STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1955

)

SEAN F. MCKINNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on July 23, 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:

For Petitioner: Jaime Claudio Bovell

370 Minorca Avenue

Coral Gables, Florida 33134

For Respondent: Cora McKinney

3450 Northwest 194th Terrace Carol City, Florida 33054

BACKGROUND AND PROCEDURAL MATTERS

On March 23, 1987, the Petitioner advised the Respondent's father, Richard McKinney, that the student, Sean F. McKinney, had been administratively assigned to Douglas MacArthur Senior High School-North in accordance with a recommendation of the principal and the screening committee of the Department of Alternative Education Placement. By request dated April 4, 1987, the Respondent's mother, Cora McKinney, requested a formal hearing on this assignment, and the case was forwarded to the Division of Administrative Hearings for formal proceedings.

At the final hearings Petitioner presented the testimony of the following witnesses: Lawton Williams, Jr., assistant principal at Douglas MacArthur Senior High School-North; Theresa Borges mathematics teacher at Miami Carol City Senior High School; Larry Williams, English teacher at Miami Carol City Senior High School; and William E. Henderson, assistant principal at Miami Carol City Senior High School. In addition, Petitioner's exhibits 1 through 11 were admitted into evidence. The Respondent was present and accompanied by his parents at the final hearing, but did not testify and did not present any documentary evidence.

After the hearing, Petitioner filed a Proposed Recommended Order. The Respondent's mother filed a letter outlining Respondent's position in this cause. Both the Proposed Recommended Order and the letter have been carefully

considered in the preparation of this Recommended Order and specific rulings on the Proposed Findings of Fact are included in the attached Appendix.

ISSUE

The central issue in this case is whether the Respondent, Sean F. McKinney, 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 Carol City Senior High School in Dade County, Florida.

   
   

2. During the 1985-86 school year, Respondent attended junior high school and received failing grades in all of his academic courses. Respondent's promotion to Miami Carol City Senior High was done in error.

   
   

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

   
   

   COURSE		ACADEMIC GRADE	EFFORT	CONDUCT
   Mathematics	1st	F	3	D
   	2d	F	3	F
   Physical	1st	F	3	F
   Education	2d	F	3	F
   Language	1st	F	3	F
   Arts	2d	F	3	F
   Communications
   Social	1st	F	3	D
   Studies	2d	F	3	D
   Language	1st	F	3	C
   Arts Readings	2d	F	3	C
   Industrial Arts	1st	F	3	F
   Education	2d	F	3	F
   Science	1st	F	3	F
   	2d	F	3	F
   SYMBOLS: GRADE		"F"	UNSATISFACTORY
   EFFORT		"3"	INSUFFICIENT
   CONDUCT		"C"	SATISFACTORY
   CONDUCT		"D"	IMPROVEMENT NEEDED
   CONDUCT		"F"	UNSATISFACTORY

   
   

4. Respondent was administratively assigned to the opportunity school on March 23, 1987. Respondent did not enroll at the opportunity school and did not attend classes. Consequently, Respondent's academic record for the 1986-87 term ends with the second grading period.

5. When a student is disruptive or misbehaves in some manner, a teacher or other staff member at Miami Carol City Senior 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 first two grading periods of the 1986-87 school year Respondent caused nine Student Case Management Referral Forms to be written regarding his misbehavior. All incidents of his misbehavior were not reported. A synopsis of Respondent's misbehavior is attached and made a part hereof.

   
   

6. Theresa Borges is a mathematics teacher at Miami Carol City Senior High School in whose class Respondent was enrolled. While in Ms. Borges' class, Respondent was persistently disruptive. Respondent was habitually tardy and/or absent from Ms. Borges' class. When Respondent did attend class he was ill- prepared and refused to turn in assigned work. When Respondent did attempt to do an assignment it was unsatisfactorily completed. The Respondent refused to work and would put his head down as if sleeping in class. On one occasion Respondent grabbed a female student between the legs. Respondent's disruptive behavior was exhibited on a daily basis in Ms. Borges' class.

   
   

7. Larry Williams is an English teacher at Miami Carol City Senior High School in whose class Respondent was enrolled. Mr. Williams caught Respondent fighting with another student in class. Respondent failed to complete homework assignments for Mr. Williams and turned in only 3-5 percent of his work. Respondent was disruptive and would walk around the classroom talking to other students. Since Respondent was habitually tardy he would interrupt the class with his late arrival.

   
   

8. William E. Henderson is the assistant principal at Miami Carol City Senior High School. Mr. Henderson received the Student Case Management Referral forms that were submitted for Respondent and counseled with him in an effort to improve Respondent's conduct. Additionally, Cora McKinney was contacted with regard to Respondent's discipline and academic needs. Respondent's behavior problems were discussed in-depth with Mrs. McKinney. Such conferences did not result in any changed behavior on Respondent's part. While Mrs. McKinney made a sincere and continuing effort to bring Respondent's grades and behavior into line, such efforts did not alter Respondent's lack of progress.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. 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." 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 which 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.

Respondent meets the criteria to qualify as a student who is disruptive and/or unsuccessful or disinterested, as defined in Rule 6A-1.0884, Florida Administrative Code. The Respondent habitually engaged in disruptive conduct requiring the interruption of classroom lessons. Despite the efforts of school personnel and Respondent's mother to modify his attitude and improve his behavior, he continued to interfere with the proper functioning of teachers and the education of other students. As a result, he was referred for in-school suspensions and other disciplinary action. He showed unsatisfactory academic progress and the effort to provide assistance was either rejected or ineffective. Certainly, Mrs. McKinney should be commended for her concern and effort with regard to Respondent, however the 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. Moreover, such placement would allow Respondent to be further tested to determine if another educational program would better suit Respondent's needs.

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 Douglas MacArthur Senior High School-North.

DONE and ORDERED this 24th day of August, 1987, in Tallahassee, Florida.

JOYOUS D. PARRISH

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 24th day of August, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1955

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in substance in FF #1.

2. Adopted in substance in FF #3.

3. Adopted in substance in FF #2.

4. Adopted in substance in FF #6.

5. Adopted in substance in FF #6.

6. Adopted in substance in FF #6.

7. Adopted in substance in FF #7.

8. Adopted in substance in FF #7.

9. Rejected as hearsay as to whether this student instigated the fight; otherwise adopted in substance in FF #7.

10. Adopted in substance in FF #5 and attached Synopsis.

11. Adopted in substance in FF #8.

12. Adopted in substance in FF #8.

13. Rejected as unnecessary.

COPIES FURNISHED:

Jaime Claudio Bovell

370 Minorca Avenue

Coral Gables, Florida 33134

Cora McKinney

3450 Northwest 194th Terrace Carol City, Florida 33054

Mrs. Madelyn P. Schere Assistant School Board Attorney The School Board of Dade County

Board Administration Building, Suite 301 1450 Northeast 2nd Avenue

Miami, Florida 33132

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132

SYNOPSIS OF STUDENT CASE MANAGEMENT REFERRAL FORMS

SEAN F. MCKINNEY

Docket for Case No: 87-001955

Orders for Case No: 87-001955