STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2219

)

JOSE VALENTINE BERNARDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal healing was held on September 6, 1985, in Miami, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCE

For Petitioner: Jackie Gabe, Esquire

3000 Executive Plaza, Suite 800

3050 Biscayne Boulevard

Miami, Florida 33137

For Respondent: Manuel Calejo, Representative

Mercedez Bernardez, Parent 4630 N. W. 4th Street Miami, Florida 33126

This matter arose on the assignment by the School Board of Dade County of Jose Valentine Bernardez to an alternative school, Youth Opportunity School-South.

Respondent, Jose Valentine Bernardez, requested a formal hearing through a written request by his father, Jose

Bernardez. The issue is whether Bernardez meets the criteria for assignment to an educational alternative program.

Petitioner presented the testimony of Janice B. Reineke, assistant principal of Kinloch Park Junior High School, together with one Exhibit. Respondent presented the testimony of Mercedez Bernardez, Respondent's mother. The parties waived the filing of a transcript and proposed

orders.

FINDINGS OF FACT

1. Jose Valentine Bernardez was a seventh-grade student at Kinloch Park Junior High School during the 1984-

   85 school year until his reassignment to the alternative school on May 30, 1985. At the time of hearing, the 1985-86 school had just begun and Jose's parents did not send him to the alternative school pending the outcome of this proceeding. However, Jose has not been withdrawn from the public schools of Dade County.

2. While at Kinloch Park, Jose was involved in numerous incidents that resulted in disciplinary referrals. On September 25, 1984, Jose pushed another student and on September 26, 1984, Jose took a student's notebook and got into a fight. On February 6, 1985, Jose didn't have appropriate materials in class. Early in the day on

   February 13, 1985, Jose was referred for discipline for refusing to remain in his seat, provoking other students, throwing paper airplanes and destroying art materials.

   Later that same day, Jose took an earring off a teacher's desk and put it in the trash can. When the teacher asked the class about the earring, Jose did not tell where the earring was. He later admitted his involvement to a counselor, but did not know why he did it. Jose was suspended from school for his misbehavior on February 13, 1985.

3. Jose was placed on indoor suspension on February 27, 1985, for slapping another student on the head, being constantly out of his seat and not doing his work. Jose had a day added to his indoor suspension on March 6, 1985, because he misbehaved in indoor suspension by talking, disrupting and refusing to be quiet. On March 7, 1985, Jose was disruptive and disturbing other students. On March 13, 1985, Jose was defiant, disruptive, imitating another student and making statements about that student's mother.

4. On March 18, 1985, Jose was again suspended for a fight in class, disruptive behavior on a daily basis, constant disruptive behavior and carving on the desk with an exacto blade. On April 4, 1985, an indoor suspension was

   imposed because Jose was talking in class after warning and disrupting the class. Jose repeatedly disrupted class on April 24, 1985, and did not bring materials to school. On May 8, 1985, Jose was late for class for the fourth time, threw chalk and sat in the wrong seat. He was again suspended. Finally after the suspension was served, Jose returned to school, and on May 15, 1985, Jose was poking other students with a safety pin. When confronted, Jose ran from the teacher. He was again suspended and was referred to the alternative school program.

5. Throughout the course of Jose's attendance at Kinloch Park, the school officials counseled with Jose and his parents on numerous occasions. Jose also received counseling at the school. Jose's mother asked the school for help on at least three occasions. She recognized Jose's behavioral problems and indicated that they began after the death of Jose's brother. She asked the school for assistance in getting psychological counseling for Jose. In response to that request, she was given a list of four local public and private agencies when she could seek help for Jose on her own. Mrs. Bernardez also asked the school to evaluate Jose to determine if he had psychological problems or emotional problems that resulted in his misbehavior. The school's only response was to place

   Jose's name on a waiting list for evaluation. While Jose's name remained on this waiting list, his behavioral problems continued. The school's response was to suspend Jose and refer him to alternative school. Additionally, during this time, Mrs. Bernardez did take Jose to all four of the agencies named by the school. At each she was told that they did not do evaluations of the type needed for Jose and instead offered to provide counseling for Jose at the parent's expense. Jose's parents attempted to get professional help regarding Jose's behavioral problems, but were unable to do so successfully before Jose was removed from the regular school program.

   CONCLUSIONS OF LAW

   
   

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

7. Section 230.2315(4) provides that "a student may be eligible for an educational alternative program if the student is disruptive, unsuccessful, or disinterested in the regular school environment . . . ." This statute is further implemented in Rule 6A-1.99-4, Florida Administrative Code, which states:

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, achievement 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 students'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.

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.

1. A cursory review of Jose's disruptive history initially suggests that he meets the criteria of eligibility, but a more thorough examination reveals the profile of a disturbed student. By providing counseling and by placing Jose on the waiting list for a complete evaluation, the school officials clearly show that they were aware of Jose's problems and believed that he may be an exceptional student under Rule 6A-6.301(1), Florida Administrative Code. An exceptional student is one "who requires special instruction or related services to take full advantage of or respond to educational programs and opportunities because of a physical, mental, emotional, social or learning exceptionality . . . ." Rule 6A-6.331, F.A.C., makes the school board "responsible for the

   medical, physical, psychological, social and educational evaluations of students who are suspected of being exceptional students . . . ." By providing the extremely limited services and assistance which was provided to Jose, the school clearly suspected that Jose may be an exceptional student.

   Despite this suspicion, the school did not evaluate Jose as required, but merely placed him on a waiting list for such evaluation. The school officials then handled Jose's disciplinary problems as if they were blind to the possible nature and basis for them. They imposed discipline as if Jose was a non-exceptional student, and in doing so freed themselves of the constraints of Rule 6A- 6.331(7), F.A.C., that imposes different standards for discipline of handicapped students. Jose was forced out of the regular school program as a result of f disciplinary problems indicative of an emotional handicap. A simple review of the criteria for eligibility for special programs for emotionally handicapped students leads to the ineluctable conclusion that Jose's behavior comports more closely with these criteria than with the criteria for eligibility for placement in the alternative school program. Specifically, Rule 6A-6.3016(2), F.A.C., provides:

   1. Criteria for eligibility. All of the following criteria, consistent with the definition, shall be used to determine each student's eligibility for special programs for emotionally handicapped.

      1. Evidence that the student, after receiving supportive educational assistance and counseling, still exhibits severe emotional handicaps.

      2. Evidence that a severe emotional handicap, as determined by documented observations and psychological evaluation, exists over an extended period of time.

      3. Evidence that the behavior disrupts the student's own learning, reading, arithmetic or writing skills, social-personal development, language development or behavioral progress and control.

      4. Evidence that the primary problem of the student cannot be attributed primarily to physical, sensory or intellectual deficits.

2. Rule 6A-6.3106(4), F.A.C., sets forth the procedures for student evaluation for an emotional handicap and specifies the necessary elements of the minimum evaluation to be provided by the school board. This evaluation should be done in order that the school can determine, among other things, the correct disciplinary

policy and procedures to apply to Jose and the appropriate

educational placement.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the School Board of Dade County enter a Final Order, and therein:

1. Return Jose Valentine Bernardez to the regular school program.

2. Require that an evaluation as required by Rule 6A- 6.331(1) and other applicable rules, including but not limited to Rule 6A-6.3016, Florida Administrative Code, be performed immediately.

DONE and ENTERED this 17th day of September, 1985, in Tallahassee, Florida.

DIANE K. KIESLING

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 17th day of September, 1985.

COPIES FURNISHED:

Jackie Gabe, Esquire

3000 Executive Plaza, Suite 800

3050 Biscayne Boulevard

Miami, Florida 33137

Mr. & Mrs. Jose Bernardez 4630 N. W. 4th Street Miami, Florida 33126

Ms. Maeva Hipps School Board Clerk

Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 85-002219

Orders for Case No: 85-002219