from the Iowa District Court for Polk County, Scott D.
Babe appeals from the judicial-review decision upholding the
Iowa Board of Educational Examiners' findings and
S. Knutson of Davis, Brown, Koehn, Shors & Roberts, P.C.,
Des Moines, for appellant.
J. Miller, Iowa Attorney General, and Renner K. Walker and
David M. Ranscht, Assistant Attorneys General, Des Moines,
by Danilson, C.J., and Vaitheswaran and Bower, JJ.
DANILSON, Chief Judge.
Iowa Board of Educational Examiners (Board) determined Anita
Babe committed an act of physical abuse of a student. Babe
filed a petition for judicial review and the district court
affirmed the ruling. Babe asserts there is not substantial,
credible evidence to support the Board's findings. She
also asserts the sanction imposed was "unreasonable,
arbitrary, capricious or an abuse of discretion, " or
"so grossly disproportionate to the benefits accruing to
the public interest from that action that it must necessarily
be deemed to lack any foundation in rational agency
policy." Finally, Babe argues the decision was
inconsistent with the Board's precedent and prior
there is not substantial evidence to support a finding Babe
committed an act of physical abuse, and thus, no basis for
the disciplinary sanction imposed, we reverse and remand to
the district court with directions that the matter be
remanded to the Board for dismissal.
Background Facts and Proceedings.
has been teaching since 1991 and is currently a teacher in
the Des Moines Public School District. Babe taught at Holy
Family School, Perkins Elementary School, Capitol View
Elementary School, and-for the ten years before the incidents
at issue-at Hubbell Elementary School. Babe holds a Master
Educator Teaching License, as well as a Professional
Hubbell, Babe was not only a full-time fifth-grade teacher
she was also the dean of students. Babe became Hubbell's
dean of students for the 2013-2014 school year. As dean, when
the principal, Carrie Belt, was out of the building, Babe was
the one who dealt with student discipline issues. Babe was
also a member of Hubbell's Crisis Intervention Team. In
order to be a part of this team, Babe received additional
training on how to handle difficult students. It is the
policy of the district that school personnel "are not
allowed to put hands on students unless they are a danger to
themselves or others. Even if they're throwing a laptop
across the room, we're not allowed to intervene because
they're not endangering others or themselves."
was a fifth-grade student at Hubbell during the 2013-2014
school year. D.L. was born with a heart condition where one
chamber of the heart is missing. D.L. underwent extensive
surgeries and, as a result of one of the surgeries, suffered
brain damage. This damage resulted in D.L. experiencing
"a multitude of behavioral issues, " such as
difficulty reading, performing math, concentrating,
remembering, and expressing himself. He is frustrated easily,
resulting in his acting out-breaking pencils, swearing,
upending chairs, and strolling out of his classroom. D.L. had
two teachers assigned to him, Paula Beaumont and a
special-education teacher, Jo Yochum.
Thursday, April 10, 2014, Principal Belt was not present at
Hubbell, and thus, Babe was in charge as the dean of
students. That morning, D.L. was misbehaving in Yochum's
classroom and left the room without permission. Babe was
called to deal with the situation. She found D.L. in the
hallway near the elevator on the second floor of the
building. At that time D.L. told Babe he had permission to be
out in the hallway. He did not. Babe and D.L. got on the
elevator and went to the third floor. Upon exiting the
elevator, D.L. started up a ramp that leads to the bookroom,
telling Babe he wanted to stay up there. Babe followed D.L.
up the ramp and stated he could not stay there and needed to
Maruca, from his classroom some ninety feet away, heard
arguing between Babe and D.L. with their voices escalating.
When the voices got louder, Maruca looked outside of his
classroom door to check on the two and looked up the ramp.
Maruca saw Babe and D.L. Babe's back was to Maruca and
D.L. was on the other side of Babe, facing her. Maruca saw
Babe raise both her arms and move forward. However, Maruca
was not in a position to see any contact.
feeling the situation was escalating, did not intercede but
went to the office to find the principal. When he arrived at
the principal's office, he learned Belt was not in. The
office manager, Sherrie Sauls, noted Maruca was pacing and
nervous, and she asked him what the problem was. In response,
Maruca stated, "They're at it again." Sauls
inquired who "they" were and mouthed "Anita
[Babe] and [D.L.]?" Maruca answered in the affirmative,
took no further action and returned to his classroom.
eventually accompanied D.L. to the office and Babe joined
them. D.L.'s mother was called and she came to the school
to pick up D.L. During this time D.L. made no comment about
being grabbed or hurt. D.L. then left with his mother. On the
ride home, D.L. told his mother Babe had hurt him and
squeezed his arm and she was mean to him. His mother looked
at D.L.'s arm and saw no injury. When they got home, D.L.
again mentioned his arm hurt and his mother again looked at
his arm and saw no injury to his right arm.
Friday, April 11, D.L. again said his arm hurt and his mother
again did not see anything on the front of his arm. The
mother stated D.L. stayed home on April 11 and did not go to
school. However, Babe testified D.L. attended school on April
11, and D.L., his mother, and Babe met to discuss a modified
behavior contract. Yochum, too, testified there was a meeting
with D.L. and his mother on April 11. No mention was made to
Babe or Yochum of D.L.'s arm or any injury.
Saturday, D.L. again told his mother his arm hurt. When
D.L.'s mother looked at the back of D.L.'s right arm
she observed bruises that she believed to have lines like
fingers. She also saw black marks she believed to be a
thumbprint and fingerprints. She asked D.L. what had
happened. D.L. told her Babe had squeezed him and hurt him.
The mother said she was going to inform the school but D.L.
begged her not to tell the principal because he was afraid
Babe would be mean to him. On that same weekend, D.L. was
wrestling with his cousin and his cousin hit him. This
resulted in a bruise up near the armpit of D.L.'s right
Monday, April 14, D.L. returned to school. Nothing of note
occurred that day.
the morning of April 15, D.L. was working in Yochum's
special education room with Payton Ball, a Drake University
practicum student. D.L. became frustrated while working with
math manipulation cubes and swept the cubes off the table. He
flipped his chair over, flipped other chairs over in the
room, and left the room and sat on a bench in the hallway.
Yochum called Babe for assistance because Principal Belt was
out of the building. Babe spoke with D.L. and the two went to
the principal's office, where Babe called D.L.'s
about 2:30 p.m. on Tuesday, April 15, D.L.'s mother
telephoned to speak to Babe, but she was told Babe was in
class and not available. She then asked to speak to Principal
Belt (now back in the building) and informed her about the
bruising to D.L.'s arm. Principal Belt instructed the
mother to come to the school and file a complaint. The mother
did go to the school and filed a formal complaint. D.L. was
brought to the principal's office. Principal Belt said to
D.L. your mother said Babe grabbed your arm. At that time,
D.L. also had bruising slightly above his wrists from where
he said Babe had "pulled him into a chair."
was then escorted to the nurse's office and was seen by
the school nurse, Michelle Beebe. Nurse Beebe observed
bruising on D.L.'s upper right arm, back by the armpits.
She also observed bruising on the lower forearms. The
bruising on the back of the upper right arm was described by
Nurse Beebe as a long bruise, bluish-purple in color with
some yellowish-green color around it, which was approximately
a quarter to a half inch by four inches in size. D.L.
attributed this bruising to "that girl" and after
Nurse Beebe provided several names, D.L. agreed it was
Babe. Other bruises were also visible on
D.L.'s arm. These included a small bruise near his
armpit, which was bluish-purple in color and to which D.L.
attributed to wrestling with his cousin. D.L. also had
bruising around his forearms that were
"bluish-purple." D.L. told Nurse Beebe the bruises
on the lower forearms were caused by Babe grabbing him that
morning, April 15.
same date, April 15, 2014, Babe was told by Principal Belt
she was administratively suspended from her position for
making physical contact with D.L. on April 10 and April 15
and leaving bruise marks on his arm.
April 16, Principal Belt called Babe and explained there had
been a complaint of an injury from D.L.'s parent and that
D.L. had bruising on his arm. Principal Belt asked Babe,
"Have you ever touched him?" Babe responded,
"Not in a yanking way." Principal Belt described
the conversation further,
She [Babe] said she was in the hallway with him, and Jo
[Yochum] was there most of the time.
I asked her, "Last Thursday in the book room did you
grab him by the arms?"
And she said she did not grab him. They went to the book room
to look for Jo.
And then I asked her, "If yesterday in Room 201, did you
grab him by the arms and pull him out of a chair?" And
she said no.
. . . .
Q. Okay. And when-I guess so is this at least an attempt at a
verbatim transcription? A. Yes.
. . . .
Q. . . . So did you mention yanking at all to her? A. No.
Q. You said, "You have never touched him?" A. Yes.
Q. And she said? A. "Not in a yanking way."
3, 2014, a complaint was filed by the school district to the
Board. Babe denied the allegations she touched or made
physical contract with D.L. The Board ordered an
investigation of the alleged incidents (a
"level-two" investigation). On November 4, 2014, after
the investigation was concluded, the Board sent a notice of
hearing, alleging that on one occasion Babe grasped
D.L.'s arm leaving a bruise, and on another occasion Babe
had grabbed D.L.
April 6 and 7, 2015, a hearing was held before an
administrative law judge (ALJ). Principal Belt, Maruca,
Sauls, D.L.'s mother, and Nurse Beebe all testified, as
Hubbell teacher, Peggy Lemke, was called as a witness by
Babe. Lemke testified D.L. frequently bullied other students
at Hubbell. Lemke testified D.L. was not ...