#340-TTC-792 --

DOCKET NO. 340-TTC-792

TEXAS EDUCATION AGENCY, + BEFORE THE STATE

DIVISION OF EDUCATIONAL +

PERSONNEL RECORDS +

+

V. + COMMISSIONER OF EDUCATION

+

+

+

CURTIS WAYNE FOOS + THE STATE OF TEXAS

DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner Texas Education Agency, Division of

Educational Personnel Records requests that the education

credentials of Curtis Wayne Foos, Respondent, be sanctioned.

A hearing was held on October 6, 1992 before Joan

Howard Allen, the Hearing Officer appointed by the State

Commissioner of Education. Petitioner is represented by

Terry J. Johnson, Attorney at Law, Austin, Texas.

Respondent is represented by Jefferson K. Brim, III,

Attorney at Law, Austin, Texas.

On December 30, 1992, the Hearing Officer issued a

Proposal for Decision recommending that Petitioner's request

be granted and Respondent's Texas Teacher Certificate be

suspended for a period of one year. Exceptions to the

Proposal for Decision were timely filed and considered.

Findings of Fact

After due consideration of the evidence and matters

officially noticed, in my capacity as State Commissioner of

Education, I make the following Findings of Fact:

1. Respondent Curtis Wayne Foos is the holder of

Texas Teacher Certificate No. XXX-XX-XXXX. (Stipulated).

2. At all relevant times, Respondent was an adult.

(Stipulated).

3. On or about November 8, 1989, Respondent was

employed by the Dublin, Texas Independent School District as

a physical education classroom teacher assigned to Dublin

High School. (Stipulated).

4. At all times relevant hereto, Curtis Yocom was a

public school student in Respondent's physical education

class. (Stipulated).

5. On November 8, 1989, Curtis Yocom, a student in

Respondent's physical education class, spoke out when

Respondent slapped another student on the side of the face

with a yardstick, an action which left a red mark on the

student's cheek. Respondent threw the yardstick down,

jumped on Mr. Yocom and hit the student five or six times in

the head and the right arm. Two students were required to

pull Respondent off Mr. Yocom. Mr. Yocom sustained a bloody

nose and a cut lip. (T. 17-18, 24, 32-33).

6. Respondent lost control when Mr. Yocom grabbed the

yardstick as Respondent was attempting to take the same

action against Mr. Yocom that he had with the first student.

(T. 33). Respondent subsequently resigned his position.

(T. 35).

7. Prior to the attack on Mr. Yocom, Respondent's

tire was slashed at a ball game where he was coaching and

his truck was toilet papered and urinated in by students.

The week before the incident, Respondent's house was toilet

papered and students wrote on the windows. (T. 38- 39). He

also was under stress at school due to a conflict with the

athletic director about the basketball season. (T. 39).

8. On or about January 9, 1990, in Cause No. 21,017

before the County Court in Erath County, Texas, Respondent

pled nolo contendere to the Class C misdemeanor offense of

assault, that Respondent received deferred adjudication and

that at this time Respondent is not on probation or parole

and is in no way subject to the supervision of the criminal

justice system of this state or any other state.

(Stipulated).

9. Respondent is currently employed as an Upward

Bound program employee, working with disadvantaged children

who are at risk of dropping out. (T. 36-37). He has had no

further physical outbursts. (T. 37). Respondent has not

received psychological counseling; however, he has engaged

in peer counseling with a coworker. (T. 43).

10. Respondent's former supervisors, including the

superintendent of Dublin ISD, know of the attack on Mr.

Yocom and would still rehire him. (T. 50, 56, 61).

Discussion

The state has the obligation to protect students

against educators who harm them. Physical abuse of minor

children directly relates to the duties of the profession.

19 T.A.C. +141.5. In at least three other cases, the

Commissioner has revoked the certificates of educators who

attacked their students. See TEA v. Twine, No. 183-TTC-391,

TEA v. Cross, No. 201-TTC-391 and TEA v. Darthard, No.

198-TTC-391.

Unworthiness to instruct the youth of the state, under

Tex. Educ. Code +13.046(a)(2), has been defined as a lack of

worth or absence of those moral and mental qualities re-

quired to enable one to render service essential to the

accomplishment of the object which the law had in view.

Marrs v. Matthews, 270 S.W. 586 (Tex. Civ. App.--Texarkana

1925, writ ref'd). Any educator who loses his or her

composure, strikes and injures a child out of anger over the

child's defiant behavior falls within this definition.

Although Respondent is truly embarrassed and remorseful

about his behavior, and although his former and current

supervisors are extremely supportive, one cannot overlook

the fact that he struck two students and failed to maintain

his composure. This situation is much like the Twine case,

in which the parents of the injured student and the

administration supported the teacher, who hit a young

student with a ruler.

However, unlike the Twine case, Respondent did not

attempt to cover up his actions. He immediately advised his

supervisors and resigned. He has been forthright with

subsequent employers and has performed his duties without

further incident. He has, at all times, recognized the

gravity of his actions and has taken responsibility for

them. And, unlike the Cross and Darthard cases, Respondent

has appeared at hearing to describe the circumstances

surrounding his actions, seeking to mitigate the incident.

In this case, a suspension of one year is appropriate as

opposed to a revocation.

Petitioner's request should be granted and that

Respondent's Texas teaching credentials be suspended for a

period of one year.

Reply to Exceptions

Respondent requests that the one year suspension

proposed by the Hearing Officer be backdated to the date of

the incident. Although Respondent presented himself

effectively at hearing, the fact remains that he struck two

students. Under most circumstances, this alone would

warrant revocation. The mitigation and the acceptance of

culpability did not, and probably could not, extend to

backdating the suspension. Respondent's Exceptions are

overruled.

Conclusions of Law

After due consideration of the record, matters

officially noticed, and the foregoing Findings of Fact, in

my capacity as State Commissioner of Education, I make the

following Conclusions of Law:

1. The Commissioner of Education has jurisdiction

over the instant matter pursuant to Tex. Educ. Code

+13.046(a).

2. Respondent Curtis Wayne Foos, holder of Texas

Teacher Certificate No. XXX-XX-XXXX is unworthy to instruct

the youth of this state by virtue of his action of striking

one student with a yardstick in the face and repeatedly

hitting another student, causing bleeding to the student's

nose and lip.

3. Respondent's Texas Teacher Certificate No.

XXX-XX-XXXX should be suspended for a period of one year

from the date of this order.

4. Respondent should surrender his copy of

Respondent's Texas Teacher Certificate to the Texas

Education Agency, Division of Educational Personnel Records.

5. The Texas Education Agency, Division of

Educational Personnel Records should prepare and distribute

appropriate notices notifying the public of the suspension

of Respondent's teacher certificate.

6. Petitioner's request should be granted.

O R D E R

After due consideration of the record, matters

officially noticed, and the foregoing Findings of Fact and

Conclusions of Law, in my capacity as State Commissioner of

Education, it is hereby

ORDERED that Respondent's Texas Teacher Certificate No.

XXX-XX-XXXX be, and is hereby, SUSPENDED for a period of

one year from the date of this order; and,

IT IS FURTHER ORDERED that Respondent surrender his

copy of Respondent's Texas Teacher Certificate to the Texas

Education Agency, Division of Educational Personnel Records;

and,

IT IS FURTHER ORDERED that the Texas Education Agency,

Division of Educational Personnel Records prepare and

distribute appropriate notices notifying the public of the

suspension of Respondent's teacher certificate; and,

IT IS FURTHER ORDERED that Petitioner's request be, and

is hereby, GRANTED.

SIGNED AND ISSUED this ______day of ______,

1993.

______

LIONEL R. MENO

COMMISSIONER OF EDUCATION