STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MRS. JERRY D. JACKSON, )

on behalf of minor child, )

TAMMY TERRELL JACKSON, )

)

Petitioner, )

)

vs. ) CASE NO. 79-709

) THE SCHOOL BOARD OF DADE COUNTY, )

)

Respondent. )

) MRS. JERRY D. JACKSON, )

on behalf of minor child, )

TRACY TASHANNA JACKSON, )

)

Petitioner, )

)

vs. ) CASE NO. 79-710

) THE SCHOOL BOARD OF DADE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in these causes on June 7, 1979, in Miami, Florida.

APPEARANCES

For Petitioners: Mrs. Jerry D. Jackson

2340 NW 73rd Terrace, Number 12

Miami, Florida 33146

For Respondent: Michael Neimand, Esquire

3050 Biscayne Boulevard

Miami, Florida 33137

By letter dated February 22, 1979, the Division of Student Services of the Dade County Public Schools ("Respondent") administratively assigned Tammy Terrell Jackson and Tracy Tashanna Jackson ("the students") to the Jan Mann Opportunity School North in Dade County, Florida, pursuant to the provisions of Section 230.2315, Florida Statutes. The reason for the assignment of the students to this school program was their alleged ". . . disruption of the educational process in a regular school program." Thereafter, by letter dated March 12, 1979, the students' mother, Mrs. Jerry D. Jackson ("Petitioner"), requested an administrative review of the placement of her children pursuant to Section 230.2315(5), Florida Statutes. By letter dated March 26, 1979, Counsel

for Respondent requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct hearings in these causes.

Final hearing in these causes was scheduled by amended notice of hearing dated May 14, 1979. By mutual agreement, these cases were consolidated for hearing and for purposes of entry of this recommended order.

At the final hearing Petitioner called Tammy Terrell Jackson and Tracy Tashanna Jackson as her witnesses. Petitioner offered no documentary evidence or the testimony of any other persons. Respondent called Freddie Robinson and George Thomas as its witnesses, and, in addition, offered Respondent's Exhibits No. 1 and 2, both of which were received into evidence.

FINDINGS OF FACT

1. Tracy Tashanna Jackson is a 13-year-old, and Tammy Terrell Jackson is a 12-year-old, who were, until February 7, 1979, assigned respectively to the eighth and seventh grades at Miami Edison Middle School in Miami, Florida. On February 7, 1979, an incident occurred at Miami Edison Middle School which resulted in both students being reassigned to Jan Mann Opportunity School North. At the time of this incident, the two students had been attending Miami Edison Middle School for only approximately one month.

   
   

2. On February 6, 1979, one day prior to the incident which gave rise to this proceeding, the students were threatened by another student who allegedly was a member of a group of students popularly known as the "Graveyard Gang." Upon receiving the throat, the students went to the office of the Assistant Principal and advised him that they expected trouble from these other students. The Assistant Principal essentially advised the students to attempt to avoid any confrontation. However, on the afternoon of February 6, 1979, while Tammy and Tracy Jackson were on their way home from school, they encountered the students who had threatened them, and a fight ensued. After the fight, Tracy and Tammy Jackson were advised by the other students that the fight would continue the next day at school, that these other students would have knives, and that Tracy and Tammy Jackson should come prepared.

   
   

3. When Tracy and Tammy Jackson and their brother stepped off the city bus in the vicinity of Miami Edison Middle School the next morning, they were met by a large group of other students. Apparently, some member of this group struck Tracy and Tammy Jackson's brother, at which point Tracy and Tammy Jackson first displayed knives which they had brought with them from home. According to the testimony of Tracy and Tammy Jackson, which is not controverted, this was the first and only time that they had attended school armed with knives. The entire group of students apparently began milling around but proceeded generally in the direction of the main school building.

   
   

4. At this point, Freddie Robinson, the Assistant Principal at Miami Edison Middle School, noticed the crowd of students, and proceeded into the crowd on the assumption that a fight was occurring. Upon being advised that Tracy and Tammy Jackson were armed with knives, Mr. Robinson managed to direct the students into the main school building, down the hall and into the Counselor's office. At all times during those movements, the Assistant Principal and the students were surrounded by a milling group of hostile students apparently intent on prolonging the confrontation. According to the Assistant Principal, at no time did either of the students display their knives in a threatening or offensive manner, but were instead attempting to defend themselves against attack. At some point in this process, the Assistant

   Principal was joined by George Thomas, a teacher at the school, who attempted to assist Mr. Robinson in disarming the girls. Mr. Thomas managed to remove the knife from the possession of Tammy Jackson without incident, but when Mr.

   Robinson grabbed the arm of Tracy Jackson, that student, in attempting to break free, inflicted what appears to have been a minor wound to Mr. Robinson's forearm. Mr. Robinson testified, without contradiction, that it appeared to him that the student did not intentionally stab him, but inflicted the wound accidently in the process of attempting to break free from his hold.

   
   

5. On February 22, 1979, both Tammy and Tracy Jackson were reassigned from Miami Edison Middle School to Jan Mann Opportunity School North as a result of this incident. There is nothing in the record to indicate the procedures by which this assignment was accomplished. It is, however, clear that the students never attended Jan Mann Opportunity School North, but were instead held out of school by their mother. As a result, February 7, 1979, was the last day on which these students attended school during the 1978-79 school year.

   
   

6. The incident which occurred on February 7, 1979, was the only incident of disruptive behavior in which Tracy and Tammy Jackson have been involved while enrolled in the Dade County Public Schools. The other students involved in the fight with them, however, had been suspended from school on several occasions for fighting and disrupting classes. There is no evidence in the record in this cause concerning Tracy and Tammy Jackson' grades from which any determination could be made that they have been unsuccessful in the normal school environment. Likewise, the record is devoid of any testimony regarding their lack of attendance in the regular school program.

   
   

7. Although the students did not attend Jan Mann Opportunity School North after having been assigned to that facility, there appears no evidence of record concerning the programs available at that institution in which the students would have been enrolled had they chosen to attend. In addition, although there exists some testimony concerning a very commendable Dade County School Board policy against the possession of knives on campus at any school in Dade County, no such written policy was offered into evidence at this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1) and 230.2315(5), Florida Statutes.

   
   

9. Section 230.2315(1), Florida Statutes, establishes educational alternative programs In the State of Florida, which programs are designed to:

   
   

   assist students in preparing for their

   roles in the community; reduce the incidence of disruptive behavior and truancy in the public schools; reduce the number of students referred to special services or agencies; and, generally, offer alternatives to conventional education which will meet the needs and interests of those students now poorly served by the public school system. . . .

   
   

10. Section 230.2315(2), Florida Statutes, defines "educational alternative programs" as those programs . . . designated to meet the needs of students who are disruptive or unsuccessful in a normal school environment."

11. Section 230.2315(4), Florida Statutes, provides that a student may be eligible for an educational alternative program:

    
    

    ". . . if the student is disruptive, unsuccessful, or die interested in the regular school environment as determined by grades, achievement test scores, referrals for sus- pension or other disciplinary action, and

    rate of absences.

    
    

12. Section 230.2315(5), Florida Statutes, provides that:

    
    

    The parents or guardians of a student shall be entitled to an administrative review of any action by school district personnel relating to placement of the student in an alternative program, pursuant to provisions of Chapter 120. The placement of any student in an alternative program shall be reevaluated by the district upon completion by the student of a court adjudicated deten- tion or punishment.

    
    

13. Perhaps most important for purposes of this proceeding, is the provision in Section 230.2315(1), Florida Statutes, which provides that it is

    
    

    . . . the intent of the legislature that such [alternative programs] be positive rather than punitive and emphasize each student's abilities in order to assure the full realization of the potential of such student.

    
    

14. Given the clear legislative intent of Section 230.2315, Florida Statutes, together with the findings of fact hereinabove set forth, is apparent that the assignment of Tracy Tashanna Jackson and Tammy Terrell Jackson to the Jan Mann Opportunity School North by the Dade County Public Schools was improper. The removal of a student from a regular school program and assignment of that student to an an educational alternative program is clearly justifiable only upon establishing a pattern of conduct demonstrative of an inability to participate in or profit from the normal school environment. Although the conduct of the students involved in this proceeding can in no way be condoned, neither can their removal from the normal school environment without a showing of facts from which it can be concluded that the students cannot benefit from that normal school environment. In fact, in light of the absence from the record of any evidence concerning prior behavioral problems, poor grades, substandard achievement test scores, high rates of absences, or programs available at the Jan Mann Opportunity School North, the only possible conclusion to be reached is that the assignment in this case was "punitive" in nature instead of "positive," in direct conflict with the expressed legislative intent of Section 230.2351(1), Florida Statutes. Other more appropriate methods, such as expulsion or suspension, exist for dealing with disciplinary problems of the nature presented by these cases. However, removal of a student from the regular school environment for placement in an educational alternative program should be utilized sparingly, and then only upon a showing of a pattern of conduct which satisfies statutory criteria for such a placement. This pattern of conduct has not been shown to exist in this case.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED:

That a final order be entered by the Dade County School Board reassigning the students, Tammy Terrell Jackson and Tracy Tashanna Jackson, to the regular school program in the Dade County School System.

Recommended this 17th day of July, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

Mrs. Jerry D. Jackson 2340 NW 73rd Terrace, #12

Miami, Florida 33147

Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300

3050 Biscayne Boulevard

Miami, Florida 33137

Mr. Ludwig J. Gross Executive Director

Division of Student Services Dade County Public Schools 5975 East 7th Avenue Hialeah, Florida 33013

Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 NE 2nd Avenue

Miami, Florida 33132

Michael Neimand, Esquire 3050 Biscayne Boulevard

Miami Florida, 33137

================================================================= AGENCY FINAL ORDER

=================================================================

SCHOOL BOARD OF DADE COUNTY CASE NOS. 79-709, 79-710

MRS. JERRY D. JACKSON,

on behalf of minor child, TAMMY TERRELL JACKSON,

Petitioner,

vs. CASE NO. 79-709

THE SCHOOL BOARD OF DADE COUNTY,

Respondent.

/ MRS. JERRY D. JACKSON,

on behalf of minor child, TRACY TASHANNA JACKSON,

Petitioner,

vs. CASE NO. 79-710

THE SCHOOL BOARD OF DADE COUNTY,

Respondent.

/

ORDER OF THE SCHOOL BOARD OF DADE COUNTY FLORIDA

THIS CAUSE came on for hearing before The School Board of Dade County, Florida at its regular meeting on August 22, 1979, upon the Hearing Officer's findings of fact, conclusions of law, and recommended order, recommending that Tammy Terrell Jackson and Tracy Tashanna Jackson be reassigned to the regular school program in the Dade County school system.

IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that the Hearing Officer's findings of fact, conclusions of law and recommended order are adopted with the following modifications:

1. The Hearing Officer's Conclusions of Law are modified by deleting paragraph 7 and substituting the following therefor:

7. F.A.C. Section 6A-1.994 provides:

"6A-1.994 Educational alternative programs.

1. Definition. Educational alternative

   programs are programs designed to meet the needs of students who are disruptive, dis- interested, or unsuccessful in a normal school environment. The educational alter- native may occur either within the school system or in another agency authorized by the school board.

2. Criteria for eligibility. A student may be eligible for an educational alternative program if the student meets one (1) or more of the criteria prescribed below as deter- mined by grades, achievement test scores, referrals for suspension or other discipli- nary action, and rate of absences.

(a) Disruptive. A student who:

1. Displays persistent behavior which inter- feres with the student's own learning or the educational process of others and requires attention and assistance beyond that which the traditional program can provide; or

2. Displays consistent behavior resulting in frequent conflicts of a disruptive nature while the student is under the jurisdiction of the school either in or out of the class- room; or

3. Displays disruptive behavior which severely threatens the general welfare of the student or other members of the school population." (emphasis supplied)

8. The petitioners have both displayed "dis- ruptive behavior which severely threatens the general welfare of the student or other members of the school population."

Meeting this criteria is sufficient grounds for placement in an educational alternative program. Accordingly, they are properly, and in their own best interests, assigned to Jan Mann Opportunity School North. There is no evidence that this assignment is punitive rather than positive in nature.

2. The Hearing Officer's recommendation is, therefore, rejected, and the assignment of Tammy Terrell Jackson and Tracy Tashanna Jackson to Jan Mann Opportunity School North is affirmed.

DONE AND ORDERED this 22nd day of August, 1979.

THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

By: Phyllis Miller, Chairman

Docket for Case No: 79-000709

Orders for Case No: 79-000709