STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2414

)

ROLANDO RODRIGUEZ, )

)

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 September 23 and October 17, 1985, in Miami, Florida.

APPEARANCES

For Petitioner: Jackie L. Cabe, Esquire

Suite 800, 3000 Executive Plaza

3050 Biscayne Boulevard

Miami, FL 33137

For Respondent: Joaquin Perez, Esquire

Midway Professional Building

85 Grand Canal Drive, Suite 404 Miami, FL 33144

BACKGROUND

By letter dated June 26, 1985, Petitioner, School Board of Dade County, advised the mother of Respondent, Rolando Rodriguez, that Respondent was being administratively assigned to an educational alternative program at Jann Mann Opportunity School-North because of Respondent's "disruption of the educational process in the regular school program and failure to adjust to the regular school program." The assignment became effective upon receipt of the letter. Thereafter, Respondent's mother timely requested a hearing on July 5, 1985, to contest the transfer. According to her letter, such a transfer would

cause "many inconveniences" because of the new school's location. The matter was referred to the Division of Administrative Hearings by Petitioner on July 17, 1985, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated August 16, 1985, a final hearing was scheduled on September 23, 1985 in Miami, Florida. A continued hearing was held on October 17, 1985 at the same location. At final hearing, Petitioner presented the testimony of Katherine Sweet, Assistant Principal at Palm Springs Junior High School, and offered Petitioner's exhibits 1 and 2 which were received in evidence. Respondent testified on his own behalf and presented the testimony of his mother, Olga S. Garcia.

There is no transcript of the hearing and accordingly, this Recommended Order has been prepared without the benefit of same. Proposed findings of fact and conclusions of law were filed by the parties on October 28, 1985. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

At issue is whether Respondent was properly assigned to an alternative school program.

Based on all of the evidence, the following facts are determined:

FINDINGS OF FACT

1. At all times relevant thereto, Respondent, Rolando Rodriguez (Rolando), was a student at Palm Springs Junior High School (Palm Springs) in Dade County, Florida, during school years 1983-84 and 1984-85. The school is under the jurisdiction of Petitioner, School Board of Dade County (Board).

   
   

2. Rolando was born in Cuba on August 15, 1970. He and his mother came to the United States in 1980. His father remains in Cuba. Rolando enrolled in the fourth grade of the public school system in Dade County in 1980. Because of language difficulties, he was initially given some special assistance by his teachers. Even so, his school progress record, received in evidence as exhibit 2, reveals he repeated at least a part of the fifth grade due to academic problems. There is no evidence that he received bilingual education services from the public school system.

   
   

3. While attending the sixth grade at Palm Springs in 1983-84, Rolando had isolated instances of misconduct during the

   first half of the school year. This included "disruptive behavior," "cutting class," and "assault and battery." He was given reprimands and warnings, and several conferences were held by school officials with Rolando and his mother. This is confirmed through testimony of witness Sweet and corroborated by Petitioner's exhibit 1 received in evidence. This exhibit is a copy of a computer print-out reflecting Rolando's case management history. It is not clear how the entries therein were prepared, or, whether the school personnel who observed the "incidents" gave the information directly to the computer program operator, or to another person who then summarized it for the operator. In any event, there is no documentation or the oral testimony evidencing any misconduct from January 1984 until the end of the school year. Rolando was then promoted to seventh grade even though he had done poorly in a number of subjects.

   
   

4. Beginning in September 1984, Rolando's case management history (exhibit 1) reflects a series of actions which culminated in reprimands, warnings and being placed on probationary status. However, these entries on the computer print-out are hearsay in nature and the only witness appearing on behalf of Petitioner had no personal knowledge of the events. Indeed, the witness could not relate the details or circumstances surrounding the "incidents," but relied wholly on what she had been told by other school personnel, or what the computer print-out stated. Accordingly, there is no competent evidence concerning Rolando's alleged misconduct for school year 1984-85. Finally, exhibit 2 contains Rolando's grades from school year 1980-81 through school year 1983-84, but omits reference to the grades received in school year 1984-85. However, Rolando acknowledged he received at least one "F" during the year and that his overall grades were "not good."

   
   

5. On June 26, 1985, Petitioner advised Respondent's parents that he was being reassigned to Jann Mann Opportunity School-North effective immediately because of Rolando's "disruption of the educational process in the regular school program and failure to adjust to the regular school program." It was not disclosed who participated in the decision or what specific information, other than that contained in exhibit 1,

   was considered in determining that reassignment was appropriate.

   
   

6. During the first half of the school year 1983-84, the faculty and administration of Palm Springs attempted to help Rolando through parent and student conferences, developmental group counseling, a child study team, home units and

   employability skills instruction. Although exhibit 1 reflects similar assistance in 1984-85, there is no competent evidence to verify and confirm these hearsay declarations.

   
   

7. Rolando is now attending Jann Mann, which is approximately thirty minutes from his home by bus. Both he and his mother desire a reassignment to Palm Springs because of its proximity to their home. Rolando acknowledged some of his disciplinary problems and specifically recalled three visits to the principal's office, but pointed out that he was unfairly charged with many other infractions even though he was merely an observer to and not a participant in these incidents. He stressed that where teachers have taken the time to provide extra assistance, he has done well in class, but fares poorly where the teacher does not provide such assistance. He views his reassignment to Jann Mann as a learning experience, and now wishes to return to his former school. Even though he testified in English, he attributes a part of his academic problems to a limited proficiency in the English language. Rolando's mother also acknowledged that she was notified on "several" occasions about Rolando's conduct. The dates of such notifications and the specific nature of his problems were not disclosed.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 230.2315, Florida Statutes (Supp. 19&4), authorizes each school district to establish educational alter native programs for students "who are disruptive or unsuccessful in a normal school environment." In this vein, Petitioner has established an educational alternative program at Jann Mann Opportunity School-North. Subsection 230.2315(4), Florida Statutes (Supp. 1984), provides that a student may be eligible for such a program if "the student is disruptive, unsuccessful, or disinterested in the regular school environment as determined by grades, achievement test scores, referral for suspension or other disciplinary action, and rate of absences." Rule 6A- 1.994(2), Florida Administrative Code, defines a disruptive, 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 students 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.

      
      

      Therefore, a student may be assigned to an alternative program if the school finds that the student is "disruptive" as defined in Rule 6A-1.994(2)(a) or "unsuccessful or disinterested" as defined in Rule 6A-1.994(2)(b). According to the proposed agency action, the Petitioner is relying upon both categories as a basis for reassigning Rolando.

      
      

10. Initially, some comment is required relative to exhibit 1, a document crucial to the proof of Petitioner's case. It is a computer print-out consisting of five sheets and reflects Rolando's conduct in the sixth and seventh grades together with the follow-up action apparently taken by the school. Its authors are unknown and were not present at final hearing. Since it was made for the purpose of preparing for this hearing, its trustworthiness becomes suspect and it cannot automatically qualify as a business record exception to the hearsay rule under Subsection 90.803(6), Florida Statutes. In the case at bar, the entries' reliability is in question since

    their source of information is not clear. While hearsay may be admitted for purposes of supplementing or explaining other competent evidence of record (Subsection 120.58(1), Florida Statutes),there is no competent evidence from a witness with firsthand knowledge of events occurring in school year 1984-85. Counsel has not suggested any other evidentiary theory to support the use of the document, and therefore the undersigned has disregarded all hearsay declarations in exhibit 1 relating to school year 1984-85.

    
    

11. The evidence discloses that Rolando had isolated incidents of disruptive behavior during the first half of the sixth grade (1983-84), and Rolando himself conceded to a few instances of misconduct, the dates of which are unknown. This does not equate to a "disruptive" student as defined by Rule 6A- 1.994(2)(a), Florida Administrative Code, particularly since the reassignment did not take place until some sixteen months later in June 1985.1

    
    

12. The evidence also discloses that Rolando did very poorly from an academic standpoint in school year 1983-84, and received at least one "F" in school year 1984-85. But to fall within the category of an "unsuccessful or disinterested" student, there must be "unsatisfactory academic progress" on the part of the student. Here, Rolando was promoted to the seventh grade, and except for his admission that he received one "F" in the past year, there is no other definitive evidence as to what progress, if any, he has made. Therefore, it is concluded that Rule 6A-1.994(2)(b), Florida Administrative Code, does not apply.

    
    

13. It is concluded that Petitioner has presented insufficient evidence to support a reassignment of Rolando to an alternative program and that he should be immediately reinstated at Palm Springs or another traditional school program.

1

RECOMMENDATION

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

RECOMMENDED that Respondent be immediately reinstated to a traditional school program.

DONE AND ORDERED this 13th day of November 1985, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building/

2009 Apalachee Parkway

Tallahassee, FL 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1985.

ENDNOTE

1/ Petitioner has referred in its proposed order to numerous violations of the Code of Student Conduct. However, this document was never introduced into evidence.

APPENDIX

Petitioner:

1. Proposed finding of fact 1 has been adopted to the extent it pertains to school year 1983-84. Otherwise, it has been rejected.

2. Proposed finding of fact 2 has been partially adopted. However, the second sentence is rejected as not being supported by competent evidence.

3. Proposed finding of fact 3 has been adopted to the extent it pertains to school year 1983-84 and prior years. The remainder of the finding has been rejected since exhibit 2 does

   not reflect grades for any such period of time after school year 1983-84.

4. Proposed finding of fact 4 has been substantially adopted in this Recommended Order.

5. Proposed finding of fact 5 has been-substantially adopted to the extent it pertains to school year 1983-84. Otherwise, it has been rejected.

6. The first sentence of proposed finding of fact 6 has been adopted. The second sentence has been rejected as being contrary to the weight of the evidence.

Respondent:

1. Proposed findings of fact 1 through 4 and 6 have been substantially incorporated into this Recommended Order.

2. Proposed findings of fact 5 and 7 have been rejected as being irrelevant to a resolution of the issues herein.

COPIES FURNISHED:

Honorable Ralph D. Turlington Commissioner of Education The Capitol

Tallahassee, FL 32301

Judith Brechner, Esq. General Counsel Knott Building

Tallahassee, FL 32301

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. 2nd Avenue Miami, FL 33132

Jackie L. Cabe, Esq.

Suite 800, 3000 Executive Plaza

3050 Biscayne Blvd.

Miami, FL 33137

Joaquin Perez, Esq. Midway Professional Bldg.

85 Grand Canal Drive, Suite 404 Miami, FL 33144

Docket for Case No: 85-002414

Orders for Case No: 85-002414