

effective scholarship.

I have attached a copy of my 2016 - 2017

highly effective final evaluation (with

student performance measures).

23. The applicationÓs language led Petitioners to believe

that the 2017 - 2018 scholarship awards w ould be based on their

teacher assignments and evaluations for 2016 - 2017. Msoutman

explained that this belief was incorrect. Eligibility for the

2017 - 2018 scholarship was based on a teacherÓs assignment for

the 2017 - 2018 school year. The plain langu age of the statute

requires that one must be a Ðclassroom teacherÑ in order to be

eligible for the scholarship; having been a classroom teacher in

a previous year does not suffice. Msoutman stated that she

verified with Mr. Broskie, Mr. Davis, and Mr. DÓAgata that the

School Board should base the award on the teacherÓs 2017 - 2018

assignment.

24. Petitioners, on the other hand, argue that the

statutory language requires only an evaluation of Ðhighly

effectiveÑ for the 2016 - 2017 school year. The statute is silent

as to whether a teacher applying for the $1,200 scholarship must

be teaching in a classroom situation during the 2017 - 2018 school

year. Petitioners argue that the School Board is reading a

requirement into the statute that is not evident from t he plain

language.

25. Msoutman further explained that the applications

for the 2017 - 2018 scholarships were to be submitted prior to the

conclusion of the 2017 - 2018 school year. Therefore, as required

by section 1012.731(3)(a)1 . and (3) (c), the ap plication

requested the evaluation for Ðthe school year immediately

preceding the year in which the scholarship will be awarded.Ñ

26. Msoutman testified that it is sometimes obvious

from the teaching assignment that the teacher qualifies as a

Ðcl assroom teacher.Ñ If an application states that the

assignment is Ðchemistry teacherÑ or Ðalgebra teacherÑ or Ðfifth

grade classroom teacher,Ñ it is clear that the applicant meets

the definition. Aside from verifying the assignment in the

TERMS database, Msoutman takes no further action.

27. However, some applications require additional research

before Msoutman can conclude that the applicant qualifies as

a classroom teacher. For example, Petitioner Abbie Andrews

identified her assignment on h er application as Ðclassroom

teacher.Ñ Ms. Troutman went to TERMS and saw that Ms. Andrews

was designated as an ÐESE Support FacilitatorÑ for the 2017 - 2018

school year. Msoutman testified that ESE Support

Facilitators are sometimes assigned to teach classes and

therefore could be classified as Ðclassroom teachersÑ for

purposes of the Best and Brightest Program. Msoutman

examined both the master schedule and the teacherÓs personal

account in FOCUS to determine whether Ms. Andrews was assigned

to t each any courses. Ms. Andrews had no teaching assignments

for 2017 - 2018 in FOCUS.

28. Ms. Andrews and fellow Petitioners Cherry Deaton,

Donna Foster, and Danielle Perricelli held the position of ESE

Support Facilitator during the 2017 - 2018 school year. The

School Board concluded that these Petitioners did not qualify

for the $1,200 scholarship because their schedules did not

assign them the professional activity of instructing students in

courses in a classroom situation, as required by the statute.

It was undisputed that these Petitioners had been rated Ðhighly

effectiveÑ for the 2016 - 2017 school year. It was also

undisputed that Ms. Andrews, Ms. Deaton, and Ms. Foster met the

statutory definition of a classroom teacher for the 2016 - 2017

school year.

29. The School BoardÓs general job description for an ESE

Support Facilitator provides as follows:

The teacher is responsible directly to the

Principal. He/she provides for the

instruction, supervision, and evaluation of

assigned students on an as neede d basis .

He/she supports both general education and

ESE teachers. He/she serves in a staff

relationship with other teachers and

supports and promotes ESE inclusion

activities. (Emphasis added) .

30. The School Board contrasts this job description with

that of ÐClassroom Teacher,Ñ which provides: ÐThe teacher is

responsible directly to the principal for the instruction,

supervision, and evaluation of students.Ñ The classroom teacher

is fully responsible for the Ðinstruction, supervision, and

evaluation Ñ of the students in her classroom, whereas the ESE

Support Facilitator performs those activities only Ðas needed.Ñ

31. The School Board also points out that, unlike a

classroom teacher, an ESE Support Facilitator is not required to

be certified in - fiel d for the position. The ESE Support

Facilitator is not the teacher of record for any particular

course. Their schedule is fluid. The ESE Support Facilitator

comes and goes as needed (Ðpushes in,Ñ to use the teaching

vernacular) in the classroom , and is expected to be wherever the

ESE student assigned to them needs their services. Sometimes

they push into the classroom and sometimes they pull students

out of the class to work on a specific concept or skill.

32. An ESE Support Facilitator is assigned Ð contact

studentsÑ for whom individualized educational plans (ÐIEPsÑ) are

prepared . The classroom teacher of record is responsible for

giving the student course credit or a grade and is responsible

for recording attendance in FOCUS. One - third of the class room

teacherÓs evaluation is tied to student performance. Only the

classroom teacher has default access to FOCUS in order to enter

attendance and grade information for the students in the class.

An ESE Support Facilitator must seek and be granted access to

studentÓs FOCUS information.

33. An ESE Support Facilitator is expected to meet with

each contact student at least once a month; in practice, these

meetings tend to occur more frequently. The ESE Support

Facilitator goes over accommodations the studen t needs and

assignments the student did not understand. The f acilitator

reteaches the course material if need be and stays in touch with

the studentÓs teachers and parents, making sure all stakeholders

in the studentÓs success are on the same page.

34. The evidence presented at the hearing indicated that

all of the students served by the ESE Support Facilitators in

this case attended classes in regular classrooms, not in

separate ESE classes. In such ÐinclusionÑ classes, the ESE

Support FacilitatorÓs role is to push in and assist contact

students in the regular classroom, ensuring that their IEP

requirements are met and that the students are progressing

satisfactorily through the course material.

35. Based on these definitional and operative

distinct ions, Msoutman considered ESE Support Facilitators

to be Ðother instructional staffÑ as defined by section

1012.01(2)(d), rather than Ðclassroom teachersÑ as defined by

section 1012.01(2)(a).

36. Ms. Andrews was employed as an ESE Support Facilitator

at Middleburg High School during the 2016 - 2017 school year. She

taught two periods of Engli sh and spent the remaining

four periods fulfilling her ESE duties. She was evaluated as

Ðhighly effective.Ñ As noted above, there was no dispute that

Ms. Andrews met the definition of a Ðclassroom teacherÑ for the

2016 - 2017 school year.

37. During the 2017 - 2018 school year, Ms. Andrews was a

full - time ESE Support Facilitator at Middleburg High School, not

assigned to teach any courses. In FOCUS, she was assigned as

the Ðcontact teacherÑ for approximately 60 students, meaning

that she was primarily responsible for writing their IEPs and

ensuring that they made adequate progress in their classes. She

met with all of her contact students on an as needed basis, at

le ast once per month but ofte n as much as twice per week.

However, Ms. Andrews was not listed in FOCUS as the teacher of

record for any class.

38. Even though she routinely pushed into classes to

support her assigned ESE students, Ms. Andrews was not the

primary teacher of record. She was there to assist her contact

students with whatever they needed to learn the course, but the

course was not assigned to her to teach. Ms. Andrews did not

have a traditional classroom. She was not the teacher of record

i n any course for which students received academic credit , and

she did not assign grades to students for the material she was

teaching. Ms. Andrews prepared IEPs that were individualized to

particular contact students. She did not prepare daily lesson

pla ns in the manner of a classroom teacher.

39. Ms. Andrews described her job as an ESE Support

Facilitator as follows:

My job is to teach, mentor, challenge

students to make them -- make them ready for

graduation, become productive members of

society. I be lieve thatÓs the same thing a

classroom teacher does. I am using the

Florida standards to prepare lessons for

rem ediation if a student needs it. I am

constantly having conversations with not

just students, but their parents, keeping

them on track or maki ng sure their students

are on track because ultimately, a parent

wants that student to graduate on time as

well.

I believe that the questions that are asked

of me as a support facilitator are the same

questions that parents would ask of a

classroom teache r because they are very

concerned. I am not just answering

questions based on one classroom. I'm

answering questions based on six classes.

I'm responsible for that student being

successful in six classes.

The IEPs that I write, they're legally

binding. I am involved in the academics,

behavior, discipline. I deal with

discipline problems. All of these things

are the same things that a classroom teacher

would deal with. I do not have a schedule

in Focus; however, when a need arises, I'm

there, I'm in a classroom, I'm helping, and

I'm doing what's needed to be done for the

kids to be successful.

40. Ms. Deaton was employed as an ESE Support Facilitator

at Middleburg High School during the 2016 - 2017 school year. She

taught two periods of Engli sh and s pent the remaining

four periods fulfilling her ESE duties. She was evaluated as

Ðhighly effective.Ñ As noted above, there was no dispute that

Ms. Deaton met the definition of a Ðclassroom teacherÑ for the

2016 - 2017 school year.

41. In 2017 - 2018, Ms. Dea ton was a full - time ESE Support

Facilitator at Middleburg Hig h School, with approximately

60 contact students assigned to her in FOCUS. She was not

assigned to teach any courses. If she pushed into a class to

support her assigned ESE students, she was no t the primary

teacher of record. She was not designated as a co - teacher, 3/ but

she would assist teaching classes on an as - needed basis if she

was not busy testing students or preparing IEPs. For those

classes, she was provided access to view grades in FO CUS, but

she did not have access to give grades. She would meet students

as needed in her office, in another teacher's classroom, or in

the computer lab. She did not develop lesson plans on her own,

but provided suggestions and advice on lesson plans to the

primary teacher. As an ESE Support Facilitator, Ms. Deaton did

not have a classroom or teach a classroom full of students. She

had no schedule assigned to her in FOCUS, but had contact

students assigned to her in FOCUS.

42. Ms. Foster was employed a s an English/ l anguage a rts

and ESE Inclusion Teacher during the 2016 - 2017 school year. She

taught four classes as ESE i nclusion t eacher. The remaining two

periods were devoted to her position as ESE d epartment h ead.

Ms. Foster had a schedule in FOCUS. She had her own classroom

and students, prepared daily lesson plans, and assigned grades.

Students in her classes received academic credit. Ms. Foster

was evaluated as Ðhighly effective.Ñ As noted above, there was

no dispute that Ms. Foster met the defi nition of a Ðclassroom

teacherÑ for the 2016 - 2017 school year.

43. Ms. Foster was employed as an ESE Support Facilitator

and ESE d epartment h ead during the 2017 - 2018 school year. She

retired at the end of the school year, effective June 7, 2018.

As an E SE Support Facilitator, Ms. Foster did not have a set

schedule. Ms. FosterÓs assigned ESE students did not receive

academic credit for the services she provided, but her

assistance was integral in helping them pass their courses.

44. Ms. Foster assisted with an American history class

during the 2017 - 2018 school year, but was not assigned as the

primary teacher in FOCUS. Ms. Foster testified that she did not

believe she had ever been identified as a co - teacher in FOCUS,

though she thought she should hav e been.

45. Ms. Foster testified that she had IEPs for the

American history class that listed both the class setting and

the service delivery method as Ðco - teach.Ñ She explained that

because the class had both general education and ESE students,

the te acher had to be certified in both the subject matter and

ESE. Because the primary teacher was certified only in the

subject matter, it was necessary for Ms. Foster to co - teach the

class. Ms. Foster testified that she split lesson plan

preparation with th e primary teacher.

46. Ms. Foster believed she was not listed in FOCUS as the

co - teacher because the school administration never bothered to

remove the name of Kristin Heard, the ESE teacher originally

assigned to the class, who was moved to a science cla ss early in

the year. Ms. Foster pursued the matter with the assistant

principals at Lakeside Junior High, but nothing came of it.

47. Mallory McConnell, the principal at Lakeside Junior

High School during the 2017 - 2018 school year, confirmed that

Ms. Foster was not listed as a co - teacher on the master

schedule. Ms. McConnell testified that in 2017 - 2018 there were

no Ðtrue co - teacherÑ situations, by which she meant two teachers

who equally shared responsibility for the instruction and

grading of every student in the class. Ms. McConnell was aware

of situations in which a studentÓs IEP mandates co - teaching in a

class, but she testified that she was unaware of any student at

Lakeside Junior High School in 2017 - 2018 whose IEP required a

co - teacher.

48. Ms. McConnell conducted infrequent walkthrough

observations of the American history class. She testified that

she saw Ms. Foster providing support services to the ESE

students but never saw Ms. Foster teaching at the front of the

class. Ms. McConnell s tated that she would not have expected to

see Ms. Foster teaching the class or creating lesson plans for

the class as a whole because those tasks were not her job

responsibility.

49. Ms. McConnell was in n o position to state whether

Ms. Foster did, in f act, prepare lesson plans and teach the

class. Ms. McConnell was able to state that for at least

one month during the school year , Ms. Foster administered tests

to her ESE students, meaning that she could not have been co -

teaching the American history cla ss.

50. Ms. Foster did not tell Msoutman that she had

assisted teaching the American history class during the 2017 -

2018 school year, nor did she include such information on her

application for the Best and Brightest Program, because she

believed the a ward was based upon her position in 2016 - 2017 and

because she believed the school administrationÓs failure to

include her as teacher of record in FOCUS was an Ðin - houseÑ

issue.

51. Ms. Perricelli was employed as an ESE Support

Facilitator, ESE d epartment h ead, and MTSS i ntervention t eam

f acilitator at Orange Park Junior High School. ÐMTSSÑ is an

acronym for Multi - Tiered System of Support, a framework for

providing support to students who are struggling academically or

have an identified need in a specific area such as speech,

language, or behavior. MTSS interventions may be used for

regular education or ESE students.

52. Ms. Perricelli testified that she was not the teacher

assigned by FOCUS for any class in 2016 - 2017. In addition to

her regular ESE d uties, Ms. Perricelli taught Ðgrade recoveryÑ

to two students in language arts, science , and math. Grade

recovery is a class offered to students who have failed a course

and lack the credits to move o n to the next grade level.

Ms. Perricelli designed les son plans and curriculum assessments

for each subject, graded papers and tests, and reported the

studentsÓ grades to the school.

53. Ms. Perricelli testified that she was not given the

authority to enter the grade recovery studentsÓ grades into

FOCUS i n 2016 - 2017. She requested a course code but was never

provided one.

54. Ms. Perricelli taught grade recovery for two periods,

one for each student. For the other four periods of the school

day, Ms. Perricelli would push into classrooms and work with E SE

students, usually in small groups with students who needed

remediation. She had around 40 contact students and developed

IEPs for each of them. Most of her contact students were in the

classrooms that she was going into, so she would see them

througho ut the week. She would meet with her other contact

students about once a week. Ms. Perricelli would work with the

assigned teacher to modify the course material to meet the needs

of the ESE students.

55. Ms. Perricelli was evaluated as Ðhighly effective Ñ for

the 2016 - 2017 school year, based on standard classroom teacher

criteria. She was observed working with her grade recovery

students and in the classrooms in which she pushed in.

56. Ms. Perricelli testified that her assignments were the

same for th e 2017 - 2018 school year. She taught one student in a

grade recovery course. Due to her persistence, Ms. Perricelli

was able to get a course code from Msoutman for the grade

recovery course in 2017 - 2018. The grade recovery course was

named ÐUnique Sk ills.Ñ

57. In 2017 - 2018, Ms. Perricelli was as signed around

70 contact students for whom she prepared IEPs. As department

head, Ms. Perricelli oversaw 22 ESE instructors. She was the

only ESE S upport F acilitator at the school.

58. Janice Tucker was vice principal at Orange Park Junior

High School in 2017 - 2018. She testified that early in the

school year, the assigned teacher for seventh grade math left

for another county. A long - term substitute, Lashonda Campbell,

took over as teacher of record.

59 . Ms. Perricelli testified that she developed some of

the curriculum in Ms. CampbellÓs math classes, which included

ESE and non - ESE students. She stated that she taught the class

alone once a week when Ms. Campbell started, then tapered off

into pulling out small groups of ESE students who needed

remediation. She worked with four periods of seventh grade math

classes that year. Ms. Perricelli testified that she gave

grades to students in tho se courses and gave them to

Ms. Campbell for entry into FOCUS.

60. Ms. Tucker testified that Ms. Perricelli was not a co -

teacher for the math class. Ms. Campbell was the teacher of

record. Ms. Tucker testified that when she observed the math

class, she saw Ms. Perricelli working with small groups in the

back of t he class or at a table in the hallway, and Ms. Campbell

at the front teaching the class. Ms. Tucker never saw

Ms. Perricelli at the front of the class teaching. Ms. Tucker

conceded that she had no knowledge whether Ms. Perricelli was

involved in creating lesson plans or assigning grades for the

math class.

61. Ms. Perricelli was evaluated by Ms. Tucker for the

2017 - 2018 school year. Ms. Tucker observed Ms. Perricelli in

the seventh grade math class and in the Unique Skills class.

Ms. Perricelli was aga in rated Ðhighly effective.Ñ

62. Ms. Perricelli testified that she did not mention

teaching the math class on her s cholarship application. She

stated that she did not tell Msoutman about the math class

because at the time , the school was still attemp ting to get a

full - time teacher for the class.

63. Ms. Troutman obviously knew about the ÐUnique SkillsÑ

class, having issued the cour se code to Ms. Perricelli.

Ms. Troutman testified that she consulted with Mr. Broskie and

Mr. DÓAgata as to whether ha ving one assigned class in FOCUS

should qualify Ms. Perricelli for the s cholarship. They

concluded that teaching one class with one student was

insufficient to qualify as a Ðclassroom teacherÑ for purposes of

the Best and Brightest Program.

64. Mso utman testified that this conclusion was

consistent with the School BoardÓs historic practice of

considering two or more classes as the ÐcutoffÑ for a classroom

teacher. Msoutman believed that if an ESE Support

Facilitator taught two classes, then s he would qualify as a

Ðclassroom teacher.Ñ

65. Petitioner Easter Brown taught a fourth grade

classroom at Grove Park Elementary School during the 2016 - 2017

school year and was rated Ðhighly effective .Ñ It is not

disputed that Ms. Brown met the definition of a Ðclassroom

teacherÑ for the 2016 - 2017 school year.

66. In 2017 - 2018, Ms. Brown was a full - time SPRINT

s pecialist. ÐSPRINTÑ stands for Supervisor of Pre - Interns and

New Teachers. SPRINT s pecialist is a support position for

teacher trainees and new teachers, operating under an agreement

between the School Board and the University of North Florida

(ÐUNFÑ), each of which pays half of the SPRINT s pecialistÓs

salary. Ms. Brown taught field classes at UNF and conducted

workshops for clinical educator tra ining and professional

development.

67. Ms. Brown kept Grove Park Elementary as her home base

and shared a classroom there with two other teachers. She

taught UNF students in classes at the university and worked with

new teachers at the school. She es timated that she spent half

her time at UNF and half at Grove Park Elementary.

68. Ms. Brown had no K - 12 courses or K - 12 students

assigned to her in 2017 - 2018 . She had no courses assigned to

her in FOCUS. She gave grades to only UNF students. Ms. Brown

did not create traditional lesson plans but did assist new

teachers in writing lesson plans. Ms. Brown testified that she

did some teaching in a regular classroom for purposes of

modeling teaching techniques for her student teachers.

CONCLUSIONS OF LA W

69. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2018).

70. Section 1012.731(4) places upon the School Board the

respons ibility of determining in the first instance whether a

classroom teacher qualifies for a Best and Brightest Program

scholarship. Petitioners challenge the School Board's denial of

their applications for Best and Brightest Program scholarships.

As the par ties seeking affirmative relief, Petitioners bear the

burden of proving by a preponderance of the evidence that they

are entitled to the award. DepÓt of Transp. v. J.W.C. Co. , 396

So. 2d 778 (Fla. 1st DCA 1981). A preponderance of the evidence

is defined as Ðthe greater weight of the evidence,Ñ or evidence

that Ðmore likely than notÑ tends to prove a certain

proposition. Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla.

2000).

71. This case presents two questions. First, does section

1012.731(3)(c)1 . requi re a $1,200 scholarship recipient to be a

classroom teacher at the time the award is made? Second, if the

answer to the first question is affirmative, did any or all of

Petitioners meet the definition of Ðclassroom teacherÑ at the

time the scholarships fo r the 2017 - 2018 school year were

awarded?

72. As to the first question, Petitioners note that to

qualify for the $6,000 scholarship under section 1012.731(3)(a),

a classroom teacher must: (1) have achieved a composite score

at or above the 80 th percentil e on either the ACT or SAT based

on National Percentile Ranks in effect when the classroom

teacher took the exam; and (2) have been evaluated Ðhighly

effectiveÑ in the school year immediately preceding the year in

which the scholarship will be awarded. § 1012.731(3)(a)1., Fla.

Stat. Petitioners further note a third requirement for the

$6,000 scholarship: once a classroom teacher has been deemed

eligible by the school district, the teacher remains eligible

Ðas long as he or she remains employed by the sch ool district as

a classroom teacher at the time of the award,Ñ in addition to

receiving an annual performance evaluation rating of highly

effective. § 1012.713(3)(b), Fla. Stat.

73. Petitioners contr ast the criteria for the

$6,000 scholarship with the el igibility statement for the

$1,200 scholarship: any classroom teacher who was evaluated as

highly effective in the school year immediately preceding the

year in which the scholarship will be awarded. There is no

language about a qualifying ACT or SAT tes t score and no

language requiring the teacher to remain employed by the school

district as a classroom teacher at the time of the award.

74. Petitioners argue that the preliminary language of

paragraph (3)(c), ÐNotwithstanding the requirements of this

s ubsection,Ñ renders this paragraph a standalone provision. The

ÐnotwithstandingÑ clause evinces a legislative intent that the

only qualification for awarding the $1,200 scholarship is

whether the teacher was evaluated as Ðhighly effectiveÑ in the

school y ear immediately preceding the year in which the

scholarship is awarded. The Legislature manifested its intent

not to employ the criteria concerning ACT/SAT scores or

continuing employment as a classroom teacher at the time of the

award by stating that par agraph (3)(c) applied ÐnotwithstandingÑ

the other requirements of subsection (3).

75. In Cisneros v. Alpine Ridge Group , 508 U.S. 10, 18

(1993), Justice White, writing for a unanimous Court, stated

that the use of a ÐnotwithstandingÑ clause in a statute

clearly signals the drafterÓs intention that

the provisions of the ÐnotwithstandingÑ

section override conflicting provisions of

any other section . . . . Likewise, the

Courts of Appeals generally have

"interpreted similar 'notwithstanding'

language . . . to supersede all other laws,

stating that '"[a] clearer statement is

difficult to imagine."'" Liberty Maritime

Corp. v. United States , 289 U.S. App. D.C.

1, 4, 928 F.2d 413, 416 (1991)( quoting

Crowley Caribbean Transport, Inc. v. United

States , 275 U.S. A pp. D.C. 182, 184, 865

F.2d 1281, 1283 (1989) (in turn

quoting Illinois National Guard v. FLRA 272

U.S. App. D.C. 187, 194, 854 F.2d 1396, 1403

(1988)). [Other citations omitted] .

76. The quoted language from Cisneros appears generally to

support Petit ionersÓ contention that the express use of the term

ÐnotwithstandingÑ excludes the requirements for the

$6,000 scholarship from applying as requirements for the

$1,200 scholarship. Case law makes it clear, however, that a

ÐnotwithstandingÑ clause does not automatically annul the

application of other portions of a statute. Cisneros itself

limits the effect of the ÐnotwithstandingÑ clause to an override

of conflicting provisions in any other section of the statute.

In Consejo de Desarrollo Economico de Mex icali, A.C. v. United

States , 482 F.3d 1157, 1168 - 69 (9 th Cir. 2007), the court

stated:

The fact that the [Tax Relief and Health

Care Act of 2006] used the phrase

Ðnotwithstanding any other provision of lawÑ

is not dispositive. United States v. Novak ,

476 F.3d 1041, 1046 - 47 (9 th Cir. 2007)(en

banc). Indeed, Ð[w]e have repeatedly held

that the phrase 'notwithstanding any other

provision of law' is not always construed

literally." Or. Natural Res. Council v.

Thomas , 92 F.3d 792, 796 (9 th Cir. 1996).

Rathe r, when the phrase is used, we have

determined its reach by Ðtaking into account

the whole of the statutory context in which

it appears." Novak , 476 F.3d at 1046. In

viewing the statutory context, we attempt

"to give effect, if possible, to every

clause and word of a statute, rather than to

emasculate an entire section," Estate of

Reynolds v. Martin , 985 F.2d 470, 473 (9 th

Cir 1993), mindful that "[t]he cardinal

principle of statutory construction is to

save and not to destroy . " I d . [4/]

77. The School Board points out that, even if the

ÐnotwithstandingÑ clause is given the effect urged by

Petitioners, subsection (3)(c) still goes on to use the term

Ðclassroom teacher.Ñ Nothing in the language of subsection

(3)(c) indicates that Ðclassroom teacherÑ sho uld be read as

Ðformer classroom teacherÑ or otherwise in the past tense. The

plain language of subsection (3)(c) requires that an applicant

for a $1,200 scholarship be a classroom teacher and have

received an evaluation of Ðhighly effectiveÑ in the most recent

preceding school year.

78. The School Board argues that the ÐnotwithstandingÑ

clause is intended to refer to the ACT/SAT test requirement of

subsections (3)(a) and (3)(b). Subsection (3)(c) establishes a

ÐstepdownÑ scholarship for current classr oom teachers who have

been evaluated as Ðhighly effectiveÑ but lack the college

admissions testing scores n eeded to qualify for the

$6,000 scholarship; it is not intended as a reward to former

classroom teachers for a job well done last year.

79. The S chool Board contends that its interpretation of

the ÐnotwithstandingÑ clause is supported by the 2018 amendment

to section 1012.731(3) that added a new subparagraph 2 . to

subsection (3)(b) governing the $6,000 award:

2. A school district employee who is no

longer a classroom teacher may receive an

award if the employee was a classroom

teacher in the prior school year, was rated

highly effective, and met the requirements

of this section as a classroom teacher.

80. Peti tioners counter that the 2018 language supports

their position, by clarifying that school district employees may

qualify for the $6,000 scholarship even though they are no

longer classroom teachers. Petitioners argue that no such

amendment was necessary f or the $1,200 or $800 scholarships

because they were already available to former classroom

teachers.

81. The undersigned concludes that the School Board has

the better argument as to the interpretation of subsection

(3)(c), though PetitionersÓ position is quite defensible. The

statute is no model of clarity. Keeping in mind the principle

that the preferred reading is one that gives effect, if

possible, to every clause and word of the statute, it seems

clear enough that the ÐnotwithstandingÑ clause is not meant to

eliminate the requirement that a scholarship awardee must be a

classroom teacher at the time of the award.

82. The 2018 amendment introduced a new term into

subsection (3)(b): Ðschool district employee who is no longer a

classroom teacher.Ñ No such term is present in subsection

(3)(c). Also, section 1012.731(4) provides:

(4) Annually, by December 1, each school

district shall submit to the department:

(a) The number of eligible classroom

teachers who qualify for the scholarship .

(b) T he name and master school

identification number (MSID) of each school

in the district to which an eligible

classroom teacher is assigned.

(c) The name of the school principal of

each eligible classroom teacherÓs school if

he or she has served as the scho olÓs

principal for at least 2 consecutive school

years including the current school year.

83. Like subsection (3)(c), subsection (4) is written

entirely in the present tense. On each December 1, a school

district must submit to the Department the number of eligible

classroom teachers who qualify for the scholarship, the name and

identifying number of each school to which an eligible classroom

teacher is assigned, and the name of the principal of the

eligible classroom teacherÓs school. None of these ite ms

references previous years and all of them carry the implication

that an Ðeligible classroom teacherÑ is one who is teaching in

the classroom on December 1 of the current school year.

84. Having determined that section 1012.731(3)(c) requires

that elig ibility for a $1,200 scholarship requires that the

awardee be a classroom teacher at the time of the award, the

undersigned must resolve the second question: whether any or

all of Petitioners were classroom teachers during the 2017 - 2018

school year.

85. To reiterate, section 1012.01(2)(a) provides:

(a) Classroom teachers . -- Classroom teachers

are staff members assigned the professional

activity of instructing students in courses

in classroom situations, including basic

instruction, exceptional student edu cation,

career education, and adult education,

including substitute teachers.

86. Classroom teachers are assigned to instruct students

in ÐcoursesÑ in Ðclassroom situations.Ñ The term ÐcourseÑ is

not defined as such, but section 1003.01(14) and (15) , Fl orida

Statutes (2018) , provide the essential list of what constitutes

a ÐcourseÑ for purposes of public K - 12 education:

(14) ÐCore - curricula coursesÑ means:

(a) Courses in language arts/reading,

mathematics, social studies, and science in

prekindergarten through grade 3, excluding

extracurricular courses pursuant to

subsection (15);

(b) Courses in grades 4 through 8 in

subj ects that are measured by state

assessment at any grade level and courses

required for middle school promotion,

excluding extracurricular courses pursuant

to subsection (15);

(c) Courses in grades 9 through 12 in

subjects that are measured by state

asses sment at any grade level and courses

that are specifically identified by name in

statute as required for high school

graduation and that are not measured by

state assessment, excluding extracurricular

courses pursuant to subsection (15);

(d) Exceptional student education courses;

and

(e) English for Speakers of Other Languages

courses.

The term is limited in meaning and used for

the sole purpose of designating classes that

are subject to the maximum class size

requirements established in s. 1, Art. IX of

the State Constitution. This term does not

include courses offered under

ss. 1002.321(4)(e), 1002.33(7)(a)2.b.,

1002.37, 1002.45, and 1003.499. [5/]

(15) ÐExtracurricular coursesÑ means all

courses that are not defined as Ðcore -

curricula courses,Ñ whi ch may include, but

are not limited to, physical education, fine

arts, performing fine arts, career

education, and courses that may result in

college credit. The term is limited in

meaning and used for the sole purpose of

designating classes that are not subject to

the maximum class size requirements

established in s. 1, Art. IX of the State

Constitution.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Clay County School Board enter a

final order:

1. Finding that Petitioners Abbie Andrews, Cherry Deaton,

and Donna Foster were not eligible for a $1,200 scholarship

under the 2017 Florida Best and Brightest Teacher Scholarship

Program because they were not classroom teachers during the

2017 - 2018 schoo l year ; and

2. Finding that Petitioners Easter Brown and Danielle

Perricelli were eligible for a $1,200 scholarship under the

2017 Florida Best and Brightest Teacher Scholarship Program

because they were classroom teachers during the 2017 - 2018 school

year , and directing staff to take all practicable measures to

secure the scholarship monies for Ms. Brown and Ms. Perricelli .

DONE AND ENTERED this 18th day of March , 2019 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 Admini strative Hearings

this 18th day of March , 2019 .

ENDNOTE S

1/ The line item provided as follows:

99A SPECIAL CATEGORIES GRANTS AND AIDS -- THE

FLORIDA BEST AND BRIGHTEST TEACHER

SCHOLARSHIP PROGRAM FROM GENERAL REVENUE

FUND . . . . . 44,022,483

Fund s in Specific Appropriation 99A are

provided to implement Florida's Best and

Brightest Teacher Scholarship Program. The

funds shall be used to award a maximum of

4,402 teachers with a $10,000 scholarship

based on high academic achievement on the

SAT or AC T. To be eligible for a

scholarship, a teacher must have scored at

or above the 80th percentile on either the

SAT or the ACT based upon the percentile

ranks in effect when the teacher took the

assessment and have been evaluated as highly

effective pursuan t to section 1012.34,

Florida Statutes, or if the teacher is a

first - year teacher who has not been

evaluated pursuant to section 1012.34,

Florida Statutes, must have scored at or

above the 80th percentile on either the SAT

or the ACT based upon the percent ile ranks

in effect when the teacher took the

assessment. In order to demonstrate

eligibility for an award, an eligible

teacher must submit to the school district,

no later than October 1, 2015, an official

record of his or her SAT or ACT score

demonstrat ing that the teacher scored at or

above the 80th percentile based upon the

percentile ranks in effect when the teacher

took the assessment. By December 1, 2015,

each school district, charter school

governing board, and the Florida School for

the Deaf and the Blind shall submit to the

department the number of eligible teachers

who qualify for the scholarship. By

February 1, 2016, the department shall

disburse scholarship funds to each school

district for each eligible teacher to

receive a scholarship. By April 1, 2016,

each school district, charter school

governing board, and the Florida School for

the Deaf and the Blind shall provide payment

of the scholarship to each eligible teacher.

If the number of eligible teachers exceeds

the total the department sh all prorate the

per teacher scholarship amount.

2/ The 2016 appropriations bill provided:

103 SPECIAL CATEGORIES GRANTS AND AIDS -- THE

FLORIDA BEST AND BRIGHTEST TEACHER

SCHOLARSHIP PROGRAM FROM GENERAL REVENUE

FUND . . . 49,000,000

Funds in Specific A ppropriation 103 are

provided to implement Florida's Best and

Brightest Teacher Scholarship Program as

provided in House Bill 5003, or similar

legislation. The amount disbursed shall

include a scholarship in the amount of up to

$10,000 to be awarded to ev ery eligible

classroom teacher. If the number of

eligible classroom teachers exceeds the

total appropriation, the department shall

prorate the per - teacher scholarship amount.

Ch. 2016 - 66, § 2, line item 103, Laws of Fla.

3/ A Ðco - teacherÑ shares respo nsibility for the instruction and

grading of all the students in a class, not just the ESE

students.

4/ Consejo de Desarrollo Economico de Mexicali is extensively

quoted with approval in Miccosukee Tribe of Indians of Fl orida

v . United States Army Corp o f Eng ineers , 619 F.3d 1289, 1298

(11 th Cir. 2010).

The undersigned is mindful that the cited Federal cases

deal with ÐnotwithstandingÑ clauses that arguably operate as

Ðgeneral repealing clauses,Ñ Miccosukee Tribe , 619 F.3d at 1297,

but finds their analys is useful in the situation presented by

the instant case.

5/ The cited statutes all have to do with virtual and online

courses, which would not implicate the maximum class size

requirements established in s. 1, Art. IX of the State

Constitution.

COPIES FURNISHED:

H. B. Stivers, Esquire

Levine & Stivers , LLC

245 East Virginia Street

Tallahassee, Florida 32301

(eServed)

Leonard J. Dietzen, III, Esquire

Rumberger, Kirk & Caldwell

Suite 120

101 North Monroe Street

Tallahassee, Florida 32301

(eServed)

N icole Smith, Esquire

Rumberger, Kirk & Caldwell

Suite 120

101 North Monroe Street

Tallahassee, Florida 3230 1

(eServed)

Addison Davis, Superintendent

Clay County Public Schools

900 Walnut Street

Green Cove Springs, Florida 32043 - 3129

Richard Corcoran

C ommissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Stree t

Tallahassee, Florida 32399 - 0400

(eServed)

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 w ith the agency that

will issue the Final Order in this case.