STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAREN KILEY and LISA KILEY, )

minors, by their mother and next ) friend, ANN KILEY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1611RP

)

LEON COUNTY SCHOOL BOARD, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on December 10, 1980, in Tallahassee, Florida.

APPEARANCES

For Petitioners: Albert J. Hadeed, Esquire

Southern Legal Counsel, Inc. Suite A, 115 Northeast 7th Avenue Gainesville, Florida 32601

For Respondent: Charles A. Johnson, Esquire

2757 West Pensacola Street Tallahassee, Florida 32304

By petition filed September 1, 1980, Karen Kiley and Lisa Kiley, by their mother and next friend, Ann Kiley (Petitioners) challenged the validity of Rules 6GX37-3.03 and 7.18, and proposed amendments thereto, of the School Board of Leon County ("Respondent"), pursuant to the provisions of Sections 120.54(4) and 120.56, Florida Statutes.

By order dated September 12, 1980, the Florida Center for Children and Youth, Inc., was dismissed as a party to this proceeding for lack of standing. A subsequent motion to dismiss the remaining petitioners for lack of standing based upon the facts alleged in the petition was denied by order dated October 15, 1980.

Final hearing in this cause was held on December 10, 1980, pursuant to an amended notice of hearing dated November 24, 1980. At the final hearing, Ann Kiley and Karen Kiley testified on behalf of Petitioners, and Merry McDaris, Ben Poitevent and Arthur Pla were called as witnesses by Respondent. Petitioners submitted Petitioners' Exhibits 1-15, and Respondent submitted Respondent's Exhibits 1-13, each of which was received into evidence.

After the close of the hearing, by motion dated December 23, 1980, Petitioners sought to amend their petition challenging the rules herein.

Following submission of briefs on this motion and oral argument by counsel, said motion was denied by order of February 20, 1981. Subsequent to the final hearing in this cause, counsel for Petitioners and Respondent waived the requirement of Chapter 120, Florida Statutes, that a final order be entered by the Hearing Officer in this proceeding within 30 days from conclusion of the final hearing.

FINDINGS OF FACT

1. The School Board of Leon County, Florida is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades kindergarten through twelve for all public schools in Leon County, Florida. Respondent has enacted an existing rule, Rule 6GX37-3.03, entitled Compulsory School Attendance, which comprehensively addresses the issue of excused or unexcused absences. That portion of the rule which Petitioners challenge in this proceeding imposes an academic penalty for unexcused absences. Specifically, challenged Rule 6GX37-3.03(8)(a), provides as follows:

   
   

   There are no "free cuts" and every unexcused absence may well affect a secondary student's grade, since such work cannot be made up.

   However, five (5) or more unexcused absences during a six-week period will result in failure for that six (6) weeks in that course. Students sixteen (16) or more years of age, in addition to the above, shall fail any course for that semester in which they have accumulated ten (10) unexcused absences, and such students may be recommended for withdrawal for the remainder of any semester when they have accumulated ten (10) unexcused absences in half or more of their classes.

   Such provision to be subject to the rights guaranteed students over fourteen (14) years of age in Section 232.01, Florida Statutes.

   
   

   Also challenged in this proceeding is Respondent's Rule 6GX37-7.18 entitled "Unexcused Absences - Penalties," which provides as follows:

   
   

   Any student who shall accumulate ten (10) unexcused absences in any one report period, or twenty (20) unexcused absences in any one semester from any course, shall be construed as having failed said course. Any student sixteen (16) years of age or older who accumulates unexcused absences shall fail the course, and may receive a recommendation to withdraw from class or school for the remainder of the report period or semester.

   Such provision to be subject to the rights guaranteed students over fourteen (14) years of age in Florida Statute [sic] 231.01.

   Exception: When a student is absent due to suspension, the principal and school staff shall determine whether a student shall be permitted to make up any missed work as the result of the suspension. Whether the

   suspended student shall suffer a reduction in grade because of the absence shall be the decision of the principal, after consultation with the individual teacher(s) concerned. It is encouraged that the school's disciplinary action be as much as possible a separate entity from its academic program.

   
   

2. On August 19, 1980, Respondent issued a notice of intent to amend Rules 6GX37-3.03 and 7.18. The proposed amendments repeal Rule 6GX37-7.18 and modify Rule 6GX37-3.03. The text of the amendments to this rule, insofar as here pertinent, is as follows:

   
   

   1. Unexcused Absences: Penalties - (Middle School) There are no "free" unexcused absences. Should an unexcused absence occur the student may not make up the work missed. Five or more unexcused absences in a six week period will result in failure for the six

      week period in the course or courses involved.

   2. Unexcused Absences: Penalties (High School)

      1. There are no "free" unexcused absences. Should an unexcused absence occur, a documented effort shall be made to contract the parents immediately. The student shall receive a "0" in that class for that day and detention shall be served. Should a second unexcused absence occur within the grading period the student shall receive a "0" in that class for that day and detention shall be served.

         In addition, when the student returns to school after the second unexcused absence the student and principal (or designee) shall meet to develop a mutually agreeable educational program designed to eliminate future unexcused absences. At a minimum this educational program shall include:

         1. A scheduled conference between the student, the parent or parent's designee, the principal or designee, and other appropriate school personnel,

         2. A statement of what steps will be taken should other unexcused absences occur or the student not live up to the agreed upon educational program. These steps may include a failing grade for the six week period in the course or courses involved should an additional unexcused absence occur,

         3. A listing of those reasons or circumstances asserted by the student as contributing to or causing the unexcused absences and a statement outlining procedures to overcome these reasons or circumstances.

            If agreement is not reached following a

            conference, a third unexcused absence shall result in the student failing for the six week period the course or courses involved.

            Any student sixteen years of age or older who accumulates six unexcused absences in any one semester for any course may fail such course for the semester and may receive a recommendation to withdraw from class or

            school for the remainder of the semester.

            Parents or guardians may grieve under the procedures set out in Board Policy 7.10 the assessment of academic failure if there are circumstances not considered by school level officials when unexcused absences occurred.

            
            

3. Petitioner Lisa Kiley is presently enrolled in the ninth grade at Respondent's School for Applied Individualized Learning (SAIL), an educational alternative program operated pursuant to Section 230.2315, Florida Statutes. As a student in the Leon County school system, Lisa Kiley is subject to Florida's compulsory attendance laws and the challenged rules in their present and proposed forms.

   
   

4. Petitioner Karen Kiley is also presently enrolled at SAIL, where she is apparently performing and progressing in a highly satisfactory fashion. In the fall of 1978 Karen Kiley attended Lincoln High School, in Leon County, Florida, as a freshman and enrolled in six courses. During the first six week grading period, based solely on her academic performance, she received four D's and two F's. In the second six week period, again based solely on her academic performance, Karen Kiley received one C, one D and three F's. In addition she accumulated six unexcused absences in Physical Education, and was therefore given a mandatory F under Respondent's Rule 6GX37-3.03(8), quoted above. During the third six week period she accumulated additional unexcused absences, and Respondent's policy mandated F's in five of her six classes. In Physical Education she had no unexcused absences, but still received a grade of F.

   
   

5. Karen Kiley became ill during the semester exam period in the fall of 1978. She apparently believed that because of the number or her unexcused absences she would receive an F in all her classes and for that reason she did not return to school to take her examinations. Had she taken the final examinations it was possible for her to have passed some of her classes despite the number of unexcused absences.

   
   

6. Under Respondent's grading structure, credit for classes is based on semester units. The semester units are divided into three grading periods of six weeks each. A student is given a separate grade for each of the six week periods, and for the final exam in each course. The four grades are then averaged to give a semester total. A grade of D or higher will gain credit for a class. Respondent's grading policy provides that an F in the third six week periods coupled with an F for any other six week period results in an F for the semester. Thus, the F's that Karen Kiley received because of her unexcused absences in the third six week period, combined with her academic F's in other periods and with her nonattendance of the final examinations, resulted in her not receiving credit for any course taken during the fall semester of 1978. Karen Kiley did not receive an F under Respondent's attendance policy for more than one grading period in any class. As a result, the challenged provision of the attendance policy was never the sole cause of Karen Kiley's loss of credit. This record is absent of any showing that Karen Kiley completed her course

   requirements and would have received credit for these courses but for the effect of the challenged attendance policy.

   
   

7. There is no showing in this record that Petitioner, Lisa Kiley, has ever been subjected to Respondent's existing attendance policy, or that it could reasonably be anticipated that either Karen or Lisa Kiley would be subjected to the policy which Respondent proposes to establish by way of the aforementioned amendments to its existing rules.

   
   

8. Both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not incorporated in this order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding. Sections 120.54(4) and 120.56, Florida Statutes.

   
   

10. Section 120.54(4)(a), Florida Statutes, provides that:

    
    

    Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority.

    
    

11. Section 120.56(1), Florida Statutes, provides that:

    
    

    Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

    
    

12. A party challenging the validity of an existing or proposed rule bears the burden of proving standing to maintain such a challenge when, as here, standing is made an issue in the proceeding. Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA, 1979).

    
    

13. With respect to Respondent's existing rules 6GX37-3.03 and 7.18, neither the Petition nor the record in this proceeding contains allegations or evidence that Petitioner Lisa Kiley has in any manner been affected by those existing rules. The mere fact that Lisa Kiley attends the public school system in Leon County is insufficient to clothe her with the requisite "substantial interest" necessary to maintain a rule challenge proceeding pursuant to Section 120.56, Florida Statutes. It is, therefore, concluded as a matter of law, that Lisa Kiley lacks standing to challenge the aforementioned existing rules. See, Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978).

    
    

14. With respect to Petitioner Karen Kiley, it is likewise concluded that she lacks the requisite standing to maintain a challenge to Respondent's existing rules pursuant to Section 120.56, Florida Statutes. This conclusion is based on the clear import of the decision in Florida Department of Offender

    Rehabilitation v. Jerry, supra, wherein the Court held that a prison inmate lacked standing to challenge a rule even though he had, prior to the filing of the rule challenge, been directly affected by the operation of that rule. That case is particularly germane to a consideration of standing in this proceeding in that Karen Kiley, like the inmate in Jerry, has previously been subjected to application of the challenged rules, and now seeks a determination of their invalidity. As indicated by the Court in Jerry:

    
    

    . . . It was not established Jerry ever made a request for a section 120.57 hearing during the disciplinary proceedings. We do know however that at the time of the hearing before the administrative examiner, Jerry

    had completely served his disciplinary confinement. But we do not know whether Jerry suffered any loss of gain-time. The only inescapable conclusion which can be reached from the administrative proceedings is that the hearing examiner found Jerry had standing because he is a member of the prison class, has been subjected to alleged invalid procedures in the past and may possibly in the future be subjected to such procedures. .

    . .

    
    

15. Although the Jerry Court ultimately ruled that the inmate lacked standing to maintain the rule challenge because there was no recorded evidence that he had been subjected to loss of gain-time, the Court indicated that had such a loss ". . . in fact occurred there would be no question but that injury in fact resulted and that Jerry had appropriate standing to challenge the Rule .

    . ." 353 So.2d at 1236. The Court presumably reached this conclusion because, had loss of gain-time in fact been established, and had the rule ultimately been declared invalid, the inmate could have been returned to the status quo by reinstating the gain-time lost as a result of the application of the challenged rule. The situation in Jerry is markedly different than that presented by the facts in the instant case as they apply to Karen Kiley. Like the inmate in Jerry, Karen Kiley has been subjected to the challenged rule, has failed one six week period in the first semester of her freshman year in high school, and further was awarded failing grades for the entire first semester of that school year. Now, over two years later, after having enrolled in another of Respondent's schools, and having progressed very satisfactorily in that placement, she attempts to challenge the rule which resulted in her failing courses in an earlier school year. However, unlike Jerry, if the rules in this particular case were declared invalid, Karen Kiley could not be returned to the status quo, even if the status quo were susceptible of determination with any degree of accuracy. In Jerry, the remedy available to, and thereby the "substantial affect" upon the party maintaining the rule challenge was apparent-

    -restoration of lost gain-time. On the facts of this particular case, no such determination can be made in that Karen Kiley has progressed beyond the first semester of her ninth grade year, and a determination of the challenged rules' invalidity necessarily could not return her to the position she occupied during the fall of the 1978-79 school year. This result would not necessarily have obtained had Karen Kiley instituted appropriate administrative proceedings at the time the challenged rules were applied to the particular facts of her case in 1978, in that a timely challenge and determination of invalidity could have, under those circumstances, resulted in the granting of some meaningful relief. However, due to the passage of time and her progression through the school

    system she is no longer "substantially affected" by the rule within the meaning of Section 120.56, Florida Statutes. As indicated by the Jerry Court, the existence of some redressable injury is necessary to confer standing on a party to a rules challenge.

    
    

    . . . for it is this requirement which gives a litigant a direct stake in the controversy and prevents the [administrative] process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders. 353 So.2d at 1234.

    
    

16. Thus, Petitioner Karen Kiley's claim that existing Rules 6GX37-3.03 and 7.18 are invalid has lost the "immediacy and reality" necessary to confer standing to challenge those rules under the facts and circumstances of record in this proceeding. See, Florida Department of Health and Rehabilitative Services

    v. Alice P., supra.

    
    

17. Likewise, both Petitioners Lisa Kiley and Karen Kiley lack standing under Section 120.54(4), Florida Statutes, under the facts of record in this proceeding, to challenge the validity of the proposed amendments to Respondent's existing Rule 6GX37-3.03. Like the petitioners in both Jerry and Alice P., supra, and unlike the petitioners in Professional Firefighters of Florida, Inc.,

v. Florida Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981), Petitioners do not automatically and immediately become subject to the rule amendments simply by virtue of their adoption. As the Jerry Court observed:

. . . Jerry's prospects of future injury rest on the likelihood that he will again be subjected to disciplinary confinement because of possible future [rule] infractions. . . .

Whether this will occur, however, is a matter of speculation and conjecture and we will not presume that Jerry, having once committed an assault while in custody, will do so again.

To so presume would result only in illusory speculation which is hardly supportive of issues of "sufficient immediacy and reality" necessary to confer standing. 353 So.2d at 1236.

Petitioners have failed to establish that they are so "substantially affected" as to enable them to challenge Respondent's existing Rules 6GX37-3.03 and 7.18, and proposed amendments thereto, the relief sought by Petitioners should be, and the same is hereby DENIED.

DONE AND ORDERED this 8th day of June 1981 in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of June 1981.

COPIES FURNISHED:

Albert J. Hadeed, Esquire Southern Legal Counsel, Inc. Suite A, 115 N. E. 7th Avenue Gainesville, Florida 32601

Charles A. Johnson, Esquire 2757 West Pensacola Street Tallahassee, Florida 32304

Ms. Liz Cloud Department of State

Bureau Chief, Administrative Code Room 1802, The Capitol Tallahassee, Florida 32301

Mr. Carroll Webb Executive Director

Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 80-001611RP

Orders for Case No: 80-001611RP