STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 85-4238

)

JOSEPH HERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard on March 5, 1986, in Coral Gables, Dade County, Florida, before Diane A. Grubbs, a hearing officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark A. Valentine, Jr., Esq.

Assistant School Board Attorney 3050 Biscayne Boulevard

Suite 800

Miami, FL 33137-4198

For Respondent: No appearance

ISSUES

Whether the respondent should be reassigned to the Opportunity School?

BACKGROUND

By letter dated November 6, 1985, the respondent's father was notified that the respondent had been assigned to Douglas McArthur Senior High School-South. The basis for the action was the respondent's disruptive behavior and his failure to adjust to the regular school program. Respondent's father requested a hearing on the assignment, and on December 9, 1985, the matter was forwarded to the Division of Administrative Hearings for further proceeding.

At the hearing the petitioner presented the testimony of Willie J. Clark, the art teacher at Glades Junior High Edward Pastroff, a counselor at Glades Junior High: Judy Cobb, Assistant Principal at Glades Junior High: Leola Matthews, the

1. teacher at West Miami Junior High Beverly Diaz, a social studies teacher at West Miami Junior High Karen Pratt, a computer teacher at West Miami High and John Brennen, Assistant Principal at West Miami Junior High School. No exhibits were offered into evidence. Neither petitioner nor respondent filed proposed findings of facts and conclusions of law.

   
   

   FINDINGS OF FACT

   
   

   1. Joseph Hernandez attended Glades Junior High School during the 1984-85 school year. During that period of time, he had numerous referrals to the guidance counselor and assistant principal. He cut class, he was disruptive in class, he had a very short attention span, he would not follow instructions, and he was physically abusive to smaller children.

      
      

   2. Respondent was very disruptive in art class. He destroyed art material, and he would push and shove other students. On occasion, Joseph would sneak out the back door of the art room and skip the rest of the class. He also would take a bathroom pass and then use it later in the day. On one occasion Mr. Clark observed the respondent grab a smaller child by the child's head and lift the child off the ground. When respondent was told to release the child, he refused to do so.

      
      

   3. Joseph's grades at Glades Junior High were not much better than his behavior. He received a "B" in woodshop, a "B" in math, a "C" in physical education, a "C" in art, an "F" in language arts and an "F" in social studies. Joseph was in a low level math class but all the other classes were regular level. Joseph was capable of performing the work in a regular classroom and probably should have been in a regular level math class.

      
      

   4. Joseph did not have any desire to move out of lower level math. When his math teacher stated in front of the class that Joseph had done so well he would be placed in a regular math class the following year, he got very upset. He told the teacher that if she put him in a regular class he would flunk and she would think of him every night and feel guilty. When the teacher responded, "I think of all my students every night

      before I go to bed." Joseph replied, "You must not have any wet dreams."

      
      

   5. The guidance counselor at Glades held several guidance sessions with Joseph and his father. Joseph had no serious psychological problems, but he was unstable and needed guidance. On a one-to-one basis, Joseph was quite personable. However, he liked to be the center of attention. The personnel at Glades Junior High believe that Joseph would be much better off in the smaller classes offered at the alternative school.

      
      

   6. Joseph enrolled in West Miami Junior High for the 85-86 school year. Joseph's behavior at West Miami was no better than his behavior had been at Glades. He rebelled against authority, he showed up late for class, he was rude to the teachers, and he would come to class without any books or materials. On September 19, 1985, he was referred to indoor suspension for three days due to his disruptive behavior. However, he refused to follow the SCSI rules and therefore was on indoor suspension ten days rather than the original three.

      
      

   7. Joseph not only disrupted his own classes, he disrupted other classes. One day he sauntered into a seventh grade computer class, walked around the room, and said that he had come to fix the air conditioning. He refused to leave the classroom when the teacher told him to leave and was quite arrogant. Finally, when he was ready, he left the room.

      
      

   8. On November 6, 1985, Joseph was assigned to the alternative school, but he never attended. Therefore he was carried on the rolls of West Miami Junior High School throughout the semester. Of the ninety days in the semester, Joseph was in class for a total of 13 days.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   10. Section 230.2315, Florida Statutes, provides for the establishment of educational alternative programs for students who are 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. Rule 6A-1.994(2), Florida Administrative Code, sets forth the criteria for eligibility for

       an educational alternative program and defines the disruptive and unsuccessful or disinterested student. A student is eligible for an educational alternative program if he meets one or more of the following criteria:

       
       

       1. Disruptive - A student who:

          
          

          1. Displays persistent behavior which interferes with student's own learning or the educational process of others and requires attention and assistant beyond that which the tradition 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

          
          

          . . . .

          
          

       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 addresses or

             
             

          2. Shows unsatisfactory academic progress and the effort to provide assistance is either rejected or is ineffective.

          
          

          The petitioner has the burden to prove that the child is disruptive, unsuccessful or disinterested as those terms are defined above.

          
          

   11. From the evidence presented in this case, it is apparent that Joseph Hernandez is a disruptive student as defined by Rule 6A-1.994(2)(a) and is an unsuccessful or disinterested student as defined by Rule 6A-1.994(2)(b). Joseph

       displayed persistent disruptive behavior while attending both Glades Junior High School and West Miami Junior High School. The efforts made by the school personnel to correct Joseph's behavior by reprimands, suspension, and by special counseling sessions, were all ineffective. Joseph did not show satisfactory academic progress at Glades Junior High or at West Miami. His failure to attend class demonstrates his lack of involvement in the traditional school program. Basically, respondent has shown that he is incapable of functioning in a regular school program.

       
       

   12. Petitioner has met its burden of proving that Joseph was a student who was "disruptive, disinterested, or unsuccessful in a normal school environment." Accordingly, the assignment of the respondent to an alternative school was appropriate and in fulfillment of petitioner's duty to offer an educational alternative program to the respondent.

RECOMMENDATION

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

RECOMMENDED that a final order be entered approving the assignment of the respondent to the alternative school program at Douglas McArthur Senior High School-South.

DONE and ENTERED this 26th day of March, 1986, in Tallahassee, Florida.

DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1986.

COPIES FURNISHED:

Mark A. Valentine, Esq. Assistant School Board Attorney 3050 Biscayne Boulevard

Suite 800

Miami, FL 33137-4198

Mr. Pedro L. Hernandez 10001 West Flagler Street Lot #L1214

Miami, FL 33174

Madelyn P. Schere, Esq. Ms. Maeva Hipps

1450 N.E. Second Avenue, Ste. 401

Miami, FL 33132

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. Second Avenue

Miami, F1 33132

Docket for Case No: 85-004238

Orders for Case No: 85-004238