STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

v. ) CASE NO. 85-2796

)

LUIS ORTIZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on September 20, 1985 in Miami, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane

1. Kiesling.

   
   

   APPEARANCES

   
   

   For Petitioner: Jackie Gabe, Esquire

   Suite 8OO, 300 Executive Plaza 3050 Biscayne Boulevard

   Miami, Florida 33137

   
   

   For Respondent: Esther Ortiz, Mother

   1255 Southwest 1st Street Apartment 403

   Miami, Florida 33135

   
   

   This matter arose on the assignment by the School Board of Dade County of Luis Ortiz to an alternative school, Jan Mann Opportunity School-North. Respondent, Luis Ortiz, requested a formal hearing through the written request of his mother, Esther Ortiz.

   
   

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

   
   

   Petitioner presented the testimony of Paul Eusene Smith, assistant principal of Nautilus Junior High School, together with two exhibits. Respondent presented the testimony of Esther

   Ortiz, mother of the student, and Dennis Segall, teacher. The parties waived the filing of a transcript and proposed orders.

   
   

   FINDINGS OF FACT

   
   

   1. Luis Ortiz was a seventh grade student at Nautilus Junior High School during the 1984-85 school year until his assignment to the alternative school. Ortiz is 13 years old and was born on March 11, 1972.

      
      

   2. Prior to his enrollment in junior high school in 1984, Ortiz was an A and B student who exhibited good behavior. He did not adjust well to the new school at which he began junior high school. Ortiz was involved in eight incidents of misbehavior at Nautilus.

      
      

   3. On October 29, 1984, Ortiz was rude, discourteous; failed to complete an assignment and engaged in general disruptive behavior. He was placed on indoor suspension for general disruptive behavior and defiance of school authority on December 6, 1984. On January 11, 1985, Ortiz was referred for discipline for general disruptive behavior, use of provocative language and defiance of school authority. He was referred for counseling for general disruptive behavior, being rude and discourteous, and cutting class on January 25, 1985. Ortiz was placed on outdoor suspension for general disruptive behavior and defiance of school authority on January 28, 1985.

      
      

   4. Ortiz' behavior appeared to improve and he was not involved in further disciplinary incidents until April 2, 1985, when he was again placed on outdoor suspension for general disruptive behavior end defiance of school authority. He was recommended for assignment to opportunity school for general disruptive behavior and defiance of school authority on May 15, 1985. Before he was reassigned to opportunity school, Ortiz was reprimanded for general disruptive behavior, use of provocative reprimanded for general disruptive behavior, use of provocative language, defiance of school authority, and being rude and discourteous.

      
      

   5. Ortiz has been somewhat unsuccessful academically in his first year in junior high school. He was failing three classes before his last outdoor suspension and assignment to opportunity school. He then failed all of his subjects because he failed to complete his course work and failed to take his final exams. Ortiz must repeat seventh grade.

   6. The School Board failed to present any evidence of efforts made to provide assistance to Ortiz regarding this lack of success in academics. In fact, the school board's only witness had no knowledge of Ortiz' grades or behavior prior to beginning seventh grade at Nautilus. Additionally, the school board's witness provided no details about the actual misbehavior of Ortiz. Instead, Smith merely read from a computer printout, without specifying the nature of the acts which lead to the disciplinary referrals. It is therefore impossible to determine if Ortiz' acts were of a major or minor nature.

      
      

   7. Dennis Segall, a teacher who knew Ortiz from elementary school, has continued to work with Ortiz in the last year. According to Segall, Ortiz was successful and well-behaved prior to the 1984-85 school year. He recognizes that Ortiz' behavior changed at Nautilus and states that Ortiz knows he "messed up" at Nautilus and is ready to change his attitude.

      
      

   8. Mrs. Ortiz moved during the summer of 1985, and now resides in a different school district. If Ortiz is allowed to return to the regular school program, he would attend Citrus Grove Junior High School.

      
      

      CONCLUSIONS OF LAW

      
      

   9. 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).

      
      

   10. 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-1.994, 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 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.

             
             

          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.

          
          

   11. While the disciplinary history of Ortiz at Nautilus seems to be extensive, it is impossible to determine the degree of severity of his misbehavior. It is also difficult to square

       the events at Nautilus with the previous history of good grades and good behavior. I am therefore not convinced that Ortiz meets the criteria for assignment to the alternative school program. Rule 6A-1.994(2)(a) 1 refers to "persistent behavior which interferes with the student's own learning." The school board has failed to present evidence of what behavior meets this criteria. The evidence does not support a conclusion that Ortiz engaged in "consistent behavior" or "disruptive behavior which severely threatens the general welfare." Here, Ortiz' behavior was inconsistent and no showing was made that he severely threatens the general welfare. Undoubtedly Ortiz was unsuccessful academically however, no showing was made of efforts to provide assistance. It is therefore concluded that Ortiz does not presently meet the criteria for eligibility for assignment to the alternative school program.

       
       

   12. It is recognized that Ortiz has been a disciplinary problem. It is also recognized that he will not be returning to Nautilus because of the change of residence of his mother. It is concluded that Ortiz should be given an opportunity to repeat seventh grade in a new school (presumably at Citrus Grove Junior High) and should be given one last opportunity to adjust his behavior and academic effort to a level acceptable in the regular school program. If he fails to take advantage of this opportunity, assignment to the alternative school program may then be necessary.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the School Board of Dade County enter a Final Order assigning Luis Ortiz to the regular school program.

DONE and ENTERED this 26th of September, 1985, in Tallahassee, Leon County, Florida.

DIANE K. KIESLING

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 26th day of September, 1985.

COPIES FURNISHED:

Jackie Gabe, Esq.

Suite 800, 300 Executive Plaza

3050 Biscayne Boulevard

Miami, FL 33137

Mrs. Maeva Hipps School Board Clerk 1450 N.E. 2nd Avenue Room 401

Miami, FL 33132

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

Ms. Esther Ortiz 1255 S.W. 1st Street

Apartment 403

Miami, FL 33135

Docket for Case No: 85-002796

Orders for Case No: 85-002796