State Tenure Commission Upholds Discharge of Teacher Who Violated Standardized Test Procedures

In Herlein v Fremont Public Schools, TTC-14 (April 20, 2015), the State Tenure Commission ("Commission") upheld a decision by Fremont Public Schools ("District") to discharge a teacher ("Petitioner") who violated testing procedures during the administration of an ACT test.  The District discharged the Petitioner for five reasons:

• Violated his duty to report irregularities on the ACT test.
• Insubordination for failing to report irregularities.
• Material misrepresentation for falsely denying there were no irregularities when asked by the test supervisor.
• Unprofessional conduct in sending an email to the media that defamed his principal.
• Unprofessional conduct in sending an email to the media that disparaged his students, colleagues and school community.

The District assigned the Petitioner as a test room supervisor to administer the ACT portion of the MME battery of tests in March of 2014.  The test supervisor was one of the Petitioner's colleagues, a guidance counselor, who provided verbal and written instructions to testing staff, including the Petitioner, about documenting irregularities, such as cheating, on an irregularity report form.  Both the ACT and MME manuals required test room supervisors to document and report any test irregularity. 

During the mathematics section of the ACT test, the Petitioner discovered on the school-provided calculators a document that the District's math department used in the District's ACT prep class.  Although the Petitioner was "shocked" over the existence of this document on the school-provided calculators, he never reported it to the test supervisor or to any other school employee and, when asked by the test supervisor, he denied that there was any irregularity.  Two days later, he made an anonymous report of "urgent cheating" to the ACT website and to the Office of Education Assessments and Accountability of the Michigan Department of Education (MDE).  (Subsequent surveys indicated that only 12 out of 150 students who took the ACT actually accessed the math document on the school-provided calculators.) 

When neither the ACT nor the MDE acted on his anonymous report, the Petitioner sent an email, under an alias, to media outlets including the local television stations which accused the District and its students of cheating on the ACT test.  His email falsely accused his high school principal of stating during a staff meeting, "sometimes it's okay to lie." The context of this staff meeting involved the tragic death of a high school student.

The Petitioner's email created a media pandemonium.  Television and print media published accounts about students' cheating on the ACT.  Both the MDE and the ACT launched investigations into alleged irregularities on the ACT and MME tests as a consequence of the document that was on the school-provided calculators.  The ACT eventually validated the math test scores and found that there was no irregularity, and the MDE validated the MME math scores, although the MDE expressed concerns about the District's violation of the spirit of the MDE's Assessment Integrity Manual. 

Eventually, another teacher discovered the Petitioner's identity.  After an investigation, the District filed tenure charges for dismissal which the Petitioner appealed.  He argued that he fulfilled his obligation to report irregularities when he sent his anonymous emails to the ACT and MDE.   Further, the Petitioner argued that his discharge violated his First Amendment rights to communicate with the media, and that he was a victim of retaliation under Michigan's Whistleblower's Protection Act, MCL 15.361, et seq. 

After five days of hearing, the Administrative Law Judge upheld all five reasons for discharging the Petitioner.  On appeal, the Commission issued a decision rejecting all of the Petitioner's exceptions and adopted the Administrative Law Judge's decision.

There were several significant points in the Commission's decision.  A teacher's failure to follow verbal and written instructions contained in standardized testing manuals is both a breach of the teacher's duties as a test administrator and insubordination.  The Commission rejected the Petitioner's argument that his anonymous reports to the ACT and MDE justified his bypassing the District's internal chain of command to report test irregularities.  The Commission rejected his arguments that he could not be punished without a Board of Education policy governing the duties of test administrators and that the guidance counselor had no authority to enforce testing procedures since she was a member of the Petitioner's collective bargaining unit. 

The Commission found that the Petitioner's mendacious statements made in response to the test administrator's direct questions regarding testing irregularities constituted a material misrepresentation, especially when the integrity of standardized testing procedures depended on truthful responses.

The Commission found that the Petitioner's false accusation against his principal, that it was "ok to lie" in the context of a standardized test, constituted defamation and was unprofessional conduct.  The Commission found that the Petitioner's unsubstantiated assertions that students cheated on the ACT test constituted disparagement of his students and school community.

The Commission ruled that Petitioner's communication to the media was not protected speech under the First Amendment.   The Petitioner admitted that he was motivated to send the email because of his duty to report cheating on the ACT.  A public employee's communications that result from a public employee's job duties are not protected speech under the First Amendment.  See Garcetti v Ceballos, 547 US 410 (2006).  Also, the Commission ruled that there was no retaliation under the Whistleblowers Protection Act since there was no evidence that the District based its tenure charges on Petitioner's communications with the ACT or MDE.  Since the media is not a governmental agency, his communications to the media were not protected under Michigan's Whistleblower's Protection Act.

The Herlein decision is instructive on teacher misconduct involving administration of standardized tests.  Also this decision confirms that a teacher's defamatory and derogatory statements to third parties about school administrators, students and colleagues can constitute unprofessional conduct.  If you have any questions regarding the Herlein case, please contact your Clark Hill educational law attorney.