#217-R5-393 DOCKET NO. 217-R5-393 -- KIMBERLY L., By Next + Friends COLIN AND RONDA L., + + + + V. PLEMONS-STINNETT-PHILLIPS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT BEFORE THE STATE COMMISSIONER OF EDUCATION + + + 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