Robin v. Teacher Standards & Practices Comm'n

291 Or.App. 379

421 P.3d 385

Jane ROBIN, Petitioner,

v.TEACHER STANDARDS AND PRACTICES COMMISSION, Respondent.

A159230

Court of Appeals of Oregon.

Argued and submitted November 7, 2016.

April 18, 2018

Aruna A. Masih, Portland, argued the cause and filed the briefs for petitioner.

Peenesh Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

LAGESEN, J.

Petitioner seeks judicial review of a final order of the Teacher Standards and Practices Commission (TSPC) that revoked her right to apply for a teaching license after finding that petitioner had engaged in conduct demonstrating "gross neglect of duty" and "gross unfitness." Petitioner argues that TSPC applied the wrong standard of proof for the revocation proceeding, imposed a sanction inconsistent with its prior practice without any explanation for the departure, and failed to support its factual findings regarding her misconduct with substantial evidence and to connect those findings to its conclusions with substantial reason. She further argues that TSPC modified the proposed order of the administrative law judge (ALJ) without identifying or explaining its modifications, and inserted findings related to the sanction that are not supported by substantial evidence or connected to the conclusions by substantial reason. As explained below, we reject petitioner's assignments of error regarding the standard of proof and her challenge to TSPC's findings and conclusions regarding her misconduct; however, because we agree with petitioner that TSPC modified the ALJ's proposed order with respect to the sanction without providing the necessary identification and explanation of those changes and because even as modified the order lacks substantial reason to support revocation, we reverse and remand the order.

I. FACTS AND PROCEDURAL BACKGROUND

A. Historical Facts

We draw the relevant historical facts from TSPC's final order and the undisputed evidence in the record. Multnomah County Sheriff's Office v. Edwards , 361 Or. 761, 776, 399 P.3d 969 (2017) (an agency's unchallenged findings are binding for the purposes of judicial review).¹ Although the order on review includes extensive factual findings, an abbreviated discussion of those facts suffices to frame the issues discussed in this opinion.

For the 2009-10 school year, petitioner was employed by the Eugene 4J School District as a special education teacher at Monroe Middle School, where she was assigned to teach sixth- and seventh-grade Language Arts and Social Studies, as well as a Language Arts support class. The incidents for which petitioner was ultimately sanctioned by TSPC arose from that school year and can be grouped into three categories: conduct related to the development of individualized education programs (IEPs) for students with disabilities; conduct involving a collection of student essays; and conduct related to annual performance testing.

1. Conduct related to IEPs

As a special education teacher, petitioner was part of the team that developed an IEP for each child with a disability. See OAR 581-015-2200 (setting forth content of an IEP); OAR 581-015-2210 (describing makeup of an IEP team). School districts are required by state and federal law to have students' IEPs in place at the beginning of the school year and must update them at least once a year, or more frequently if requested. See generally 34 CFR 300.24 ; OAR 581-015-2225. As part of the process of developing and reviewing an IEP, a school district schedules a meeting with the parents of the child, who are also part of the IEP team. The school district must schedule the meeting at a time mutually agreed upon with the parents and send written notice sufficiently in advance of the IEP meeting. OAR 581-015-2210 ; OAR 581-015-2190.

For the 2009-10 school year, petitioner was responsible for developing the annual IEPs for students KR and FC-E. With regard to KR, petitioner never held the review, falsely recorded that she had, misrepresented that KR's mother and another teacher had been present for the meeting, and then failed to finalize the IEP document or distribute copies to KR's parent or KR's service providers. Later, when confronted with evidence that she had not held the IEP meeting for KR, petitioner misrepresented the facts to the school administration and to TSPC.

Similarly, in the case of FC-E, petitioner failed to hold the required meeting, did not enter any IEP information into the Electronic Student Information System, did not prepare or finalize an IEP for FC-E for the 2009-10 school year, and later misrepresented to school officials and a TSPC investigator that she had conducted an IEP meeting by phone for FC-E. As a result of petitioner's failures to follow the required IEP procedures, the school district reported FC-E as "out of compliance" on its annual Oregon Department of Education census report, and the district was unable to receive funding for services that were delivered to FC-E during the 2009-10 school year.

2. Conduct involving student essays

During the 2009-10 school year, petitioner assigned a writing exercise to her seventh-grade class that involved writing memoirs or short stories based on prompts from a book.

At the end of the school year, petitioner included a collection of those writings in a book that was sent home with all of the seventh-grade students. The students had chosen which of their writings were to be included, and they were aware that their writings would be shared with others. However, petitioner had not communicated with the students' parents about her plans to publish the writings or obtained their permission, nor had she received permission from school administrators.

The writings that went home with students included, among other things, a student's description of a time when his foster parents caught him and other children sneaking candy, made them eat the candy until one of them vomited, and then directed that child to eat the vomit; another student's writing that "I was always scared of my dad when he had parties. He would get drunk and take it out on my [sic ]. * * * He would hit my Butt with a belt."; and students' revelations about their "regrets" (such as punching one's sister) or being in love with other named students.

The collection of writings came to the school district's attention after a parent raised concerns about the sensitive and personal information they contained. Petitioner was a mandatory reporter of abuse under state law, see ORS 419B.010, and school administrators asked her if she had contacted law enforcement or the Department of Human Services (DHS) about any of the information in the writings. Petitioner confirmed that she had not notified law enforcement, the local DHS office, or the administration about any of the students' disclosures.

3. Conduct involving standardized testing

At the beginning of the 2009-10 school year, petitioner and other MMS staff were informed of the school's expectation that students failing to meet benchmarks or performance standards on the Oregon Assessment of Knowledge and Skills (OAKS) test would be retested. In the spring of 2010, petitioner administered a first round of OAKS testing to her sixth- and seventh-grade classes, and nearly all of petitioners' students failed to meet the benchmark or performance standard on the test.

The school's OAKS testing coordinator worked with petitioner to schedule the second round of testing and sent petitioner a reminder of the schedule, but petitioner did not retest her students by the end of the school year. Consequently, those students did not have the opportunity to improve their scores, to meet the standards, or to exceed them and become eligible for additional opportunities in school; the failure to retest the students also contributed to MMS's failure to make "Adequate Yearly Progress"—a measurement of annual achievement growth under federal law—for the 2009-10 school year.

B. TSPC Proceedings and Judicial Review

Petitioner's employment with the school district was ultimately terminated based on her conduct related to IEPs, the collection of student essays, and the OAKS testing. She signed a separation agreement with the district on October 8, 2011, and her teaching license expired in 2012.

TSPC subsequently charged petitioner with conduct constituting "gross neglect of duty" and "gross unfitness" based on the same set of events that led to her termination, and it sought to revoke petitioner's right to apply for a teaching license. See ORS 342.175(1) (authorizing TSPC to suspend or revoke the right of any person to apply for a teaching license as a consequence of, among other things, "gross neglect of duty" or "gross unfitness"). After an administrative hearing on the charges, the ALJ issued a proposed order concluding that petitioner had engaged in conduct constituting "gross neglect of duty" and "gross unfitness" by failing to hold IEP meetings for KR and FC-E, falsifying IEP records to appear compliant, and misrepresenting facts to the administration and TSPC; that petitioner had engaged in conduct constituting "gross neglect of duty" by publishing the collection of student essays and failing to report the incidents of possible abuse that were included in the collection; and that she had engaged in conduct constituting "gross neglect of duty" by failing to have her students retake the OAKS test. The ALJ ruled that TSPC's proposed sanction—revocation of her right to apply for a teaching license—was supported by "reliable evidence" and was appropriate under the circumstances.

Petitioner filed exceptions to the ALJ's proposed order. She argued, among other contentions, that the ALJ had erroneously applied a "preponderance of the evidence" standard of proof rather than the "clear and convincing" standard required for a revocation...