STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA )

)

Petitioner, )

)

vs. ) CASE NO. 84-4028

)

BENNIE HORNE )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on February 25, 1985, in Miami, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Frank R. Harder

Assistant School Board Attorney Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

For Respondent: Ms. Gloria Horne

Parent of Bennie Horne 2631 Northwest 49th Street Miami, Florida 33142

This matter arose on the assignment by the School Board of Dade County of Bennie Horne to an alternative school placement at McArthur Senior High School North. Horne's mother Ms. Gloria Horne, objected to such placement and requested a formal hearing.

The School Board of Dade County presented the testimony of Nettie Thomas, Freddie Robinson and Dr. Kenneth D. Walker, together with six exhibits. Horne presented no testimony.

Procedurally, this matter was consolidated for purposes of conducting part of the final hearing with DOAH Case Nos. 84-3453 84-3608, 84-3685, and 84-4029. This partial consolidation consisted of consolidation for purposes of presentation by the School Board of its case-in-chief. Thereafter, the respondent in each of the above-mentioned cases presented his case in a separate and distinct presentation. A separate Recommended Order will be entered in each case based upon the facts and the law as applicable to each individual respondent.

The School Board of Dade County filed proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have

been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary; or not supported by the competent and credible evidence.

FINDINGS OF FACT

1. This matter concerns an incident which took place at Brownsville Junior High School on August 16, 1984, during the last week of the summer school session. The incident involved a female victim and several male students. It is undisputed that a sexual assault on a female student did take place. The only question involved here is what part, if any, the respondent played in this incident.

   
   

2. The sexual assault was initiated by another male student, John Felder. Essentially, Felder pulled the victim, Nettie Thomas, into room 101 at the school. That room contained a television set which also served as a computer monitor. After the victim was pulled into room 101, various attempts were made to removed her clothing and she was fondled and touched by several male students. At one point during the victim's struggles, she was forced down on the teacher's desk and was held on top of the desk by her arms. While on the desk, she was assaulted by a male student who laid on top of her and made motions which simulated the motions made during sexual intercourse. At times, someone held his hand over her mouth so that she could not cry out for help. Additionally, during the time the incident occurred, the lights in the room were turned on and off on more than one occasion. The assault was stopped when the assistant principal walked up the hall to investigate the noises which were reported to be coming from room 101. The students involved in the assault fled the room.

   
   

3. The assistant principal, Freddie Robinson, observed and identified five boys fleeing room 101. Specifically, he identified Darrien Byrd, John Felder, Anthony Dowdell, Richard Daniels and Vernon Clark. He didn't see Horne.

   
   

4. The victim, Nettie Thomas, identified these same five, either in written or verbal statements made during the investigation of this incident. At no time did she name Borne in her statements.

   
   

5. Nettie Thomas testified that Bennie Horne was one of the students who held her arms while she was being held on top of the teacher's desk.

   
   

6. At hearing was the first time Thomas named Horne as having been present or involved in the incident. Robinson thought Horne was involved because one of the other boys said Horne was there. No evidence was presented which established Horne's presence and involvement except the victim's testimony.

   
   

7. In resolving this apparent conflict between the testimony of the victim and her failure to name Horne previously, substantial weight is given to the written statement of the victim which was made shortly after the incident. The written report does not specifically name Bennie Horne. In light of this written statement and lack of direct or corroborative evidence of Horne's presence, and having judged the demeanor of the various witnesses, it is found that Bennie Horne did not hold the arms of the victim in order to restrain her on the desk during the sexual assault and was not shown to have been present at all.

8. Bennie Horne had no record of misconduct at Brownsville Junior High School prior to this incident. He was not a disruptive student and his academic performance was satisfactory.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to these proceedings. Section 120.57(1) and Section 230.2315, Florida Statutes (1983).

   
   

10. Section 230.2315, Florida Statutes (1983), provides in part:

    
    

    1. 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 disinterested in the regular school environment as determined by grades, achievement test scores, referrals for suspension or other disciplinary action, and rate of absences.

       
       

    2. REVIEW OF PLACEMENT.- 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 the provisions of chapter

       120. . . .

       
       

11. Rule 6A-1.994, Florida Administrative Code (FAC), provides in part:

    
    

    1. Definition. Educational alternative programs designed to meet the needs of students who are disruptive, disinterested, or unsuccessful in a normal school environment. The educational alternative may occur 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 determined by grades, achieve- ment test scores, referrals for suspension or other disciplinary action, and rate of absences.

    
    

    1. Disruptive. A student who:

       1. Displays persistent behavior which interferes 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 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.

    
    

12. It is concluded that Bennie Horne is not properly classified as a disruptive student. The School Board has failed to carry its burden of showing Horne's presence or involvement in this incident. It is also concluded that the alternative school placement is not appropriate.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County enter a Final Order

returning Bennie Horne to the regular school program and reversing the determination that Horne be placed or retained in an educational alternative program.

DONE and ENTERED this 11th day April, 1985, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 11th day of April, 1985.

COPIES FURNISHED:

Ms. Gloria Horne Parent of Bennie Horne 2631 N. W. 49th Street Miami, Florida 33142

Frank R. Harder, Esquire Assistant School Board Attorney Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

Ms. Maeva Hipps School Board Clerk

School Hoard of Dade County 1450 N. E. Second Avenue Suite 301

Miami, Florida 33132

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N. E. Second Avenue Miami Florida 33132

Docket for Case No: 84-004028

Orders for Case No: 84-004028