STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1089

)

NELSON LOPEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on September 22, 1987, at Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

For Respondent: Raul A. Cossio, Esquire

2542 Southwest 6th Avenue Miami, Florida 33135

BACKGROUND AND PROCEDURAL MATTERS

On February 3, 1987, the Petitioner advised the Respondent's father, Nelson Lopez, Sr., that the student, Nelson Lopez, had been administratively assigned to Jan Mann Opportunity School North in accordance with a recommendation of the principal and the screening committee of the Department of Alternative Education Placement. By request dated February 10, 1987, the Respondent's attorney, Raul Cossio, requested a formal hearing on this assignment, and the case was forwarded to the Division of Administrative hearings for formal proceedings.

At the final hearing, Petitioner presented the testimony of the following witnesses: Emmitt Reed, David Wilson, Elena Casines, and Frank Freeman; all of whom are employed at Miami Lakes Junior High School. Petitioners exhibits 1 through 9 were admitted into evidence. The Respondent was present, accompanied by his parents and his attorney. Nelson Lopez, Sr. testified on behalf of his son and Respondent's exhibits 1 and 2 were admitted into evidence. No transcript of the proceedings was made. The parties were granted leave until October 12, 1987, to file their Proposed Recommended Orders.

After the hearing, Petitioner filed a Proposed Recommended Order. It has been carefully considered in the preparation of this Recommended Order and specific rulings on the Proposed Findings of Fact included in the attached Appendix.

ISSUE

The central issue in this cause is whether the Respondent, Nelson Lopez, should be placed in the Dade County School Board's opportunity school program due to his alleged disruptive behavior and failure to adjust to the regular school program.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. During the 1986-87 academic year, Respondent attended Miami Lakes Junior High School in Dade County, Florida.

   
   

2. Respondent (date of birth: 6-27-72) was enrolled in the seventh grade prior to being notified of the administrative assignment to the Jan Mann Opportunity School North.

   
   

3. Respondent's grades for the first two grading periods of the 1986-87 school year were as follows:

   
   

   COURSE		ACADEMIC GRADE	EFFORT CONDU
   Mathematics	1st	F	3	F
   	2nd	F	3	F
   Physical	1st	F	3	F
   Education	2nd	F	3	F
   Industrial	1st	F	3	F
   Arts Education 2nd		F	3	F
   Language	1st	F	3	F
   Arts	2nd	F	3	F
   Foreign	1st	F	3	F
   Languages	2nd	F	3	F
   French Science	1st	F	3	F
   	2nd	F	3	D
   GRADE		SYMBOLS: "F"	UNSATISFACTORY
   EFFORT CONDUCT CONDUCT		"3: "D" "F"	INSUFFICIENT IMPROVEMENT NEEDED UNSATISFACTORY

   CT

   
   

4. Respondent was administratively assigned to the opportunity school on February 3, 1987. Respondent did not enroll at the opportunity school and did not attend classes.

   
   

5. When a student is disruptive or misbehaves in some manner, a teacher or other staff member at Miami Lakes Junior High School may submit a report of the incident to the office. These reports are called Student Case Management Referral forms and are used for behavior problems. During the 1986-87 school year Respondent caused five Student Case Management Referral Forms to be written regarding his misbehavior. All incidents of his misbehavior were not reported.

   A synopsis of these referrals is attached and made a part hereof. On November 3, 1986, Respondent was suspended from school for a period of three days as a result of his leaving campus without permission. On November 17, 1986, Respondent was suspended from school for a period of four days as a result of his defiance of school personnel.

   
   

6. Emmitt Reed is an industrial arts teacher at Miami Lakes Junior High School in whose class Respondent was enrolled. While in Mr. Reed's class, Respondent was persistently disruptive Respondent was habitually tardy and would wrestle, throw objects, and talk loudly. Mr. Reed attempted, without success, to modify Respondent's behavior. Mr. Reed was unable to reach Respondent's parents.

   
   

7. David Wilson is a physical education teacher in whose class Respondent was enrolled. Respondent did not complete assignments and did not dress out to participate with the class. Respondent left the physical education area without permission on several occasions. Mr. Wilson took Respondent to a counselor for guidance, but efforts to improve Respondent's performance were unsuccessful.

   
   

8. Elena Casines is a social studies teacher in whose class Respondent was enrolled. Respondent did not complete class or homework assignments, and habitually came to class unprepared. Respondent was so disruptive in Ms. Casines' class that she had to interrupt teaching to take him to the office. These interruptions were frequent, and he would talk so loudly that she could not conduct class.

   
   

9. Frank Freeman is an assistant principal at Miami Lakes Junior High School. Mr. Freeman attended a child study team conference. The purpose of the conference was to determine proper placement for Respondent. The team consisted of school personnel familiar with Respondent's academic record and disruptive behavior. The team recommended placement at an opportunity school.

   
   

10. Respondent's student record does not suggest he is a "special student." There is no record that Respondent's parents requested special testing for their son. Mr. Lopez, at the hearing, requested that his son be tested as a special student.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

12. Education Alternative Programs have been established by the legislature for students who are not successful in a regular school environment because of disruptive behavior and/or lack of interest or success. Pursuant to Section 230.2315(4), Florida Statutes, 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."

    
    

13. The criteria for determining whether a student is eligible for placement in the alternative program is set forth in Rule 6A-1.994(2), Florida Administrative Code, provides in relevant part, as follows:

    
    

    Criteria for Eligibility. A student may be eligible for an

    educational alternative program if the student meets one or more of the criteria described 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 interest, 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.

       
       

14. Respondent meets the criteria to qualify as a student who is disruptive and/or unsuccessful or disinterested, as defined in Rule 6A-1.994(2) Florida Administrative Code.

    
    

15. The Respondent habitually engaged in disruptive conduct requiring the interruption of classroom lessons. Despite the efforts of school personnel to modify his attitude and improve his behavior, he continued to interfere with the proper functioning of teachers and the education of other students.

    
    

16. Respondent showed unsatisfactory academic progress and the effort to provide assistance was either rejected or ineffective.

    
    

17. Petitioner has met its burden of proving that Respondent is a disruptive, disinterested or unsuccessful student in a normal school environment. Accordingly, the assignment of Respondent to an alternative school was appropriate and in fulfillment of Petitioner's duty to offer him an Educational Alternative Program.

RECOMMENDATION

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

That Petitioner enter a Final Order affirming the assignment of Respondent to Jan Mann Opportunity School North and direct that, in accordance with the parent's request, the student be immediately tested for any special or exceptional learning program needs.

DONE and ORDERED this 3rd day of November, 1987, in Tallahassee, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1987.

SYNOPSIS OF STUDENT CASE MANAGEMENT REFERRAL FORMS DATE INCIDENT DISCIPLINE

10/30/86 disrupting class; attempted walking halls; talking parent excessively; leaving contact but class w/o permission unsuccessful

11/04/86 left campus w/o three day permission police suspension caught and returned

11/17/86 defiance of Four-day school personnel

12/01/86 skipping attempted parent contact

02/11/86 continuing ten-day defiance suspension

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1089

1. Accepted. See paragraph 9.

2. Accepted. See paragraph 10.

3. Accepted but unnecessary. The credible evidence of the witnesses testifying discredited the "reports" accepted as Respondent's exhibit 1 and 2.

4. Accepted but unnecessary.

5. Accepted but unnecessary.

COPIES FURNISHED:

Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

Raul A. Cossio

2542 Southwest 6th Street Miami, Florida 33135

Madelyn P. Schere, Esquire Assistant School Board Attorney Board Administration Building 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: 87-001089

Orders for Case No: 87-001089