STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. and ANNE GRIX on ) behalf of CHRISTOPHER MAX GRIX, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2386

) SCHOOL BOARD OF DADE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on November 18, 1981. Respondent was represented by counsel. Nobody appeared on behalf of petitioners at the hearing, nor were petitioners present themselves, but counsel for petitioners entered an appearance subsequently.

APPEARANCES

For Petitioner: Martin Roth, Esquire

14 Northeast First Avenue, Suite 1111 Miami, Florida 33132

For Respondent: Michael Neimand, Esquire

3050 Biscayne Boulevard, Suite 300

Miami, Florida 33137

By letter dated August 17, 1981, William R. Perry, Jr., advised petitioners on behalf of respondent's superintendent that Christopher Max Grix "ha[d] been administratively assigned to Miami Douglas MacArthur Senior High School." Since this reassignment constituted placement in an alternative educational program, petitioners invoked their right "to an administrative review . . . pursuant to the provisions of chapter 120," Section 230.2315(5), Florida Statutes (1979), by petition filed with respondent on or about September 22, 1981.

FINDINGS OF FACT

1. In the summer of 1981, Christopher Max Grix (Chris), a tenth-grader, was one of some 1,100 students enrolled in the combined Miami Beach Senior High School-Nautilus Junior High School summer school program. On Monday, July 20, 1981, George Thompson, a security man at the school, took Chris, John DeBlasio, and a third youth to the school office. Mr. Thompson told Solomon Lichter, the principal, and Assistant Principal Nockow, that he had seen these three boys shoving one another. As a result, each student received a three-day suspension, ending with the opening of school on Thursday, July 23, 1981.

2. At about 7:20 on the morning of July 27, 1981, Chris and John DeBlasio had another "confrontation." When it ended, Chris fled in his car to the principal's office. There he reported that some "niggers and spics" had jumped him on school grounds along 42nd Street, and complained that the principal had not done "a damn thing about it." Although Mr. Lichter asked Chris to remain seated, Chris jumped up and left the office after he had been there only two minutes. While Mr. Lichter summoned the police, Carlton Jenkins, Jr., another assistant principal who was in an office near Mr. Lichter's, followed Chris and watched him drive away recklessly, stop near some students, and emerge from the car with a tire iron. Chris asked John DeBlasio's brother Alfred where John had gone. Wielding a tire iron, Chris shoved Alfred and threatened to kill him. He made the identical threat to Mark Allen Uffner, and also shoved him. After the tire iron was back in Chris's car, and after Alfred and George Korakakos had subdued Chris in a fist fight, Uffner ran to meet Assistant Principal Jenkins and Principal Lichter as they approached from the school office, and gave them a full report. Chris was gone by the time the police arrived.

   
   

3. Later on the morning of July 27, 1981, Messrs. Lichter and Nockow left the summer school grounds for the campus of Miami Beach Senior High School to look for some walkie-talkies. While they were there, Chris, his older brother, and a third young man arrived. When Chris's older brother asked what had happened, Chris gave his version in colorful language. Mr. Lichter told Chris he was going to suspend him from school if he did not calm down. After Chris continued complaining about "niggers, spics, and the school principal," Mr. Lichter announced that Chris was suspended and ordered him to stay off school grounds for ten days.

   
   

4. The trio left the campus of Miami Beach Senior High School but later on, at midday on July 27, 1981, Alfred DeBlasio saw Chris and the others on the summer school (Nautilus Junior High School) campus near 42nd Street, with knives and crow bars. Chris and traveling companions were equipped with ax handles, and were threatening Uffner, among others. A security man told Mr. Jenkins that a gang of students was headed toward Chris's car behind the cafeteria. Mr. Jenkins called after Chris's car as it left, ordering Chris not to return to school for the rest of the day.

   
   

   CONCLUSIONS OF LAW

   
   

5. Educational alternative programs are defined as "programs designated to meet the needs of students who are disruptive or unsuccessful in a normal school environment." Section 230.2315(2), Florida Statutes (1979). In the disjunctive, the governing statute sets forth various criteria for "eligibility of students":

   
   

   Pursuant to rules adopted by the State Board of Education, a student may be eligible for an educational alternative program if the student is disruptive, unsuccessful, or dis- interested in the regular school environment as determined by grades, achievement test scores, referrals for suspension or other disciplinary action, and rate of absences.

   Section 230.2315(4), Florida Statutes (1979).

   
   

   These criteria are amplified by the provisions of Rule 6A-1.994(2), Florida Administrative Code, including the following definition of a disruptive student as one who

   1. Displays persistent behavior which interferes with the student's own learning or the education process of others and re- quires attention and assistance beyond that

      which the traditional program can provide; or

   2. Displays consistent behavior result- ing in frequent conflicts of a disruptive nature while the student is under the juris- diction of the school either in or out of the classroom; or

   3. Displays disruptive behavior which severely threatens the general welfare of the student or other members of the school population; or

   4. Has a juvenile justice record and

      is placed in any youth services residential or day program of the Department of Health and Rehabilitative Services. Rule 6A-1.994 (2)(a), Florida Administrative Code.

      
      

      Petitioner is proceeding in the present case on the theory that Chris is a disruptive student. No effort was made to show that he was unsuccessful or disinterested.

      
      

6. In proceedings like the present one, where respondent seeks to change the status quo and has complete access to school records, the burden is on respondent to show that an alternative educational placement is appropriate. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977) . Mr. and Mrs. Alfred Burrows v. School Board of Dade County, No. 80-267 (Final Order entered May 21, 1980). Even though Section 230.2315(5), Florida Statutes (1979), authorizes "an administrative review" of any action by respondent relating to alternative educational placements, the statutory reference to Chapter 120, Florida Statutes (1979), makes clear that any action by respondent must be viewed as free form and tentative, pending adjudicatory proceedings, if a petition for hearing is timely filed. See Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

7. Respondent met its burden in the present case to establish that Chris had displayed "persistent behavior which interferes with the student's own learning or the educational processes of others and requires attention and assistance beyond that which the traditional programs can provide," Rule 6A- 1.994(2)(a)(1), Florida Administrative Code, as well as proving that such "behavior threatens the general welfare of . . . other members of the school population." Rule 6A-1.994(2)(a)(3), Florida Administrative Code.

It is, accordingly, RECOMMENDED:

That petitioner continue the alternative educational placement of Christopher Max Grix at Miami Douglas MacArthur Senior High School.

DONE AND ENTERED this 17th day of December, 1981, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1981.

COPIES FURNISHED:

Martin Roth, Esquire Suite 1111

14 Northeast First Avenue Miami, Florida 33132

Jesse J. McCrary, Jr., Esquire, and Michael Neimand, Esquire

Suite 300

3050 Biscayne Boulevard

Miami, Florida 33137

Dr. Leonard M. Britton Superintendent of Schools Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 81-002386

Orders for Case No: 81-002386