STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1143

)

BONNIE WOLFE, on behalf of )

DAVID MICHAEL WOLFE, )

)

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 May 24, 1982.

APPEARANCES

For Petitioner: Michael Niemand, Esquire

3050 Biscayne Boulevard, Suite 300

Miami, Florida 33137 For Petitioner: No appearance.

By letter dated February 16, 1982, William R. Perry, Jr., advised respondent, on behalf of petitioner's Superintendent, that David Michael Wolfe "ha[d] been administratively assigned to Jan Mann Opportunity School-North" because of his alleged "disruption of the educational process in the regular school program." Since this reassignment constituted placement in an alternative educational program, respondent invoked her right "to an administrative review . . . pursuant to the provisions of chapter 120," Section 230.2315(5), Florida Statutes (1981), by a letter received by petitioner on April 15, 1982. At the hearing, petitioner was allowed to amend the specifications to allege that David Michael Wolfe was a "disinterested student" a well as being disruptive.

FINDINGS OF FACT

1. During the first semester of the 1981-1982 school year, David Michael Wolfe was absent 66 times from his homeroom class. His absences from other classes, each of which, like homeroom, met 90 times during first semester, ranged from 56 to 87. From January 28, 1982, till March 5, 1982, while he was still enrolled at North Miami Junior High School, David went still less frequently to class. Not one of these absences was excused.

   
   

2. Mrs. Wolfe is very cooperative with the school authorities, but her daughter is absent more than David. David, who was born June 20, 1968, was referred to the Department of Health and Rehabilitative Services because of his truancy. On December 8, 1981, David and four other students missed their fourth

   period class(es) but were apprehended on or near school grounds by William G. Murray, an assistant principal at North Miami Junior High School. Mr. Murray spanked each boy, and sent them to class. Like the others, David never went to class that afternoon. In addition to corporal punishment and a court referral, the school administration employed both "indoor suspension" and "outdoor suspension," in an effort to improve David's attendance. Nothing worked.

   
   

3. David was not disruptive in the sense of disturbing the few classes he did attend, according to Mr. Murray. He did, however, for the first semester of the 1981-1982 school year, fail all six subjects, also getting an "F" in conduct.

   
   

   CONCLUSIONS OF LAW

   
   

4. Educational alternative programs are "programs designated to meet the needs of students who are disruptive or unsuccessful in a normal school environment." Section 230.2315(2), Florida Statutes (1981). The governing statute sets forth various criteria for "eligibility of students," in the disjunctive:

   
   

   Pursuant to rules adopted by the State Board of Education, a student may be eligi- ble for an educational alternative program if the student is disruptive, unsuccessful, or disinterested in the regular school envi- ronment as determined by grades, achievement test scores, referrals for suspension or other disciplinary action, and rate of absences. Section 230.2315(4), Florida Statutes (1981).

   
   

   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 jur- isdiction 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.

      The rule defines an unsuccessful or disinterested student as one who

      
      

      1. Demonstrates a lack of sufficient involvement in the traditional school pro- gram to achieve success because interests, needs or talents are not being addressed; or

      2. Shows unsatisfactory academic prog- ress and the effort to provide assistance is either rejected or is ineffective.

      
      

      Petitioner is proceeding in the present case on the theory that David is both a "disruptive" and a "disinterested" student.

      
      

   5. In proceedings like these, where petitioner seeks to change the status quo and has complete access to school records, the burden is on petitioner 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); Robert J. and Anne Grix v. School Board of Dade County, No. 81-2386 (Final Order entered Dec. 17, 1981); 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 (1981), purports to authorize "an administrative review" of any action by respondent relating to alternative educational placements, the statutory reference to Chapter 120, Florida Statutes (1981), makes clear that any action by the school board 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); Robert J. and Anne Grix v. School Board of Dade County, No. 81-2386 (Final Order entered Dec. 17, 1981).

      
      

   6. Petitioner met its burden in the present case to establish that David had displayed "persistent behavior which interferes with the student's own learning . . . 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 David "[d]emonstrated a lack of sufficient involvement in the traditional school program to achieve success because interests . . . [were] not being addressed," Rule 6A-1.994(2)(b)(1), Florida Administrative Code, and that David has "[s]how[n] unsatisfactory academic progress and the effort to provide assistance . . . [was] ineffective." Rule 6A-1.994(2)(b)(2), Florida Administrative Code.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner assign David Michael Wolfe to the Jan Mann Opportunity School-North.

DONE AND ENTERED this 9th day of June, 1982, in Tallahassee, Florida.

ROBERT T. BENTON II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Telephone: (904) 488-9675

FILED with the clerk of the Division of Administrative Hearings this 9th day of June, 1982.

COPIES FURNISHED:

Mrs. Bonnie Wolfe

2260 Northeast 135 Lane North Miami, Florida 33181

Michael Niemand, Esquire Suite 300

3050 Biscayne Boulevard

Miami, Florida 33137

Leonard M. Britton Superintendent

Dade County School Board 1410 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 82-001143

Orders for Case No: 82-001143