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Babe v. Iowa Board of Educational Examiners

Court of Appeals of Iowa

February 21, 2018

ANITA BABE, Petitioner-Appellant,

         Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

         Anita Babe appeals from the judicial-review decision upholding the Iowa Board of Educational Examiners' findings and conclusions.

          Becky S. Knutson of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellant.

          Thomas J. Miller, Iowa Attorney General, and Renner K. Walker and David M. Ranscht, Assistant Attorneys General, Des Moines, for appellee.

          Heard by Danilson, C.J., and Vaitheswaran and Bower, JJ.

          DANILSON, Chief Judge.

         The 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 decisions.

         Because 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.

         I. Background Facts and Proceedings.

         Babe 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 Administrator License.

         At 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."

         D.L. 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.

         On 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 go.

         Richard 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.

         Maruca, 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.

         Yochum 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.[1] 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.

         On 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.

         On 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 arm.

         On Monday, April 14, D.L. returned to school. Nothing of note occurred that day.

         During 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 mother.

         At 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."

         D.L. 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.[2] 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.

         On that 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.[3]

         On 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."

         On July 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).[4] 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.

         On 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 did Babe.

         A 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 ...

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