#217-R5-393
DOCKET NO. 217-R5-393
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KIMBERLY L., By Next
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Friends COLIN AND RONDA L., +
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+
V.
PLEMONS-STINNETT-PHILLIPS
CONSOLIDATED INDEPENDENT
SCHOOL DISTRICT
BEFORE THE STATE
COMMISSIONER OF EDUCATION
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+
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THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner Kimberly L., by next friends Colin and Ronda
L. (Petitioner), appeals the decision of Respondent
Plemons-Stinnett-Phillips Consolidated Independent School
District (PSP) denying her student grievance. Petitioner
challenges the February 9, 1992 decision of the PSP board of
trustees upholding the action taken by Petitioner's Spanish
teacher in response to an alleged incident of talking during
an examination. Petitioner contends this decision was
arbitrary, unreasonable and capricious.
James C. Thompson is the Hearings Examiner appointed by
the State Commissioner of Education. Petitioner is
represented by Leon Mitchell, Attorney at Law, Borger,
Texas. Respondent is represented by Alan Rhodes, Attorney
at Law, Amarillo, Texas.
On April 30, 1993, the Hearings Examiner issued a
Proposal for Decision recommending that Petitioner's appeal
be denied. Exceptions and replies were timely filed and
considered.
Findings of Fact
After due consideration of the evidence and matters
officially noticed, in my capacity as State Commissioner of
Education, I make the following Findings of Fact:
1.
On November 3, 1992, during Linda Jones' sixth
period Honors Spanish II class, Ms. Jones observed a student
talking to Kimberly L. during the administration of the
six-weeks examination for that class. (Pet. Rev., Answer).
2.
Ms. Jones observed Kimberly L. nod her head in
response to the student who talked to her during the test.
(Pet. Rev., Answer).
3.
At the time of this exchange, the student talking
to Kimberly L. was still writing on her test paper, but
Kimberly L. was finished and had already turned in her test
paper. (Pet. Rev., Answer).
4.
Kimberly L. has consistently denied that she
"talked" during the test. (Pet. Rev., Answer).
5.
As a result of this incident, Ms. Jones reduced
the grade of both students by fifty percent. (Pet. Rev.,
Answer).
6.
Kimberly L.'s six-week grade was reduced from 100
to 86 as a result of this grade change. (Pet. Rev.,
Answer).
7.
Petitioner and Respondent met on numerous
occasions in conferences over this grade change. (Pet.
Rev., Answer).
8.
Unable to reach agreement, Petitioner brought the
matter to the board of trustees on February 9, 1992. (Pet.
Rev., Answer).
9.
The board decided on February 9, 1992 to uphold
the decision of Ms. Jones. (Pet. Rev., Answer).
10.
This appeal to the Commissioner of Education was
perfected March 25, 1993. (Record).
Discussion
The appeal of Petitioner focuses on two primary points.
First, Petitioner challenges the factual determination made
by Ms. Jones and upheld by the board of trustees that
Petitioner was engaged in communication with another student
during the administration of the test. The record in this
case reflects, among other evidence, extensive testimony by
the teacher who observed the conduct in question. This
testimony more than adequately meets Respondent's burden of
showing substantial evidence in the record to support its
decision.
Next, Petitioner contends that the procedures used to
assess the academic "penalty" at issue here violated local
district policy and State Board of Educations rules
governing the assessment of discipline. On the contrary,
the decision whether to adjust the test scores of students
observed talking during a test entails academic judgments
and need not be viewed as "disciplinary" at all. It can
hardly be denied that students who talk during a major
examination are undermining the integrity of the testing
process. It need not be proven to a moral certainty that
the students were talking about the subject matter of the
test to conclude that the behavior demands corrective
action. The classroom teacher is well within her authority
to take appropriate steps to insure the academic integrity
of the classroom under her supervision. There is nothing in
this record to indicate that the teacher in this case acted
arbitrarily, capriciously, or unreasonably.
Conclusions of Law
After due consideration of the record, matters
officially noticed, and the foregoing Findings of Fact, in
my capacity as State Commissioner of Education, I make the
following Conclusions of Law:
1.
The Commissioner of Education has jurisdiction
over this appeal under Texas Education Code +11.13(b).
2.
There is substantial evidence in the record of the
proceedings before the board of trustees of Respondent PSP
to support the decision below.
3.
The decision of the board of trustees of
Respondent PSP is neither arbitrary, capricious or
unreasonable.
4.
Petitioner's appeal should be in all things
DENIED.
O R D E R
After due consideration of the record, matters
officially noticed, and the foregoing Findings of Fact and
Conclusions of Law, in my capacity as State Commissioner of
Education, it is hereby
ORDERED that Petitioner's appeal be, and is hereby,
DENIED.
SIGNED AND ISSUED this ______ day of ________________,
1993.
______________________________
LIONEL R. MENO
COMMISSIONER OF EDUCATION