STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2018

)

FRANCISCO GUTIERREZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on September 2, 1986, in Miami, Florida.

Petitioner School Board of Dade County was represented by Frank R. Harder, Esquire, Miami, Florida, and the Respondent Francisco Gutierrez was represented by his father, Eugenio Gutierrez.

By letter dated April 28, 1986, Petitioner advised Respondent's parents that he was being administratively re- assigned to J. R. E. Lee, an alternative school placement, and Respondent's parents requested a hearing regarding that re- assignment. Accordingly, the issue for determination herein is whether Respondent should be re-assigned to that educational alternative program.

Petitioner presented the testimony of Ralph Ripke, Leonard Scheinhoft, Robert Smith, Carmen Garcia, and Jacqueline Koptowsky. The Respondent presented the testimony of Jose M. Goyos. Additionally, Petitioner's Composite Exhibit numbered 1 and Petitioner's Exhibits numbered 3-5 were admitted in evidence.

FINDINGS OF FACT

1. During the 1985-86 school year, Respondent Francisco Gutierrez was a student in the eighth grade at Rockway Junior High School.

   
   

2. Respondent was suspended a total of 38 days during the 1985-86 school year as a result of his defiant and disruptive behavior.

   
   

3. Between November 1985 and April 1986 fourteen Student Case Management Referral Forms were written regarding Respondent's behavior by six different teachers. These complaints concerned Respondent's refusal to abide by school rules and involved such conduct as repeatedly refusing to serve detentions, refusal to work in class, preventing other students from working, refusing to sit or stand where instructed to by various teachers, refusal to refrain from talking with other students after being directed to stop talking, playing tackle football, refusal to "dress out" in his physical education class, "blasting" the foghorn during his physical education class, and throwing paper in the classroom. These various incidents resulted in Respondent's numerous indoor and outdoor suspensions.

4. By the end of the third grading period during the 1985-86 school year, Respondent's grades were F3F in Art, D3F in Industrial Education, C2C in Physical Education, F3F in Mathematics, F3F in Language Arts, and F3C in Social Studies. Respondent's only passing grade of "C" in Physical Education was given to him by a teacher who had just taken over teaching that class two weeks earlier.

   
   

5. Several conferences with Respondent's parents were held by school personnel during the school year. At those conferences it was learned that Respondent intended to fail in school so that when he was eventually promoted to Coral Park Senior High School, he would be older and physically more mature than others in his class and he would, therefore, be able to excel in sports. Respondent's plan is condoned by his father, and, accordingly, conferences with the parents in an effort to help Respondent were exercises in futility.

   
   

6. In April 1986 a conference was held at Rockway Junior High School which culminated in the recommendation that Respondent be transferred into the educational alternative program at J. R. E. Lee which offers smaller classes, behavioral modification, and full-time psychologists.

   
   

7. Respondent's own therapist agrees that Respondent is disruptive and disinterested in school and that Respondent could benefit from a more structured educational program.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

9. Section 231.2315, Florida Statutes, requires the various public school systems to establish educational alternative programs to meet the needs of students who are disruptive or unsuccessful in a normal school environment. Attendant thereto, the Department of Education has adopted criteria for eligibility for such programs. Section 6A-1.994(2), Florida Administrative Code, provides as follows:

   
   

   (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

         
         

   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.

   
   

10. Petitioner has clearly met its burden of proving that Respondent is both a disruptive student and an unsuccessful or disinterested student. Respondent is clearly in need of an educational program which can better fulfill his needs for specialized attention than the traditional program.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Francisco

Gutierrez to the educational alternative program at J. R. E. Lee until such time

as his performance reveals that he can be returned to the regular school program.

DONE and RECOMMENDED this 9th day of September, 1986, at Tallahassee, Florida.

LINDA M. RIGOT, 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 9th day of September, 1986.

COPIES FURNISHED:

Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132

Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools

1410 Northeast Second Avenue Miami, Florida 33132

Frank R. Harder, Esquire

Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

Mr. & Mrs. Eugenio Gutierrez 9570 S.W. 28 Street

Miami, Florida 33165

Docket for Case No: 86-002018

Orders for Case No: 86-002018