STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 85-2717

)

RODOLFO DAMIAN MENEDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 7, 1985, a formal hearing was conducted in thhis case in Miami Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At hearing, the parties were represented by the following counsel.

APPEARANCES

For Petitioner: Jackie Gabe, Esquire

3050 Biscayne Boulevard

Suite 800

Miami, Florida 33137-4198

For Respondent: Ignacio Siberio, Esquire

525 N.W. 27th Avenue Suite 100

Miami, Florida 33125 INTRODUCTION AND STATEMENT OF THE ISSUE

This is a case in which the School Board of Dade County proposes to assign Rodolfo Damian Menedez to the Jan Mann Opportunity School-North. The School Board contends that the assignment to opportunity school is appropriate because of the student's "disruption of the educational process in the regular school program and failure to adjust to the regular school program." The Respondent and his parents oppose the assignment to opportunity school.

This case was originally scheduled for hearing on September 20, 1985, but was continued because there were no court reporter and no translator in attendance. The parties agreed to reschedule the hearing on oral notice of less than 14 days in order to secure an early hearing date. At hearing on October 7, 1985, both parties stated they had no objection to the notice of hearing.

At the end of the formal hearing, the Hearing Officer advised both parties that they would be allowed ten (10) days within which to file proposed findings of fact and conclusion of law. On October 21, 1985, the Respondent filed a document titled "Final Order" which has been treated as a proposed recommended order with proposed findings of fact. As of the time of the issuance of this Recommended Order, the Petitioner has not filed any proposed findings of fact or conclusions of law. Specific rulings on the proposed findings of fact submitted by the Respondent are incorporated in the appendix attached to this Recommended Order.

FINDINGS OF FACT

Based on the exhibits received in evidence and the testimony of the witnesses at the hearing, I make the following findings of fact:

1. Rodolfo Damain Menedez (hereinafter referred to as "the Respondent") is a 14-year-old Hispanic male who has been in this country for approximately two years. His ability to speak and understand the English language is quite limited. His parents have difficulty communicating in the English language.

   
   

2. During the 1984-1985 school year, the Respondent attended Nautilus Jr. High School where he was assigned to the eighth grade. He also attended a summer school session at Nautilus Jr. High School during the summer of 1985. He did not have a great deal of academic success during the 1984-85 school year. He received failing grades in three of his courses, grades of incomplete in two courses, a "C" in one course, and a "D" in one course.

   
   

3. As a result of his limited ability to communicate in the English language, the Respondent often has difficulty understanding what his teachers say to him. He also often has difficulty making himself understood to his teachers. In an effort to address this difficulty in communication, the

   Respondent was enrolled in an English class for speakers of other languages.

   
   

4. The Respondent was involved in several instances of misconduct during the 1984-85 school year and during the 1985 summer session. These instances of misconduct included two instances of fighting and one instance of "being in an unauthorized location," namely, the school roof. There were also several instances of behavior described in school jargon as "general disruptive behavior." There was also an incident in which the Respondent said a curse word to a lunchroom employee. The curse word was a retort to a similar curse word said to the Respondent by the same lunchroom employee.

   
   

5. During the 1984-85 school year the Respondent was suspended on three occasions and during the 1985 summer school session he was suspended on one occasion for the cursing incident. Although it is school policy for parents to be notified of suspensions, no such notice was sent to the Respondent's parents. Rather, for unexplained reasons the notices were mailed to several different incorrect addresses, even though the school functionaries had the correct address in their files. Respondent's parents found out about only the disciplinary action their son told them about, and he did not tell them about all of it.

   
   

6. Prior to the notice of June 20, 1985, which requested assignment of the Respondent to opportunity school (which was mailed to Respondent's correct address), the Respondent's parents had not received any written notice of their son's disciplinary problems, had not been contacted by telephone by school personnel, and had not received a visit from a visiting teacher. Further, prior to the notice which requested assignment of the Respondent to opportunity school, neither the Respondent nor his parents had been advised of their right to a hearing with respect to the suspension imposed on the Respondent.

   
   

7. The Respondent received little, if any, effective counseling. This is perhaps due in large part to communication difficulties occasioned by the Respondent's limited skills in the English language and the fact that there are only two or three Hispanic faculty members at Nautilus Jr. High School.

   
   

   REASONS FOR NOT MAKING CERTAIN FINDINGS OF FACT

8. There is information in the school records which indicates that the Respondent was involved in other instances of misconduct, but I have not made further findings in that regard for several reasons. First, the records do not appear to be all that carefully prepared, which causes me to place little credence in the accuracy of the records. Second, the records were not corroborated by testimony of a witness with personal knowledge, except for certain admissions in the testimony of the Respondent and his mother. Third, the Respondent denied the accuracy of some of the information in the records. Third, the Respondent denied the accuracy of some of the information in the records. And, finally, much of the information in the records is vague and general and does not adequately explain the nature of the incidents of the nature of the Respondent's role in the incidents, this being particularly true of the incidents involving fighting.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findins of fact and on the applicable legal principles, I make the following conclusions of law.

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Fla. Stat.

   
   

10. Alternative educational programs are provided for and authorized by Section 230.2315, Florida Statutes, subsection (4) of which contains the following provisions with respect to the eligibility of students to participate in such programs:

    
    

    Pursuant to rules adopted by the State Board of Education, a student may be eligible for an educational alternative program if the student 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.

    
    

11. The foregoing statutory provision has been implemented by the State Board of Education by the adoption of Rule 6A- 1.994, Florida Administrative Code, which rule provides, in pertinent part:

    (2) Criteria for eligibility. A student may be eligible for an educational alter- native 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. *** *** ***

       
       

    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.

    
    

12. In interpreting and applying the meaning of words used in rules it is often helpful to resort to the dictionary- meanings of those words. The American Heritage Dictionary of the English Language (1973 Edition) includes the following in its definition of the word persistent: "1. Refusing to give up or let go; persevering obstinately. 2. Insistently repetitive of continuous: a persistent ringing of the phone." The same dictionary includes the following in its definition of the word consistent: "Conforming to the same principles or course of action."

    
    

13. With regard to the Respondent's eligibility for assignment to an educational alternative program on the basis of disruptive behavior, the evidence in this case is insufficient to establish eligibility under paragraph (2)(a)1. of the rule. There is no showing that the Respondent displays "persistent" disruptive behavior. Further, there is not showing that the disruptive behavior engaged in by the Respondent "requires attention and assistance beyond that which the traditional program can provide." There is no evidence at all as to the amount of attention and assistance that can be provided by the traditional program and there is evidence that the Respondent and his parents have not been the beneficiaries of all of the attention and assistance that is available in the traditional program.

    
    

14. With regard to paragraph (2)(a)2. of the rule, again the evidence is insufficient to show the Respondent's eligibility for assignment to an educational alternative program. Although the Respondent has been involved in several episodes of disruptive behavior, the nature of his involvement in those episodes had not been established by any witness with

    personal knowledge and the evidence is simply insufficient to establish that the Respondent engages in "consistent behavior resulting in frequent conflicts."

    
    

15. With regard to paragraph (2)(a)2. of the rule, the only behavior of the Respondent which might arguably come within the scope of this provision of the rule is the two episodes of fighting in which the Respondent was involved. However, the record has absolutely no information about the nature of those two episodes we do not know whether the Respondent was the aggressor, a willing participant, or the victim in those episodes. We also do not know whether the nature of those two fights involved a severe threat to the general welfare of anyone.

    
    

16. With regard to the Respondent's eligibility for assignment to an educational alternative program on the grounds that he is unsuccessful or disinterested, his grades would indicate that he is largely unsuccessful, but there is no competent substantial evidence that he is disinterested. Directing attention specifically to paragraph (2)(b)1. of the rule, the record in this case is substantially silent with respect to the extent of the Respondent's "involvement in the traditional school program." Without information about the nature of such involvement there is no basis upon which to state that it is or is not sufficient. Accordingly, there is no basis in the record of this case for assigning the Respondent to an educational alternative program under paragraph (2)(b)1. of the rule.

    
    

17. With regard to paragraph (2)(b)2. of the rule, the record in this case establishes that the Respondent is making unsatisfactory academic progress, but there is no competent. substantial evidence in the record of this case of any "effort to provide assistance," nor is there any competent substantial evidence that any such effort was either rejected or ineffective. Accordingly, there is no basis upon which to conclude that the Respondent is eligible for assignment to an educational alternative program under paragraph (2)(b)2. of the rule.

RECOMMENDATION

For all of the foregoing reasons it is recommended that the School Board of Dade County enter a Final Order rescinding the assignment of Rodolfo Damian Menendez to the Jan Mann

Opportunity School-North and assigning him to an appropriate school in the traditional school program.

DONE AND ORDERED this 22nd day of October, 1985, at Tallahassee, Florida.

M. PARRISH, 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 22nd day of October, 1985.

APPENDIX

The factual assertions contained in the Respondent's posthearing document titled "Final Order" have been treated as proposed findings of fact and are specifically ruled on as follows:

The substance of the proposed findings of fact contained in the following paragraphs have been accepted and incorporated into the findings of fact in this Recommended Order: FIRST, SECOND, THIRD, FOURTH, and EIGHTH.

The proposed findings of fact contained in the following paragraphs are rejected as irrelevant in light of the other findings and in light of the recommended disposition of this ease: FIFTH, SIXTH, and SEVENTH.

The proposed findings of fact in the following paragraph is rejected because it is a proposed conclusion of law rather than a proposed finding of fact: NINTH.

As of the time of the issuance of this Recommended Order, the Petitioner had not filed any proposed findings of fact.

COPIES FURNISHED:

Jackie Gabe, Esquire 3050 Biscayne Boulevard

Suite 800

Miami, Florida 33137-4198

Ignacio Siberio, Esquire

525 N.W. 27th Avenue Suite 100

Miami, Florida 33125

Madelyn P. Schere, Esquire Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132

Mr. William R. Perry, Jr., Director Alternative Education Placement Dade County Public Schools

1450 Northeast Second Avenue Miami, Florida 33132

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: 85-002717

Orders for Case No: 85-002717