20-005137TTS Miami-Dade County School Board vs. Kathleen D. Quarles Status: Closed Recommended Order on Wednesday, June 23, 2021.

Summary: School Board proved by a preponderance of the evidence that just cause exists to suspend without pay for ten days Respondent's employment as a teacher for misconduct in office and violation of School Board policies.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M IAMI - D ADE C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 20 - 5137TTS

K ATHLEEN D. Q UARLES ,

Respondent .

/

R ECOMMENDE D O RDER

This case came before Administrative Law Judge Darren A. Schwartz of

the Division of Administrative Hearings (ÑDOAHÒ) for final hearing on

March 22, 2021, by Zoom conference.

A PPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 430

Miami, Florida 33132

For Respondent: Br a nden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

S TATEMENT OF T HE I SSUE

Whether just cause exists for Petitioner to suspend RespondentÔs

employment as a teacher, without pay, for ten days.

P RELIMINARY S TATEMENT

By letter dated November 19, 2020, Petitioner, Miami - Dade County

School Board ( Ñ School Board Ò ) , notified Respondent, Kathleen D. Quarles

( Ñ Respondent Ò ), of the School BoardÔs action to suspend her employment as a

teacher, without pay, for ten days. Respondent timely requested an

administrative hearing. Subsequently, the School Board referred the ma tter

to DOAH to assign an Administrative Law Judge to conduct the final

hearing.

The Notice of Specific Charges contains certain factual allegations, and,

based on those factual allegations, the School Board charged Respondent

with Misconduct in Office. T he final hearing was initially set for January 15,

2021. On December 21, 2020, Respondent filed an unopposed motion to

continue the final hearing. On December 22, 2020, the undersigned entered

an Order granting the motion and resetting the final hearing fo r February 1,

2021. On January 26, 2021, the parties filed a joint motion to continue the

final hearing. On January 26, 2021, the undersigned entered an Order

granting the motion and resetting the final hearing for March 22, 2021.

The final hearing was conducted on March 22, 2021, with all parties

present. At the hearing, the School Board presented the testimony of

Paul Pfeiffer, Z.J., C.G., and A.H. The School BoardÔs Exhibits 1 through 5

and 7 were received into evidence based on the stipulation of the parties.

Respondent testified on her own behalf. Respondent did not offer any exhibits

into evidence.

The one - volume final hearing Transcript was filed at DOAH on June 3,

2021. The parties timely filed proposed recommended orders, which were

considered in the preparation of this Recommended Order.

On March 19, 2021, the parties filed their Joint Pre - Hearing Stipulation,

in which they stipulated to certain facts. These facts have been incorporated

into this Recommended Order as indicated below. Unless o therwise indicated,

all rule and statutory references are to the v ersion in effect at the time of the

alleged violations.

F INDINGS OF F ACT

1. The School Board is a duly constituted school board charged with the

duty to operate, control, and supervise the public schools within Miami - Dade

County, Florida.

2. Respondent has been employed by the School Board as a teacher for

approximately 29 years. Since the 2006 school year, and at all times relevant

to this case, Respondent was employed at Young WomenÔs Prep aratory

Academy (ÑYWPAÒ), an all - female grades 6 - 12 public school in Miami - Dade

County, pursuant to a professional services contract.

3. At all times relevant to this case, RespondentÔs employment with the

School Board was governed by Florida law, the Sch ool BoardÔs policies, and

the collective bargaining agreement between the School Board and the

United Teachers of Dade.

Disciplinary History

4. On August 22, 2019, the principal at YWPA, Concepcion I. Martinez,

issued Respondent a letter of reprimand, con cerning an alleged incident in

which Respondent Ñfailed to report [a] concern regarding [an] incident to

administration and instead discussed the incident with inaccurate

consequences [to] the student.Ò Also, Respondent allegedly Ñencouraged [the]

student to have her parents call the school demanding answers from the

administration.Ò The reprimand directed Respondent to: (1) adhere to all

School Board policies, specifically, School Board Policies 3210, Standards of

Ethical Conduct, and 3210.01, Code of Ethi cs; (2) conduct herself in a manner

that will reflect credit upon herself and the School Board and exercise

professional judgment and integrity to sustain the highest degree of ethical

conduct; and (3) protect students from mental, physical, or emotional h arm.

The principal informed Respondent that failure to comply with the directives

may result in further disciplinary action.

RespondentÔs Use of the Ñ N - word Ò in Class

5. The alleged conduct giving rise to the School BoardÔs proposed

suspension of Respon dent occurred on September 27, 2019, during the

2019 - 2020 school year, at which time Respondent was a social studies teacher

at YWPA, teaching 11th grade Advanced Placement United States History

(ÑAP HistoryÒ). At that time, Z.J., C.G., and A.H., were Afr ican American

female students in RespondentÔs class.

6. The School Board alleges that Respondent repeatedly used the word

ÑniggerÒ during an AP History class on September 27, 2019, which upset

several of the African American students in the classroom. 1

7. On the day of the incident, Respondent was teaching an AP History

class to a group of 11th grade students. A white female student (C.G.), was

reading to the class a passage from a textbook on the topic of the American

Revolution that contained the word Ñn egro.Ò C.G. was hesitant to say the

word ÑnegroÒ out loud because she did not want to offend any of the African

American students. Some of the African American students assured her it

was okay to say the word Ñnegro,Ò but not Ñthe other word.Ò

8. At this point, Respondent interjected and stated to the class: ÑI donÔt

understand how black people can use the word ÑN - word , Ò but yet get upset

when other people do it.Ò C.G. tried to explain to Respondent why using the

Ñ N - word Ò is inappropriate.

9. Neverthele ss, Respondent proceeded to tell the class an anecdotal story

about being in a Target department store and witnessing a father call his son

a Ñlittle N - word .Ò

1 Throughout this Recommended Order, the actual racially charged word shall also be

referred to as the ÑN - word.Ò

10. RespondentÔs cavalier and repeated use of the ra ci ally charged

Ñ N - word Ò during the class, despite objection, was inappropriate, disparaging,

and reduced RespondentÔs ability to effectively perform duties. Respondent

could certainly have provided a Ñteach able moment,Ò without resorting to the

repeated use of the highly offensive Ñ N - word .Ò As a result of RespondentÔs

repeated use of t he ÑN - word ,Ò Z.J. and C.G. left the classroom upset and

crying.

11. Prior to this incident, Z.J., C.G., and A.H. enjoyed RespondentÔs

AP History class. After the incident, they refused to return to RespondentÔs

clas sroom, and, instead, were placed in another classroom and dual enrolled

in U . S . History through Miami - Dade College.

12. The persuasive and credible evidence adduced at hearing

demonstrates that Respondent is guilty of misconduct in office in violation

of Florida Administrative Code Rules 6A - 5.056(2)(b) through (e) and

6A - 10.081(2)(a)1., 5., and 7. RespondentÔs cavalier and repeated use of the

ÑN - word Ò during class, despite objection, violated rules 6A - 5.056(2)(b)

through (e), and 6A - 10.081(2)(a)1., 5., and 7., by disrupting the students Ô

learning environment; reducing RespondentÔs ability to effectively perform

duties; failing to make reasonable effort to protect the student s from

conditions harmful to learning and/or to the students Ô mental and/or physi cal

health and/or safety; intentionally exposing the student s to unnecessary

embarrassment or disparagement; and creating a harassing and offensive

environment for the student s based on race. Respondent also violated School

Board Policy 3210, Standards of Ethical Conduct, sections A.3. , and 7., which

mirror rules 6A - 10.081(2)(a)1. , and 5., and School Board Policy 3210, section

A.21., which requires that teachers not use Ñabusive and/or profane language

or display unseemly conduct in the workplace.Ò Responde nt also violated

School Board Polic y 3213, Student Supervision and Welfare, which requires

that teachers protect the physical and emotional well - being of students by

maintaining the highest professional, moral, and ethical standards in dealing

with the sup ervision, control, and protection of students on or off school

property.

13. The persuasive and credible evidence adduced at hearing fails to

establish that Respondent is guilty of conduct in violation of

rule 6A - 10.081(2)(c)4., which specifically rel ates to a teacherÔs obligation Ñto

the profession of education,Ò not to conduct involving students.

C ONCLUSIONS OF L AW

14. DOAH has jurisdiction of the subject matter and the parties to this

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

15. Respondent is an instructional employee, as that term is defined in

section 1012.01(2), Florida Statutes. The School Board has the authority

to suspend employees for Ñjust causeÒ pursuant to sections 1012.22(1)(f),

1012.33(1)(a), and 1012.33( 6)(a).

16. The School Board has the burden of proving, by a preponderance of the

evidence, that Respondent committed the violations alleged in the Notice of

Specific Charges and that such violations constitute Ñjust causeÒ for

suspension. §§ 1012.33(1)(a) and (6)(a), Fla. Stat.; Dileo v. Sch. Bd. of Dade

Cty. , 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

17 . The preponderance of the evidence standard requires proof by Ñ the

greater weight of the evidence Ò or evidence that Ñ more likely than not Ò tends

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

2000). The preponderance of the evidence standard is less stringent than the

standard of clear and convincing evidence applicable to loss of a license or

certification. Cisneros v. Sch. Bd. of Miami - Dade Cty. , 990 So. 2d 1179

(Fla. 3d DCA 2008).

18. Whether Respondent committed the charged offenses is a question of

ultimate fact to be determined by the trier - of - fact in the context of each

alleged violation. Holmes v. Turlington , 480 So. 2d 1 50, 153 (Fla. 1st DCA

1985); McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995).

19. Sections 1012.33(1)(a) and (6)(a) provide, in pertinent part, that

instructional staff may be suspended during the term of their employment

contract only for Ñjus t cause.Ò ££ 1012.33(1)(a) and (6)(a), Fla. Stat. ÑJust

causeÒ is defined in section 1012.33(1)(a) to include Ñmisconduct in office.Ò

20. Section 1001.02(1), Florida Statutes, grants the State Board of

Education authority to adopt rules pursuant to sectio ns 120.536(1) and

120.54 to implement provisions of law conferring duties upon it.

21. Consistent with this rulemaking authority, the State Board of

Education has defined Ñ misconduct in office Ò in rule 6A - 5.056(2), which

provides:

(2) Ñ Misconduct in O ffice Ò means one or more of the

following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in Rule

6A - 10.080, F.A.C.;

(b) A violation of the Principles of Professional

Conduct for the Education Profession in Flo rida as

adopted in Rule 6A - 10.081, F.A.C.;

(c) A violation of the adopted school board rules;

(d) Behavior that disrupts the student Ô s learning

environment; or

(e) Behavior that reduces the teacher Ô s ability or his

or her colleagues Ô ability to effec tively perform

duties.

22 . Rule 6A - 10.080, titled Ñ Code of Ethics of the Education Profession

in Florida, Ò was repealed, effective March 23, 2016, and reenacted in

rule 6A - 10.081(1)(a) through (c). Rule 6A - 10.081(1)(a) through (c) provides:

(1) Florida educators shall be guided by the

following ethical principles:

(a) The educator values the worth and dignity of

every person, the pursuit of truth, devotion to

excellence, acquisition of knowledge, and the

nurture of democratic citizenship. Essential to the

achievement of these standards are the freedom to

learn and to teach and the guarantee of equal

opportunity for all.

(b) The educator Ô s primary professional concern will

always be for the student and for the development

of the student Ô s potential. The educator will

therefore strive for professional growth and will

seek to exercise the best professional judgment and

integrity.

(c) Aware of the importance of maintaining the

respect and confidence of one Ô s colleagues, of

students, of parents, and of othe r members of the

community, the educator strives to achieve and

sustain the highest degree of ethical conduct.

2 3 . While rule 6A - 5.056(2)(a) still provides that violation of the Code of

Ethics, Ñ as adopted in [r]ule 6A - 10.080, Ò constitutes Ñ misconduct, Ò i t has been

frequently noted that the precepts set forth in the Ñ Code of Ethics Ò are Ñ so

general and so obviously aspirational as to be of little practical use in

defining normative behavior. Ò Broward Cty. Sch. Bd. v. Miller , Case

No. 20 - 1335TTS (Fla. DOAH Nov . 10, 2020; Fla. BCSB Feb . 9, 2021);

Broward Cty. Sch. Bd. v. Beckham , Case No. 19 - 4589TTS (Fla. DOAH Ma r. 9,

2020; Fla. BCSB Apr. 30 , 2020) . School Board Policy 3210.01, titled Ñ Code of

Ethics, Ò mirrors the precepts set forth in rule 6A - 10.081(1)(a) t hrough (c) .

2 4 . Rule 6A - 5.056(2)(b) incorporates by reference rule 6A - 10.081, which is

titled Ñ Principles of Professional Conduct for the Education Profession in

Florida. Ò Rule 6A - 10.081(2)(a) provides, in pertinent part:

(a) Obligation to the student req uires that the

individual:

1 . Shall make reasonable effort to protect the

student from conditions harmful to learning and/or

to the student Ô s mental and/or physical health

and/or safety.

* * *

5 . Shall not intentionally expose a student to

unnece ssary embarrassment or disparagement.

* * *

7. Shall not harass or discriminate against any

student on the basis of race, color È and shall

make reasonable effort to assure that each student

is protected from harassment or discrimination.

2 5. R ule 6A - 10.081(2)(c) 4. provides, in pertinent part:

( c ) Obligation to the profession of education

requires that the individual:

* * *

4. Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individualÔs performance of

professional or work responsibilities or with the

orderly processes of education or which creates a

hostile, intimidating, abusive, offensive, or

oppressive environment; and, further, shall make

reasonable effort to assure that each individ ual is

protected from such harassment or discrimination.

26. Rule 6A - 10.081(2)(c)4. , specifically relates to a teacherÔs obligation Ñto

the profession of education,Ò not to conduct involving students.

2 7. School Board Policy 3210, Standards of Ethical Co nduct, provides, in

pertinent part:

All employees are representatives of the District

and shall conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and the

school system.

A . An instruct ional staff member shall:

* * *

3 . make a reasonable effort to protect the student

from conditions harmful to learning and/or to the

student Ô s mental and/or physical health and/or

safety;

* * *

7 . not intentionally expose a student to

unnecessary embarrassment or disparagement;

* * *

21 . not use abusive and/or profane language or

display unseemly conduct in the workplace;

2 8 . School Board Policy 3213, Student Supervision and Welfare, provides,

in pertinent part:

Protecting the physical and emotional well - being of

students is of paramount importance. Each

instructional staff member shall maintain the

highest professional, moral, and ethical standards

in dealing with the supervision, control, and

protection of students on or off school property .

2 9 . Turning to the present case, the School Board proved by a

preponderance of the evidence that Respondent is guilty of misconduct in

office in violation of rule s 6A - 5.056(2) (b) through (e) and 6A - 10.081(2)(a)1., 5.,

and 7. As d etailed above, Respondent failed to make reasonable effort to

protect her student s from conditions harmful to learning and intentionally

exposed her student s to unnecessary embarrassment or disparagement and

discrimination and harassment based on race. Res pondent also engaged in

conduct which disrupted the students Ô learning environment and reduced

Respondent Ô s ability to effectively perform her duties. Respondent also

violated School Board Policy 3210, Standards of Ethical Conduct, sections

A.3. , and 7. , w hich mirror rules 6A - 10.081(2)(a)1. and 5 . , and School Board

Policy 3213, Student Supervision and Welfare.

30 . The School Board failed to prove that Respondent violated rule 6A -

10.081(1)(c)4.

3 1 . In her proposed recommended order, Respondent contends her use of

the ÑN - word Ò in class involved a Ñteachable moment,Ò and , therefore, she

should not be subject to discipline. The undersigned rejects any contention by

Respondent that her use of the ÑN - word Ò in class involved a Ñteachable

moment.Ò As detailed abov e, Respondent c ould certainly have provided a

Ñteachable moment,Ò without resorting to the repeated use of the highly

offensive ÑN - word .Ò Even if it could be seriously contended, however, that

RespondentÔs conduct involved a Ñteachable moment,Ò which it di d not,

Respondent would not be shielded from discipline. See Brown v. Bd . of Educ .

of the City of Chicago , 84 F. Supp. 3d 784, 789 (N.D. Ill. 2015); affÔd , 824 F.3d

713 (7th Cir. 2016)(involving suspension of public teacher for use of the

ÑN - word Ò in clas sroom and rejecting contention that the teacher is not subject

to discipline because co mment was made during a Ñteachable moment.Ò ).

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Miami - Dad e County School Board enter a final order

upholding the suspension of RespondentÔs employment as a teacher, without

pay, for ten days.

D ONE A ND E NTERED this 23 rd day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

D ARREN A. S CHWARTZ

Administrat ive Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23 rd day of June , 2021 .

C OPIES F URNISHED :

Christopher J. La Piano, Esquire Branden M. Vicari, Esquire

Miam i - Dade County School Board Herdman & Sakellarides, P.A.

Suite 430 Suite 110

1450 Northeast 2nd Avenue 29605 U.S. Highway 19 North

Miami, Florida 33132 Clearwater, Florida 33761

Alberto M. Carvalho, Superintendent Matthew Mears, Ge neral Counsel

Miami - Dade County Public Schools D epartment of E ducation

1450 Northeast Second Avenue, Suite 912 Turlington Building, Suite 1244

Miami, Florida 33132 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Richard Corcoran

Commissioner of Educa tion

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of thi s Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.