STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2415

)

ELIJAH McCRAY, )

)

Respondent. )

)

RECOMMENDED ORDER

By a June 26, 1985 letter of assignment, the School Board of Dade County assigned the student, Elijah McCray, to Jan Mann Opportunity School-North, an alternative school placement.

Timely request for review pursuant to Section 230.2315(5) was made by letter of Sylvia Taylor, grandmother of the student, which letter was received by the School Board on July 11, 1985.

Upon due notice, this cause came on for formal hearing before Ella Jane P. Davis, the assigned Hearing Officer of the Division of Administrative Hearings on September 3, 1985, in Miami, Florida.

APPEARANCES

For Petitioner: Jackie Gabe, Esquire

Law Offices

McCrary, Valentine & Mays P.A. 3050 Biscayne Boulevard

Suite 800

Miami, Florida 33137

For Respondent: Mrs. Sylvia Taylor, grandmother

2971 Northwest 165 Street Opa Locka, Florida 33054

Petitioner presented the testimony of Annie Jackson, and had admitted 4 exhibits. Respondent presented the testimony of Sylvia Taylor.

No transcript was provided. Both parties submitted proposed findings of fact and conclusions of law which have been duly considered.

FINDINGS OF FACT

1. Annie Jackson, currently Principal of Golden Glades Elementary, also served in that capacity during Elijah McCray's 6th grade experience there during the regular 1984-1985 school year.

   
   

2. On December 10, 1984, Mrs. Jackson personally removed Elijah from the lunch room for shooting paper at other students. He was reprimanded after a conference and sent to an alternative eating place for a month.

   
   

3. On March 5, 1985 the classroom teacher referred Elijah to Mrs. Jackson for disruptive behavior, running around, not working and splashing water. He was removed from class and received a conference with Mrs. Jackson. Mrs. Jackson called the parents the next day and reported the situation.

   
   

4. On March 27, 1985 he was referred to Mrs. Jackson for laughing at his teacher and being defiant. On March 28, 1985 he was assigned 3 days outside detention by Mrs. Jackson because he had refused to serve assigned detention. On April 2, 1985, which was the day Elijah was due to return, Mrs. Jackson wrote his parents because he had again been referred to the office and defied the authority of the teacher referring him by not carrying the referral to Mrs. Jackson's office. He was referred to the school counselor by Mrs. Jackson.

   
   

5. There was a subsequent 5 day suspension for disruptive behavior scheduled to begin on April 15, 1985. At 5:00 P.M. on that day, Mrs. Jackson personally conducted a teacher/parent/ student/administrator conference to discuss the April 15, 1985/ suspension. Present in place of the parents were Mr. and Mrs. Taylor, Elijah's grandparents. The teacher made known to the grandparents that she did not want Elijah back in her class because he would throw items and deny it and frequently disrupt the class by spitting in the classroom or by leaving the classroom to spit. The grandparents made known to the teacher, and to Mrs. Jackson that a sinus condition of Elijah's required him to spit frequently and Mrs. Jackson apparently engineered some rapport between the teacher and Elijah upon this information so that the planned 5 days suspension was rescinded by Mrs. Jackson. Mrs. Taylor testified that she was present at this meeting but felt she had not participated because she had left most of the talking to Mr. Taylor and Mrs. Jackson, but upon Mrs. Jackson's and Mrs. Taylor's testimony together it is specifically found that this parent contact did occur.

   
   

6. On April 17, 1985, Mrs. Jackson referred Elijah to the school counselor because of a report from his classroom teacher that Elijah had said he would "swing his old gun" at her. While this language by the teacher is technically hearsay outside the admission exception, information on the report was recorded contemporaneously by Mrs. Jackson in the school records and regardless of what was actually said to the teacher, Mrs. Jackson personally observed the distraught behavior of the teacher in reaction to whatever threat had been made by Elijah. Mrs. Jackson called school security as a result.

   
   

7. The investigation of the incident by Mrs. Jackson and the security investigator revealed that the teacher had been told by other students that Elijah had shot a relative of theirs but that he had in fact never done so. Elijah was warned that it is serious to make threats to teachers.

   
   

8. On April 22, 1985 Mrs. Jackson received a formal written request from the classroom teacher requesting Elijah's removal from her class. Much of Mrs. Jackson's testimony suggests that the persistent disruptive behavior was that of the classroom teacher who referred Elijah for what she perceived as threats. This teacher was not present to testify. Elijah was returned to class by Mrs. Jackson over the teacher's objections with a final warning concerning making threats. A parent/teacher/student/ administrator conference was held to apprise the parents that this was a last chance. It may be that Mrs. Taylor was not present for this conference, but Mrs. Jackson indicates at least one adult was present on behalf of the child.

   
   

9. On April 25, 1985, Elijah was returned to class.

   
   

10. On April 30, 1985, Mrs. Jackson requested Officer Harris of Operation Pro Volunteer Listener to confer with Elijah about the seriousness of making threats.

    
    

11. On May 1, 1985, Mrs. Jackson investigated a report that Elijah had threatened two girls (Mirland Joseph and Lesley Compton) in his class with a knife. The girls gave statements which Mrs. Jackson synopsized as stating that they thought they had been threatened with a knife by Elijah. The statements are not signed. The incident as reported in the statements composed by the principal are by themselves hearsay and that hearsay is not confirmed or corroborated by a statement made by Elijah directly to Mrs. Jackson that he had showed the girls the point

    of a nail file attached to a man's pocket toenail clippers and was "just joking with it." Mrs. Jackson received a broken pair of blunt toenail clippers from Elijah at the time of this admission and a xerox copy of the nailclippers was admitted in evidence as a true and correct copy of the implement. Because of the presence of the nailclippers, which Mrs. Jackson characterized as a "pointed object", Mrs. Jackson initiated transfer of Elijah to an alternative education program. She felt this was a lesser alternative to expulsion. Expulsion would otherwise be required by School Board policy in the presence of a "weapon."

    
    

12. Mrs. Taylor testified that she had heard one of the girls who had given statements to Mrs. Jackson or perhaps a third girl named "Alexandra" say they had made up the May 1, 1985 incident. Mrs. Taylor stated Elijah and his sister had told her the night before the May 1, 1985 incident that the two girls or Elizabeth Carpenter was going to "start a problem for him the next day" or "going to fight him" the next day.

    
    

13. There is no record evidence of failing grades, truancies, or unexcused absences for Elijah.

    
    

    CONCLUSIONS OF LAW

    
    

14. Rule 6A- 1.994(2)(a)and(b) Florida Administrative Code provides:

    
    

    1. 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 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. [Emphasis supplied]

          
          

15. The girls' unsigned statements about a threat are pure, uncorroborated hearsay as they were not present at formal hearing to testify. Elijah's statement to Mrs. Jackson that he was "just joking" with a broken pair of blunt nailclippers does not qualify as an "admission" of an armed threat or much else. Blunt, broken nailclippers are not normally thought of as a "weapon" unless there is some overt move or threat made with them; and the alleged threat was simply not established. Therefore, the May 1, 1985 possession of clippers by Elijah is not probative of disruptive behavior by Elijah on that date. Moreover, although Mrs. Taylor's testimony on this point is both vague and hearsay, it raises the spectre that whatever the circumstances of the May 1, 1985 nailclipper incident were, they were provoked by the same mentalities that started the false rumor that Elijah once wounded someone with a gun.

    
    

16. Although elimination of the May 1, 1985 incident does not erase Elijah's history of some previous disruptive behavior, that behavior can hardly be described as persistent or consistent or as severely threatening as required by the rule to be applied. All the incidences related by Mrs. Jackson, with the exception of the December 10, 1984 lunchroom incident she personally observed can be described as uncorroborated hearsay concerning Elijah's behavior coupled with her personal observation of a single classroom teacher's disruptive reactions to Elijah's behavior. These reactions at various times were colored by the teacher's lack of knowledge concerning Elijah's

    sinus condition and by her belief in false rumors spread by others about him.

    
    

17. There is no evidence of unsatisfactory academic progress or high absenteeism.

    
    

18. Under the circumstances, Elijah deserves the opportunity to attempt a regular school curriculum and to adjust to the discipline of a regular school program with a new teacher.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Elijah McCray to the appropriate grade level in a regular school program with a different classroom teacher than previously assigned.

DONE and ORDERED this 30th day of September, 1985, in Tallahassee, Florida.

ELLA JANE P. DAVIS

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 30th day of September, 1985.

COPIES FURNISHED:

Jackie Gabe, Esquire Law Offices

McCrary, Valentine & Mays P.A. 3050 Biscayne Boulevard

Suite 800

Miami, Florida 33137

Mrs. Sylvia Taylor 2971 N. W. 165 Street

Opa Locka, Florida 33054

Madelyn P. Schere, Esquire 1450 N. E. Second Avenue Miami, Florida

Ms. Maeva Hipps School Board Clerk 1450 N. E. 2nd 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: 85-002415

Orders for Case No: 85-002415