Luscre-Miles v. Dept. of Education., 2008-P-0048 (12-19-2008)

{¶ 47} I respectfully dissent.

{¶ 48} The majority contends that the Ohio State Board of Education did not err in enacting their Resolution of July 10, 2007, and affirming the Report and Recommendation of the Hearing Officer and suspending Luscre-Miles' teaching licenses for one year. I disagree.

{¶ 49} With respect to Luscre-Miles' first assignment of error, I believe the trial court erred in finding that she violated R.C. 3319.151.

{¶ 50} R.C. 3319.151(A) provides: "[n]o person shall reveal to any student any specific question that the person knows is part of a test to be administered under section 3301.0711 (3301.07.11) of the Revised Code or in any other way assist a pupil to cheat on such a test."

{¶ 51} In the case at bar, the relevant word in the foregoing statute is "specific." The legislature did not say "close," "approximate," or "similar." There is no evidence in the record that Luscre-Miles revealedspecific questions to her students. None of the worksheet questions were taken verbatim from the Ohio Achievement Test. Testimony from two experienced educational administrators showed that it is likely and even encouraged for teachers, like Luscre-Miles, to create and use practice materials that are similar to the Ohio Achievement Test, which facilitates the ultimate goal of students learning the concepts that will be tested. That is exactly what Luscre-Miles did here. The trial court clearly abused its discretion as its finding does not comply with reason or the record. See State v. Ferranto (1925), 112 Ohio St. 667,676-678.

{¶ 52} The worksheet itself did not facilitate cheating since it in no manner revealed any answers to the test, but rather taught the students how to do different math problems. Access to such questions from previous Ohio Achievement Tests is not prohibited under R.C. 3319.151, even though similar questions will be used on future tests. SeeState ex rel. Rea v. Ohio Dept. of Edn. (1998), 81 Ohio St.3d 527,531-532.

{¶ 53} This writer believes the decision to suspend Luscre-Miles' teaching licenses for one year was in error, due to the fact that she did not violate R.C. 3319.151.

{¶ 54} Thus, I find merit in Luscre-Miles' first assignment of error.

{¶ 55} With regard to her second assignment of error, I believe the trial court erred in upholding the Hearing Officer's factual findings and conclusions. The facts do not support the conclusion that Luscre-Miles deliberately used Ohio Achievement Test questions on her worksheet.

{¶ 56} Accordingly, I also find merit in Luscre-Miles' second assignment of error.

{¶ 57} For the foregoing reasons, I would reverse the judgment of the trial court.

{¶ 58} Appendix: The Hearing Officer found the following question to be "much more similar to questions appearing within the March 10, 2006 mathematics Achievement Test than to the source documents put forward by Ms. Miles as the bases for these * * * worksheet questions."

{¶ 59} Question 1 of the practice worksheet: "2 cycling stores sell a $450.00 bicycle. This weekend the stores are offering the bicycle for 30% off. There is an internet site that is offering $75,00 off that same price. Which of the 2 discounts for the bicycle is greater?"

{¶ 60} Question 16 of the Achievement Test: "The original cost of the guitar that Jane wants to buy is $240 in two different stores. Sam's Music is having a sale where guitars are discounted by 30%. Melody Music is offering a $45 discount on the same guitar. In your AnswerDocument, explain which store is offering the better deal."

{¶ 61} First purported source for question 1: "Simon wants to buy a bike. He sees one in the store that costs $125. Simon tells the salesman that he will buy the bike if he receives a 25% discount. What fraction represents the amount of the original cost that Simon is willing to pay?"

{¶ 62} Second purported source for question 1: "Elliott wanted a 26-inch bike. At Bill's Bike Shop, he looked at a regularly priced $120 bike marked ¼ off. In addition to the discount, the store was offering a $10 rebate. At Barney's Bike World, the same bike was advertised at 20% off the regular price of $110. From which store should Elliott buy his bike and why?"

{¶ 63} Third purported source for question 1: "The Bike Shop, Wheels Galore, and Don's Sport Shop all sell Mighty mountain bikes for $327.00. The Bike Shop's sale price for Mighty is 30% off. Wheels Galore is offering them for $227.50. Don's Sport Shop is selling them for 1/3 off the regular price. What is the sale price at the Bike Shop? At Wheels Galore? At Don's Sport Shop? Where would you buy a Mighty mountain bike?"

{¶ 64} Question 8 of the practice worksheet: "The Trailblazer Team had a goal of raising $400.00 for the Leukemia Society during their recent fundraiser. They raised $575.00 dollars instead! What percent of their goal did they Trailblazer Team raise?"

{¶ 65} Question 35 of the Achievement Test: "The Drama Club needed to earn enough money to pay for the costs of putting on a play. Club members had a goal of $300. They raised $450. Which picture shows the percentage of the goal the met?" The possible answers include 50%, 125%, 150%, and 200%.

{¶ 66} Purported source for question 8: "In April, the Thurgood Marshall School needed money to put on the annual Year's End Festival. Since the students had worked hard on the earlier fundraising campaigns, the teachers volunteered to raise the money. They decided to sell paperback books for summer reading, and set a goal of $360. The thermometers on the next page show the teachers' progress at the end of the second, sixth, and tenth days. What school announcement might the teachers make at the end of the tenth day?"