STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2471

)

THOMAS SUNDQUIST, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished to the parties on July 31, 1986, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Miami, Florida on September 18, 1986. The issue for consideration was whether Respondent should be placed in Petitioner's Opportunity School Program due to his poor performance and disruptive behavior.

APPEARANCES

Petitioner: Jaime Claudio Bovell, Esquire

1401 Ponce de Leon Blvd. Coral Gables, Florida 33134

Respondent: Was not present and was not represented.

BACKGROUND INFORMATION

By letter dated June 10, 1986, the Superintendent of the Dade County Public Schools advised Ms. Sue Sundquist Stevens, mother of the student in issue here, Thomas Sundquist, that, in lieu of expulsion, the student would be placed in Petitioner's Opportunity School Program and removed from the regular school system. By letter dated June 25, 1986, Ms. Sundquist indicated her desire for a formal hearing to contest this decision and on July 7, 1986, the file was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer.

At the hearing, Petitioner presented the testimony of Cherie Monique Devereau, Anthony Machado, and Macella Fernandez, Assistant Principal and two teachers at North Miami Junior High School, and introduced Petitioner's Exhibits

1 through 15. Respondent, not being present or represented, presented no evidence.

Subsequent to the hearing, Petitioner submitted proposed Findings of Fact which are hereby accepted have been incorporated in substance in this Recommended Order.

FINDINGS OF FACT

1. Thomas Sundquist was a student enrolled in North Miami Junior High School, operated by the Petitioner, during the school years 1984-1985 and 1985- 1986.

   
   

2. Respondent was a seventh grade student during those two school years. He was the subject of seven independent student case management referral forms initiated by school personnel for aberrant behavior. These included

   
   

   3-1-85: Defiance of Authority; continuous disruptive behavior; failure to complete assignments; failure to bring assigned- materials; and leaving class without permission.

   
   

   5-24-85: slapping the face of a female student and fighting with her in the classroom.

   2-27-86: Assault on another student. 3-21-86: Late to school on test

   day; left holding area without

   permission, banged on classroom doors disturbing testees; and evading security and administrators.

   
   

   5-29-86: Assault on another student; truancy; and defiance of authority.

   
   

   For the assaults on 2-27-86 and 5-29-86, Respondent was given 5 days outdoor suspension for the first and 10 days for the second, and for his misconduct on 4-29-86, was also suspended for 10 days.

   
   

3. Counseling policy at this school calls for automatic counseling by the student's grade counselor as well as by a school administrator in the event of a case management referral and in each case, this policy was followed. Further, in each case referenced above except the first, parent contact was accomplished both verbally and in writing. No improvement was noted at any time.

   
   

4. On May 30, 1986, Mr. W.G. Murray, a vice principal at the school, requested progress reports on the Respondent from each of his six teachers. These reports were, for the most part, uniformly uncomplimetary. They were:

   
   

   1. Science - Ms. Fernandez: "He does not do any work. Is never prepared for class. Is a discipline problem and exhibits unacceptable behavior."

   2. Music - Ms. Pena: "He has been absent so much he is very far behind on his instrument,but while in class, his conduct is

      good."

   3. P.E.- Ms. Jardine: Class work "F", conduct "D".

   4. Math - Mr. O'Keefe: "Was not seen in class after October 8, 1985. Class work "F", conduct "F". He is very disobedient, insultive [sic], and immature."

   5. English - Ms. Weber: " He usually sleeps in class. Occasionally will do a spelling list but is not in class long enough to do anything. His conduct is poor, challenging authority, answering back, bangs on door when not in class, and does not often show up for class." [This teacher indicated the student can do the work if he wants to.]

   6. Graphics - Mr. Machado: "Refuses to do any work, disruptive, will not stay in seat, talks out loud, hits and touches other students against their will."

      
      

5. Mr. Machado and Ms. Fernandez amplified their written comments by testimony at the hearing and confirmed that he was always late for class, was never prepared when he came, and rarely did any work in class. He would chew gum, try to distract the other students, fail to follow instructions and class and safety rules, and would assault other students without provocation. He would try to hug or touch females or fight with males to the point that some students would leave class and go to the assistant principal's office just to get away from him. Both teachers repeatedly had to stop their classroom teaching, taking time away from other students, to attempt, most often unsuccessfully, to deal with the Respondent.

   
   

6. Respondent's final report card for the 1985-1986 school year reflected a final grade of "F" for each of his subjects for the year. Out of 180 school days, he was absent:

   
   

   1. Science: 101 periods.

   2. Music: 97 periods.

   3. P.E.: 91 periods.

   4. Mathematics: 86 periods.

   5. English: 104 periods.

   6. Graphics: (second semester only) 65 periods.

      
      

      In the 3rd and 4th grading periods, his "effort" grades were uniformly "3" which signifies "insufficient." In the first two grading periods, he did earn 4 "C's" and 1 "D". His "conduct" grades are mostly "F" with some exceptions in Music, P.E., and, in the first grading period only, English, in which he got a "D" and Industrial Arts, in which he got a "C".

      
      

7. All three witnesses who testified for Petitioner were of the opinion that Respondent's lack of interest and disruptive behavior cannot properly be

   handled within the regular class system where teachers have between 33 and 35 students per class. They do not have the time to devote to him and his behavior takes their attention away from other students whose education suffers thereby. They all agree, however, that in the opportunity school, where classes normally consist of 10 to 15 students, he would benefit from the more personalized attention he would receive and would undoubtedly do better. This seems to be a reasonable analysis of the situation and it is so found. Respondent is definitely not interested in school in the regular classroom setting and his behavior is decidedly disruptive.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The Florida Legislature has established alternative education programs for students who are not successful in a regular school setting because of their disruptive behavior and/or a lack of interest or success. Rules have been adopted by the State Board of Education under which a student may be eligible for an educational alternative program if he is shown to be disruptive, unsuccessful, or disinterested in the regular school environment as determined by grades, achievement test scores, referrals for suspension or other disciplinary action, and an overabundance of absences. The criteria for determining whether a student is eligible for such a placement set forth in Rule 6A-1.994(2), Florida Administrative Code, which provides in relevant part:

   
   

   Criteria For Eligibility

   
   

   A student may be eligible for an educational alternative program if the student meets one 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

         * * *

   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. The Petitioner has met its burden of proving that Respondent meets the criteria to qualify as a student who is disruptive and/or unsuccessful or disinterested as defined in the rule mentioned above. The record amply demonstrates that his poor academic performance was primarily due to his excessive absences, habitual disruptive behavior, refusal to do school work or follow instructions, failure to respond to counseling and other assistance, and his obvious need for a more structured school environment with its specialized attention.

Accordingly, the assignment of the Respondent to an alternative school is appropriate and in fulfillment of Petitioner's duty to offer him an effective educational alternative program.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED THAT:

Petitioner enter a Final Order affirming the assignment of Respondent to its Opportunity School Program.

DONE and ORDERED this 31st day of October, 1986 at Tallahassee, Florida.

ARNOLD H. POLLOCK

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 31st day of October, 1986.

COPIES FURNISHED:

Jaime Claudio Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134

Ms. Sue Sundquist Stevens 11317 Northeast 11th Place Biscayne Park, Florida 33161

and

14155 West Dixie Highway North Miami, Florida 33161

Dr. Leonard Britton Superintendent of Dade

County Public Schools

1450 Northeast Second Avenue Miami, Florida 33132

Honorable Ralph D. Turlington Commissioner of Education

The Capitol

Tallahassee, Florida 32301

Judith Brechner, Esquire General Counsel Department of Education Knott Building

Tallahassee, Florida 32301

Docket for Case No: 86-002471

Orders for Case No: 86-002471