     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


                                                                                             o
JOHN CUMMINGS,                                                                             C/SO
                                                                                           —\c
                                                  No. 68519-8-1
                                                                                  O
                     Appellant,                                                   m           C-J"
                                                                                           O -Tl ....
                                                                                  a
                                                  DIVISION ONE                    to
      v.



SEATTLE SCHOOL DISTRICT NO. 1,                    UNPUBLISHED OPINION                 U3    CT




                     Respondent.                  FILED: December 23, 2013



      Spearman, J. — The issue in this appeal is whether the Seattle School

District (the District) established sufficient cause to not renew (nonrenew, as

used in RCW 28A.405.310 et seq.) the contract of special education teacher

John Cummings. After placing Cummings on probation for receiving an

unsatisfactory performance review in teaching special education math, the

District determined that he failed to remediate his deficiencies and nonrenewed

his contract. On review, the hearing officer found that the District had sufficient

cause for nonrenewal. The superior court affirmed and Cummings appeals. We

conclude that Cummings fails to show prejudicial error for his claims of error and

that the record contains substantial evidence that he failed to adequately improve

his deficiencies during his probation. Accordingly, we affirm.
No. 68519-8-1/2


                                             FACTS

        Cummings received his Washington state teaching certificate in 1998 and

has Washington state teaching endorsements in special education Kindergarten-

12th (K-12) grade and general education history 4th-12th grade. With his special

education endorsement, he has the ability to teach all subjects to K-12 special

education students. Around 2006, he was hired by the District to teach special

education at McClure Middle School. From 2007 through the end of the 2009

school year, Cummings co-taught in a blended classroom. Under a blended

classroom model, a general education teacher and a special education teacher

co-teach core academic subjects to general and special education students in

the same classroom. Cummings and his co-teacher used the "Connected

Mathematics Program Part 2" (CMP2) curriculum to teach math.

        In spring 2009, Principal Sarah Pritchett dissolved the blended model and

assigned Cummings to teach special education math for the 2009-2010 school

year.1 Cummings' assignment was based in part on Pritchett's understanding
that he was "highly qualified" to teach CMP2 math classes.2 Pritchett testified that


        1Cummings was assigned to teach three special education math classes (6th, 7th, and
8th grade) and two general education math improvement classes (6th and 8th grade). Cummings
was not endorsed to teach general education math.

        2Ateacher can meet "highly qualified" standards underWAC 392-172A-01085 if he or
she receives a sufficiently high score on the State's "High, Objective, Uniform State Standard of
Evaluation" (HOUSSE) form. The District scored Cummings as highly qualified in math in an April
2009 form. It made this determination based on his resume, which indicated under "Experience"
that he "[developed and taught curriculum for Social Studies, Language Arts, and Mathematics
for Special Education classes" between October 1998 and June 2004 at Eastlake High School in
Sammamish, Washington. Clerk's Papers (CP) at 1646. The District had completed the form
without showing itto Cummings, who did not sign it. Cummingswas not aware of the form until
spring 2010. He clarified before the hearing officer that he taught math for less than a full year
during the 1998-2004 period.
No. 68519-8-1/3


all McClure math teachers were required to use CMP2. At that time, however,

she did not tell Cummings he would have to use CMP2, and he spent the

summer of 2009 preparing to teach a different curriculum. While he had received

CMP2 training, he was not comfortable with CMP2 and would not have accepted

the assignment had he known he would have to teach it.

       When the school year began, Pritchett told Cummings there was no

mandated curriculum for special education math and that he should teach to the

goals and objectives ofstudents' Individualized Education Plans (lEPs).3 In
October, however, Assistant Principal Keisha Scarlett instructed Cummings to

teach CMP2. There is no evidence that, after Cummings learned he was to teach

CMP2, he raised an objection with Pritchett or sought a change of assignment.

       On January 4, 2010, Scarlett completed Cummings' mid-year review in his

special education math classes and rated his performance unsatisfactory in

"instructional skill" and "knowledge of subject matter."4 CP at 1570-73. From
January 20 to April 28, he was placed on probation pursuant to former RCW

28A.405.100(4)(a) (2010)5 and given a Performance Improvement Plan (PIP).
Scarlett was assigned as Cummings' primary evaluator and math coach during

his probation and Marilyn Day was assigned as his secondary evaluator.




       3The processes applicable to lEPs are in WAC 392-172A-03090 through WAC 392-
172A-03115.

       4Instructional skill and knowledge of subject matter are two of eight evaluation criteria
prescribed by the Collective Bargaining Agreement between the District and the Seattle
Education Association, Cummings' union.

       5 RCW28A.405.100 was amended in 2012.
No. 68519-8-1/4


         On January 30, Cummings notified the District that he was diagnosed with

Attention Deficit Hyperactivity Disorder (ADHD). Around March 1, he submitted a

Request for Medical Information form signed by his psychologist, Dr. Arden

Snyder. Snyder indicated that Cummings had a long-term disability and could

perform the functions of his position with accommodations.6 Around March 8,

Cummings sent the District a statement suggesting possible accommodations.7

The District responded by letter on March 16, denying Cummings' requests for

accommodation.8

        Scarlett observed Cummings several times during his probation and

completed three progress reports. She observed that while Cummings had good

rapport with his students and had made progress in some areas, he failed to

sustain such progress and make adequate improvement in his areas of




        6The accommodations requested in the Requestfor Medical Information were assistance
with organization and 1 1/2 normal time.

        7Cummings' suggested accommodations were: (1) training in the use ofsoftware such
as Easy Grade Pro, Outlook, and The Source; (2) clerical support to implement and maintain
records and assistance setting up and maintaining a filing system; (3) large projects broken down
into smaller steps; (4) checklists to structure tasks that require many steps; (5) excusing
Cummings from non-essential tasks to allow more time on essential tasks; (6) establishing
multiple short-term deadlines; (7) assistance with setting priorities; and (8) setting up Outlook to
filter out non-essential emails.

        8On appeal, the District does not contest that itdenied Cummings' requests for
accommodation. Below, however, there was uncertainty as to whether Cummings' requests were
denied in full. As the hearing officer noted, the District's letter did not expressly state that the
District denied the requests for accommodation, aside from the request for clerical support. The
letter stated that Cummings had been provided with a consulting teacher who could assist with
certain skills. The letter also stated that software training was available to all certificated staff and
that Cummings should schedule the necessary training.
No. 68519-8-1/5


deficiency.9 In her final evaluation, she wrote:
        Knowledge of Subject Matter: Mr. Cummings has not demonstrated
        a solid understanding of the most basic content knowledge within
        CMP2. He has attended CMP2 training in prior years and during
        this school year; but does not know the scope and sequence of the
        subject matter. Mr. Cummingsf] lessons do not reflect specific
        strategies to assist students in their IEP identified areas of need.

CP at 1630.

        Secondary evaluator Day described Cummings as a "gifted special

education teacher" and noted his skill with challenging students. CP at 714. But

she also observed that he did not take his students to the computer lab to use

the "I Can Learn Math" computer program, which was included in his PIP, or

attend all of the trainings or personal development stated in his PIP. CP at 2211.

She observed that he did not follow Scarlett's suggestion to use the CMP2

teacher's manual.10 Her final probation summary stated:
        Mr. Cummings has consistently claimed he is not competent to
        teach CMP math. There has been evident improvement the last

        9In Scarlett's final progress report, she wrote, as to instructional skill, that Cummings'
lessons carved out "limited time for student's individual thinking, inquiry or problem-solving"; that
"basic instructional supports for a mathematics and IEP classroom are not in place"; that his
lessons lacked "differentiation in order to meet the needs of [his] students' stated IEP goals and
academic needs"; that "the pacing of [his] lessons need to be on target with [his] students' ability
level in order to keep them engaged in class; and that she observed "a lack of closure and
assessment in [his] lessons." As to knowledge of subject matter, Scarlett wrote that it appeared
that Cummings was "operating without basic understanding of concepts being represented" and
that because he lacked knowledge of the concepts, he could not clearly articulate what his
students would know and be able to do as a result of his lessons. She wrote that his lack of
content knowledge was "further exacerbated by the fact that [he was] unwilling to collaborate with
[his] colleagues or [Scarlett] on [his] lesson and unit planning." CP at 1624-26.

        10 Day wrote thatCummings "continues to stay away from full implementation ofthe CMP
math curriculum," even though the CMP2 teachers' manuals "have everything needed to deliver
good lessons including warm-ups, examples, correct processes, [and] suggestions for a variety of
learning strategies and accommodations." Day wrote, "I would say that even a teacher a bit shaky
in math could, if he/she stayed a few days ahead of the students, deliver these lessons
satisfactorily." She also noted that Scarlett had encouraged Cummings to use the CMP2
teacher's book and have it in front of him, because it "practically has a script and gives correct
examples and answers" and "includes a section that shows teachers how to make
accommodations for special needs students." CP at 2211-12.
No. 68519-8-1/6


      three lessons, but I agree that his math skills are minimal. And,
      because he does not grasp the scope and sequence of CMP
      content, he is not competent to modify this content.

CP at 2223.

      On April 26, 2010, Scarlett, Day, Pritchett, Human Resources Manager

Gloria Morris, Deputy General Counsel Faye Chess-Prentice, and Education

Director Ruth Medsker met to discuss what recommendation to make to the

Superintendent, Dr. Maria Goodloe-Johnson, regarding Cummings' probation. All

but Day recommended nonrenewal; Day recommended that he be given an

additional probationary year. Goodloe-Johnson was notified of their

recommendations.

      On April 30, Goodloe-Johnson notified Cummings that she had received

Scarlett's recommendation that the District nonrenew his contract. She met with

Cummings and his union representative on May 6. On May 10, she informed

Cummings that his contract for the 2010-2011 school year would be nonrenewed

for his failure to make suitable progress to remediate his teaching deficiencies in

instructional skill and content knowledge.

       Cummings appealed and a hearing was held.11 The District did not
request a court reporter for closing argument, which occurred on April 14, 2011.

At the hearing that day, Cummings requested a court reporter. The hearing

officer allowed him to call a court reporter, but when the reporter did not respond,

the hearing officer directed the parties to proceed. The District had used twenty

minutes of its allotted time for closing argument and Cummings had used twenty-



       11 The hearing officer was the Honorable Robert J. Doran.

                                              6
No. 68519-8-1/7


five minutes before a court reporter appeared. The reporter transcribed the

remainder of the closing arguments and the comments of the hearing officer.

       The hearing officer ruled that the District proved by a preponderance of

the evidence that it had sufficient cause to nonrenew Cummings' contract.

Cummings appealed to the superior court, which affirmed. He now appeals to

this court.

                                    DISCUSSION

       We review the factual determinations of the hearing officer under the

"'clearly erroneous'" standard. Clarke v. Shoreline School Dist. No. 412. 106

Wn.2d 102, 109-10, 720 P.2d 793 (1986) (citing RCW 28A.58.480(5)). A factual

determination is clearly erroneous if it is not supported by substantial evidence in

the record. State v. Jeannotte. 133 Wn.2d 847, 856, 947 P.2d 1192 (1997). We

review issues of law de novo. Clarke, 106 Wn.2d at 109. When reviewing the

application of the law to the facts, we make a de novo determination of the

applicable law, giving deference to the hearing officer's factual determinations.

|o\ at 109-10.

       Review of a hearing officer's decision is confined to the verbatim transcript

and the evidence admitted at the hearing. RCW 28A.405.340. The court may

"reverse the decision ifthe substantial rights of the employee may have been

prejudiced because the decision was:"

       (1) In violation of constitutional provisions; or
        (2) In excess of the statutory authority or jurisdiction of the board or
        hearing officer; or
        (3) Made upon unlawful procedure; or
        (4) Affected by other error of law; or
No. 68519-8-1/8


       (5) Clearly erroneous in view of the entire record as submitted and
       the public policy contained in the act of the legislature authorizing
       the decision or order; or
       (6) Arbitrary or capricious.

Id.


       A superintendent has the authority to nonrenew a certificated employee's

contract based on probable cause. RCW 28A.405.210. "Lack of necessary

improvement during the established probationary period, as specifically

documented in writing with notification to the probationer and shall constitute

grounds for a finding of probable cause under RCW 28A.405.300 or

28A.405.210." Former RCW 28A.405.100(4)(a) (2010). A teacher with

remediable teaching deficiencies must be given a reasonable program for

improvement. ]d.

       Cummings contends the hearing officer erred in (1) excluding the testimony

of his proposed expert witness; (2) excluding letters of recommendation and not

allowing him to cross-examine Pritchett regarding her previous evaluations; (3)

permitting 45 minutes of closing argument to take place without a court reporter;

(4) finding that Scarlett did not have a conflict of interest; and (5) determining that

Cummings' ADHD did not substantially limit his ability to teach CMP2 and that the

District did not have a duty to accommodate his ADHD. He contends there was

not sufficient cause for nonrenewal because (1) Goodloe-Johnson's decision was

based on incomplete information; (2) his evaluation was based in part on his

teaching of general education math; (3) and his assignment to teach CMP2 to

special education students was not appropriate or reasonable. He also contends

the hearing officer made other errors. We address these issues in turn.


                                           8
No. 68519-8-1/9


                                      Evidentiary Rulings

        Cummings contends the hearing officer abused his discretion in making

certain evidentiary rulings. First, he contends it was an abuse of discretion and a

violation of RCW 28A.405.310(3) for the hearing officer to exclude testimony

from his proposed expert witness, Patricia Steinburg, who has experience

working with teachers and school districts in special education. A trial court has

discretion as to the admissibility of expert testimony.12 Group Health Co-Op of
Puqet Sound, Inc. v. Dep't of Revenue. 106 Wn.2d 391, 398, 722 P.2d 787

(1986). Cummings asserts that Steinburg would have testified about the legal

underpinnings of special education as provided in WAC 392-172A-03090 through

WAC 392-172A-03110. He argues her testimony would have shown that (1) it is

inconsistent with special education policies to mandate any curriculum to special

education students; (2) CMP2 is inappropriate for special education students; (3)

Cummings was held to an unfair, irrelevant, and arbitrary standard; (4) changing

Cummings' curriculum to CMP2 required a meeting of students' IEP teams; and

(5) Scarlett's evaluation lacked credibility because CMP2 was not in the students'

lEPs and yet Cummings was rated unsatisfactory in subject matter knowledge

because he did not teach to lEP-identified goals.

        We conclude it was not an abuse of discretion to exclude Steinburg's

testimony. Cummings does not explain why Steinburg's testimony on laws and


        12 Expert testimony is admissible under ER 702 and 703 if the witness's expertise is
established by the evidence, her opinion is based on a test generally accepted in the scientific
community, and the testimony is helpful in deciding an issue in the case. Tennant v. Roys, 44
Wn. App. 305, 311, 722 P.2d 848 (1986). The District does not specifically respond to this claim
of error, nor does it contend that Steinburg did not meet the qualifications of an expert witness.
No. 68519-8-1/10


policies as to special education could not have been made in arguments by his

attorney. Testimony as to Cummings' first, second, and third points was

substantially provided or could have been provided by Day. As to his fourth and

fifth points, Cummings has been able to assert those arguments without

Steinburg's testimony. Moreover, we do not understand RCW 28A.405.310(3),

which provides that "[a]t the hearing ... the employee may produce such

witnesses as he or she may desire," to mean the employee is unrestricted in

calling witnesses. See RCW 28A.405.310(7)(a) (hearing officer shall make

rulings as to admissibility of evidence pursuant to applicable rules of evidence).

Even if the hearing officer abused his discretion, Cummings does not show that

Steinburg's testimony was likely to have changed the outcome of his nonrenewal

hearing. Error without prejudice is not grounds for reversal. Brown v. Spokane

County Fire Prot. Dist. No. 1. 100 Wn.2d 188, 196, 668 P.2d 571 (1983).

       Next, Cummings argues that the hearing officer erred in excluding letters

of recommendation and in not allowing him to cross-examine Pritchett regarding

her satisfactory evaluations of his teaching from 2007 to 2009. The decision to

admit or refuse evidence is reviewed for abuse of discretion. State v. Powell, 126

Wn.2d 244, 258, 893 P.2d 615 (1995). We conclude the hearing officer properly

denied such questioning of Pritchett on the basis that Cummings' previous

satisfactory performance was not relevant to whether there was sufficient cause

for nonrenewal based on his teaching in 2009 to 2010. We also conclude it was

not an abuse of discretion to exclude the letters of recommendation. The hearing

officer excluded these on the basis that they were hearsay or not relevant. These



                                         10
No. 68519-8-1/11


were proper reasons to exclude the letters. Cummings argues that the hearing

officer was required to consider them because Goodloe-Johnson had reviewed

them, but he cites no authority in support. Furthermore, Cummings does not

show that excluding the testimony from Pritchett or the letters was prejudicial.

          Finally, Cummings argues that the hearing officer committed reversible

error in permitting 45 minutes of closing argumentwithout a court reporter.13

Under RCW 28A.405.310(10), "A complete record shall be made of the hearing

and all orders and rulings of the hearing officer and school board." Cummings

contends that because the hearing officer ruled that the closing arguments are

part of the hearing record, the statute was violated. He contends he was

prejudiced by the inability to review this portion of the record, which he claims

contained inaccurate arguments by the District and questions by the hearing

officer that demonstrated erroneous burden-shifting. The District argues that

Cummings waived any objection to improper argument or comments during the

hearing when he failed to object below. We agree with the District. A party

waives any objection to improper argument when it fails to raise an objection at

the time, when there is an opportunity to correct it. State v. Dunawav, 109 Wn.2d

207, 221, 743 P.2d 1237 (1987). Cummings does not dispute the District's

assertion that he made no objections. Furthermore, he does not explain how any


          13 The superior court ruled that the hearing officer violated RCW 28A.4Q5.310(10) butthe
error was not prejudicial. Likewise, the hearing officer wrote in his opinion:

          If the Hearing Officer erred in not waiting longer for a court report [sic] to
          call or appear, it is the opinion of the Hearing Officer that there was no
          prejudice to Appellant because the portion, not reported, repeated
          substantially what was set forth in the written argument brief of his
          counsel.
CP 142.


                                                    11
No. 68519-8-1/12


errors in the District's closing argument or the hearing officer's remarks are

reflected in the hearing officer's decision or written order.

                 Probation's Compliance with RCW 28A.405.100

       Cummings contends the District's probationary process did not comply

with former RCW 28A.405.100(4)(a) (2010), which requires that he be given a

"reasonable program for improvement" and states that "[t]he purpose of the

probationary period is to give the employee opportunity to demonstrate

improvements in his or her areas of deficiency." He contends he was not

provided a meaningful opportunity to improve because (1) Scarlett had a conflict

of interest and (2) the District failed to accommodate his ADHD.

       First he contends Scarlett had a conflict of interest because she was both

his math coach and primary evaluator. He also contends Scarlett lacked the

background to evaluate a special education teacher, was not certified to teach

special education, and had never evaluated a teacher during probation. In

support of his contention, he points to the following testimony by Day:

      What I saw happening was that Mr. Cummings would meet
      with Ms. Scarlett in the role of her being the math coach,
      and they would talk about lessons, and then it would drop
       into evaluative, and there wasn't a clear line. If he's
      supposed to be, through the performance improvement
      plan, receiving assistance and help from a math coach,
      that should be clean, in my opinion and not tainted by the
      evaluation process.

CP at 657. Cummings also testified that he did not feel Scarlett was actively

trying to help him improve and that he felt statements he made to her when she

acted as his math coach were used against him in her evaluations.




                                          12
No. 68519-8-1/13


        We conclude that the determination of the hearing officer and superior

court that Scarlett did not have a conflict of interest, whether it is a finding of fact

ora conclusion oflaw,14 was not clear error. Cummings does not show that any
conflict of interest, if it existed, rose to such a level that Scarlett could not act

effectively in both roles or that her acting in both roles prejudiced him. As the

hearing officer aptly noted, Cummings provided no evidence that Scarlett in fact

used anything she learned as his coach against him when evaluating him. The

hearing officer also disagreed with Day's testimony that Scarlett's conflict of

interest was evident because when acting as his coach, Day would help

Cummings develop a lesson, and then when he attempted to deliver that lesson,

Scarlett would observe him and note that he was not delivering the lesson as

planned. The hearing officer opined:

        Based on [Day's] reasoning, the Hearing Officer reaches the
        opposite conclusion. The math coach could only assist
        Appellant in the delivery of a math lesson, if the lesson, as
        planned, is observed. Ms. Scarlett, as the evaluator, should
        have had a copy of the lesson plan and would be in a position
        to determine if it was delivered as she and Appellant had
        planned. Her dual roles were not in conflict but should have
        been of assistance to Appellant in improving his performance
        and remedying the teaching deficiencies for which he was
        placed on probation.

CP at 121. We agree. Furthermore, Cummings received coaching from the

District's math coach, Olviles,15 and Cummings reported that feedback from
Olviles had been helpful. Thus, he was not limited to Scarlett's coaching alone.



        14 Cummings contends the superior court erred by determining this was an issue offact
when conflict of interest is a question of law or a mixed question of fact and law, though he cites
no authority for this proposition.

        15 Olviles' first name does not appear in the record.

                                                 13
No. 68519-8-1/14


Moreover, neither former RCW 28A.405.100 (2010) nor RCW 28A.405.310

prohibits the same person from serving as a primary evaluator and coach.

Finally, Cummings points to no authority stating that he could not be evaluated

by an evaluator without expertise in special education or one who had not

conducted a certain number of evaluations.

        Second, Cummings contends the District erroneously refused to

accommodate his disability, ADHD.16 The hearing officer and the superior court
both found that Cummings' ADHD was not the reason for his nonrenewal and

that his lack of content knowledge in math was the reason he could not teach

CMP2 to his special education students. We agree.

        Cummings contends the proper inquiry is whether the District violated

RCW49.60.040(7)(d)(1)17 and RCW 49.60.180(2)18 by refusing
accommodations. But, appealing as he does from the ruling that the District

established sufficient cause for his nonrenewal, he fails to show that the District's

refusal to provide his requested accommodations contributed to his failure to

remediate his deficiencies during probation. Cummings testified that his inability

to teach CMP2 was due to his lack of sufficient math skills, not because of his

ADHD. He testified that the accommodations he requested would not have given



        16 "Disability" is defined as, among otherthings, the presence of an "impairment" that is
"medically cognizable or diagnosable." RCW 49.60.040(7)(a)(i). The District does not dispute that
ADHD qualifies as a disability.

        17 The statute provides in pertinent part thatfor purposes ofqualifying for reasonable
accommodation in employment, a disability must have a "substantially limiting effect upon the
individual's ability to perform his or her job." RCW 49.60.040(7)(d)(1).

        18 RCW 49.60.180(2) provides in pertinent partthat it is unlawful to discharge any person
from employment "because of... the presence of any ... disability."



                                                14
No. 68519-8-1/15


him math skills he did not possess. Snyder testified that his recommendation for

accommodations did not specifically address whether Cummings needed

accommodations to teach math to his middle school students and that

Cummings' ADHD did not contribute to his lack of content knowledge in math.

Cummings cites the statement in Clarke that "school authorities should refrain

from discharging a teacher as a matter of law, except in the most egregious

cases, .. . especially where the teaching deficiency is related to a handicapping

condition amenable to rehabilitation." Clarke, 106 Wn.2d at 117. But Cummings'

deficiency was not "related to" a condition amenable to rehabilitation; as he

admitted, his lack of content knowledge was not related to his ADHD.

                         Sufficient Cause for Nonrenewal

       Cummings contends the District did not show sufficient cause for

nonrenewal because (1) Goodloe-Johnson did not give sufficient weight to Day's

opinion; (2) his evaluation and nonrenewal was impermissibly based in part on

his teaching of general education math; and (3) his assignment to teach CMP2

math to special education students was not reasonable.

       First, Cummings contends Goodloe-Johnson did not give Day's opinion

sufficient weight. He notes that Day was an experienced evaluator who had

worked for the District as a middle school principal and as a high school assistant

principal. He points out that Day testified that he improved during his probation.

But, notwithstanding her recommendation of an additional year of probation, Day

admitted that Cummings was not a competent CMP2 math teacher. Her final

probation summary noted that while Cummings had shown improvement, "his



                                         15
No. 68519-8-1/16


math skills are minimal" and that "because he does not grasp the scope and

sequence of CMP content, he is not competent to modify this content" for his

special education students. CP at 2223.

       Next, Cummings contends his nonrenewal was based in part on his

teaching of general education math, in violation of WAC 181-82-110(1)(b), which

states that teachers assigned to teach classes outside of their areas of

endorsement "shall not be subject to nonrenewal or probation based on

evaluations of their teaching effectiveness in the out-of-endorsement

assignments[.]" He notes he is not endorsed to teach general education math but

was assigned to teach two general education classes. He points out that the

hearing officer's opinion considered his teaching in those classes and that the

District's letter indicating probable cause for nonrenewal did not specifically

exclude any of his classes.

      We conclude that WAC 181-82-110(1)(b) was not violated. As the hearing

officer found, Cummings was nonrenewed based on his teaching of math in his

special education classes, not based on his teaching of general education math.

Cummings was placed on probation after his mid-year review in his special

education math classes specifically; Scarlett's January 28, 2010 "Evaluation

Form" lists the "Department" as "Special Education Math 6-8." Scarlett's

observation reports during his probation reported the "Department/Assignment"

under observation as "Special Education Math 6-8." CP at 1578. Cummings

confirmed in his testimony that the only formal observations of his teaching were

of his special education classes. Cummings refers to certain statements in the



                                         16
No. 68519-8-1/17


"Professional Responsibility" section in Scarlett's April 26, 2010 evaluation, which

were included in the hearing officer's opinion.19 CP at 1626. But although
Scarlett's discussion of Cummings' failure to implement the "I Can Learn Math"

program in his general education math classes was erroneously considered by

the hearing officer, Day also testified that Cummings did not implement the

program in his special education classes either.

        Finally, Cummings contends mandating him to teach CMP2 to special

education students was not reasonable and violates former RCW 28A.405.100

(2010) and the Collective Bargaining Agreement (CBA), Article III.5.20 He

contends CMP2 was inconsistent with his students' lEPs because their IEP

teams had not approved that curriculum and no changes had been made to the




        19 Under that section, Scarlett wrote:

        According to I Can Learn usage reports for the year, you have never
        implemented this necessary part of our mathematics intervention program in your
        math improvement classes. Your students were never given structured daily
        mathematics intervention instruction and have spent an entire year working on
        MSP practice questions. While many students in the other mathematics
        improvement classes have completed upwards of forty lessons, your students
        have not engaged in any I Can Learn instruction to improve their number sense,
        basic skills and problem solving. Our mathematics intervention program is an
        integral part of our school improvement and Performance Management plan.
        Your failure to implement this program is a direct violation of our Performance
        Management Plan and is a disservice to the vulnerable Level 1 math scoring
        students that have been entrusted to your instruction.

CPat1626,100-01.

        20 Cummings also contends mandating him to teach CMP2 to his special education
students violates their rights under the Individuals With Disabilities Education Act of 2004, 20
U.S.C. § 1400 et seq (IDEA). We agree with the District and the superior court that the hearing
officer correctly determined that Cummings does not have standing to challenge his non-renewal
based on alleged IDEA violations. See Lake Washington Sch. Dist. No. 414 v. Off, of
Superintendent of Pub. Instruction. 634 F.3d 1065, 1067-69 (9th Cir. 2011) (school district does
not have standing under IDEA to assert rights that belong to parents and children).


                                                 17
No. 68519-8-1/18


lEPs. He also contends there is no evidence that CMP2 was the required math

curriculum for the District's special education students.

       These arguments are not well taken. Pritchett testified that all McClure

math teachers were required to use CMP2. While she did not testify that CMP2

was mandated throughout the District, Cummings points to no authority

precluding a school from requiring its teachers to follow a certain curriculum.

Moreover, CMP2 has a specific section for special education students, could be

modified to accommodate the needs of special education students, and had been

taught in the blended classrooms in which Cummings had co-taught. There was

also evidence that CMP2 was being successfully taught to special education

students at other middle schools in the District. During his probation, Cummings

observed CMP2 taught in special education classes at Madison Middle School

and had been impressed by the teacher he observed teaching that material.

Furthermore, while Cummings contends that teaching CMP2 was inconsistent

with his students' lEPs, he points to no authority that states that teaching a

student appropriately under his or her IEP requires the IEP to specifically include

that curriculum.

       Former RCW 28A.405.100 (2010) is silent about this issue and Cummings

does not specifically explain how that statute was violated. As for Article 111.5 of

the CBA, that provision states, "No single instructional philosophy or technique is

prescribed by [Seattle Public Schools] for the instruction of a Special Education

student." CP at 1429. But Cummings points to no authority to show that

mandating a curriculum is equivalent to mandating a certain "instructional



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No. 68519-8-1/19


philosophy" or "technique." The hearing officer did not clearly err in concluding

that a curriculum is more similar to a "course of study," as referenced in the CBA,

Article 111.1, which states that teachers have a "basic responsibility to utilize

properly the current SPS authorized course of study." CP at 1428. See also WAC

180-44-010(1) ("It shall be the responsibility of the teacher to follow the

prescribed courses of study of the .. . and to enforce the rules and regulations of

the school district.").

                                Other Claims of Error


       Cummings contends other errors undermine the decisions of the hearing

officer and superior court. First, he contends the hearing officer violated former

RCW 28A.405.100(3)(a) and (4)(a) (2010) by considering Pritchett's

recommendation to the extent she purported to represent her observations of his

teaching. He contends Pritchett offered her observation of his teaching

performance even though she did not document her observation, advise him of

any alleged deficiency, or prepare any written evaluation. We disagree. In the

cited portion of the record, Pritchett testified that she had informally observed

Cummings' teaching, read Scarlett's observation reports, and made a

recommendation. She did not describe her observations of his teaching or testify

that her recommendation was based on her informal observations.

        Cummings also contends the hearing officer erroneously considered the

"Professional Responsibility" section of his evaluation when he was not placed on

probation for Professional Responsibility and it was not referenced in his PIP. We

reject this claim because Cummings does not show any prejudice from the error.



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No. 68519-8-1/20


                                     Conclusion

       In sum, the record contains substantial evidence that Cummings failed to

correct his deficiencies during his probation. Cummings testified that he did not

possess the math skills to deliver CMP2 to special education students. Pritchett

testified that Cummings did not meet the conditions of his PIP and that his

performance was not at the minimum expected level. Her testimony was

supported by Scarlett's progress reports. Day also testified that Cummings could

not deliver CMP2 to special education students. The hearing officer and superior

court did not err in concluding that the District had sufficient cause for

nonrenewing Cummings' contract.

       Affirmed.




WE CONCUR:
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