IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
o JOHN CUMMINGS, C/SO —\c No. 68519-8-1 O Appellant, m C-J" O -Tl .... a DIVISION ONE to v.
SEATTLE SCHOOL DISTRICT NO. 1, UNPUBLISHED OPINION U3 CT
Respondent. FILED: December 23, 2013
Spearman, J. — The issue in this appeal is whether the Seattle School
District (the District) established sufficient cause to not renew (nonrenew, as
used in RCW 28A.405.310 et seq.) the contract of special education teacher
John Cummings. After placing Cummings on probation for receiving an
unsatisfactory performance review in teaching special education math, the
District determined that he failed to remediate his deficiencies and nonrenewed
his contract. On review, the hearing officer found that the District had sufficient
cause for nonrenewal. The superior court affirmed and Cummings appeals. We
conclude that Cummings fails to show prejudicial error for his claims of error and
that the record contains substantial evidence that he failed to adequately improve
his deficiencies during his probation. Accordingly, we affirm. No. 68519-8-1/2
FACTS
Cummings received his Washington state teaching certificate in 1998 and
has Washington state teaching endorsements in special education Kindergarten-
12th (K-12) grade and general education history 4th-12th grade. With his special
education endorsement, he has the ability to teach all subjects to K-12 special
education students. Around 2006, he was hired by the District to teach special
education at McClure Middle School. From 2007 through the end of the 2009
school year, Cummings co-taught in a blended classroom. Under a blended
classroom model, a general education teacher and a special education teacher
co-teach core academic subjects to general and special education students in
the same classroom. Cummings and his co-teacher used the "Connected
Mathematics Program Part 2" (CMP2) curriculum to teach math.
In spring 2009, Principal Sarah Pritchett dissolved the blended model and
assigned Cummings to teach special education math for the 2009-2010 school
year.1 Cummings' assignment was based in part on Pritchett's understanding that he was "highly qualified" to teach CMP2 math classes.2 Pritchett testified that
1Cummings was assigned to teach three special education math classes (6th, 7th, and 8th grade) and two general education math improvement classes (6th and 8th grade). Cummings was not endorsed to teach general education math.
2Ateacher can meet "highly qualified" standards underWAC 392-172A-01085 if he or she receives a sufficiently high score on the State's "High, Objective, Uniform State Standard of Evaluation" (HOUSSE) form. The District scored Cummings as highly qualified in math in an April 2009 form. It made this determination based on his resume, which indicated under "Experience" that he "[developed and taught curriculum for Social Studies, Language Arts, and Mathematics for Special Education classes" between October 1998 and June 2004 at Eastlake High School in Sammamish, Washington. Clerk's Papers (CP) at 1646. The District had completed the form without showing itto Cummings, who did not sign it. Cummingswas not aware of the form until spring 2010. He clarified before the hearing officer that he taught math for less than a full year during the 1998-2004 period. No. 68519-8-1/3
all McClure math teachers were required to use CMP2. At that time, however,
she did not tell Cummings he would have to use CMP2, and he spent the
summer of 2009 preparing to teach a different curriculum. While he had received
CMP2 training, he was not comfortable with CMP2 and would not have accepted
the assignment had he known he would have to teach it.
When the school year began, Pritchett told Cummings there was no
mandated curriculum for special education math and that he should teach to the
goals and objectives ofstudents' Individualized Education Plans (lEPs).3 In October, however, Assistant Principal Keisha Scarlett instructed Cummings to
teach CMP2. There is no evidence that, after Cummings learned he was to teach
CMP2, he raised an objection with Pritchett or sought a change of assignment.
On January 4, 2010, Scarlett completed Cummings' mid-year review in his
special education math classes and rated his performance unsatisfactory in
"instructional skill" and "knowledge of subject matter."4 CP at 1570-73. From January 20 to April 28, he was placed on probation pursuant to former RCW
28A.405.100(4)(a) (2010)5 and given a Performance Improvement Plan (PIP). Scarlett was assigned as Cummings' primary evaluator and math coach during
his probation and Marilyn Day was assigned as his secondary evaluator.
3The processes applicable to lEPs are in WAC 392-172A-03090 through WAC 392- 172A-03115.
4Instructional skill and knowledge of subject matter are two of eight evaluation criteria prescribed by the Collective Bargaining Agreement between the District and the Seattle Education Association, Cummings' union.
5 RCW28A.405.100 was amended in 2012. No. 68519-8-1/4
On January 30, Cummings notified the District that he was diagnosed with
Attention Deficit Hyperactivity Disorder (ADHD). Around March 1, he submitted a
Request for Medical Information form signed by his psychologist, Dr. Arden
Snyder. Snyder indicated that Cummings had a long-term disability and could
perform the functions of his position with accommodations.6 Around March 8,
Cummings sent the District a statement suggesting possible accommodations.7
The District responded by letter on March 16, denying Cummings' requests for
accommodation.8
Scarlett observed Cummings several times during his probation and
completed three progress reports. She observed that while Cummings had good
rapport with his students and had made progress in some areas, he failed to
sustain such progress and make adequate improvement in his areas of
6The accommodations requested in the Requestfor Medical Information were assistance with organization and 1 1/2 normal time.
7Cummings' suggested accommodations were: (1) training in the use ofsoftware such as Easy Grade Pro, Outlook, and The Source; (2) clerical support to implement and maintain records and assistance setting up and maintaining a filing system; (3) large projects broken down into smaller steps; (4) checklists to structure tasks that require many steps; (5) excusing Cummings from non-essential tasks to allow more time on essential tasks; (6) establishing multiple short-term deadlines; (7) assistance with setting priorities; and (8) setting up Outlook to filter out non-essential emails.
8On appeal, the District does not contest that itdenied Cummings' requests for accommodation. Below, however, there was uncertainty as to whether Cummings' requests were denied in full. As the hearing officer noted, the District's letter did not expressly state that the District denied the requests for accommodation, aside from the request for clerical support. The letter stated that Cummings had been provided with a consulting teacher who could assist with certain skills. The letter also stated that software training was available to all certificated staff and that Cummings should schedule the necessary training. No. 68519-8-1/5
deficiency.9 In her final evaluation, she wrote: Knowledge of Subject Matter: Mr. Cummings has not demonstrated a solid understanding of the most basic content knowledge within CMP2. He has attended CMP2 training in prior years and during this school year; but does not know the scope and sequence of the subject matter. Mr. Cummingsf] lessons do not reflect specific strategies to assist students in their IEP identified areas of need.
CP at 1630.
Secondary evaluator Day described Cummings as a "gifted special
education teacher" and noted his skill with challenging students. CP at 714. But
she also observed that he did not take his students to the computer lab to use
the "I Can Learn Math" computer program, which was included in his PIP, or
attend all of the trainings or personal development stated in his PIP. CP at 2211.
She observed that he did not follow Scarlett's suggestion to use the CMP2
teacher's manual.10 Her final probation summary stated: Mr. Cummings has consistently claimed he is not competent to teach CMP math. There has been evident improvement the last
9In Scarlett's final progress report, she wrote, as to instructional skill, that Cummings' lessons carved out "limited time for student's individual thinking, inquiry or problem-solving"; that "basic instructional supports for a mathematics and IEP classroom are not in place"; that his lessons lacked "differentiation in order to meet the needs of [his] students' stated IEP goals and academic needs"; that "the pacing of [his] lessons need to be on target with [his] students' ability level in order to keep them engaged in class; and that she observed "a lack of closure and assessment in [his] lessons." As to knowledge of subject matter, Scarlett wrote that it appeared that Cummings was "operating without basic understanding of concepts being represented" and that because he lacked knowledge of the concepts, he could not clearly articulate what his students would know and be able to do as a result of his lessons. She wrote that his lack of content knowledge was "further exacerbated by the fact that [he was] unwilling to collaborate with [his] colleagues or [Scarlett] on [his] lesson and unit planning." CP at 1624-26.
10 Day wrote thatCummings "continues to stay away from full implementation ofthe CMP math curriculum," even though the CMP2 teachers' manuals "have everything needed to deliver good lessons including warm-ups, examples, correct processes, [and] suggestions for a variety of learning strategies and accommodations." Day wrote, "I would say that even a teacher a bit shaky in math could, if he/she stayed a few days ahead of the students, deliver these lessons satisfactorily." She also noted that Scarlett had encouraged Cummings to use the CMP2 teacher's book and have it in front of him, because it "practically has a script and gives correct examples and answers" and "includes a section that shows teachers how to make accommodations for special needs students." CP at 2211-12. No. 68519-8-1/6
three lessons, but I agree that his math skills are minimal. And, because he does not grasp the scope and sequence of CMP content, he is not competent to modify this content.
CP at 2223.
On April 26, 2010, Scarlett, Day, Pritchett, Human Resources Manager
Gloria Morris, Deputy General Counsel Faye Chess-Prentice, and Education
Director Ruth Medsker met to discuss what recommendation to make to the
Superintendent, Dr. Maria Goodloe-Johnson, regarding Cummings' probation. All
but Day recommended nonrenewal; Day recommended that he be given an
additional probationary year. Goodloe-Johnson was notified of their
recommendations.
On April 30, Goodloe-Johnson notified Cummings that she had received
Scarlett's recommendation that the District nonrenew his contract. She met with
Cummings and his union representative on May 6. On May 10, she informed
Cummings that his contract for the 2010-2011 school year would be nonrenewed
for his failure to make suitable progress to remediate his teaching deficiencies in
instructional skill and content knowledge.
Cummings appealed and a hearing was held.11 The District did not request a court reporter for closing argument, which occurred on April 14, 2011.
At the hearing that day, Cummings requested a court reporter. The hearing
officer allowed him to call a court reporter, but when the reporter did not respond,
the hearing officer directed the parties to proceed. The District had used twenty
minutes of its allotted time for closing argument and Cummings had used twenty-
11 The hearing officer was the Honorable Robert J. Doran.
6 No. 68519-8-1/7
five minutes before a court reporter appeared. The reporter transcribed the
remainder of the closing arguments and the comments of the hearing officer.
The hearing officer ruled that the District proved by a preponderance of
the evidence that it had sufficient cause to nonrenew Cummings' contract.
Cummings appealed to the superior court, which affirmed. He now appeals to
this court.
DISCUSSION
We review the factual determinations of the hearing officer under the
"'clearly erroneous'" standard. Clarke v. Shoreline School Dist. No. 412. 106
Wn.2d 102, 109-10, 720 P.2d 793 (1986) (citing RCW 28A.58.480(5)). A factual
determination is clearly erroneous if it is not supported by substantial evidence in
the record. State v. Jeannotte. 133 Wn.2d 847, 856, 947 P.2d 1192 (1997). We
review issues of law de novo. Clarke, 106 Wn.2d at 109. When reviewing the
application of the law to the facts, we make a de novo determination of the
applicable law, giving deference to the hearing officer's factual determinations.
|o\ at 109-10.
Review of a hearing officer's decision is confined to the verbatim transcript
and the evidence admitted at the hearing. RCW 28A.405.340. The court may
"reverse the decision ifthe substantial rights of the employee may have been
prejudiced because the decision was:"
(1) In violation of constitutional provisions; or (2) In excess of the statutory authority or jurisdiction of the board or hearing officer; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or No. 68519-8-1/8
(5) Clearly erroneous in view of the entire record as submitted and the public policy contained in the act of the legislature authorizing the decision or order; or (6) Arbitrary or capricious.
Id.
A superintendent has the authority to nonrenew a certificated employee's
contract based on probable cause. RCW 28A.405.210. "Lack of necessary
improvement during the established probationary period, as specifically
documented in writing with notification to the probationer and shall constitute
grounds for a finding of probable cause under RCW 28A.405.300 or
28A.405.210." Former RCW 28A.405.100(4)(a) (2010). A teacher with
remediable teaching deficiencies must be given a reasonable program for
improvement. ]d.
Cummings contends the hearing officer erred in (1) excluding the testimony
of his proposed expert witness; (2) excluding letters of recommendation and not
allowing him to cross-examine Pritchett regarding her previous evaluations; (3)
permitting 45 minutes of closing argument to take place without a court reporter;
(4) finding that Scarlett did not have a conflict of interest; and (5) determining that
Cummings' ADHD did not substantially limit his ability to teach CMP2 and that the
District did not have a duty to accommodate his ADHD. He contends there was
not sufficient cause for nonrenewal because (1) Goodloe-Johnson's decision was
based on incomplete information; (2) his evaluation was based in part on his
teaching of general education math; (3) and his assignment to teach CMP2 to
special education students was not appropriate or reasonable. He also contends
the hearing officer made other errors. We address these issues in turn.
8 No. 68519-8-1/9
Evidentiary Rulings
Cummings contends the hearing officer abused his discretion in making
certain evidentiary rulings. First, he contends it was an abuse of discretion and a
violation of RCW 28A.405.310(3) for the hearing officer to exclude testimony
from his proposed expert witness, Patricia Steinburg, who has experience
working with teachers and school districts in special education. A trial court has
discretion as to the admissibility of expert testimony.12 Group Health Co-Op of Puqet Sound, Inc. v. Dep't of Revenue. 106 Wn.2d 391, 398, 722 P.2d 787
(1986). Cummings asserts that Steinburg would have testified about the legal
underpinnings of special education as provided in WAC 392-172A-03090 through
WAC 392-172A-03110. He argues her testimony would have shown that (1) it is
inconsistent with special education policies to mandate any curriculum to special
education students; (2) CMP2 is inappropriate for special education students; (3)
Cummings was held to an unfair, irrelevant, and arbitrary standard; (4) changing
Cummings' curriculum to CMP2 required a meeting of students' IEP teams; and
(5) Scarlett's evaluation lacked credibility because CMP2 was not in the students'
lEPs and yet Cummings was rated unsatisfactory in subject matter knowledge
because he did not teach to lEP-identified goals.
We conclude it was not an abuse of discretion to exclude Steinburg's
testimony. Cummings does not explain why Steinburg's testimony on laws and
12 Expert testimony is admissible under ER 702 and 703 if the witness's expertise is established by the evidence, her opinion is based on a test generally accepted in the scientific community, and the testimony is helpful in deciding an issue in the case. Tennant v. Roys, 44 Wn. App. 305, 311, 722 P.2d 848 (1986). The District does not specifically respond to this claim of error, nor does it contend that Steinburg did not meet the qualifications of an expert witness. No. 68519-8-1/10
policies as to special education could not have been made in arguments by his
attorney. Testimony as to Cummings' first, second, and third points was
substantially provided or could have been provided by Day. As to his fourth and
fifth points, Cummings has been able to assert those arguments without
Steinburg's testimony. Moreover, we do not understand RCW 28A.405.310(3),
which provides that "[a]t the hearing ... the employee may produce such
witnesses as he or she may desire," to mean the employee is unrestricted in
calling witnesses. See RCW 28A.405.310(7)(a) (hearing officer shall make
rulings as to admissibility of evidence pursuant to applicable rules of evidence).
Even if the hearing officer abused his discretion, Cummings does not show that
Steinburg's testimony was likely to have changed the outcome of his nonrenewal
hearing. Error without prejudice is not grounds for reversal. Brown v. Spokane
County Fire Prot. Dist. No. 1. 100 Wn.2d 188, 196, 668 P.2d 571 (1983).
Next, Cummings argues that the hearing officer erred in excluding letters
of recommendation and in not allowing him to cross-examine Pritchett regarding
her satisfactory evaluations of his teaching from 2007 to 2009. The decision to
admit or refuse evidence is reviewed for abuse of discretion. State v. Powell, 126
Wn.2d 244, 258, 893 P.2d 615 (1995). We conclude the hearing officer properly
denied such questioning of Pritchett on the basis that Cummings' previous
satisfactory performance was not relevant to whether there was sufficient cause
for nonrenewal based on his teaching in 2009 to 2010. We also conclude it was
not an abuse of discretion to exclude the letters of recommendation. The hearing
officer excluded these on the basis that they were hearsay or not relevant. These
10 No. 68519-8-1/11
were proper reasons to exclude the letters. Cummings argues that the hearing
officer was required to consider them because Goodloe-Johnson had reviewed
them, but he cites no authority in support. Furthermore, Cummings does not
show that excluding the testimony from Pritchett or the letters was prejudicial.
Finally, Cummings argues that the hearing officer committed reversible
error in permitting 45 minutes of closing argumentwithout a court reporter.13
Under RCW 28A.405.310(10), "A complete record shall be made of the hearing
and all orders and rulings of the hearing officer and school board." Cummings
contends that because the hearing officer ruled that the closing arguments are
part of the hearing record, the statute was violated. He contends he was
prejudiced by the inability to review this portion of the record, which he claims
contained inaccurate arguments by the District and questions by the hearing
officer that demonstrated erroneous burden-shifting. The District argues that
Cummings waived any objection to improper argument or comments during the
hearing when he failed to object below. We agree with the District. A party
waives any objection to improper argument when it fails to raise an objection at
the time, when there is an opportunity to correct it. State v. Dunawav, 109 Wn.2d
207, 221, 743 P.2d 1237 (1987). Cummings does not dispute the District's
assertion that he made no objections. Furthermore, he does not explain how any
13 The superior court ruled that the hearing officer violated RCW 28A.4Q5.310(10) butthe error was not prejudicial. Likewise, the hearing officer wrote in his opinion:
If the Hearing Officer erred in not waiting longer for a court report [sic] to call or appear, it is the opinion of the Hearing Officer that there was no prejudice to Appellant because the portion, not reported, repeated substantially what was set forth in the written argument brief of his counsel. CP 142.
11 No. 68519-8-1/12
errors in the District's closing argument or the hearing officer's remarks are
reflected in the hearing officer's decision or written order.
Probation's Compliance with RCW 28A.405.100
Cummings contends the District's probationary process did not comply
with former RCW 28A.405.100(4)(a) (2010), which requires that he be given a
"reasonable program for improvement" and states that "[t]he purpose of the
probationary period is to give the employee opportunity to demonstrate
improvements in his or her areas of deficiency." He contends he was not
provided a meaningful opportunity to improve because (1) Scarlett had a conflict
of interest and (2) the District failed to accommodate his ADHD.
First he contends Scarlett had a conflict of interest because she was both
his math coach and primary evaluator. He also contends Scarlett lacked the
background to evaluate a special education teacher, was not certified to teach
special education, and had never evaluated a teacher during probation. In
support of his contention, he points to the following testimony by Day:
What I saw happening was that Mr. Cummings would meet with Ms. Scarlett in the role of her being the math coach, and they would talk about lessons, and then it would drop into evaluative, and there wasn't a clear line. If he's supposed to be, through the performance improvement plan, receiving assistance and help from a math coach, that should be clean, in my opinion and not tainted by the evaluation process.
CP at 657. Cummings also testified that he did not feel Scarlett was actively
trying to help him improve and that he felt statements he made to her when she
acted as his math coach were used against him in her evaluations.
12 No. 68519-8-1/13
We conclude that the determination of the hearing officer and superior
court that Scarlett did not have a conflict of interest, whether it is a finding of fact
ora conclusion oflaw,14 was not clear error. Cummings does not show that any conflict of interest, if it existed, rose to such a level that Scarlett could not act
effectively in both roles or that her acting in both roles prejudiced him. As the
hearing officer aptly noted, Cummings provided no evidence that Scarlett in fact
used anything she learned as his coach against him when evaluating him. The
hearing officer also disagreed with Day's testimony that Scarlett's conflict of
interest was evident because when acting as his coach, Day would help
Cummings develop a lesson, and then when he attempted to deliver that lesson,
Scarlett would observe him and note that he was not delivering the lesson as
planned. The hearing officer opined:
Based on [Day's] reasoning, the Hearing Officer reaches the opposite conclusion. The math coach could only assist Appellant in the delivery of a math lesson, if the lesson, as planned, is observed. Ms. Scarlett, as the evaluator, should have had a copy of the lesson plan and would be in a position to determine if it was delivered as she and Appellant had planned. Her dual roles were not in conflict but should have been of assistance to Appellant in improving his performance and remedying the teaching deficiencies for which he was placed on probation.
CP at 121. We agree. Furthermore, Cummings received coaching from the
District's math coach, Olviles,15 and Cummings reported that feedback from Olviles had been helpful. Thus, he was not limited to Scarlett's coaching alone.
14 Cummings contends the superior court erred by determining this was an issue offact when conflict of interest is a question of law or a mixed question of fact and law, though he cites no authority for this proposition.
15 Olviles' first name does not appear in the record.
13 No. 68519-8-1/14
Moreover, neither former RCW 28A.405.100 (2010) nor RCW 28A.405.310
prohibits the same person from serving as a primary evaluator and coach.
Finally, Cummings points to no authority stating that he could not be evaluated
by an evaluator without expertise in special education or one who had not
conducted a certain number of evaluations.
Second, Cummings contends the District erroneously refused to
accommodate his disability, ADHD.16 The hearing officer and the superior court both found that Cummings' ADHD was not the reason for his nonrenewal and
that his lack of content knowledge in math was the reason he could not teach
CMP2 to his special education students. We agree.
Cummings contends the proper inquiry is whether the District violated
RCW49.60.040(7)(d)(1)17 and RCW 49.60.180(2)18 by refusing accommodations. But, appealing as he does from the ruling that the District
established sufficient cause for his nonrenewal, he fails to show that the District's
refusal to provide his requested accommodations contributed to his failure to
remediate his deficiencies during probation. Cummings testified that his inability
to teach CMP2 was due to his lack of sufficient math skills, not because of his
ADHD. He testified that the accommodations he requested would not have given
16 "Disability" is defined as, among otherthings, the presence of an "impairment" that is "medically cognizable or diagnosable." RCW 49.60.040(7)(a)(i). The District does not dispute that ADHD qualifies as a disability.
17 The statute provides in pertinent part thatfor purposes ofqualifying for reasonable accommodation in employment, a disability must have a "substantially limiting effect upon the individual's ability to perform his or her job." RCW 49.60.040(7)(d)(1).
18 RCW 49.60.180(2) provides in pertinent partthat it is unlawful to discharge any person from employment "because of... the presence of any ... disability."
14 No. 68519-8-1/15
him math skills he did not possess. Snyder testified that his recommendation for
accommodations did not specifically address whether Cummings needed
accommodations to teach math to his middle school students and that
Cummings' ADHD did not contribute to his lack of content knowledge in math.
Cummings cites the statement in Clarke that "school authorities should refrain
from discharging a teacher as a matter of law, except in the most egregious
cases, .. . especially where the teaching deficiency is related to a handicapping
condition amenable to rehabilitation." Clarke, 106 Wn.2d at 117. But Cummings'
deficiency was not "related to" a condition amenable to rehabilitation; as he
admitted, his lack of content knowledge was not related to his ADHD.
Sufficient Cause for Nonrenewal
Cummings contends the District did not show sufficient cause for
nonrenewal because (1) Goodloe-Johnson did not give sufficient weight to Day's
opinion; (2) his evaluation and nonrenewal was impermissibly based in part on
his teaching of general education math; and (3) his assignment to teach CMP2
math to special education students was not reasonable.
First, Cummings contends Goodloe-Johnson did not give Day's opinion
sufficient weight. He notes that Day was an experienced evaluator who had
worked for the District as a middle school principal and as a high school assistant
principal. He points out that Day testified that he improved during his probation.
But, notwithstanding her recommendation of an additional year of probation, Day
admitted that Cummings was not a competent CMP2 math teacher. Her final
probation summary noted that while Cummings had shown improvement, "his
15 No. 68519-8-1/16
math skills are minimal" and that "because he does not grasp the scope and
sequence of CMP content, he is not competent to modify this content" for his
special education students. CP at 2223.
Next, Cummings contends his nonrenewal was based in part on his
teaching of general education math, in violation of WAC 181-82-110(1)(b), which
states that teachers assigned to teach classes outside of their areas of
endorsement "shall not be subject to nonrenewal or probation based on
evaluations of their teaching effectiveness in the out-of-endorsement
assignments[.]" He notes he is not endorsed to teach general education math but
was assigned to teach two general education classes. He points out that the
hearing officer's opinion considered his teaching in those classes and that the
District's letter indicating probable cause for nonrenewal did not specifically
exclude any of his classes.
We conclude that WAC 181-82-110(1)(b) was not violated. As the hearing
officer found, Cummings was nonrenewed based on his teaching of math in his
special education classes, not based on his teaching of general education math.
Cummings was placed on probation after his mid-year review in his special
education math classes specifically; Scarlett's January 28, 2010 "Evaluation
Form" lists the "Department" as "Special Education Math 6-8." Scarlett's
observation reports during his probation reported the "Department/Assignment"
under observation as "Special Education Math 6-8." CP at 1578. Cummings
confirmed in his testimony that the only formal observations of his teaching were
of his special education classes. Cummings refers to certain statements in the
16 No. 68519-8-1/17
"Professional Responsibility" section in Scarlett's April 26, 2010 evaluation, which
were included in the hearing officer's opinion.19 CP at 1626. But although Scarlett's discussion of Cummings' failure to implement the "I Can Learn Math"
program in his general education math classes was erroneously considered by
the hearing officer, Day also testified that Cummings did not implement the
program in his special education classes either.
Finally, Cummings contends mandating him to teach CMP2 to special
education students was not reasonable and violates former RCW 28A.405.100
(2010) and the Collective Bargaining Agreement (CBA), Article III.5.20 He
contends CMP2 was inconsistent with his students' lEPs because their IEP
teams had not approved that curriculum and no changes had been made to the
19 Under that section, Scarlett wrote:
According to I Can Learn usage reports for the year, you have never implemented this necessary part of our mathematics intervention program in your math improvement classes. Your students were never given structured daily mathematics intervention instruction and have spent an entire year working on MSP practice questions. While many students in the other mathematics improvement classes have completed upwards of forty lessons, your students have not engaged in any I Can Learn instruction to improve their number sense, basic skills and problem solving. Our mathematics intervention program is an integral part of our school improvement and Performance Management plan. Your failure to implement this program is a direct violation of our Performance Management Plan and is a disservice to the vulnerable Level 1 math scoring students that have been entrusted to your instruction.
CPat1626,100-01.
20 Cummings also contends mandating him to teach CMP2 to his special education students violates their rights under the Individuals With Disabilities Education Act of 2004, 20 U.S.C. § 1400 et seq (IDEA). We agree with the District and the superior court that the hearing officer correctly determined that Cummings does not have standing to challenge his non-renewal based on alleged IDEA violations. See Lake Washington Sch. Dist. No. 414 v. Off, of Superintendent of Pub. Instruction. 634 F.3d 1065, 1067-69 (9th Cir. 2011) (school district does not have standing under IDEA to assert rights that belong to parents and children).
17 No. 68519-8-1/18
lEPs. He also contends there is no evidence that CMP2 was the required math
curriculum for the District's special education students.
These arguments are not well taken. Pritchett testified that all McClure
math teachers were required to use CMP2. While she did not testify that CMP2
was mandated throughout the District, Cummings points to no authority
precluding a school from requiring its teachers to follow a certain curriculum.
Moreover, CMP2 has a specific section for special education students, could be
modified to accommodate the needs of special education students, and had been
taught in the blended classrooms in which Cummings had co-taught. There was
also evidence that CMP2 was being successfully taught to special education
students at other middle schools in the District. During his probation, Cummings
observed CMP2 taught in special education classes at Madison Middle School
and had been impressed by the teacher he observed teaching that material.
Furthermore, while Cummings contends that teaching CMP2 was inconsistent
with his students' lEPs, he points to no authority that states that teaching a
student appropriately under his or her IEP requires the IEP to specifically include
that curriculum.
Former RCW 28A.405.100 (2010) is silent about this issue and Cummings
does not specifically explain how that statute was violated. As for Article 111.5 of
the CBA, that provision states, "No single instructional philosophy or technique is
prescribed by [Seattle Public Schools] for the instruction of a Special Education
student." CP at 1429. But Cummings points to no authority to show that
mandating a curriculum is equivalent to mandating a certain "instructional
18 No. 68519-8-1/19
philosophy" or "technique." The hearing officer did not clearly err in concluding
that a curriculum is more similar to a "course of study," as referenced in the CBA,
Article 111.1, which states that teachers have a "basic responsibility to utilize
properly the current SPS authorized course of study." CP at 1428. See also WAC
180-44-010(1) ("It shall be the responsibility of the teacher to follow the
prescribed courses of study of the .. . and to enforce the rules and regulations of
the school district.").
Other Claims of Error
Cummings contends other errors undermine the decisions of the hearing
officer and superior court. First, he contends the hearing officer violated former
RCW 28A.405.100(3)(a) and (4)(a) (2010) by considering Pritchett's
recommendation to the extent she purported to represent her observations of his
teaching. He contends Pritchett offered her observation of his teaching
performance even though she did not document her observation, advise him of
any alleged deficiency, or prepare any written evaluation. We disagree. In the
cited portion of the record, Pritchett testified that she had informally observed
Cummings' teaching, read Scarlett's observation reports, and made a
recommendation. She did not describe her observations of his teaching or testify
that her recommendation was based on her informal observations.
Cummings also contends the hearing officer erroneously considered the
"Professional Responsibility" section of his evaluation when he was not placed on
probation for Professional Responsibility and it was not referenced in his PIP. We
reject this claim because Cummings does not show any prejudice from the error.
19 No. 68519-8-1/20
Conclusion
In sum, the record contains substantial evidence that Cummings failed to
correct his deficiencies during his probation. Cummings testified that he did not
possess the math skills to deliver CMP2 to special education students. Pritchett
testified that Cummings did not meet the conditions of his PIP and that his
performance was not at the minimum expected level. Her testimony was
supported by Scarlett's progress reports. Day also testified that Cummings could
not deliver CMP2 to special education students. The hearing officer and superior
court did not err in concluding that the District had sufficient cause for
nonrenewing Cummings' contract.
Affirmed.
WE CONCUR: 4-4*fr^<*~ JL
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