Judge: James C. Chalfant, Case: 23STCP00611, Date: 2023-11-21 Tentative Ruling

Case Number: 23STCP00611    Hearing Date: November 21, 2023    Dept: 85

            A finding of misconduct is not alone enough to dismiss.  Instead, that misconduct must render the teacher unfit to teach.  San Dieguito, supra, 135 Cal.App.3d at 288.  The conclusion of unfitness must be based upon an objective standard as articulated in Morrison, supra, 1 Cal.3d at 220.  See San Dieguito, supra, 135 Cal.App.3d at 288.

            In Morrison, the California Supreme Court articulated factors to consider in whether a credentialed employee’s misconduct renders him unfit for service as a teacher.  Those factors are: (a) likelihood that the conduct at issue may have adversely affected students/fellow teachers; (b) degree of such adversity anticipated; (c) proximity or remoteness in time of the conduct; (d) type of teaching certificate held by the party involved; (e) extenuating or aggravating circumstances, if any, surrounding the conduct; (f) likelihood of recurrence of the questioned conduct; (g) praiseworthiness or blameworthiness of motives resulting in the conduct; (h) extent to which disciplinary action may inflict an adverse impact or chilling effect upon constitutional rights of the teacher involved or other teachers.  Id. at 229-30.  Not every Morrison factor must be considered; a trier of fact may consider all the factors that are relevant to the respective case.  Ibid.; West Valley-Mission College v. Concepcion, (1993) 16 Cal.App.4th 1766.

            3. Administrative Process

            Upon filing of written charges based on section 44932 or 44933, alleging cause for dismissal or suspension of a permanent employee thereunder, the school district’s governing board may, upon majority vote, give notice to the permanent employee of its intention to dismiss or suspend him or her at the expiration of 30 days from the date of service of the notice unless the employee demands a hearing.  §44934(b). 

            If the employee does demand a hearing and the parties do not elect to waive a hearing before a CPC, one member of the CPC shall be selected by the employee, one member shall be selected by the governing board of the school district, and one member shall be an administrative law judge of the Office of Administrative Hearings.  §44944(c)(2).  The first two members shall not be related to the employee and shall not be employees of the school district initiating the dismissal or suspension.  §44944(c)(5)(A).  Each member shall hold a currently valid credential and have at least three years’ experience within the past ten years in the discipline of the employee.  Id.

            The decision reached in a dismissal or suspension proceeding initiated pursuant to section 44934 or 44934.1 may, on petition of either the governing board or the employee, be reviewed by a court of competent jurisdiction in the same manner as a decision made by a hearing officer under Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.  The court, on review, shall exercise its independent judgment on the evidence.  The proceeding shall be set for hearing at the earliest possible date and shall take precedence over all other cases, except older matters of the same character and matters to which special precedence is given by law.  §44945.

            4. District Policies

            The Board expects District employees to maintain the highest ethical standards, exhibit professional behavior, follow District policies and regulations, and abide by state and federal laws and exercise good judgment when interacting with students and other members of the school community.  AR 35 (Board Policy §4119.21).  Employee conduct should enhance the integrity of the District, advance the goals of the District’s educational programs, and contribute to a positive school climate.  Board Policy §4119.21. 

            Inappropriate employee conduct includes, but is not limited to, (1) any conduct that endangers students, staff, or others, including, but not limited to, physical violence, threats of violence, or possession of a firearm or other weapon, (2) harassing or discriminatory behavior towards students, parents/guardians, staff, or community members, or failure or refusal to intervene when an act of discrimination, harassment, intimidation, or bullying against a student is observed, and (3) physical abuse or other willful harm or injury to a child.  Id.

            D. Statement of Facts[2]

            1. Background

            a. JB

            JB was born on November 4, 2016.  AR 541.  In September 2021, when JB was close to five years old, District staff prepared a Pre-Student Intervention Team (“SIT”) form to set goals for JB in that school year.  AR 486.  JB would get upset and cry throughout the day, elope from the classroom, and struggle with letter and number recognition.  AR 486.  The District planned to provide daily support to build JB’s vocabulary, use a visual schedule and token board, and have him follow a routine to transition in and out of the classroom.  AR 486-87.

            Pre-SIT notes from late 2021 state that JB would elope around the corner of the building, yell out and babble at random times, knock students’ things off desks, struggle academically, and seek attention.  AR 491-93.

            In a January 2022 Individual Education Program (“IEP”) meeting, JB’s mother (“Mother”) stated that JB’s language and communication were a real concern but acknowledged an improvement in his vocabulary.  AR 541-42.  JB still demonstrated deficiencies in receptive, expressive, and pragmatic language.  AR 542.  Instead of one-on-one special education, the District chose the least restrictive education by placing JB in general education with specialized instruction and speech and language services.  AR 543.

            b. Strong

            Strong is a TK teacher as Howard Wood Elementary School (“Wood”).  See AR 420.

2. The February 3, 2022 Incident

            On February 3, 2022, paraeducator Shilpa Totlani (“Totlani”), prepared a handwritten statement about an incident occurring that day.  AR 386.  She entered Strong’s room to report about a student and saw Strong holding JB’s hands hard against his chest.  AR 386.  Strong also had her foot on his leg, kicking him.  AR 386.  She released her foot off him, and he was seen touching and pressing his leg.  AR 386.

            Totlani also reported that Strong does not allow a student to use the restroom and tells them to wait, and Totlani saw a kid in the hallway with his pants down and wet running to the nurse on January 27 or 27, 2022.  AR 387.

            In a February 17, 2022 interview with Principal Dawn Johnson (“Johnson”), Strong denied holding or restraining JB in his chair.  AR 537.  She was leaning down to tell him that “we do not hit.”  AR 537.  JB had bitten into a pencil that Strong then threw away.  AR 537.  In response, he came up behind Strong and hit her in the back.  AR 537.[3]  She told him several times to sit back down, and eventually he did.  AR 538.

            Strong then leaned down to JB’s level and placed one of her hands on one of his.  AR 538.  During their conversation, JB kicked her in the shin.  AR 538.  Strong moved a hand to his knee and told him: “We don’t kick.”  AR 538.  The paraeducator had come in and she said: “Oh wow, I’ve never seen him do that – hit or kick you.”  AR 538.  Strong told the paraeducator that hitting and kicking was a common occurrence.  AR 538.  She would always move back in response, never restraining him.  AR 539.  At most, she would put a hand behind his head to prevent him from hitting it against something.  AR 539.  She has reported this to several Wood personnel and was told to start documenting it. AR 539.  She has done so, and JB’s behavior has gotten worse over the past two to three weeks.  AR 539.

            3. Documentation of Other Incidents

            a. January 19, 2022 Incident

            On February 4, 2022, Wood’s psychologist, Tracy Nguyen (“Nguyen”), stated that, on January 19, 2022 at 12:38 p.m., a teacher advised her that JB needed help on the playground.  AR 388; see AR 337.  Nguyen arrived to see Strong holding JB’s hand near a bench with another kindergarten student.  AR 388.  Every other student had already returned to class.  AR 388.  Strong said that both students were having a hard time and asked Nguyen: “Which one do you want?”  AR 388.  Nguyen replied that JB was Strong’s student so she should bring him inside while Nguyen stayed with the other student.  AR 388.  Strong led JB by the hand while JB appeared to be pulling away from her.  AR 388.

b.      Zamora’s February 8, 2022 Email

            On February 8, 2022, Instructional Aide Yvett Zamora (“Zamora”) reported in an email that Strong speaks to her students in a harsh manner and sometimes throws school supplies at student tables when passing out work.  AR 390.  Strong refuses to help one student with his work when he asks, and she shows little affection to the rest.  AR 390.  Zamora did not notice any other abuse or ill-mannered behavior, but Strong did once lock JB’s head between her legs in the classroom doorway.  AR 390.  Zamora had mentioned this to the school counselor.  AR 390.

c. January 27 Incident

            A February 8, 2022 email from Special Education Teacher Sarah Doumerc (“Doumerc”) reported that, on January 27, 2022, she observed Strong’s class line up and transition into the classroom from lunch.  AR 389.  A student pushed JB without provocation, who then turned and pushed another student.  AR 389.  Strong harshly told JB: “We don’t hit” and directed him to keep his hands to himself.  AR 389.  Doumerc stepped in and explained JB was not the aggressor.  AR 389. 

            Strong grabbed JB by the wrist and pulled him toward the classroom.  AR 389.  JB dropped to the ground and began kicking as she continued to hold his wrist.  AR 389.  Doumerc intervened and told Strong to let go of JB’s wrist.  AR 389.  Doumerc showed Strong how to gently guide him by the side of his arms to avoid triggering him.  AR 389.  JB rejoined the line and walked back to class.  AR 389.

            4. The Notice of Intent

            On March 21, 2022, the District filed the Statement of Charges against Strong.  AR 14, 33, 331-50.  The Statement of Charges alleged persistent violations of Board Policy 4119.21, including (1) physical violence towards JB, (2) harassing behavior towards students, including attempts to inappropriately restrain JB, (3) harassing behavior for not letting a student use the restroom when the student asked, and (4) failure to intervene when she observed bullying against JB, and punishing JB instead of the bully.  Id.  The Statement of Charges also noted Zamora’s assertion that Strong would throw school supplies at the table towards the students.  Id.

            The Statement of Charges cited Penal Code section 242, which defines battery as any willful and unlawful use of force or violence upon the person of another.  AR 348.  Strong committed battery when she kicked JB in the shin with enough force to cause pain.  AR 348.  Other instances where she grabbed and pulled JB by the hand or wrist also constitute battery.  AR 348.  The Statement of Charges stated that cause existed to dismiss Strong from her employment.  AR 32.  The District issued a separate Notice of Intent to that effect.  AR 63-64.

            4. The Appeal

            On March 30, 2022, Strong filed a request for a hearing to contest the Statement of Charges and Notice of Intent.  AR 13. 

            The evidence submitted for the appeal included two maps of Strong’s classroom.  AR 392, 415.  The first (Ex. 9) shows the door in the lower right corner of the room, Strong’s desk on the upper left, and two rows of desks in between.  AR 392.  The second (Ex. TT) places the door on the upper right and shows the furniture surrounding Strong’s desk and lining the walls of the room.  AR 415.

            5. The Hearing

            The hearing was held in September 2022.  Pertinent testimony is as follows.

            a. Dylan Farris

            Dylan Farris (“Farris”) is the District superintendent’s designee for all personnel matters.  AR 565, 568.              On February 3, 2022, Farris received a call from Wood Principal Johnson.  AR 568.  Johnson stated that Totlani, a paraeducator, had walked into Strong’s classroom and reported seeing Strong hold JB down with his arms crossed in a chair with one foot stepping on the child’s foot and that Strong kicked him.  AR 568.  The student then leaned down and rubbed his shin.  AR 568.

            Johnson wanted to confirm what her next steps should be.  AR 568-69.  Farris said that they needed to tell Strong about the report and put her on paid administrative leave to provide time to investigate the allegation.  AR 569.  Johnson also needed to contact JB’s parents and let them know that the District had received this report and would be investigating.  AR 569.  Johnson then needed to contact the Torrance Police Department (“TPD”) and the County’s Department of Children and Family Services (“DCFS”).  AR 569.

            Farris never interviewed JB because the children in a TK classroom are too young to be reliable witnesses, and there also were concerns about JB’s ability to communicate.  AR 571. 

Farris interviewed Strong with her union representative and Principal Johnson present to clarify what happened on February 3, 2022.  AR 571-72.  Strong denied any physical contact with JB.  AR 572.  She said that JB had punched her in the back and kicked her, but her reaction was to just repeat instructions “we don’t hit” and “we don’t kick” and to sit down.  AR 572, 603.  She also admitted placing one hand on JB’s hand and another on his knee when she said that.  AR 587-88, 612.  When asked if she ever had to “physically gather” and “direct” JB, Strong said yes.  AR 603-04.  Farris understood that gathering is different from restraint. which prevents movement.  AR 611-12.

            Strong never received a Skelly hearing and this interview was the only time Ferris spoke to her about the charges.  AR 577.

            Farris received a copy of Johnson’s investigation notes.  AR 572.  Based on these notes and the interview, Farris and Johnson prepared the Statement of Charges and Notice of Intent reflecting what they thought occurred.  AR 573.  The Statement of Charges focused on Strong’s kicking JB on February 3.  AR 582.  They found Totlani’s narrative more credible than Strong’s.  AR 573-74.  Strong admitted that JB was out of control, so it made sense if she would have had to restrain him.  AR 574. But her explanation that she never had to restrain him even though he was out of control was not believable.  AR 574.

            b. Totlani

            As a mandated reporter, paraeducator Totlani is required to report any child abuse she reasonably suspects.  AR 627, 678-79.

            Around January 23 or 25, 2022, Totlani was formally assigned via IEP to watch JB.  AR 645.  She knew JB had some difficult behaviors and he used to elope from the classroom, but she could not say how often he did so before he was formally assigned to her.  AR 645.  She was told that JB urinated on the play yard, which she later saw him do twice.  AR 647.  She also observed him hit students or pull their masks a couple of times, but she did not see him get into fights.  AR 650.

            Ex. 9 is an accurate portrayal of the layout of Strong’s classroom during the February 3 Incident.  AR 1272.  Totlani said that Strong’s desk was diagonal from the door but she at first could not remember if it was to the left or right.  AR 658-59.  There were more than 20 students in the classroom, but she could not remember if there were more than 25.  AR 659.  The student desks were everywhere, as Strong had discretion how to space them.  AR  659-60.  Totlani could not remember the specific configuration, but one line faced the window while another line faced another wall.  AR 660-61.  An unspecified number of desks was in the center.  AR 661. 

            Totlani entered Strong’s room for the purpose of reporting an incident between two of Strong’s students during lunchtime, one of whom was JB.  AR 623, 651.  She had seen JB and another student on the slide and the other student had kicked JB on his behind.  AR 651.

As she entered Strong’s classroom, she saw Strong on the right side of the classroom.  AR 623, 665-66.  JB’s chair was facing away from Totlani.  AR 661-64, 731.  Strong’s right side and JB’s left side were visible to Totlani.  AR 668.  Strong was facing JB.  AR 662.  Every other student had their back turned to Totlani as she entered.  AR 662.  She had a direct line of sight.  None of the student desks blocked her line of sight to Strong and JB, who were about seven to eight feet from the door.  AR 664, 670.

 Strong was holding JB’s crossed hands hard against his chest with both of hers.  AR 623, 665-66.  Strong had her right foot on JB’s left foot.  AR 666.  She raised her left foot and kicked his right shin once.  AR 623-24, 666-67, 671, 686.  The foot that she used to kick JB was the foot closest to Totlani.  AR 667.  The kick took one second.  AR 671.

            Strong released JB’s arms as Totlani approached.  AR 670.  By then Strong had held JB’s arms for about 2-3 seconds.  AR 670-71.  Totlani “was already shaking from what she had seen.”  AR 669.  Totlani asked JB what happened in a normal tone.  AR 624, 668.  He rubbed his shin and muttered something behind his mask.  AR 668, 670.  Strong answered that JB had tried to bite her hand, and she showed a wet spot on her jeans where JB also spat on her.  AR 624, 668, 672-73.  Strong showed the hand she said JB bit, but Totlani never saw a bite mark.  AR 624, 673-74.  Strong also showed Totlani a pencil in a trash can that JB was chewing on.  AR 673.  The spit mark on her jeans had traces of powder, carbon residue from the pencil.  AR 673.  Totlani had never seen JB bite a pencil before.  AR 673.

            What Totlani saw made her “sick to her stomach”, so she knew she had to report it.  AR 773.  She went to tell Johnson, but her door was closed.  AR 675.  After lunch, she ran into Zamora, who told her to tell Johnson.  AR 676.  Totlani went to Johnson’s office at about 2:00 p.m.  AR 677.  Johnson saw she was upset and invited her in to explain why.  AR 625.  After Totlani reported her observations, Johnson had Totlani leave so that Johnson could make a few phone calls.  AR 625. 

            The next day, Johnson asked her to prepare her written statement about the February 3 Incident.  AR 625-26.  She gave the statement to Johnson, and they called DCFS together.  AR 698.  Totlani then told DCFS the same thing that she had told Johnson and had written in her report.  AR 698.

            Johnson’s investigation notes said a Learning Center parent, Cindy Randall, was exiting Strong’s classroom as Totlani walked in.  AR 657.  Totlani did not remember this.  AR 658.  Johnson’s notes also stated that Totlani saw JB kick Strong before Strong kicked his shin, which Totlani denied.  AR 683-84.  She never told Johnson that she saw JB kick Strong.  AR 702.  A detective had told Totlani that the DCFS report said the same thing, but she told the detective that was a mistake.  AR 700-01.  They had Johnson correct the report.  AR 701.          

            Totlani told the detective that Strong’s behavior had become more erratic in the weeks before the February 3 incident.  AR 712.  She had grabbed another IEP student by the neck to push him down two or three times that week.  AR 712.

            On February 22, 2022, after Strong was removed from the classroom, JB pushed another student at least twice and Totlani made him apologize.  AR 719-20.  On February 24, JB grabbed a student by the neck and pushed him down the slide.  AR 720-21. That same day, JB grabbed and threw another student’s snack.  AR 721.  When Totlani reported this to Doumerc, they wrote that there are two adults (teacher and paraeducator) supporting JB and that he was “fast and unpredictable” because he is an active kid.  AR 721-22.  Totlani reported other instances of JB grabbing or pushing other students in February and March 2022.  AR 723-26.

            On March 4, 2022, Totlani caught JB throwing blocks over the playground fence onto the sidewalk.  AR 726.  JB eloped from the classroom three times on March 10, 2022.  AR 727.

            c. Zamora

            On February 3, 2022, when paraeducator Totlani tried to tell Instructional Aide Zamora details of the February 3 incident, Zamora stopped her and told her to tell Principal Johnson.  AR 779.  All Totlani told Zamora was that she had witnessed Strong hold JB by the arms and “kick on” his leg.  AR 792.

            Either that day or the next morning, Johnson asked Zamora if she saw any of it.  AR 779.  When Zamora said she did not, Johnson asked her for a written statement of whatever she witnessed in Strong’s classroom.  AR 779. 

            Zamora’s statement included an incident when she was walking quickly down the hallway.  AR 783.  She noticed JB trying to come out of Strong’s classroom.  AR 783.  Strong stood just outside the doorway and was stopping him from crawling out.  AR 783, 816.  He was on his hands and knees trying to squeeze out between Strong’s legs, and Strong locked JB’s head between her legs to keep him from coming out.  AR 783-84. 

            Zamora does not know how the incident began.  AR 821.  She saw this for a minute from about 15-20 feet away, and she could not tell if JB was uncomfortable or in pain because he was face-down.  AR 816-19.  Zamora could not see JB’s body or how firm Strong’s legs gripped his head.  AR 818.

            Zamora reported the incident to counselor Charly Guevara (“Guevara”) so that Strong would receive instruction on better techniques to keep JB from running out.  AR 784, 819-20.  Zamora felt uncomfortable because there were other ways to keep JB inside the classroom.  AR 784.  If it were her, she would have just stood in front of the door until JB turned back around.  AR 822.  She had never seen someone do what Strong did.  AR 818-19.  When asked if it was “inappropriate,” Zamora said it is never okay to pin a student between your legs and the situation could have been handled differently.  AR 823.  However, Zamora stood by her deposition testimony that Strong’s behavior was not inappropriate.  AR 823-24.

            Zamora did not know if Guevara spoke to Strong after she reported it.  AR 820.

            Zamora also reported that Strong did not hand supplies to students in a caring manner but rather threw them at the table.  AR 783, 803.

            Zamora never saw Strong push or kick a student or do anything inappropriate, unprofessional, or physically abusive.  AR 796, 812-14.  Her conduct was just not okay for students that young.  AR 803. 

            Zamora saw JB hit Strong once and he has hit Zamora about five times.  AR 799-800.  He has tried to elope from the classroom three to four times a day, at least once or twice a day when Zamora ran the classroom.  AR 820-21, 832.  He once unsuccessfully tried to stab Zamora in the leg with a pencil after she kept him from running out.  AR 833-34.  He pushed Zamora more than once, and he punched her hard enough on the stomach to leave her sore for a few days.  AR 835.

            A paraeducator reported that JB pulled the mask and earpiece off a hearing-impaired student.  AR 829.  JB’s other behaviors included throwing things at students, hitting students, laying on top of them, screaming at them to scare them, throwing whatever was in his way out of it, either tossing or pushing scissors and other supplies off his desk, running out, and trying to bite people.  AR 822, 834, 839, 855.

            d. Nguyen

            As of the hearing, Nguyen had worked as a District psychologist for four years, mostly for Wood.  AR 897-98.  She has a bachelor’s degree in child development and family studies, a bachelor’s degree in family life education, and a master’s degree in school psychology.  AR 898. 

            During the 2020-2021 school year, she spent four days a week at Wood.  AR 899.  The 2021-2022 school year was the first year in which she spent time with students from Strong’s class.  AR 900-01.  She assessed one student in Strong’s class before JB.  AR 901.

            On the first day of that school year, JB’s parents advised Nguyen that JB may be a runner.  AR 950.  At the time, parents were not allowed on campus due to COVID-19, so Wood staff would escort young students onto campus.  AR 950.  Nguyan met Mother to take JB inside, and Mother advised her he may run.  AR 950.

            Nguyen first met JB in either September or October when Strong initiated a SIT to get assistance in supporting him.  AR 913.  Her concerns included JB crying in the classroom, elopement from the classroom, knocking things over, and English language skills.  AR 913, 936.  Strong did not mention kicking, spitting, biting, or pushing until later.  AR 935-36. 

            Strong was part of JB’s IEP team.  AR 923.  The IEP team’s recommendation was that he was eligible under autism as a primary, with speech or language impairment as a secondary.  AR 923.  However, his parents did not agree to autism eligibility, so his IEP lists his speech or language impairment as a primary.  AR 923.

            An expectation of the SIT process is that teachers will inform parents of any concerns noticed and any interventions tried.  AR 947.  Nguyen told Strong sometime after the IEP meeting in late January 2022 that she needed to inform the parents of JB’s hitting or kicking behaviors because it had not been brought to their attention.  AR 1016-17.

            On February 4, 2022, Johnson told Nguyen that there was a substitute in Strong’s class but not why.  AR 901-02.  Nguyen agreed to check in that day in case the substitute needed support.  AR 902.  Johnson also asked if Nguyen ever observed any inappropriate behaviors between Strong and any students.  AR 902.

            Nguyen recalled several incidents and, at Johnson’s request, prepared a document listing them.  AR 902-03.  The first incident was January 19 2022 when JB refused to go back inside at 12:30 p.m. after lunch.  AR 904, 968.  An instructional aid supervising the playground asked Nguyen to help with JB.  AR 967.  When Nguyen arrived, every student except two had gone back inside.  AR 967-68.  Strong said: “These two are having a hard time.  Which one do you want?”  AR 967.  Nguyen responded that JB was Strong’s student, and she could be with him while Nguyen waited with the other student one for his teacher.  AR 967. 

            Nguyen did not tell Johnson about it because she did not see an injury.  AR 1012.  Nguyen later reported this incident on February 4 because JB was pulling away from Strong when she walked him back to the classroom.  AR 904, 968.  Nguyen was asked whether she saw Strong possibly act inappropriately with a student and this incident came to mind.  AR 1009-10, 1012.

            The second incident was a verbal exchange on January 31, 2022, when Strong called Nguyen looking for Counselor Guevara for help.  AR 905.  JB was having a tantrum, and Strong was worried others would get hurt.  AR 905-06.  Nguyen passed by Johnson on her way to Strong’s classroom, so Johnson joined her.  AR 906-07. 

            When they arrived, Strong said "Here you go" and nudged JB to Nguyen.  AR 906, 1019.  She also mentioned he spat on her.  AR 906, 1020.  Principal Johnson stood behind Nguyen and said: “Not now.”  AR 906.  Nguyen thought that Johnson meant “let’s not talk about that here.”  AR 909.  Strong then said: “Every one of you saw what happened.”  AR 906.  With the other students within earshot at the table and their desks less than three feet away, Nguyen decided to remove JB from the conversation.  AR  906, 908-09, 912.  JB looked like he had been crying.  AR 907.  Strong looked either frustrated or just at a loss for what to do.  AR 907-08.

            Nguyen testified that she removed JB from the situation because she believes that students should not hear adults say negative things about them right in front of them, both for reasons of privacy and not to humiliate the children in front of their peers.  AR 909.  The hearing officer then directed Nguyen to limit her observations to this situation and not make general statements qualifying as expert testimony.  AR 911.

            Before her February 4 report, Nguyen did not tell Principal Johnson that Strong’s conduct during the January 31 incident was inappropriate.  AR 1021.

            e. Doumerc

            Special education teacher Doumerc received a bachelor’s degree in special education from Western Governors University in 2018.  AR 1034.  She also has a special education and multiple subject credentials.  AR 1034.

            Doumerc started working for the District in 2004 as a paraeducator.  AR 1036.  From 2004 to 2009, she supported students in one-on-one in classroom settings and at recess.  AR 1036-37.  From 2009 to 2013, she was a Learning Center paraeducator at Torrance Elementary School where she provided specialized academic instruction for students that had special education service in their IEPs.  AR 1037.  She then served as Victor Elementary School’s Learning Center paraeducator until 2019.  AR 1037-38. 

            With her new bachelor’s degree, she served as a Learning Center special education teacher at Torrance Elementary School for the spring of 2019.  AR 1038.  She then split her time as a Learning Center special education teacher between two schools for the 2019-2020 school year.  AR 1038-39.  She remained a Learning Center special education teacher for the 2020-2021 school year, but only at Wood.  AR 1039-40.

            Doumerc did not work with Strong and her students until the 2021-2022 school year.  AR 1041.  She first assessed JB for special education in December 2021 but never participated in SIT team meetings about him.  AR 1050.  The assessment involved observation in the Learning Center, not in Strong’s classroom, for 30 minutes a day over three days.  AR 1055-56.

            Doumerc prepared her February 8, 2022 email after the February 3 incident because Johnson asked if Doumerc has observed any concerning events involving Strong.  AR 1043-44, 1124.  Doumerc replied that she had personally observed one thing and heard about another, but she did not go into detail.  AR 1044-45.  Johnson told Doumerc to write a summary only of the incident she had observed, which was the January 27 incident.  AR 1045. 

On that day, Doumerc observed Strong’s class line up and wait for her outside on the blacktop.  AR 1045.  A student pushed JB without provocation, who then turned and pushed another student behind him.  AR 1045.  In a harsh tone, Strong told JB not to hit or push people and to keep his hands to himself.  AR 1045.  Doumerc stepped in and explained that JB was not the instigator.  AR 1045-46.  Strong did not say anything.  AR 1046. 

Strong grabbed JB by the wrist and pulled him toward the front of the line.  AR 1046.  JB soon dropped to the ground and began kicking her.  AR 1046.  Strong continued to hold his wrist as she tried to pull him back into a standing position.  AR 1046.  Doumerc told Strong let go because that was triggering JB.  AR 1046.  Strong complied, and JB instantly stopped kicking Strong.  AR 1046.  Doumerc offered her hand, which JB took without incident.  AR 1046.  Doumerc informed Strong that if she needed to direct JB, she should put her hands on his shoulders or the side of his arms.  AR 1046.  Strong did not say anything as she took the class and walked off.  AR 1047.

            One thing Doumerc did not write in her February 8, 2022 email was that as she walked away, Strong turned and yelled: “Oh, by the way, he bit me today.”  AR 1047.  Doumerc was shocked and asked Strong if she had reported it to Johnson.  AR 1047.  Strong said she had not had the time and Doumerc asked her to do so and copy her (Doumerc) because they need to document this.  AR 1047.

            The January 27 incident was concerning to Doumerc for a few reasons.  AR 1048.  Strong approached JB in a pretty harsh tone.  AR 1048.  Even after Doumerc explained that JB was at fault, Strong did not apologize or say she did not see the incident.  AR 1048.  Grabbing his wrist and pulling was also concerning.  AR 1049.  When he dropped and started kicking Strong, she did not change her actions until Doumerc intervened and asked her to let go of his wrist.  AR 1048.  Strong failed to recognize that her conduct was triggering aggressive behavior or to adjust accordingly.  AR 1049.  Yelling about JB biting her in front of his peers, with four filled classrooms in between to hear, was also inappropriate.  AR 1049-50.  Speaking negatively about a student in front of others can affect how peers treat him.  AR 1050.

            f. Mother

            Before the February 3 incident, Strong and Mother would talk about JB after class was dismissed and through email.  AR 1071.  One time Strong had sent an email that JB tried to bite her and they talked about it during dismissal.  AR 1076.  Another parent advised Strong that it was unacceptable to speak like that in front of student because it could demoralize him.  AR 1076.  Still, Mother always wanted to know how her child was doing at Wood.  AR 1076.

            Mother received three to four emails from Strong about JB.  AR 1084.  One was about the parent who interrupted Strong and told her not to publicly give negative feedback.  AR 1084.

            JB would elope from class during the fall semester of the 2021-2022 school year.  AR 1078.  Strong had told Mother that JB would refuse to hold her hand when walking into school, had thrown tantrums, and that he was biting Strong’s hand.  AR 1066.  Mother did not see marks on Strong’s hand when she looked but believes that JB could bite if he was afraid of Strong.  AR 1066.  Strong also reported that JB had hit, kicked, and spit on other students.  AR 1067.  He would pull up masks from other students’ faces and he removed a hearing aid from one student’s ear.  AR 1067, 1084.

            When Johnson called JB’s parents about the February 3 incident, he just said there was physical abuse without details.  AR 1064.  JB’s parents met with Johnson before school was dismissed the next day.  AR 1064.  Johnson showed how JB was sitting and was held, explaining that Strong had restrained and kicked him multiple times in the legs.  AR 1064-65, 1086.  Johnson also explained that Strong would be on leave.  AR 1065.

            Mother was scared to talk to JB about the February 3 incident.  AR 1066.  He had been acting strange since the year began, and Mother had noticed bruises on him that Strong said was from playground equipment.  AR 1066.  Since January 2022, even before his parents knew about any incident, he had begun wetting the bed and waking up in the middle of night with nightmares.  AR 1066, 1069, 1077.  When that happened, he would come to his parents’ bed for comfort so he could calm down and fall asleep.  AR 1069.

            JB also had become impatient when waiting in line after school, crying and wanting to leave as soon as possible.  AR 1070-71.  His parents thought about taking him out of school, but a five-year-old needs an education.  AR 1071.  They shared this concern with Principal Johnson, who assured them he was safe because Strong would not come back.  AR 1071.  Towards the end of the year, he began walking in line without any anxiety.  AR 1071.

            JB’s conduct outside of school with his peers at the park or on play dates has never raised cause for concern.  AR 1070.  He now attends Hickory Elementary School.  AR 1072.  He walks in line with other kids and does not show anxiety, run away, or demonstrate aggressive behavior.  AR 1071.  The teachers have had no complaints.  AR 1071.

            g. Johnson

            On February 3, 2022, Principal Johnson was in her office talking to the secretary when a distressed Totlani walked by.  AR 1135.  Johnsson asked if everything was okay and told Totlani to come inside the office to explain the situation.  AR 1135. 

            After Johnson closed the door, Totlani detailed her perspective of the February 3 incident.  AR 1136.  She said that Strong had held JB’s arms while he was sitting in a chair, put one foot on top of his, and kicked him with her other foot.  AR 1136.  Johnson told Totlani that she would contact Farris.  AR 1136.  Farris told Johnson to call JB’s parents, report the incident to DCFS, and put Strong on administrative paid leave pending an investigation.  AR 1136.

            Johnson called Strong once, left a message, and called Mother.  AR 1142.  Strong called Johnson back, who told her she was witnessed kicking a student and was being placed on administrative leave.  AR 1142.  Strong said that she did not kick JB, and that JB had kicked her, if anything.  AR 1143.  She said that she had been collecting data, but she did not specify what data or how.  AR 1143.

            In her investigation, Johnson spoke to Zamora, then Doumerc.  AR 1150.  Because Doumerc was familiar with JB through his IEP, Johnson asked her about any concerns as to Strong and students in her classroom.  AR 1150-51.  Doumerc mentioned that Strong tends to speak to kids in a harsh way.  AR 1151.  When Doumerc reported the January 27 incident when another student pushed JB and he pushed back, Johnson told her to write a statement about it.  AR 1151-52.

            Whenever Johnson talked to someone during the investigation, she took notes to keep a running record of the investigation while details were fresh.  AR 1137-38.  The notes were an accurate record of the investigation, and she gave them to Farris.  AR 1138.

When Johnson met with JB’s parents on February 4, 2022, she explained that a staff member saw Strong kick their child.  AR 1140.  Johnson did not say that Strong allegedly kicked JB more than once.  AR 1214.  Mother said she had asked about three bruises on his shin the week prior.  AR 1140.  Strong had said she did not know where they came from but said it might be the playground equipment and the February 3 incident made Mother doubt that explanation.  AR 1140.  The parents also said JB had been wetting his bed and having nightmares for the past month.  AR 1216-17.

            Totlani and Johnson reported the February 3 incident to DCFS via phone.  AR 1144.  They then filled out the DCFS online report together.  AR 1206.  Johnson believed that both the phone call and online report were needed to fulfill the mandatory reporting obligation.  AR 1206.

            Johnson spoke with Totlani multiple times to get a clear picture of what transpired.  AR 1144.  Johnson’s notes say that Totlani said JB began to kick Strong, but this was a misunderstanding from earlier conversations before Totlani clarified the mistake.  AR 1181.  Totlani said that when she walked into the doorway, she saw Strong holding JB’s arm across his chest.  AR 1166.  After she had walked halfway down the row of desks, she saw Strong’s foot on JB’s foot.  AR 1166.  She then saw Strong kick him with her other foot.  AR 1167. 

            Johnson asked Totlani to write what she saw and Totlani provided a handwritten statement of the event.  AR 1144, 1196.

            Because Doumerc had mentioned Nguyen was a witness to the January 27 incident, Johnson also spoke to her.  AR 1153.  Johnson asked Nguyen about her concerns about Strong and her students without mentioning JB.  AR 1153.  Nguyen discussed the January 31 incident in which Nguyen went to support Strong in the classroom when JB was having a tantrum and ran into Johnson in the hallway.  AR 1153-54. 

Johnson testified that when she and Nguyen got there, Strong said that JB had spat on her.  AR 1154.  Johnson asked her not to say anything in front of the kids.  AR 1154.  Strong said all the other kids know what JB is doing, but Johnson said “Still, let’s not say it in front of the kids.”  AR 1154.  Strong pulled JB towards Nguyen and said something like “I’m done” or “I can’t.”  AR 1154.  Johnson did not talk to Strong about it afterwards.  AR 1155. 

As part of the investigation, Johnson asked Nguyen to submit a statement based on her observations.  AR 1157.

            Johnson spoke to Guevara, again asking about his concerns about Strong and her students without mentioning JB.   AR 1158.  Guevara said that if Strong likes a student, she is respectful.  AR 1158.  Guevara did not think Strong was abusive in blocking JB at the door but did not agree with the way she did it.  AR 1158.

            In mid or late February, Farris and Johnson conducted Strong’s interview.  AR 1265-66.  Johnson denied kicking JB.  AR 1266.

            h. Guevara

            Whenever Guevara supported Strong’s class at the end of the school day, he needed to hold on to JB’s hand to prevent him from leaving the line and running to the gate.  AR 1286.  JB would try harder the closer they got to the gate, but Guevara continued to hold on.  AR 1286.

            i. Strong

            (1). Background

            Strong has a bachelor’s degree and teaching credential from the University of Hawaii, the 24 early childhood credits required to teach TK in California, and a CLAD certificate for English language learners.  AR 1289-90.  She is pursuing a master's degree in Curriculum and Instruction.  AR 1289.  Strong also comes from a long line of teachers.  AR 1291. 

            Strong was first hired as a third-grade substitute when she graduated in college in 2014.  AR 1292.  The District then hired her as a full-time TK teacher from the 2015-2016 school year thereafter.  AR 1292.

            (2). JB’s Conduct and Communication With the Parents

            When Nguyen first handed JB to Strong at the gate on the first day, she warned that his parents said he might run.  AR 1299. 

            Strong understood that her duties include keeping parents informed about their student’s conduct.  AR 1352.  Strong’s communication with JB’s parents was mostly oral during drop off before school once a week and at the gate for dismissal at the end of each day.  AR 1313.  His parents asked her questions throughout the year.  AR 1352.  JB’s parents never voiced any complaints about Strong during these communications or asked that the oral communications stop.  AR 1313, 1353. 

When another parent came up and said something about student privacy, JB’s parents and she were stunned and just kind of looked at the other parent.  AR 1314.  They never objected to how she spoke to them.  AR 1314.  Strong sent JB’s parents an email later that day apologizing for the parent who interrupted and stated that she appreciated the communication she had with JB’s parents. AR 1315.  She offered to switch to email or telephone if Mother felt Strong was not respecting JB’s privacy.  AR 1315.  Mother replied that she also appreciated the conversations and wanted them to continue.  AR 1315.

            On the first day of school, JB happened to sit at the back of the classroom near the door.  AR 1320.  Strong soon realized that was a bad choice because he would try to elope.  AR 1320.  She moved him to the middle of the second row from the front, and later to the left front corner.  AR 1320. 

            JB struggled with transitioning between tasks if there was a change or a disruption in the schedule, like recess getting cancelled.  AR 1320-21.  This often led to other behaviors like elopement.  AR 1321.  The elopements also became more frequent later in the day.  AR 1321. 

            Whenever JB left at the end of the school day, Strong would lose sight of him as he turned the corner to the middle hallway to head to the front gate.  AR 1322.  She also had other students to look after.  AR 1322.  Strong began to ask Guevara if another teacher had time to help her with JB and Guevara himself came in to help.  AR 1321-22.

            When JB held Strong’s hand, he liked to put his toes against hers and lean back and outstretch his arms for sensory output.  AR 1318.  Strong would let him do this for a few seconds and they would kind of count.  AR 1318.  Then she would redirect him to continue walking.  AR 1318.

JB would throw himself on the ground in the first semester.  AR 1323.  He later also began hitting and kicking.  AR 1323.

            In late September or early October 2021, Strong initiated SIT proceedings based on her concerns about JB.  AR 1302.  On November 2, 2021, Strong sent notice that JB’s parents consented to Wood’s commencement of an IEP process.  AR 1312. 

            The initial IEP meeting solely focuses on the behaviors marked on the relevant assessments.  AR 1325-26.  This included Nguyen’s observation that JB pushed others.  AR 1326.  Based on the results, JB was eligible for a speech and language delay and for autism, but the parents would not agree to the autism finding.  AR 1327.  JB received speech and language services, and the school decided to still offer Learning Center services or specialized academic instruction.  AR 1327.

            After winter break, JB showed difficulty adjusting to being back in school after being at home for so long.  AR 1327.  Problems that had diminished over the past semester fully returned.  AR 1327.  This included elopement, throwing himself onto the ground, crying, knocking things off kids’ desks, and now hitting, punching, and kicking.  AR 1328.  Towards the end of January, he started biting, spitting, and chewing on objects.  AR 1328.

            (3). The Incidents

            On January 19, 2022, SB was crying about something and had thrown himself onto the ground.  AR 1330.  Another student was hiding behind a tree, as if running away from his own class.  AR 1330.  Strong looked back and realized that the student’s teacher had already left and she (Strong) was the only adult on the playground.  AR 1330.  She asked a passing aide to radio Guevara or Nguyen for help with the other student.  AR 1330-31.

            By this point, she had calmed JB down and told her other students to dump their shoes out, get water, and go inside the classroom.  AR 1331.  When Nguyen arrived, Strong only said “Which one do you want?” as a joke.  AR 1331.  Strong admitted that is something she should not have said.  AR 1331.  Nguyen took the other student, and Strong took JB back to her class.  AR 1331.  Strong held JB’s hand as she did because he was trying to elope and run back out to the playground.  AR 1332.  She did not recall whether JB was pulling away from her as she was walking.  AR 1331.  They walked into the classroom and JB got his water bottle.  AR 1332.

            On January 27, 2022, Strong saw JB push another student as they were lining up after lunch on the playground and she said “hey, we do not push.”  AR 1337.  JB then grabbed her hand to walk with her to the front.  AR 1337.  Suddenly, with Strong still holding his hand, JB dropped to the ground and started kicking her.  AR 1337.  Another student in the class started talking to her.  AR 1337.  Doumerc approached from Strong’s back or side and offered to step in.  AR 1337-38.  Strong accepted, and Doumerc took JB.  AR 1338.  Strong’s whole class was there, and they were telling her about what happened at lunch.  AR 1338.  She did not hear or remember having further conversation with Doumerc.  AR 1338.  Doumerc may have been talking to her, but Strong would not have heard.  AR 1338.  Strong told Doumerc sometime that day that JB had bitten her, but she did not remember if she said it during the January 27 incident.  AR 1339.

            As for the incident that Zamora described, it was dismissal time and Strong opened the classroom door and had her students line up.  AR 1342.  JB tried to elope, so Strong stood in front of the door to stop it.  AR 1342.  JB then rammed his head into her a few times.  AR 1342.  After his last attempt, he melted into her and lay on the ground with his stomach facing down.  AR 1342.  His head was between her legs and his hands were on the ground, almost holding her feet and ankles.  AR 1342-43.  Strong thought it best not to move JB and risk an accidental injury.  AR 1342.   She just waited until he calmed down and she could direct him.  AR 1343.  She did not pin his head between her legs, squeeze it, or otherwise do something to hurt JB.  AR 1343.  No adult was there to provide support.  AR 1344.

            On January 31, 2022, JB had been ripping papers, knocking things off other students’ desks, chewing on things, biting, spitting, hitting, and kicking.  AR 1345.  He was just wandering around the class, hitting a couple of students and knocking their work off their desks.  AR 1347.  Strong’s attempts to redirect him or use other strategies failed.  AR 1345.  She had verbally redirected him to coloring or reading a book, given him space, given him his stuffed animal, looked at her watch and his family picture, and tried generally talking to him.  AR 1346.  He tackled the kid who sits next to him and laid on top of him.  AR 1345.  After her verbal redirections failed, Strong had to hoist him off the other student by the armpits.  AR 1346.  JB also spat on Strong, bit her hand, hit her, and kicked her.  AR 1347. 

Strong decided to call Guevara, who had worked with JB.  AR 1345.  After Strong made several unanswered calls, Nguyen returned her call and came with Johnson to provide assistance.  AR 1347-48.  Wheen Strong tried to explain to Nguyen what happened, Johnson put her hand in Strong’s face and said: “No, no, stop” and “Not in front of the kids.”  AR 1348.  Strong said the kids had seen everything.  AR 1348.  She knows she should not have, but she was trying to explain what Nguyen was walking into.  AR 1348.  Johnson still had her hand in Strong’s face and said: “How you react affects the kids.”  AR 1348.  Strong replied that she was not reacting.  AR 1348.  Nguyen and JB went back to his desk, and Johnson left the classroom.  AR 1348.

When she brought JB’s behavior to Doumerc’s attention, the latter suggested that Strong log his behaviors.   AR 1353.  Strong did so by keeping running notes in her phone.  AR 1353.  Doumerc said that JB had a lot of behaviors they don’t normally see and that he needs more support.  AR 1358.  Strong said that she did not know if this was the best placement for him given the amount of support that he needs.  AR 1358.

            On February 3, 2022, Ex. TT shows the teaching table in the front right corner of the classroom.  AR 415, 1362.  JB sat next to the row of four double desks on the front left corner, where there were two chairs.  AR 415, 1370.  He was angled to look at the shelf on the front left corner of the room, but with his feet pointed to the front.  AR 1367.

            From her desk’s perspective, Strong stood to the left of the row of four double desks, in front of the furthest desk, to stand in front of JB.  AR 415, 1365-66, 1370.  Each desk is about four feet wide to accommodate two people, but there was only one chair on the left-hand side of each one.  AR 1369.  This means there were a total of four chairs on the left-hand side of the room behind JB, three of which had students.  AR 1374.  Based on Strong’s height of five feet eight inches, she estimated the desks are two feet tall.  AR 1377. 

Strong took a pencil away that JB was biting and was walking across the front of the classroom to throw it away.  AR 1358-59.  JB came up behind her and hit her on the midsection of her back.  AR 1359.  Strong used verbal redirections to get JB back to his desk, facing the front of the classroom.  AR 1359-61, 1367. 

            Strong got down to JB’s level in front of him to tell him not to hit.  AR 1359.  She then lightly put her hand on top of his so that he would understand she was telling him not to use it to hit.  AR 1359, 1360.  She did not use force when she did so.  AR 1360.

            Totlani entered the room during this conversation and stood behind a couple of students.  AR 1359.  Strong stood up to talk to her.  AR 1359.  Totlani told Strong about an incident between JB and another student at lunchtime.  AR 1359.  Strong thanked her and said that someone else had told her about the incident and that she would make sure to get it taken care of.  AR 1359.

            At this point, JB kicked Strong.  AR 1359.  Strong bent down and said: “We do not kick.”  AR 1359.  She placed her hand on his shin to emphasize that she was talking about his foot and no kicking.  AR 1359.  She did not use force when she did so.  AR 1360.  As she got up, Totlani said she had never seen JB do that.  AR 1359.  Strong said that unfortunately it was starting to happen.  AR 1359-60.  After a period of silence, Totlani left.  AR 1360.  At no point during the February 3 incident did Strong put her foot over JB’s or kick him.  AR 1361.

            j. Melissa Zornitsky

            Melissa Zornitsky (“Zornitsky”) was a former colleague of Strong’s and holds her in high regard.  AR 1397.  They have remained friends after Zornitsky’s retirement.  AR 1398.  Zornitsky was also friends with Strong’s mother, who worked at the same site.  AR 1398-99.  Because Zornitsky retired in the spring of 2020, she did not work with Strong during the 2020-2021 and 2021-2022 school years.  AR 1400-401.

            Strong is an enthusiastic, energetic, and joyous individual.  AR 1399.  Zornitsky has never seen her engage in conduct inappropriate for an educator.  AR 1399.

            k. Jayne Ozawa

            Jayne Ozawa (“Ozawa”) was a District special needs special educator for 20 years.  AR 1403.  She knew Strong when she started as a teacher in 2015-2016, as well as through Strong’s mother.  AR 1406.  Because Ozawa retired in the spring of 2020, she did not work with Strong during the 2020-2021 and 2021-2022 school years.  AR 1413-14.

            Strong is a dedicated teacher who stayed to work after Ozawa left.  AR 1407.  She is energetic, inquisitive, positive, patient, vigilant, and caring.  AR 1408, 1412.   In the time Ozawa observed her teaching, Strong had no negative interactions with students.  AR 1408.

            l. Juliann Akerson

            Juliann Akerson (“Akerson”) has been a District teacher for 36 years.  AR 1416-17.  She has known Strong her whole life.  She was at the hospital when Strong was born.  AR 1419.  Strong was Akerson’s fourth-grade student and Akerson knew her as a substitute teacher before the school hired her as a full-time teacher.   AR 1417-18. 

            Strong has always been an outgoing and energetic individual who looks for the positive.  AR 1419.  She looks for any way to help others, from children to adult strangers.  AR 1419.  Akerson does not remember a negative moment from her, and she had never done anything dishonest or acted inappropriately around students.  AR 1420.

            Akerson did not teach the same grade as Strong and never had the chance to observe her teaching her class.  AR 1424-25.

            6. The Decision

            On December 30, 2022, the CFC issued the Decision dismissing the Statement of Charges and declining to terminate Strong.  AR 417-67.

            The allegations at issue were (1) evident unfitness for service under section 44932(a)(6) and (2) persistent violation of or refusal to obey the school laws of the state or reasonable regulations under section 44932(a)(8).  AR 418.  The allegations focused mainly on the February 3, 2022 incident and other incidents uncovered during the investigation.  AR 419.

            a. Board Policies

            Board Policy 4119.21 defines inappropriate employee conduct to include (1) any conduct that endangers students, staff, or others, including but not limited to physical violence; (2) harassing or discriminatory behavior towards students, parents/guardians, staff, or community members, or failure or refusal to intervene when an act of discrimination, harassment, intimidation, or bullying against a student is observed; (3) physical or sexual abuse, neglect, or other willful harm or injury to a child; and (6) use of profane, obscene, or abusive language against students, parents/guardians, staff, or community members.  AR 421-22.

            Board Policy 4119.21 provides a general expectation that District employees maintain the highest ethical standards, exhibit professional behavior, follow District policies and regulations, abide by state and federal laws, and exercise good judgment when interacting with students and other members of the school community.  AR 422.

            The District asserted that Strong violated the requirement under Board Policy 4119.21 to comply with state and federal laws.  AR 422.  She committed the crime of battery under Penal Code section 242, which includes any willful and unlawful use of force or violence upon another.  AR 422.  She had also committed the crime of willful harm or injury to a child, defined in Penal Code section 11165.3 as willfully causing, inflicting, or allowing a child to suffer unjustifiable physical pain or mental suffering.  AR 422. 

            The District’s attempt to apply a criminal standard to the Statement of Charges failed.  AR 423.  The District Attorney never filed criminal charges against Strong, and she was never convicted of either crime.  AR 423.  The CPC found no evidence that Strong failed to abide by state law.  AR 423.

            The CPC also found insufficient evidence that Strong willfully harmed or injured JB.  AR 423.  Its analysis is as follows.

            b. February 3 Incident

            Totlani was the principal witness for the February 3 incident.  AR 423.  She was a credible and straightforward witness with no personal bias against Strong and was unflinching in her testimony.  AR 423.  Totlani was also a well-regarded and experienced instructional assistant.  AR 423.  Despite these facts, based on the configuration of Strong’s classroom and the relative positions of Strong, JB, and Totlani, the CPC did not find all Totlani’s assertions credible.  AR 423.

            Totlani is a paraeducator who primarily assists students who have IEPs -- in the classroom, at recess, and at lunch.  AR 424.  She has 17 years of experience as an instructional aide, eight of them at Wood.  AR 424.  At the start of the 2021-2022 school year, Totlani was assigned to watch more than five students, three of whom were from Strong’s class but JB was not one of them.  AR 424.  She spent 30 minutes per day in Strong’s classroom for the first three months to provide one-on-one support to one of those students.  AR 424.  She also spent one hour per day observing all her assigned students at lunch and recess.  AR 424.

            On January 24 or 25, 2022, the Learning Center assigned Totlani to JB, who just received his initial IEP.  AR 424-25.  She knew that JB had difficult behaviors like elopement, but she did not get to ask Strong about him before or at the beginning of the assignment.  AR 424-25.  The Learning Center directed Totlani to always watch and stay close to him due to his behaviors, like pushing and removing masks off other student’s faces on the playground.  AR 425.  Totlani had already twice observed JB urinate in the school yard.  AR 425.  She also knew from past observation that JB required support and comfort, and that he sometimes put his head down on the desk and held a stuffed cat.  AR 425.

            On February 3, 2022, Totlani went into Strong’s classroom to report an incident between JB and another student on the playground.  AR 425.  Strong had about 25 students in the classroom.  AR 425.  No evidence suggested the classroom was empty at the time, and Totlani could not recall the exact desk arrangement.  AR 425.  At first, she could not remember if they were in a circle.  AR 425.  She then said they were in a line on the far side, with some in the center, and generally just “everywhere.”  AR 425.

            Strong and JB were near the front of the room, at the far front corner of the tables lined on the same wall of the classroom as the door.  AR 426.  JB’s chair was pulled away from his desk, and he faced away from the door.  AR 426.  Totlani could see his left side and Strong’s right, including Strong bending over JB.  AR 426. 

            Totlani saw Strong hold JB’s hands and arms tightly across his chest with both of her own hands while she said to “stop.”  AR 426.  Totlani asserts this position lasted two to three seconds.  AR 426.  She also asserted she clearly saw Strong stand with her right foot on JB’s left and kick his right with her left.  AR 426.  This troubled Totlani.  AR 426.  JB reacted by rubbing his shin and muttering behind the mask.  AR 426.

Totlani insisted that she had a clear view of Strong and JB.  AR 426.  She estimated that she was seven or eight feet away from them.  AR 426.  From the doorway, she could see the backs of students at their desks closest to that wall.  AR 426.  Totlani said she was in the room for no more than a few minutes.  AR 426.  Out of shock, she had stopped at the door for two to three seconds to gather herself before approaching Strong and JB.  AR 426.

            Totlani approached and asked JB what happened, but he did not respond.  AR 427.  Strong asserted that JB bit her hand and spit on her.  AR 426.  Strong showed the wet spot on her jeans, colorized by a red pencil JB had chewed before spitting.  AR 427.  Totlani never saw a bite mark.  AR 427.

            Totlani was disturbed by what she saw, especially the kicking.  AR 427.  She told Zamora as they passed each other in the hall.  AR 427.  Zamora works in Strong’s classroom with another student and sits at the table next to JB’s desk, but she did not witness the February 3 incident.  AR 427.  Zamora told Totlani to report it to Johnson.  AR 427.  Totlani did not get a response until she visited Johnson again immediately after lunch.  AR 427. 

            Totlani and Johnson are both mandated reporters of any suspected child abuse.  AR 427.  Johnson decided to help, led the investigation, and called DCFS with Totlani.  AR 427. Johnson took contemporaneous notes of their discussion but destroyed the original notes after memorializing them in a chronology and a police report.  AR 427.  Comparing Johnson’s notes with Totlani’s handwritten ones shows Johnson added conclusory statements like “restraining” and “holding in his chair.”  AR 428.  Johnson’s notes also suggest Strong’s actions were purposeful and vengeful.  AR 428.

            In her notes and report, Johnson reported that Totlani said she saw JB kick Strong before she kicked him.  AR 427.  Totlani insisted that she never saw that and corrected Johnson when she learned of this error.  AR 428.  While the CPC found the correction credible, that does not mean that JB did not kick Strong.   AR 428. 

            In her February 4, 2022 statement, Totlani said that Strong held JB’s hands hard against his chest with her foot on his leg, kicking him.  AR 428.  After she released his foot, JB touched and pressed on his leg.  AR 428. 

            Johnson began an investigation.  AR 428.  She called DCFS, which deferred to the TPD.  AR 429.  Totlani was interviewed by the TPD after the call with DCFS.  AR 429.  It was during these interviews that she described the force of the kick, as if Strong was hitting a trash can.  AR 429.

            When asked to describe the situation, Strong denied ever kicking JB and said he has been kicking her.  AR 429.  She added kicking was the last thing she would do.  AR 429.  She had the data and had been working with JB all week.  AR 429. 

            Johnson told JB’s parents about the February 3 incident and advised that Strong would not be present at Wood during the investigation.  AR 429.  Mother testified that Johnson said JB was restrained and kicked multiple times.  AR 430.  The parents assumed it was true and started connecting JB’s recent bruising and behavior, like bed wetting and nightmares, to Strong’s purported conduct.  AR 429-30.  The timing of events shows the parents to be wrong.  AR 430.  While Mother’s assumption of a connection between the purported misconduct and JB’s behavioral changes was reasonable, the assumption was not supported by sufficient evidence.  AR 430.  Strong and other District staff observed JB’s behavioral history over the entire school year, including after he left Wood.  AR 430-431.

There is no medical evidence to establish that JB suffered any injury from the February 3 incident.  AR 431.  Totlani claimed the five-foot-eight-inch Strong put all her weight on JB’s right foot and kicked him the way one would kick a trash can.  AR 431.  JB should have sustained an injury or bruising to his foot if so.  AR 431.  However, there was no evidence his foot was examined or that he suffered any bruising or injury from weight on that foot.  AR 431. 

            Totlani’s testimony had some weight.  AR 431.  Based on the maps of the classroom and Totlani and Strong’s testimony about the desk layout, Strong held JB’s hands across his chest.  AR 431-32.  The hold was not as forceful as Totlani portrays, and there was insufficient evidence of Strong kicking JB.  AR 432.

            The classroom was filled with tables and desks to accommodate the large class.  AR 432.  Four tables on the side of the room parallel to the door faced four other tables.  AR 432.  They formed one long table with a desk on either end.  AR 432.  There was aisle space between this table and bookshelves lining the wall.  AR 432.  Totlani walked through this aisle to talk to Strong.  AR 432.  On the other side of that table, there were several tables in the middle of the room and two smaller ones near the opposite wall.  AR 432.  In the well between the end of the long table and the teacher’s area, an easel resting caddy corner was close to JB and Strong’s position.  AR 432.  Strong’s desks and a wastebasket were on the other side of this well.  AR 432.  COVID-19 protocols limited each table to one student, except for one table for an aid to sit with a student.  AR 432.

            JB’s chair was away from the table end and angled so his body faced the wall, while Strong faced him.  AR 432.  The CPC concluded that angle allowed Totlani to see Strong hold JB’s hands across his chest from the doorway.  AR 432-33.  Strong’s description of how she would place JB’s hand on the table and her own hand over it, or squat to place a hand on her knew, was not consistent with their relative positions during the February 3 incident and Totlani’s view from the doorway.  AR 433.

            Strong held JB with both hands over his arms, crossed over his chest.  AR 433.  Totlani did not report seeing Strong’s hands on the sides of JB’s arms and could not have known if it was hard or gentle.  AR 433.  She said she was in the room for two to three minutes and only saw Strong hold the arms for two seconds.  AR 433.  Given the history of the relationship between Strong and JB, the CPC was not persuaded that Strong held him hard.  AR 433.  She held him gently only long enough to say “stop” per her usual practice.  AR 433.

            Totlani and other District staff confirm JB’s behaviors were escalating before and after the February 3 incident.  AR 433.  Totlani was assigned to him around the time of his January IEP, and Strong started recording data of the behavior at the IEP team’s request.  AR 433.  This included hours-long stretches on February 2 and 3 where JB kicked and hit students and teachers, spat on them, bit off the edge of a pencil and spat it out, threw trash at the teacher, and screamed.  AR 433-34. 

            On February 3, around the time Totlani walked in, Strong testified that JB had bitten into a pencil as Strong tried to get it from him, threw it in the air so it almost hit another student, bit Strong’s hand, spat on her three times, and hit her too many times to count.  AR 435.  Strong had turned to throw the pencil away when JB ran behind her and punched her in the back.  AR 435.  No evidence contradicted this narrative.  AR 435.  After Totlani left, JB calmed down and Strong was able to work with him, using his stuffed animal and an art project with stickers.  AR 435.

            Johnson and Farris interviewed Strong on February 17 to discuss the February 3 incident.  AR 435.  Strong firmly denied that it transpired as Totlani described.  AR 435.  She described JB’s daily and violent behavior, including how he had started “biting lately.”  AR 435.  She said that she never restrained JB and just told him to sit down after he hit her.  AR 435.  Her practice is to repeat herself until he complies, lean down, and place her hands over each of his.  AR 435.  She did say “we do not hit.”  AR 435.  Whenever he fell, she would put his hands under her arms and say “OK, let’s get up!”  AR 436.  They then would walk together.  AR 436.  When he threw himself onto the ground, she would move away and sometimes place her hand under his head to keep him from hitting his head.  AR 436.

            Strong asserted that when Totlani approached, Strong stood up to talk to her while giving JB a stuffed animal.  AR 435-36.  When JB kicked her, she got back down, put her hand on his knee, and said “we don’t kick” before getting back up.  AR 436.  When Totlani said she had never seen JB hit or kick Strong, Strong replied that it happens a lot.  AR 436.  She also said she had been bitten and spat on.  AR 436.

            Strong’s narrative of events during the February 17 interview was consistent with JB’s history, staff reports, and Strong’s testimony.  AR 436.  Strong called for assistance when her efforts to modify JB’s behavior failed, and she reported her concerns to Guevara, Doumerc, and Nguyen.  AR 436.

            In his testimony, Farris distinguished between “restraint” to prevent movement and “physically gathering” like picking up a student under the arms, but he conceded the distinction is confusing.  AR 436-37.  The evidence does not support a finding that Strong held JB down in the chair, which she denied.  AR 437.  Although Nguyen and Doumerc identified preferred methods of physically guiding JB, a failure to use them does not constitute a persistent violation of District regulations.  AR 437.

            c. Other Incidents

            The personnel interviewed during Johnson’s investigation were mandated reporters.  AR 437   They had a duty to report the other incidents at issue if they considered them abusive, but they never did.  AR 437.

            (1). January 27 Incident

            Doumerc had a negative view of Strong.  AR 437.  On February 4, 2022, Doumerc told Johnson that Strong speaks in a harsh tone to her TK students and she has seen Strong “tower” over them.  AR 437.  She highlighted the January 27 incident, where she asserted Strong was a secondary aggressor.  AR 437.  Another student had pushed JB in line, so he pushed back.  AR 437.  Doumerc believed Strong saw the whole incident, which was false.  AR 437.  Doumerc approached Strong and told her another student had started it.  AR  437.  Strong grabbed JB’s arm, waved a finger in his face, and harshly said: “We don’t push others.”  AR 437.

            Doumerc asserted when JB dropped to the ground, Strong kept holding on and pulling his arm while he kicked her.  AR 437-438.  In a written statement, Doumerc said she told Strong to let go because holding JB by the wrist triggers him.  AR 438.   After Strong complied, Doumerc showed her how to hold JB by the arms and guide him.  AR 438.  When Doumerc did that, JB joined the line and walked back to the class.  AR 438.

            Doumerc was concerned that Strong was dismissive of her and did not acknowledge that JB was not the aggressor.  AR 438.  At the hearing, Strong explained she did not see the other student kick JB.  AR 438.  By the time Doumerc was talking to her, Strong was also speaking to another student and watching her 25-student class.  AR 438.  She was distracted and could not remember if Doumerc talked to her.  AR 438.  The CPC found this explanation credible.  AR 438.

            The CPC concluded that Doumerc’s report of the January 27 incident did not fully explain the circumstances and was not based on prior experience with Strong or JB.  AR 438.  Nguyen saw the same incident but did not feel it important enough to report.  AR 439.

            (2). January 19 Incident

            Nguyen understands intervention and has strong and rigid opinions about Strong’s conduct.  AR 439.  Her relatively short tenure as a practitioner, her limited classroom experience, and her few encounters with Strong in a classroom limit her credibility.  AR 439.  She did not fully understand how the dynamics of a crowded classroom couple with the limited one-on-one support JB had in the classroom.  AR 439.

            Nguyen did not appreciate how Strong intervened with JB in the playground on January 19.  AR 439.  Strong had contacted Guevara for assistance with JB in the playground.   AR 439.  When Nguyen arrived, Strong was holding JB’s hand near a bench with another student next to them.  AR 439.  Nguyen did not object to the hand holding but did find the comment “which one do you want?”  inappropriate.  AR 439.  Nguyen replied that she would stay with the second student while Strong took JB inside.  AR 439.  Nguyen also asserts she saw Strong hold JB’s hand and walk quickly toward the classroom.  AR 439.  She did not stop when JB pulled away.  AR 439.

            Strong credibly explains her comment was a joke and that JB frequently pulled away from her.  AR 440.  JB enjoyed the sense of pulling or leaning back from her hand.  AR 440.  The CPC found Nguyen’s complaint subjective and excessively harsh.  AR 440.  Strong appropriately used intervention to calm him down, and she needed to return to her classroom with JB to attend to her other students.  AR 440.

            (3). January 31 Incident

            Nguyen also reported the January 31 incident, when Strong called Guevara for help with JB.  AR 440.  Although Strong generally relied on Guevara, she accepted Nguyen’s assistance when offered.  AR 440.  She explained JB was having a tantrum that could hurt the other students.  AR 440.  Principal Johnson joined Nguyen on the way there.  AR 440.  This shows that Strong appropriately called for additional assistance on the few occasions that her intervention did not stop JB from escalating to the point of harming others, particularly when he was throwing things.  AR 440.

            Nguyen reported that Strong was holding JB’s hand when she entered the room.  AR 440.  She turned JB over to Nguyen, stating “he just spat on me.”  AR 440.  JB looked like he had been crying.  AR 440.  Principal Johnson put his hand up as a signal for Strong to stop speaking and said: “Not in front of the kids.”  AR 440.  Strong responded: “They all saw what happened.”  AR 440.  Johnson acknowledged that was true but still said she should not speak in front of them.  AR 440.  Strong replied “I can’t [do this now]” and complied with Johnson’s request.  AR 440.   Nguyen took JB to the back of the classroom, gave him a soft toy to squeeze, and had him imitate her breathing.  AR 440-41.  Nguyen worked with him on a craft exercise and left ten minutes before class dismissal.  AR 441.

            Although Strong admitted that her response to Johnson was not appropriate but the CPC found it was understandable given the size of her classroom, the number of students she had, and how she needed assistance with JB.  AR 441.  The effectiveness of Nguyen’s one-on-one support that day demonstrates the need for it throughout the day, but JB was not given that.  AR 441.  This does not bear on Strong’s skill or how she cared for JB. AR 441.

            Nguyen expressed additional concerns about Strong pushing JB.  AR 441.  The CPC found this subjective and unpersuasive.  AR 441.

            (4). Zamora’s Testimony

            Zamora has six years of experience as an instructional aid for students who need social-emotional support.  AR 441.  She was assigned to JB in September or October 2021 and provided support for 40 minutes per day.  AR 441.  She had previously noticed him run from teachers and pull masks off other students.  AR 441-42.  Guevara told her to sit next to JB and prevent him from throwing things, eloping from the classroom, and disrupting the class.  AR 441.  Zamora also reported his behavior, including anger when prompted to follow orders, difficulty adjusting to routines, running away when she holds his hand, and inability to work independently or engage with the class.  AR 442.

            Zamora reported that she had to stand in front of the doorway to keep JB from leaving.  AR 442.  Zamora testified that JB once punched and injured her.  AR 442.  When JB hit, kicked, or spat on Strong, she would protect herself by holding him away from her.  AR 442.  She also said she never saw Strong hit, push, or kick any student other than what she reported to Johnson.  AR 442, 444. 

            On an unspecified date, Zamora saw Strong standing at her doorway with JB’s head squeezed between her feet while he laid face-down on the floor.  AR 442.  She shared this with Guevara so he could teach Strong better techniques, but Guevara did not recall her report.  AR 442. 

            JB posed an elopement risk and often tried to get around people stopping him at the door.  AR 442.  Strong had to keep her door closed due to JB’s elopement, and he tried three to four times a day.   AR 442-43.  Her door was close to the building exit.  AR 443.  If JB left the classroom and turned left down the hall, he would no longer be visible.  AR 443. 

            Strong denied closing her legs in a headlock around JB.  AR 443.  JB often dropped to the floor when he tried to elope, so she would stand in front of the door at dismissal time.  AR 443.  JB often rammed his head into her, lay on his stomach, and put his head between her legs and hands on her foot.  AR 443.  Strong would not move to avoid hurting her.  AR 443.  She instead let him calm down before asking him to go back to his desk like the other students.  AR 443.  This generally took a minute.  AR 443.

            Zamora testified she was 15-20 feet away when she saw the incident.  AR 443.  She could see JB face down on his hands and knees as he tried to crawl through Strong’s legs.  AR 443.  She could not see his face to see if he was uncomfortable or in pain, or the rest of his body.  AR 443.  The observation was only for a “quick minute”, and she had never seen anything like it before.  AR 443.  Because Zamora could not clearly observe from there whether Strong had his head in a headlock, Strong’s testimony was more persuasive.  AR 444.  In any case, Zamora refused to say that Strong engaged in inappropriate behavior.  AR 444.  When pressed, she only said that Strong could have handled it differently.  AR 444.

            (5). General Observations

            Any other statements or actions were taken out of context, subjective, and elevated to a level of gravity out of proportion to the circumstances.  AR 444.  Nguyeen said Strong once pulled JB to her.  AR 444.  Strong also purportedly said in front of other students that JB does not belong here, but whether that was the exact statement is unclear.  AR 444.  Strong admitted that she told Doumerc that she was not sure it was the best placement for him because of the support he needed.  AR 444.  That statement should have been private, but Strong had to have these conversations while managing a busy classroom.  AR 444.

            Strong proactively sought support from District staff.  AR 444.  She regularly called for additional assistance when JB’s behavior posed a potential or actual danger to himself and other students.  AR 444.  Guevara generally helped in the afternoon and provided one-on-one counseling for JB.  AR 444.  Strong referred him to the resource team, collected data when Doumerc advised it, and comforted JB with many interventions.  AR 444-45.

            Strong talked to Mother about JB’s behavior every day when she came to pick him up.  AR 445.  When another parent scolded her for having those conversations in public, Strong offered via email to communicate with Mother in other ways.  AR 445.  Strong was communicative with the parents and consulted Mother on what toys and Polish-language books to use to calm him down.  AR 445.

            Overall, Strong’s attempts to find support for JB and the schoolyard conferences do not reflect a pattern of inappropriate behavior or ill-will to JB.  AR 445.  They do not undermine school regulations even though Strong could have chosen better ways to share information.  AR 445.

            (6). Student Incidents

            Totlani asserted Strong refused to allow another student to access the bathroom on January 27 or 28.  AR 446.  The student eventually ran to the nurse with his pants wet and down.  AR 446.  This was another incident she chose not to report despite being a mandated reporter.  AR 446.  Strong credibly explained she asks students to try and wait for a break in instruction but respects requests to immediately go.  AR 446.  Strong has a large class and does not have the specialized training and certification to assist with toileting.  AR 446.  The CPC found it unfair to fault Strong for student bathroom accidents that Johnson only learned about when she opened an investigation for other reasons.  AR 446.

            Zamora accused Strong of ignoring the needs of another student who consistently cried for help with assignments.  AR 447.  Zamora did not know that Strong already had spoken to his parents, who confirmed that he cried frequently and asked Strong to help build his independence.  AR 447.  What Zamora saw was Strong’s strategy in building the student’s independence, not evidence of disrespect or ill-will.  AR 447.

            Zamora also accused Strong of throwing school supplies for projects in the middle of the table.  AR 447.  Zamora interpreted this as part of a pattern of disrespect and poor regard.  AR 447.  Strong explained this was so students reach out, grab the supplies from the center of each desk, and learn to orient the supplies in front of them.  AR 447. 

            Nguyen, Doumerc, Totlani, and Zamora all said that Strong used the wrong manner, tone, or language to speak to young students.  AR 448.  Strong said things like “get in line,” “come here,” and “you are not supposed to be here.”  AR 448.  The witnesses’ reactions to these remarks were subjective and after thoughts by District staff when asked to comment about Strong.  AR 448.  They did not reflect her history as a TK teacher.  AR 448.  Strong concedes that she is tall and loud, and Zamora conceded that Strong was firm.  AR 448.  There is no evidence of an objectively correct tone or words to use with students.  AR 448.

d. Strong’s Challenges During 2021-2022

            The District’s evidence consisted of a series of isolated incidents that it never considered in the larger context.  AR 448.  Strong was trying to address JB’s behavior in a classroom filled with a large number of TK students.  AR  448-449.  The CPC found that the District exaggerated the incidents and elevated them to a pattern of conduct, which the circumstances and Strong’s history did not justify.  AR 449. 

            Totlani and Zamora noted JB’s pattern of behavior that escalated from the beginning of the school year, even after Strong was removed from the classroom.  AR 449.  School personnel generally agreed that JB exhibited behavioral issues that interfered with his learning.  AR 449.  During his SIT, primary concerns included eloping from the classroom, running away from the line in the hallway, and failure to recognize letters and numbers.  AR 450.  The goal was to have him follow a routine to transition in and out of the classroom during the start of day and snack time.  AR 450.

            Strong was concerned about JB’s behavior and was focused on a variety of interventions in the hope that he would improve.  AR 453.  After Strong was removed from the classroom on February 3, 2022, JB’s behaviors continued to accelerate by eloping, throwing books and coins at Zamora, banging into her, hitting her on the face, spitting on her, and hitting another kid on the neck with a closed fist.  AR 454.  There is no evidence that JB’s behavior improved over the school year.  AR 455.

            e. Strong’s Character

            Strong testified she was in shock when Johnson told her about Totlani’s allegations, the investigation, and the placement on administrative leave.  AR 455.  She was worried about her students and contacted the substitute to provide information on them.  AR 455.  She wants to get back to work, and she cried when talking about her students.  AR 455.

            Strong is an enthusiastic and high-energy person who can be loud.  AR 455.  She generally compensated for her height by crouching down or squatting.  AR 455.  It was difficult to obtain the support needed for JB without the IEP autism designation, save some pullout support from counseling and the Learning Center.  AR 455.[4]

            f. Legal Conclusions

            The CPC had discretion to accept and reject parts of testimony as it sees fit.  AR 458-59.  Nguyen, Doumerc, and in part, Zamora, lacked credibility.  AR 459.  They testified about incidents that Johnson included in the investigation against Strong, yet they did not consider these incidents important enough to report to fulfill their duties as mandated reporters.  AR 459.  These subjective observations reflect a negative attitude towards Strong not related to her conduct.  AR 459.

            Under section 44932(a)(6), evident unfitness for service means being clearly unfit, not adapted to, or unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.  AR 459.  This is a fixed character trait, presumably not remediable just by notifying the employee that the conduct at issue does not meet district expectations.  AR 460.  Conduct constituting such evident unfitness will often constitute unprofessional conduct, but not all unprofessional conduct reflects the defect in temperament necessary to find evident unfitness.  AR 460.

            Strong’s conduct does not demonstrate a fixed character trait or defect in temperament.  AR 460.  The February 3 incident, the primary conduct alleged, was a lapse in judgment.  AR 460.  There was insufficient evidence that Strong held JB down in the chair.  AR 460.  Even if she did, Farris admitted the distinction between a restraint and a physical gathering is unclear.  AR 460.  Strong had no prior warnings or directives against the actions at issue.  AR 460. 

            There was no pattern of Strong refusing or being unable to refrain from untoward physical contact with any student.  AR 460.  The evidence showed a history of her involvement with the school community and encouraging the adoption of a PBIS.  AR 460.  She was proactive with JB and requested support for him when his behavior put himself or others at risk.  AR 460.  She initiated the Pre-SIT, communicated with the parents, and diligently tried different tools to engage with JB.  AR 460.  Doumerc’s judgment that Strong was dismissive of her was not supported by the evidence.  AR 460-61.

            The District failed to show that Strong was routinely inappropriate with other students or that she was responsible for JB’s escalating behaviors.  AR 461.  JB’s behavior in a small group setting with Doumerc or one-on-one support with a trained psychologist demonstrated the challenges Strong faced addressing his needs in a large class.  AR 461.  JB’s behavior escalated before the February 3 incident and remained problematic afterwards.  AR 461.  No other parent complained about Strong’s behavior.  AR 461. 

            Strong’s placement of her hands on JB’s arms briefly was inappropriate but did not clearly meet the definition of the specified abusive acts in Board policies.  AR 461.  None of the other actions against JB or other students qualified as abuse or harassment per Board policies.  AR 461.  Some techniques and exercises of judgment could have been better.  AR 461.  She could have held JB by the hand instead of the wrist, released it whenever he dropped to the floor, spoken to other staff about him away from other students, and not talked to Mother at the school gate.  AR 461.

            The CPC did not find that Strong pushed, pulled, or dragged JB as alleged.  AR 461.  There was no selective punishment of him.  AR 461.  Strong did not physically intimidate students.   AR 462.  The discussions with Mother were not inappropriate, and Strong responded to her questions.  AR 461.  Strong’s explanation of JB liking to lean away from her when holding his hand was credible.  AR 461-62.  Given Strong’s history of positive student engagement, these actions individually and collectively do not reflect a fixed character trait or defect in temperament.  AR 462.

            (1). Morrisson Factors

            The CPC found Strong fit for service based on the factors in Morrison, supra, 1 Cal.3d at 220.  AR 462-63.  The conduct at issue included briefly holding JB’s arms against his chest, holding his wrists, continuing to hold him when he dropped to the floor, and speaking about him publicly in front of other students.  AR 463.

            For the likelihood the conduct would adversely affect students or fellow teachers, the conduct occurred a few times over a protracted period.  AR 463.  Strong held JB’s arms against his chest once for a few seconds and not tightly.  AR 463.  This deeply affected Totlani.  AR 463.

            Strong also held JB by the wrist instead of his hands and did not let go after he dropped onto the ground, which disturbed staff.  AR 463.  This did not affect JB, whose misbehavior is not easily related to Strong’s actions.  AR 463.  District staff only reported this as part of the investigation of the February 3 incident.  AR 463.

            For the degree of adversity, the proven conduct of holding JB’s arms against his chest was a serious but isolated incident.  AR 464.  She consistently used other methods like patting his hand, holding his hand, and using interventions such as a plush toy.  AR 464.  She resorted to non-referred methods a few times, but never to harm JB.  AR 464.  Strong engaged proactively with the school community to obtain support on his behalf, and she consistently used other positive interventions.  AR 464.

            For the proximity or remoteness in time of conduct, Strong’s conduct was recent but without prior history.  AR 464. 

            For the likelihood of recurrence, all of Strong’s incidents were isolated and do not reflect a pattern of poor intervention.  AR 465.  Her conduct in the February 3 incident was not likely to reoccur.  AR 465.

            For the type of teaching certificate held, Strong had a multiple subject teaching credential and a CLAD from the state.  AR 464.  She also had completed the required credits for early childhood education and the coursework to teach TK students.  AR 464.

            For extenuating circumstances, the unique and challenging circumstances required substantial intervention.  AR 464.  Strong held JB by the wrist instead of the hand, and briefly held JB’s arms, in response to these extenuating circumstances.  AR 464.

            For the praiseworthiness or blameworthiness of the motives, Strong’s misconduct was a mistake rather than an act of ill will.  AR 464.  She had a history of working diligently with JB and asking for help to protect him and her other students.  AR 464-65.  Although she did not use her usual intervention methods, her motives were consistent with those methods.  AR 465.

            Based on these factors, cause did not exist to dismiss Strong for evident unfitness for service.  AR 465.  Given the age of Strong’s students, holding JB’s arms was a serious act that disturbed District staff.  AR 465.  However, this conduct occurred during a protracted period, was isolated, and was easily correctable via training.  AR 465.

            (2). Persistent Violation or Refusal to Obey Board Regulations

            Under section 44932(a)(8), persistent violation of, or refusal to obey, the school laws of the state or reasonable regulations prescribed by the governing board constitutes grounds for dismissal.  AR 465.  Persistent refusal requires intentional and continual refusal to cooperate.  AR 465.  Isolated events or incidents involving an issue unresolved over a period of time are generally not considered persistent.  AR 466.

            The District failed to establish that Strong violated Board Policy 4119.21 by holding JB’s arms for a few seconds.  AR 466.  It was at most bad judgment in isolated occasions, not physical abuse or harassment.  AR 466.  Any other allegations either were not true or concerned incidents that were isolated or insubstantial due to exigent circumstances.  AR 466.  They did not constitute a violation of District policy.  AR 466.  For example, holding JB by the wrist and not letting go when he drops to the ground are not preferred actions, but no written District policy prohibits them.  AR 466.

            In any case, the District did not provide sufficient evidence of persistent violations of District rules and regulations.  AR 466.  Strong was proactive in caring for JB.  AR 466.  She sought input from his parents and the counselor.  AR 466.  He applied appropriate interventions.  AR 466.  There was no cause to dismiss Strong under section 44932(a)(8).  AR 466-67.

            E. Analysis

            The District argues that (a) the CPC’s findings on evident unfitness for service are not supported by the weight of the evidence, (b) the CPC misapplied the Morrison factors in concluding that Strong is fit to teach, and (c) Strong committed a persistent violation of Board policy.

            The court’s independent review of the evidence and the CPC’s comprehensive decision demonstrates that the CPC did not abuse its discretion.

1. The Weight of the Evidence for Evident Unfitness for Service

Evident unfitness for service in section 44932(a)(6) means “clearly not fit, not adapted to or unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.’”  Woodland, supra, 2 Cal.App.4th at 1444.  For a school district to meet this charge, it must demonstrate satisfaction of the Morrison factors and take the additional step of showing that the unfitness is “evident,” meaning that the offensive conduct is caused by a defect in temperament.  Id. at 1445.  “In applying the standard due consideration must be given to the circumstances of the case at hand.”  Oakland, supra, 25 Cal. App. 3d at 1108 (citations omitted).  Before an inference can be drawn that conduct renders a teacher evidently unfit to teach, it is necessary to show “a relationship between that conduct and the functioning of defendant as a teacher.”  Id. at 1109. 

The CPC found that Strong is fit for service under section 44932(a)(6).  The District failed to show that Strong was routinely inappropriate with other students or that she was responsible for JB’s escalating behaviors.  AR 461.  No other parent complained about Strong’s behavior.  AR 461.  JB’s behavior in a small group setting with Doumerc or one-on-one support with psychologist Nguyen demonstrated the challenges Strong faced addressing his needs in a large class.  AR 461.  JB’s behavior escalated before the February 3 incident and remained problematic afterwards.  AR 461. 

Strong’s placement of her hands on JB’s arms briefly was inappropriate but did not clearly meet the definition of the specified abusive acts in Board policies.  AR 461.  While some techniques and exercises of judgment could have been better, none of the other actions against JB or other students qualified as abuse or harassment per Board policies.  AR 461.  Strong did not push, pull or drag JB as alleged.  AR 461.  There was no selective punishment of him.  AR 461.  Strong did not physically intimidate students.   AR 462.  The discussions with Mother were not inappropriate, and Strong responded to her questions.  AR 461.  Strong’s explanation of JB liking to lean away from her when holding his hand was credible.  AR 461-62.  Given Strong’s history of positive student engagement, these actions do not reflect a fixed character trait or defect in temperament.  AR 462.

A. The District’s Procedural Failure

            The District argues that the CPC’s findings are not supported by the preponderance of the evidence, citing AR 423, 429, 431, 431-32, 433, 437, 438, 439, 440, 441, 443, 444, 445, 448, 448-49, 455, 458, 460, 461, 461-62, 463-65, 466-67.  Pet. Op. Br. at 7-8.

Strong cites County of Solano v. Vallejo Redevelopment Agency, (“Solano”) (1999) 75 Cal.App.4th 1262, to conclude that the District was  “required to set forth in [its] brief all the material evidence on the point and not merely [its] own evidence….An appellant's failure to state all of the evidence fairly in its brief waives the alleged error.”  Opp. at 10.  The District responds that Solano concerns the appellant’s burden to discuss all of the material evidence when the “substantial evidence” test governs the appeal and it has no bearing on a case where the standard of review is independent.  Id. at 1274.  Reply at 2.

The District’s presentation is inadequate.  It is not just that the District cited only its own evidence as Strong argues.  The District cannot blanket cite pages of the administrative record to argue that the CPC’s findings are not supported by the evidence.  Whether the court’s review is substantial evidence or independent review, the petitioner cannot present the court with the record and assert without analysis or citations that the administrative agency’s decision was against the weight of the evidence.  See Shenouda v. Beterinary Medical Board, (2018) 27 Cal.App.5^th 500, 513 (independent review).  The petitioner must identify, with citations to the record, the factual findings of the agency that he or she is challenging and why they are against the weight of the evidence.  Id.  The petitioner cannot simply ignore the evidence in the record supporting the agency’s finding and must explain why that evidence is insufficient to support the finding.  Id.

The District failed to adequately discuss the evidence and has waived its contentions that Strong committed misconduct, with other students or with JB, other than on February 3, 2022.

b. February 3, 2022

            The CPC determined that Strong’s actions of holding JB’s arms across his chest “was serious” (AR 464) and that she “made a mistake” (AR 464).  The CPC described Strong’s action of holding JB’s arms on his chest as “a momentary lapse in judgment.”  AR 460.

            The District argues that Totlani reported two issues: kicking and holding JB’s arms.  The CPC focused on the holding of JB’s arms on his chest and completely ignored the equally heinous action of kicking JB.  Totlani had no personal bias against Strong, was unflinching in her testimony and recollection, and was a well-regarded and experienced instructional aide.  AR 423.  Totlani testified that she had a clear view with no desks in the way and was only seven to eight feet away.  AR 664, 669-70, 1272-74, 392.  Yet, the CPC inexplicably discounted her testimony and determined there was insufficient evidence that Strong kicked JB.  Pet. Op. Br. at 8-9.

            The District argues that the CPC erroneously took Totlani’s testimony out of context and misconstrued the desk placement.  Totlani was questioned about the placement of desks and explained that it varied during COVID where desks were “everywhere” because of social distancing, but that it had changed.  She then went onto to describe in detail the configuration of the room which was accurately depicted in Ex. 9.  There was no evidence of any obstruction.   Pet. Op. Br. at 8-9.

            The CPC gave more weight to the biased character witnesses of Strong, who the CPC admitted had a close relationship with Strong’s mother and lacked familiarity of Strong in the classroom and discounted the testimony of unbiased educators who observed Strong’s behavior with her students, including JB, that were cause for concern.  Pet. Op. Br. at 9.

            The District concludes that the CPC also excused Strong’s inappropriate behavior in responding to Principal Johnson’s request that Strong not discuss student issues in front of the students, concluding that it was understandable because of Strong’s classroom size, the number of students, and the need for assistance. AR 441.  However, the CPC determined that Strong had the background and training to work with TK students.  AR 464, 1289-91.  There was no evidence that her class was inappropriately large.  JB’s IEP records did not demonstrate a need for one-on-one support for him at that time (AR 541-43) and the CPC inappropriately relied on hindsight in concluding that more resources should have been provided for JB.  Pet. Op. Br. at 8.

            After independent review of the evidence, the court concludes that Strong did kick JB.  Totlani testified that she was about seven to eight feet away from Strong and JB when she saw Strong holding JB’s arms tightly against his chest, with Strong’s right foot holding down JB’s left foot.  AR 666-68, 670.  There is no evidence that Totlani’s view was obstructed by students, chairs, and tables.  Totlani testified that she saw both the left side of student JB seated in his chair and Strong’s right side standing over him and that there was no desk in the way.  AR 664.  Totlani saw Strong kick JB in the shin while he was seated.  AR 623-25, 661–68, 1272-74.  Totlani then saw JB, “rubbing his shin” and heard him, “muttering something behind his mask.”  AR 668.  Totlani asked what happened and Strong responded: “Look, he is trying to bite me and look he spit on me. She showed me the wet spot.”  AR 668.  Totlani testified that there was a wet spot on Strong’s jeans, but she did not see a bite mark on Strong’s hand.  AR 673-74.  Reply at 5.  Principal Johnson corroborated Totlani by testifying that Totlani told her that Strong had kicked JB.  AR 1166-67.

            Totlani’s testimony was clear and credible.  Unlike the CPC, the court concludes that her view was not obstructed.  The court concludes that Strong held JB’s hands across his body, stepped on his left foot in doing so, and kicked him on the right shin.  The court agrees with the CPC’s conclusion that there is insufficient evidence that Strong held JB down in the chair.  AR 460.  Even if she did so, Farris admitted that the distinction between a restraint and a physical gathering is unclear and Strong had no prior warnings or directives against restraint.  AR 460.

            Although Strong kicked JB, that does not end the issue of misconduct.  The question becomes whether the kicking was deliberate.  Strong did not attempt to injure JB -- the District does not contend that she did.  So, did Strong intentionally kick JB to give him some of his own medicine and teach him that hitting and kicking is wrong? 

JB had a pattern of behavior that started at the beginning of the school year and got worse.  AR 443, 449.  Strong was concerned about JB’s behavior and was focused on a variety of interventions in the hope that he would improve.  AR 453.  Totlani was assigned to him around the time of his January IEP, and Strong started recording data of the behavior at the IEP team’s request.  AR 433.  This included hours-long stretches on February 2 and 3 where JB kicked and hit students and teachers, spat on them, bit off the edge of a pencil and spat it out, threw trash at the teacher, and screamed.  AR 433-34.[5]

In this context, it is entirely possible that Strong was frustrated and kicked JB to “teach him a lesson.”  Plainly, she was exasperated in dealing with him and needed help.  JB also needed to learn that hitting and kicking is unacceptable and wrong.  Historically, a teacher would impart this lesson by giving back to the student in kind.  Even today, many parents would want their child’s teacher to show their child the wrongfulness of kicking via a mild demonstration.  Although neither party cites state law and District policy on corporal punishment, the court is aware that is no longer permitted.  Therefore, if Strong did deliberately kick JB, she violated state law and District policy.

There remains another possibility: the kick was inadvertent.  At the moment Totlani came in the classroom, Strong was bent over JB, hold his arms in front of him, and standing with her right foot on his left.  Totlani then saw Strong kick JB with her left foot.  This posture and kicking action is awkward at best.  While Strong’s opposition describes this action as not possible (Opp. at 3), it is more accurately described as possible but ineffectual, particularly if Strong is right-handed (and right-footed).  A right-handed person’s kick with their left foot has very little power.  Doing so while standing on the other person’s right foot would carry even less of an impact. 

The fact that Strong was in the awkward position of standing on JB’s left foot while holding his hands makes the inadvertence of her kick a real possibility.  The CPC’s undisputed conclusion was that, given the history of their relationship, Strong did not hold JB hard when she held both her hands over his arms.  AR 433.  Rather, she held him gently only long enough to say “stop” per her usual practice.  AR 433.  In the context of performing this stop hold, it is entirely possible that Strong inadvertently kicked JB.

 The court need not try to decide whether the kick was deliberate because the District did not prove as much, by Totlani’s testimony or any other evidence.  Strong denied any kick at all, and the District focused its evidence on proving that the kick occurred rather than its deliberate nature.  Totlani suggested that the kick was like kicking a trash can, but the court does not know what that means.  Nor does the court accept the suggestion that the kick was anything other than mild.  AR 431.  As the CPC found, JB should have sustained bruising to his shin if the kick was hard and there is no evidence that he did.  AR 431. 

Of course, Strong denied standing on JB’s left foot or kicking his right shin.  She may have lied, but she may also have simply been unaware that she had inadvertently kicked JB because her focus was on JB’s hands. 

In short, the weight of the evidence shows that Strong kicked JB but the District did not prove that the kick was intentional.  Coupled with restraining JB’s hands, a deliberate kick would be unprofessional and a violation of section 44932(a)(6).  An inadvertent kick would not.  The District failed to meet its burden of showing a violation of section 44932(a)(6).

            2. The Morrison Factors

A finding of misconduct is not alone enough to dismiss.  Instead, that misconduct must render the teacher unfit to teach.  San Dieguito, supra, 135 Cal.App.3d at 288.  The conclusion of unfitness must be based upon an objective standard as articulated in Morrison.  San Dieguito, supra, 135 Cal.App.3d at 288.  Not all Morrison factors need to be considered, only the “most pertinent ones”.  West Valley-Mission Comm. College v. Concepcion, (1993) 16 Cal.App.4th 1766, 1777.  The CPC further has broad discretion in evaluating the Morrison factors.  Thus, even where cause for dismissal has been established, the CPC still has broad discretion to determine whether such discipline is warranted.  Fontana Unified School Dist. v. Burman, (1988) 45 Cal. 3d 208, 222.

The District contends that the CPC misapplied the Morrison factors.  Pet. Op. Br. at 9.

a. The Likelihood That the Conduct Adversely Affected Students or Teachers and the Degree of Such Adversity

            (1). February 3

            The CPC found that Strong held JB’s arms against his chest once for a few seconds and not tightly.  Nonetheless, this “deeply affected” Totlani.  AR 463.  For the degree of adversity, holding JB’s arms against his chest was a serious but isolated incident.  AR 464.  Strong consistently used other methods like patting his hand, holding his hand, and using interventions such as a plush toy.  AR 464.  She resorted to non-referred methods a few times, but never to harm JB.  AR 464.  Strong engaged proactively with the school community to obtain support on his behalf, and she consistently used other positive interventions.  AR 464.

            The District argues that Totlani was distraught and sick to her stomach at seeing Strong hold and kick JB, and she felt it necessary as a mandated reporter to report it to the principal.  AR 624-25, 773.  Strong’s reaction to JB’s behavior by holding him down with his arms crossed against his chest and kicking him unquestionably demonstrates an uncontrolled anger and lack of fitness to teach.  Reply at 3.

            The court agrees that the degree of Strong’s February 3 actions and the adverse effect of those actions on JB, Totlani, Johnson, and others was greater than the CPC allowed.  As Totlani was the only direct observer, she saw the kick and its impact was greatest for her.  Principal Johnson and others were adversely affected by their involvement in the investigation.

            (ii). Other Incidents

            The CPC found that Strong’s conduct occurred twice over a protracted period.  AR 463.  In addition to the February 3 incident, Strong held JB by the wrist instead of his hands on another occasion and did not let go after he dropped onto the ground, which disturbed staff.  AR 463.  However, this incident did not affect JB and District staff only reported this matter as part of the investigation of the February 3 incident.  AR 463.

            The District argues the impact of other incidents besides February 3 as follows. 

            Doumerc testified that Strong spoke harshly with JB.  AR 389, 1043- 1050.  She also testified to an incident when Strong ignored her attempts to provide Strong with alternative methods for addressing JB, who was being triggered by Strong’s approach to him.  AR 1045-47, 1048, 1048-49.  Strong claims that she did not hear Doumerc (AR 1337-38), but it is hard to believe that she did not hear Doumerc’s offer of assistance.  Strong further loudly exclaimed to Doumerc, within earshot of her other students and JB, that JB bit her that day.  AR 1047-48, 1049-50.  Both Nguyen and Doumerc explained how students reflect what their teachers do and say, and Strong’s actions could humiliate JB in front of his peers.  AR 908-09, 912, 1043-50.   Pet. Op. Br. at 11.

            Inexplicably, the CPC found school psychologist Nguyen’s complaint subjective and excessively harsh (AR 440), despite the fact that Strong acknowledged that Nguyen accurately testified to her actions (AR 1348).  Pet. Op. Br. at 11.

            Mother testified that Strong was always negative about JB, to the point that another parent intervened.  AR 1076, 1314-15.  Mother believed these things should have been discussed privately.  Strong testified that she later emailed JB’s mother apologizing and JB’s mother stated she wanted the conversations to continue but no email was ever produced.  AR 1315.  Pet. Op. Br. at 11.

            Zamora was sufficiently concerned that she reported to her supervisor when she saw JB’s head being squeezed between Strong’s legs.  AR 784.  Pet. Op. Br. at 11-12.

            As stated ante, the District has waived its contentions of misconduct other than on February 3.  Additionally, these incidents were minor or overblown and there is no evidence that Strong violated any District policy in these incidents.

            Specifically, the CPC correctly rejected Domerc’s testimony that Strong was a secondary aggressor in the January 27 incident.  AR 437.  Another student had pushed JB in line, so he pushed back.  AR 437.  Doumerc wrongly believed that Strong saw the whole incident.  AR 437.  Doumerc approached Strong and told her another student had started it.  AR  437.  Strong grabbed JB’s arm, waved a finger in his face, and harshly said: “We don’t push others.”  AR 437.  Doumerc asserted that, when JB dropped to the ground, Strong kept holding on and pulling his arm while he kicked her.  AR 437-38.  In a written statement, Doumerc said she told Strong to let go because holding JB by the wrist triggers him.  AR 438.   After Strong complied, Doumerc showed her how to hold JB by the arms and guide him.  AR 438. 

            Doumerc was concerned that Strong was dismissive of her and did not acknowledge that JB was not the aggressor.  AR 438.  At the hearing, Strong explained she did not see the other student kick JB.  AR 438.  By the time Doumerc was talking to her, Strong was also speaking to another student and watching her 25-student class.  AR 438.  She was distracted and could not remember if Doumerc talked to her.  AR 438.  The CPC found this explanation credible.  AR 438.  Moreover, the CPC concluded that Doumerc’s report of the January 27 incident did not fully explain the circumstances.  AR 438.  The court would add that Strong had every right to single out JB due to his history of bad behavior.

            As for Nguyen, the CPC found that she has strong and rigid opinions about Strong’s conduct, despite her relatively short tenure and limited classroom experience.  AR 439.  She did not fully understand how the dynamics of a crowded classroom couple with the limited one-on-one support JB had in the classroom.  AR 439.  On January 19, Strong had contacted Guevara for assistance with JB in the playground.   AR 439.  When Nguyen arrived, Strong was holding JB’s hand near a bench with another student next to them.  AR 439.  Nguyen did not object to the hand holding but did find the comment “which one do you want?”  inappropriate.  AR 439.  Strong credibly explained her comment was a joke and that JB frequently pulled away from her.  AR 440.  The CPC found Nguyen’s complaint subjective and excessively harsh.  AR 440.  Strong appropriately used intervention to calm him down, and she needed to return to her classroom with JB to attend to her other students.  AR 440.

            On January 31, Strong called Guevara for help with JB.  AR 440.  Although Strong generally relied on Guevara, she accepted Nguyen’s assistance.  AR 440.  She explained JB was having a tantrum that could hurt the other students.  AR 440.  Nguyen reported that when she and Johnson entered the room, Strong was holding JB’s hand.  AR 440.  She turned JB over to Nguyen, stating “he just spat on me.”  AR 440.  JB looked like he had been crying.  AR 440.  Johnson put his hand up as a signal for Strong to stop speaking and said: “Not in front of the kids.”  AR 440.  Strong responded: “They all saw what happened.”  AR 440.  Johnson acknowledged that was true but still said not in front of them.  AR 440.  Strong replied “I can’t [do this now]” and complied with Johnson’s request.  AR 440.   Although Strong admitted that her response to Johnson was not appropriate, the CPC found it was understandable given the size of her classroom, the number of students she had, and how she needed assistance with JB.  AR 441.  The court agrees.

            On an unspecified date, Zamora saw Strong standing at her doorway with JB’s head squeezed between her feet while he laid face-down on the floor.  AR 442.        Strong denied closing her legs in a headlock around JB.  AR 443.  JB often dropped to the floor when he tried to elope, so she would stand in front of the door at dismissal time.  AR 443.  JB often rammed his head into her, lay on his stomach, and put his head between her legs and hands on her foot.  AR 443.  Strong would not move to avoid hurting her.  AR 443.  She instead let him calm down before asking him to go back to his desk like the other students.  AR 443.  This generally took a minute.  AR 443.

The CPC concluded that Strong’s testimony was more persuasive.  AR 444.  In any case, Zamora refused to say that Strong engaged in inappropriate behavior.  AR 444.  When pressed, she only said that Strong could have handled it differently.  AR 444.  The court concludes that, while Strong’s approach was not the gentlest, there is no evidence that her actions violated policy.

            Strong talked to Mother about JB’s behavior every day when she came to pick him up.  AR 445.  When another parent scolded her for having those conversations in public, Strong offered via email to communicate with Mother in other ways.  AR 445.  Strong was communicative with the parents and consulted Mother on what toys and Polish-language books to use to calm him down.  AR 445.  The court notes that, contrary to Mother’s testimony, she welcomed Strong’s input at the gate.

            Nguyen, Doumerc, Totlani, and Zamora all said that Strong used the wrong manner, tone, or language to speak to young students.  AR 448.  Strong said things like “get in line,” “come here,” and “you are not supposed to be here.”  AR 448.  The witnesses’ reactions to these remarks were subjective and after thoughts by District staff when asked to comment about Strong.  AR 448.  Strong concedes that she is tall and loud, and Zamora conceded that Strong is firm.  AR 448.  There is no evidence of an objectively correct tone or words to use with students.  AR 448.

Finally, Strong correctly points out that both Nguyen and Doumerc testified that they were hired by the District in 2019, had not worked with Strong prior to the 2021-2022 school year, and had limited interaction with Strong in her class.  AR 897-01, 900-01, 1038-41, 1050-51, 1055-56.  Although Strong’s methods may not have been preferred by the District, they were not used to harm JB or other students.  Lastly, there was no evidence that students heard any statements by Strong.  Opp. at 11.

In short, even if incidents other than on February 3 were considered, the CPC correctly found that none violated a policy or rule and that the witnesses sometimes overstated the circumstances and their import.

c. Proximity or Remoteness in Time of the Conduct

The CPC found that Strong’s conduct was recent but without prior history.  AR 464.

The District argues that Strong’s holding and kicking of JB was witnessed as it occurred.  That same day, Strong was notified that she would not be returning to the classroom.  Pet. Op. Br. at 12.

The District focuses on the wrong period.  The issue is whether the misconduct is remote in time from the date of the charges.           The February 3 misconduct was recent relative to District’s investigation and March 21, 2022 Statement of Charges against Strong.  AR 14, 33, 331-50. 

d. Teaching Certificate held by the Teacher

            The CPC found that Strong had a multiple subject teaching credential and a CLAD from the state.  AR 464.  She also had completed the required credits for early childhood education and the coursework to teach TK students.  AR 464.

            The District argues that the CPC determined that Strong was adequately trained in working with TK students.  TK students often have a hard time transitioning to school.  There was no testimony that her class that year was inappropriately large.  Pet. Op. Br. at 12; Reply at 3. 

            The District’s points about Strong’s education and training are correct.

e. Extenuating or Aggravating Circumstances, If Any, Surrounding the Conduct

            The CPC found that JB’s unique and challenging circumstances required substantial intervention on February 3.  AR 464.  Strong held JB by the wrist instead of the hand, and briefly held JB’s arms, in response to these extenuating circumstances.  AR 464.  The CPC determined that Strong’s actions were serious, that she could have engaged in “better practice” and better judgment when dealing with JB (AR 444, 461), and that she “made a mistake” (AR 464). 

            The District argues that Strong was qualified to teach her TK class, including JB.  She was adequately trained and not new to teaching, particularly young TK students. Strong asked for and was provided ongoing support, yet she failed this student, culminating in the actions taken on February 3.  Strong should have been able to control herself but was not able to do so.  Pet. Op. Br. at 12.

            The District contends that the CPC ignored the heinous action of Strong kicking JB.  AR 460.  The CPC also allowed Strong to blame JB to justify her actions, claiming that JB’s behaviors were difficult to deal with, despite the ongoing supports she was given.  The totality of Strong’s behavior was not an isolated incident.  Her actions on February 3 were the culmination of her lack of control over her reactions to JB.  Even if she was frustrated, she was responsible for maintaining a professional relationship with the student, establishing classroom control, and promising a classroom environment that is conducive to the growth of the student.  The evidence shows that Strong failed.  Pet. Op. Br. at 13.

            The District unfairly crops the aggravating/extenuating circumstances factor.  The CPC noted that “[Strong] established there were extenuating circumstances during the occasions she was observed briefly holding JB’s arms or holding JB by the wrist instead of his hand. The evidence established unique and challenging circumstances which required a great deal of interventions which were initiated by [Strong].” AR 464.  The same is true for an inadvertent kick. 

            The extenuating circumstances included JB’s behavior.  Totlani and Zamora noted JB’s pattern of behavior that escalated from the beginning of the school year, even after Strong was removed from the classroom.  AR 449.  School personnel generally agreed that JB exhibited behavioral issues that interfered with his learning.  AR 449.  During his SIT, primary concerns included eloping from the classroom, running away from the line in the hallway, and failure to recognize letters and numbers.  AR 450. 

            Strong was concerned about JB’s behavior and was focused on a variety of interventions in the hope that he would improve.  AR 453.  Strong proactively sought support from District staff.  AR 444.  She regularly called for additional assistance when JB’s behavior posed a potential or actual danger to himself and other students.  AR 444.  Strong referred him to the resource team, collected data when Doumerc advised her to do so, and comforted JB with many interventions.  AR 444-45.

            Strong talked to Mother about JB’s behavior every day when she came to pick him up.  AR 445.  When another parent scolded her for having those conversations in public, Strong offered via email to communicate with Mother in other ways.  AR 445.  Strong was communicative with the parents and consulted Mother on what toys and Polish-language books to use to calm him down.  AR 445.

            JB’s behavior escalated in early 2022, culminating in the February 3 incident.  The District argues that the IEP records of JB did not demonstrate a need for one-on-one support for JB at that time.  AR 541-43.  Instead, the CPC inappropriately relied on hindsight to make an expert determination as to what resources should have been provided for JB in order to justify bad actions by Strong.  Pet. Op. Br. at 12; Reply at 3.

The District is wrong.  Early in the school year, JB’s IEP team concluded that he was eligible for autism services as a primary, with speech or language impairment as a secondary but his parents did not agree to autism eligibility.  AR 923.  They were proven to be incorrect as JB’s behavior deteriorated, both before and after Strong was removed from the classroom.

The CPC found that Strong’s attempts to find support for JB and the schoolyard conferences do not reflect a pattern of inappropriate behavior or ill-will to JB.  AR 445.  They do not undermine school regulations even though Strong could have chosen better ways to share information.  AR 445. 

JB’s behavior and Strong’s efforts to deal with it are extenuating circumstances.

f. Praiseworthiness or Blameworthiness of the Motives Resulting in the Conduct

            The CPC found that Strong’s misconduct was a mistake rather than an act of ill will.  AR 464.  She had a history of working diligently with JB and asking for help to protect him and her other students.  AR 464-65.  Although she did not use her usual intervention methods, her motives were consistent with those methods.  AR 465.

            This conclusion applies equally to an inadvertent kick as to holding JB’s arms across his chest. 

            The District repeats its argument that, even if Strong was frustrated by JB, she requested and received assistance throughout the school year.  Her lapse in judgement, even if an isolated incident, is never justified when working with children.   Pet. Op. Br. at 13-14.  The District is correct, but the CPC’s point of a praiseworthy motive remains.

            g. Likelihood of the Recurrence of the Questioned Conduct

            The CPC found that all of Strong’s incidents were isolated and do not reflect a pattern of poor intervention.  AR 465.  Her conduct in the February 3 incident was not likely to reoccur.  AR 465.

            The District disagrees, arguing that it was fortunate that Totlani happened to walk in on this incident when she did.  Based on the testimony of witnesses, Strong’s temperament is such that she could not control her emotions around JB or children like JB.  There is a high likelihood of recurrence.  The District should not have to wait for Strong to kick or forcefully restrain another child.  The protection and best interests of the students is paramount, not Strong’s ongoing employment.  Pet. Op. Br. at 14.

Strong notes that she had no prior discipline or complaints, and that she was successful in applying other methods of control such as verbal cues, redirection, seeking and obtaining additional support through SIT and IEP. AR 480-81, 484-536, 541-43, 1313, 1216, 1625.  Zamora also testified that she had not seen Strong engage in anything inappropriate. AR 796, 812, 803, 811-12.

            Although Strong has no history of discipline, the court tends to agree with the District that there is a likelihood of reoccurrence, albeit not kicking.  This conclusion is primarily based on Strong’s personality (towering, loud, harsh), as well as her interactions with JB and other students in a manner which tended to be abrupt and impatient.  Strong does not appear to be gentle and Zamora noted that Strong shows little affection to her students.  AR 390.  The court is not the arbiter of this issue, but Strong may not be best suited to be a TK teacher.  In any event, there appears to be a likelihood of some repetition of the behaviors described as “other incidents”.

            h. Chilling Effect Upon the Constitutional Rights of Teachers

            The imposition of discipline will not affect any of Strong’s constitutional rights.  The District argues that the CPC’s decision would make teachers and staff less likely to come forward to report instances that cause them concern because they can be blamed for over exaggeration or being “excessively harsh” in their observations. 

4. 

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16.Pet. Op. Br. at 14.

            This factor is not applicable.  The District’s argument that teacher witnesses will be chilled in coming forward is true anytime the District loses a case.  There is no constitutional right for a teacher’s testimony to be believed.  See Opp. at 13.

            3. Strong Is Fit to Teach

            If the Morrison criteria are satisfied, “the next step is to determine whether the ‘unfitness’ is ‘evident’; i.e., whether the offensive conduct is caused by a defect in temperament.”  Woodland, supra, 2 Cal. App. 4th at 1445.  “[T]he term ‘evident unfitness for service’ should not be given a definite technical meaning and that a court should not arbitrarily find that it is subsumed under some set formula . . .  In applying the standard due consideration must be given to the circumstances of the case at hand.”  Oakland, supra, 25 Cal. App. 3d at 1108 (citations omitted).  Before an inference can be drawn that the conduct renders a teacher evidently unfit to teach, it is necessary to show “a relationship between that conduct and the functioning of defendant as a teacher.”  Id. at 1109.  Opp. at 13.

            The CPC found that Strong proactively sought support from staff.  AR 444.  She regularly called for additional assistance when JB’s behavior posed a potential or actual danger to himself and other students.  AR 444.  Strong referred him to the resource team, collected data when Doumerc advised it, and comforted JB with many interventions.  AR 444-45.

            Strong talked to Mother about JB’s behavior every day when she came to pick him up.  AR 445.  When another parent scolded her for having those conversations in public, Strong offered via email to communicate with Mother in other ways.  AR 445.  Strong was communicative with the parents and consulted Mother on what toys and Polish-language books to use to calm him down.  AR 445.

            Overall, Strong’s attempts to find support for JB and the schoolyard conferences do not reflect a pattern of inappropriate behavior or ill-will to JB.  AR 445.  They do not undermine school regulations even though Strong could have chosen better ways to share information.  AR 445. Based on these factors, cause did not exist to dismiss Strong for evident unfitness for service.  AR 465.  Given the age of Strong’s students, holding JB’s arms was a serious act that disturbed District staff.  AR 465.  However, this conduct was isolated and easily correctable via training.  AR 465.

            Strong’s conduct does not demonstrate a fixed character trait or defect in temperament.  AR 460.  The February 3 incident was a lapse in judgment.  AR 460.  There was insufficient evidence that Strong held JB down in the chair.  AR 460.  Even if she did, Farris admitted the distinction between a restraint and a physical gathering is unclear.  AR 460.  Strong had no prior warnings or directives against the actions at issue.  AR 460.            There was no pattern of Strong refusing or being unable to refrain from untoward physical contact with any student.  AR 460.  The evidence showed a history of her involvement with the school community and encouraging the adoption of a PBIS.  AR 460.  She was proactive with JB and requested support for him when his behavior put himself or others at risk.  AR 460.  She initiated the Pre-SIT, communicated with the parents, and diligently tried different tools to engage with JB.  AR 460.  Doumerc’s judgment that Strong was dismissive of her was not supported by the evidence.  AR 460-61.

Any other statements or actions were taken out of context, subjective, and elevated to a level of gravity out of proportion to the circumstances.  AR 444.  Nguyeen said Strong once pulled JB to her.  AR 444.  Strong also purportedly said in front of other students that JB does not belong here, but whether that was the exact statement is unclear.  AR 444.  Strong admitted that she said to Doumerc that she was not sure it was the best placement for him because of the support he needed.  AR 444.  That statement should have been private, but Strong had to have these conversations while managing a busy classroom.  AR 444.

Although the court believes that Strong kicked JB, much of the CPC’s analysis of evident unfitness to teach still applies.  The District never even addressed this issue in its opening brief or reply.  Strong is fit to teach, although perhaps she should not continue to teach very young students.

            4. Persistent Violation or Refusal to Obey Board Regulations

            Pursuant to section 44932(a)(8), a permanent teacher is subject to dismissal for “[p]ersistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the State Board of Education or by the governing board of the school district employing him or her.”  The violation must be persistent or “motivated by an attitude of continuous subordination.”  Governing Board of the Oakdale Union School District v. Seaman, supra, 28 Cal.App.3d at 81-82.  “‘The word ‘persistent’ is defined by lexicographers as ‘refusing to relent; continuing, especially in the face of opposition….stubborn; persevering…constantly repeated.’”  San Dieguito Union, supra, 174 Cal. App. 3d at 1199.  Thus, emphasis is on “persistent” and “continually” and the violation must be persistent and “motivated by an attitude of continuous insubordination.”  Governing Board of the Oakdale Union School District v. Seaman, (1972) 28 Cal. App. 3d 77, 81-82.

            The CPC found that the District failed to establish that Strong violated Board Policy 4119.21 when she held JB’s arms for a few seconds.  AR 466.  It was at most bad judgment in isolated occasions, not physical abuse or harassment.  AR 466.  Any other allegations either were not true or concerned incidents that were isolated or insubstantial due to exigent circumstances and did not constitute a violation of District policy.  AR 466. 

In any case, the District did not provide sufficient evidence of persistent violations of District rules and regulations.  AR 466.  Strong was proactive in caring for JB.  AR 466.  She sought input from his parents and the counselor.  AR 466.  She applied appropriate interventions.  AR 466.  There was no cause to dismiss Strong under section 44932(a)(8).  AR 466-67.

            The District argues that Board Policy 4119.21 specifically expects District employees to exercise “good judgment when interacting with students and other members of the school community.”  The CPC incorrectly focused on the criminal standard (a much higher burden) to determine Strong did not violate state or federal laws, and completely ignored her outright failure to exercise good judgment when interacting with students.  The CPC excused Strong’s serious mistakes when interacting with students as isolated incidents.  Even if viewed as an isolated incident, the CPC determined that Strong’s actions were serious.  When looking at the totality of the circumstances, her actions with JB and other students were serious concerns raised by other staff.  Pet. Op. Br. at 14-15.

            The District ignores the fact that Strong committed no persistent violation of rules, including Policy 4119.21.  There was no testimony regarding Board Policy 4119.21, and the District did not produce or testify about any school policy on how to address student behaviors.  As the CPC noted, the Statement of Charge’s reference to violations of the Penal Code was not supported by any criminal charge or conviction.  While this did not prevent the District from proving a criminal battery, it did not prove that Strong committed a crime. 

            In reply, the District attempts to show a persistent violation.  It notes that, before February 3, 2022, Strong was observed engaging in “harsh physical contact” with JB by standing at the classroom doorway with JB’s head locked in between her legs, pulling JB’s hand on the playground on January 19, yelling at JB in a harsh tone on January 27, 2022 and pulling him to the front of the line by his arm, handing off JB on January 31, 2022 and speaking  negatively about him in front of the students despite being told by Johnson not to do so.  These persistent actions were a prelude to Strong kicking and holding down JB in his chair on February 3, 2022 and a violation of Board Policy 4119.21(1-3).  Reply at 9.

            Aside from the fact that the District’s effort for first time in reply may be disregarded (Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333), the court explained ante that the District failed to show that any of these incidents violated a rule or policy as opposed to a practice of which the observing personnel did not approve.  Strong is not guilty of violating section 44932(a)(8).

            F. Conclusion

The Petition is denied.  Strong’s counsel is ordered to prepare a proposed judgment, serve it on the District’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections.  An OSC re: judgment is set for January 11, 2023 at 9:30 a.m.