STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0629

)

RAUL RAMIRO LOPEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing on April 24, 1985, in Miami, Dade County, Florida, before Diane A. Grubbs, a hearing officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark A. Valentine, Jr., Esq.

Assistant School Board Attorney McCrary & Valentine, P.A.

3050 Biscayne Boulevard Miami, Florida

For Respondent: Mitchell A. Horwich, Esq.

Education Advocacy Project

Legal Services of Greater Miami, Inc. Northside Shopping Center

149 West Plaza, Suite 210 7900 N. W. 27th Avenue Miami, Florida 33147-4796

ISSUE

Whether the Respondent should be reassigned to the Opportunity School.

BACKGROUND

By letter dated January 29, 1985, the Respondent's mother was notified that the Respondent had been assigned to Jan Mann

Opportunity School-North. The basis for the action was the Respondent's disruption of the educational process in the regular school program and his failure to adjust to the regular school program. On February 7, 1985, Respondent's mother requested a hearing to challenge the transfer. On February 20, 1985, the matter was forwarded to the Division of Administrative Hearings for further proceedings, and a formal hearing was held on April 24, 1985.

At the hearing the Petitioner presented the testimony of one witness, Mr. Booker T. Long, Assistant Principal at Palm Springs Junior High School. Petitioner entered no exhibits into evidence. The Respondent presented the testimony of three witnesses: Mr. Garcia-Turno, a visiting teacher; Mrs. Zuleima Lopez, the Respondent's mother; and the Respondent, Raul Lopez. Respondent entered one exhibit into evidence.

Both Petitioner and Respondent filed proposed recommended orders which have been carefully considered. All proposed findings of fact have been addressed, either directly or indirectly, in this recommended order, except those that are cumulative, irrelevant, or unnecessary. A proposed finding of fact has been specifically rejected when a contrary finding has been made.

FINDINGS OF FACT

1. Raul Lopez entered the Dade County Public Schools in 1980 and was enrolled in the fifth grade. He repeated the fifth grade once, passed the sixth grade, and, in the 1984-85 school year, was repeating seventh grade. When Raul entered the Dade County school system he did not know the English language and was enrolled in a special program called English for Speakers of Other Languages (ESOL). He remained in the program for three years. Raul received no bilingual educational services from the school system after the first three years.

   
   

2. Raul Lopez entered Palm Springs Junior High School on September 7, 1984, and was recommended for alternative school on January 18, 1985. During the time Raul was at Palm Springs, he was referred to the office for disciplinary reasons on eight different occasions. Assistant Principal Long's testimony was the only evidence presented by Petitioner to show that Raul had a record of disruptive behavior. However, Mr. Long's testimony was not credible and, for the most part, was uncorroborated hearsay. Mr. Long had no personal knowledge of any of the incidents which caused Raul's disciplinary referrals, and could

   not provide any information, other than speculation, as to what had actually happened to cause each referral.

   
   

3. Mr. Long explained that, when a disciplinary problem occurs, the teacher or staff person involved fills out a referral, setting forth the details of the incident. The assistant principal to whom the matter is referred then prepares a computer card on the incident, fitting the behavior that occurred into one or more of the available categories, such as "general disruptive behavior." Mr. Long's testimony regarding Raul's behavior came directly from a computer print-out. It was clear that Mr. Long had no independent recollection of any of the incidents. From the computer print out, Mr. Long testified that Raul received the following referrals:

   
   

   DATE REASON FOR REFERRAL

   
   

   10/9/84 general disruptive behavior

   
   

   10/16/84 defiance of school authority; dress code violations; rude and discourteous (Mr. Long stated that Raul may have had his shirttail out or not worn socks)

   
   

   10/30/84 general disruptive behavior; rude and discourteous; no school materials (Mr. Long

   explained that Raul didn't have his books or didn't have his P.E. uniform)

   11/1/84 excessive tardiness; rude and discourteous 11/13/84 general disruptive behavior; didn't complete

   class assignment

   11/21/84 unauthorized location; no school materials 12/10/84 excessive tardiness; general disruptive behavior;

   rude and discourteous

   
   

   1/11/85 general disruptive behavior; assault (Mr.

   Long stated that he knew nothing about the assault because he didn't handle the referral)

   
   

   Raul was placed on indoor suspension as a result of the October 9, 1984, incident, and was referred to counseling after the November 1st and November 13th incidents. Although Mr. Long stated that attempts were made to contact the parents, the only

   conference with the parents was on January 18, 1985, to inform them that Raul was being referred to the alternative school.

   
   

4. Mr. Long had personal contact with Raul and found him to be defiant, hostile, and disrespectful. Raul also used obscene language. However, he also testified that he had never had problems with Raul.

   
   

5. The evidence establishes that Raul had a very poor attendance record while attending Palm Springs. He was absent

   25 days, of which 15 absences were confirmed truancies. The Dade County Public Schools Complaint of Truancy (R.Ex.-l) indicates that several conferences were held with Raul's parents concerning Raul's excessive absences; however, the visiting teacher could not remember whether he actually made contact with Raul's parents or merely went to Raul's home and left a message that Raul was truant, and Mr. Long's testimony concerning parent conferences was inconclusive. Several letters were sent to the home regarding Raul's non-attendance. Mrs. Lopez testified that the only contact she had with school personnel was on January 18, 1985.

   
   

6. Raul has not been successful academically. He had to repeat the fifth and seventh grades. After the first nine weeks at Palm Springs he received one C, two Ds, and three Fs. After the first semester the number of Fs had increased to four. Mr. Long testified that Raul was not in school often enough to receive passing grades. He also testified that the low grades were a result of Raul's behavior problem.

   
   

7. Raul testified that he didn't go to school because he did not understand the school work. He admitted that he does not read or write very well. He stated that nobody had ever asked him why he did not like to go to school. Raul admitted that he had refused to "dress out" for physical education class.

   
   

8. Mr. Long did not know why Raul failed to attend school, but stated that every effort was exhausted at Palm Springs to correct Raul's problems. He felt that Palm Springs simply could not meet Raul's needs. The counselor at the school requests testing for exceptional education, and although Raul had been sent to the counselor, Mr. Long did not know whether the counselor had requested exceptional education testing. Mr. Long believed that Raul was in the proper academic program.

   
   

   CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding.

   Section 120.57(1), Florida Statutes.

   
   

10. 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. Pursuant thereto, the Department of Education has promulgated rules for the determination of eligibility for such a program. Rule 6A-1.994(2), Florida Administrative Code, sets forth the criteria for eligibility for an educational alternative program and defines the disruptive and unsuccessful or disinterested student. A student is eligible for an educational alternative program if he meets one or more of the following criteria:

    
    

    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 involvement 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.

       
       

       The Petitioner has the burden to prove that the child is disruptive, unsuccessful, or disinterested as those terms are defined above. The evidence presented by the Petitioner was insufficient to prove that Raul was a disruptive student.

       However, the evidence presented was sufficient to show that Raul was an unsuccessful or disinterested student while at Palm Springs Junior High.

       
       

11. Raul's attendance record, standing alone, is sufficient evidence of Raul's lack of involvement in the traditional school program. His failure to attend class has certainly contributed to, if not caused, his unsatisfactory academic progress.

    
    

12. Respondent concedes that Raul meets the eligibility requirements for placement in the alternative school, but urges that placement in the alternative school program is not appropriate because the Petitioner failed to take the action necessary to identify Raul's individual educational needs and failed to provide appropriate services to assist Raul and his parents in correcting Raul's truancy behavior. This assertion is not supported by evidence-presented at the hearing. Respondent contends that Raul should have been referred for exceptional education evaluation and for an evaluation of his English language deficiency. However, there was no evidence presented to show that Raul's ability to handle the English language had not been evaluated by the Petitioner, and there was no persuasive evidence presented to show that Raul lacked the capacity, because of language problems or otherwise, to successfully perform in the academic program to which he was assigned. Respondent contends that Petitioner failed to provide appropriate services to correct the truancy problem because school personnel did not take the action required by the Cooperative Agreement between the School Board of Dade County and the Department of Health and Rehabilitative Services before a court referral for truancy can be authorized. There are two problems with this argument. First, the issue in this case is not whether Raul should be referred to the court for his attendance problem, but whether alternative school placement is appropriate. Second, the Cooperative Agreement was never

    entered into evidence. Further, efforts were made to correct the problem prior to the January 18, 1985, conference with Mrs. Lopez. Two conferences were held with Raul, four letters were sent to the home, and the visiting teacher went to the home on two occasions. Despite those efforts, Raul continued to miss school.

    
    

13. Petitioner has met its burden of proof, or the burden of ultimate persuasion, by proving that Raul was a student who was "disruptive, disinterested, or unsuccessful in a normal school environment." Respondent did not present any evidence to show that Raul's placement in an educational alternative program was not appropriate. The Petitioner does not have to show that every possible evaluative test had been given and that every other program available had been offered before it is entitled to avail itself of one of those programs established by the Legislature for the very situation that is present here. Accordingly, the assignment of Raul Lopez to an alternative school was appropriate and in fulfillment of Petitioner's duty to offer an educational alternative program to Respondent.

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 Jan Mann Opportunity School-North.

DONE and ENTERED this 6th day of August, 1985, in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS, 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 6th day of August, 1985.

COPIES FURNISHED:

Mark A. Valentine, Jr., Esq. Assistant Schoo1 Board Attorney McCrarY & Valentine, P.A.

3050 Biscayne Boulevard Miami, Florida

Mitchell A. Horwich, Esq. Education Advocacy Project

Legal Services of Greater Miami, Inc. Northside Shopping Center

149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami, Florida 33147-4796

Dr. Leonard Britton Superintendent of Schools Board Administration Building Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132

Honorable Ralph D. Turlington Commissioner of Education

The Capitol

Tallahassee, Florida 32301

Phyllis O. Douglas

Assistant School Board Attorney Dade County School Board

Suite 301

1450 N.E. 2nd Avenue Miami, Florida 33132

Docket for Case No: 85-000629

Orders for Case No: 85-000629