STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0873

)

ALBERT ANTHONY FOSTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 11, 1984, in Miami, Florida.

Petitioner School Board of Dade County, Florida, was represented by Mark A. Valentine, Esquire, Miami, Florida; and Respondent Albert Anthony Foster was represented by Daniella Levine, Esquire, Miami, Florida.

On February 15, 1984, Petitioner notified Respondent's father that Respondent was being administratively assigned to Miami Douglas MacArthur Senior High School-North, and Respondent's father timely requested a formal hearing on that administrative assignment. Accordingly, the issue for determination is whether Respondent should be assigned to that alternative program.

Petitioner presented the testimony of Jimmy Dukes. The Respondent testified on his own behalf and presented the testimony of Rexford Foster and Terrence Vacarro.

Only the Respondent submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. On June 12, 1983, Respondent moved to Miami from Jamaica where he was in the ninth grade. He enrolled in a summer school session at North Miami Beach Senior High School in the summer of 1983, where he attended classes regularly and was successful in that program.

   
   

2. In September 1983, Respondent enrolled at John F. Kennedy Junior High School, where he was placed in the ninth grade. Although Respondent speaks English, he was placed in a remedial English class, the lowest level English class, comprised of only approximately 20 students.

3. On September 23, 1983, Respondent was involved in a fight with a female student in the hallway at John F. Kennedy Junior High School. After observers terminated the fight, Jimmy Dukes, an assistant principal at John F. Kennedy Junior High School, interviewed the two students involved in the fight and the witnesses to the fight. Based upon that information, Dukes suspended both students for five days. After the suspension, Dukes conferred with Respondent's father regarding the incident.

   
   

4. On October 31, 1983, Respondent skipped his science class and left the school grounds without permission. Dukes later had a conference with Respondent about this behavior and assigned him to a three-day indoor suspension. On November 3, 1983, while Respondent was serving his three-day indoor suspension, he was reported to Dukes as having become disruptive in the suspension hall. On November 5, 1983, Dukes held a conference with Respondent and a conference with Respondent's father about Respondent's behavior at that school. A warning was given to Respondent regarding any continued disruptive behavior.

   
   

5. On December 7, 1983, Respondent was again referred to Dukes' attention for disruptive behavior; i.e., for refusing to follow a teacher's instructions and then refusing to report to the principal's office. Respondent was again counseled by Dukes and was warned regarding his behavior. Additionally, Dukes held a conference with Respondent's father that same day.

   
   

6. On December 13, 1983, Respondent again skipped class. A conference was held by Dukes with Respondent on December 14, and Dukes telephoned Respondent's father and conferred with him. As a result, Respondent was again assigned to the indoor suspension hall.

   
   

7. On January 22, 1984, Respondent was truant. On January 23, 1984, Dukes held another conference with Respondent, at which time Respondent presented Dukes a note, allegedly from Respondent's father, excusing Respondent from school. Due to the spelling errors contained within that note, Dukes telephoned Respondent's father, who verified that he had not written the note. Respondent then left the school grounds and could not be found. He was later assigned again to the indoor suspension hall, and another conference with his father was held.

   
   

8. On February 8, 1984, Respondent again skipped school. Dukes had previously advised him that skipping school again would be considered insubordination and would result in an outdoor suspension. Accordingly, Respondent was given an outdoor suspension of ten days.

   
   

9. On February 15, 1984, Petitioner notified Respondent's father that Respondent was being reassigned to the Miami Douglas MacArthur Senior High School-North alternative education program effective immediately.

   
   

10. On May 10, 1984, the day before the formal hearing in this cause and during a time when Respondent was assigned to the alternative program at MacArthur, Respondent was found trespassing on the school grounds of John F. Kennedy Junior High School.

    
    

11. During the time that Respondent was assigned to John F. Kennedy Junior High School, he failed all of his classes. When Respondent first came to the attention of Dukes, Dukes conferred with Respondent's teachers and was advised that Respondent had no learning disability and was capable of performing academically. Dukes had subsequent conferences with Respondent's teachers as Respondent's behavior pattern continued and received the same information.

    Additionally, throughout the conferences held by Dukes with Respondent's father, Dukes asked if Respondent had any special problems or needs which required attention. Respondent's father answered in the negative.

    
    

12. Since Respondent's attendance record and academic record had not improved at MacArthur by the time of the formal hearing in this cause, his attorney had arranged for testing by a school psychologist. However, none of that testing had been done by the time of the formal hearing in this cause.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).

    
    

14. Section 230.2315, Florida Statutes (1983), provides for the establishment of educational alternative programs for a student who is disruptive, unsuccessful, or disinterested in the regular school environment as determined by grades, achievement test scores, referrals for suspension or other disciplinary action, and rate of absences. Pursuant thereto, the Department of Education has promulgated rules for the determination of eligibility for such a program. Section 6A-1.994(2), Florida Administrative Code, provides definitions of disruptive and unsuccessful or disinterested students as follows:

    
    

    1. Disruptive. A student who:

       1. Displays persistent behavior which interferes with the student's own learning or the educational pro- cess 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 mem- bers of the school population; . . .

    2. Unsuccessful or disinterested. A student who:

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

2. Shows unsatisfactory academic progress and the effort to

provide assistance is either rejected or is ineffective.

Although Respondent regularly attended classes and achieved a satisfactory level of performance academically during the summer school session he attended prior to his enrollment in the ninth grade at John F. Kennedy Junior High School, between the commencement of the 1983-84 school year and the beginning of

February 1984 Respondent had been engaged in a fight with a female student, had been disruptive in the classroom, had left school without permission, had skipped classes, and had attempted to excuse one episode of absence by presenting a forged note from his father. The administration at John F. Kennedy Junior High School had attempted conferences with Respondent, conferences with his father, warnings issued to Respondent, and indoor suspensions to no avail.

Further, an assistant principal had discussed Respondent's performance with his teachers to ascertain if there were any reason for Respondent's lack of achievement academically and had been advised that Respondent had no disability or special problem. That information was verified by Respondent's father, who failed to indicate any special need Respondent might have had. Accordingly, the only information available at the time that the assignment to the MacArthur opportunity school was made indicated that Respondent was simply not willing to attend school or study. Respondent's position is that Petitioner had an obligation to provide to him every potential psychological and academic test available and to exhaust every possible program available anywhere in the system before Petitioner was entitled to avail itself of one of those programs established by the Legislature for precisely the situation as has been described here. The fact that Respondent may feel punished by being placed in a special program established to fulfill the apparent needs of Respondent does not make that program punishment. Accordingly, the assignment of Respondent on February 15, 1984, was appropriate and in fulfillment of Petitioner's duty to offer an educational alternative program to Respondent. Since the three-month delay between the assignment and the formal hearing in this cause indicates that Respondent is still unwilling or unable to achieve even in a special school environment, the undersigned agrees with the position of Respondent and of Petitioner's witness that some type of evaluation should be done on Respondent at this point. However, because the current situation indicates a need for evaluation, it does not follow that the need for evaluation was indicated at the time that the reassignment of Respondent was made. Since the issue before the undersigned is the propriety of the decision to reassign made on February 15, 1984, Petitioner has met its burden of proving that reassignment to have been appropriate and necessary. It should be remembered that assignment to an opportunity school is not a permanent assignment, but is only until such time as the student ceases being disruptive, unsuccessful, or disinterested in order that the student can be returned to the regular school environment or until information is obtained that indicates that the student is in need of some other type of special program. If the psychological and/or academic testing Petitioner has apparently agreed to provide should reveal that Respondent needs a different type of school program, it can only be assumed that Petitioner will provide it once those facts become known, with the proper program to be determined at that time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered approving the assignment of

Respondent to the opportunity school program at Miami Douglas MacArthur Senior

High School-North.

DONE and RECOMMENDED this 22nd day of June, 1984, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 22nd day of June, 9184.

COPIES FURNISHED:

Mark A. Valentine, Esquire

3000 Executive Plaza, Suite 800

3050 Biscayne Boulevard

Miami, Florida 33137

Daniella Levine, Esquire Legal Services

149 West Plaza, Suite 210 7900 North West 27th Avenue Miami, Florida 33147

Mr. Rexford Foster

1371 North East 157th Street North Miami Beach, Florida 33162

Phyllis O. Douglas, Esquire Dade County Public Schools 1410 North East Second Avenue Miami, Florida 33132

Dr. Leonard Britton Superintendent of Schools 1410 North East Second Avenue Miami, Florida 33132

Docket for Case No: 84-000873

Orders for Case No: 84-000873