STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0320

)

TORREY SHERWIN DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 30, 1985 in Miami, Florida.

APPEARANCES

For Petitioner: Mark A. Valentine, Esquire

Suite 800, 3000 Executive Plaza

3050 Biscayne Boulevard

Miami, Florida 33137 For Respondent: No appearance.

STATEMENT OF THE ISSUE

By letter dated December 17, 1984, Petitioner, School Board of Dade County, advised the mother of Respondent, Torrey Sherwin Davis, that Respondent was being administratively assigned to an educational alternative program at Jann-Mann Opportunity School- North effective upon receipt of the letter because of Respondent's "disruption of the educational process in the regular school program and failure to adjust to the regular school program." Thereafter, Respondent's mother timely requested a hearing to contest this assignment.

PRELIMINARY STATEMENT

The matter was referred to the Division of Administrative Hearings by Petitioner on January 28, 1985, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated February 6, 1985, a final hearing was scheduled on July 30, 1985 in Miami, Florida. At final hearing Petitioner presented the testimony of Teresita Aloisio, assistant principal at Rainbow Park Elementary School, and offered Petitioner's exhibit 1 which was received in evidence. Respondent did not appear.

There is no transcript of hearing and Petitioner waived its right to file proposed findings of fact and conclusions of law. At issue is whether Respondent was properly assigned to an alternative school program. Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant thereto, Respondent, Torrey Sherwin Davis (Torrey), was a sixth grader at Rainbow Park Elementary School in Dade County, Florida, during school year 1984-85. The school is under the jurisdiction of Petitioner, School Board of Dade County.

   
   

2. While attending Rainbow Park, Torrey exhibited disruptive behavior on a number of occasions. The dates of such behavior and a detailed description of the same are set forth in detail in Petitioner's exhibit 1 received in evidence. They include pushing, hitting and biting other students both in and out of the classroom, yelling and disrupting classes during periods of instruction, being rude and disrespectful to teachers, and "feeling" female students.

   
   

3. Torrey has been repeatedly counseled by teaching personnel regarding his conduct, and at least two or three teacher-parent conferences were held by school officials with Torrey's father. This counseling failed to produce a change in his behavior.

   
   

4. Respondent's conduct become so disruptive by December, 1984, that Torrey was unable to function properly in a normal school environment. After a careful assessment of his academic progress and behavior by school officials, Petitioner reassigned Torrey on December 17, 1984, to Jann-Mann Opportunity School- North effective immediately. He has remained there since that time.

5. Although Respondent's mother contended that Torrey was "picked on" by his teacher, periodic monitoring of Torrey's classes by the school's assistant principal dispelled the validity of this claim.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

7. Section 230.2315- Florida Statutes, 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. In that vein, the Department of Education has promulgated rules for the determination of eligibility for such a program. Rule 6A-1.994(2), Florida Administrative Code, defines a disruptive and unsuccessful or disinterested student in the following manner:

   
   

   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; . . .

      
      

      * * *

      
      

   2. Unsuccessful or disinterested. A student who:

      1. Demonstrates a lack of sufficient in- volvement in the traditional 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.

      
      

8. The evidence discloses that Torrey falls within the category of a disruptive student as defined by Rule 6A-1.994(2), Florida Administrative Code, and that he should be assigned to an alternative education placement. In view of his behavior, it is recommended that Petitioner provide Torrey with psychological testing and services to hasten his return to the regular school environment.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a Final Order be entered determining that Respondent be placed in an educational alternative program.

DONE and ORDERED this 8th day of August, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 Administrative Hearings this 8th day of August, 1985.

COPIES FURNISHED:

Ms. Mary Davis

1500 N.W. 154th Street Opa Locka, Florida 33054

Mark A. Valentine, Esq.

Suite 800, 3000 Executive Plaza

3050 Biscayne Boulevard

Miami, Florida 33137

Docket for Case No: 85-000320

Orders for Case No: 85-000320