STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY )

)

Petitioner, )

)

vs. ) CASE NO. 87-4472

)

KAREGA Y. PAISLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 28, 1987 in Miami, Florida.

APPEARANCES

For Petitioner: Jaime C. Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

For Respondent: Robert Paisley, pro se (parent)

10740 Southwest 88th Street Miami, Florida 33176

BACKGROUND

By letter dated September 4, 1987, petitioner, School Board of Dade County, advised the parents of respondent, Karega Y. Paisley, that respondent was being administratively assigned to an alternative educational program at J.R.E. Lee School because of respondent's "disruptive behavior and failure to adjust to the regular school." The assignment became effective upon receipt of the letter.

Thereafter, respondent's mother timely requested a hearing on September 14, 1987, to contest the transfer. The matter was referred to the Division of Administrative Hearings by petitioner on October 12, 1987, with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated October 14, 1987, a final hearing was scheduled on October 28, 1987, in Miami, Florida. At final hearing, petitioner presented the testimony of Anna J. Arias, Clarice Boyd, Donna Lozar and Gatano Jack Annunzata. It also offered petitioner's exhibits 1-16 which were received in evidence. Respondent was represented by his fathers Robert Paisley, at hearing.

A transcript of hearing has not been prepared. Petitioner filed proposed findings of fact and conclusions of law on November 9, 1987. A ruling on each proposed finding has been made in the appendix attached to this Recommended Order.

The issue is whether respondent was properly assigned to an alternative school program.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Karega Y. Paisley, who is eleven years old, was a student in the school system of petitioner, School Board of Dade County. Until his recent transfer, he attended Kendale Elementary School (KES) located at 10693 Southwest 93rd Avenue, Miami, Florida.

   
   

2. At issue in this proceeding is Karega's reassignment from the regular school program at KES to J.R.E. Lee School, an alternative school program. The basis for the transfer is that Karega has allegedly exhibited "disruptive behavior" and a "failure to adjust to the regular school" program. Notice of such transfer was given by petitioner to Karega's parents by letter dated September 4, 1987. The transfer prompted the request for the hearing in this cause. Pending the outcome of this proceeding, Karega has been attending J.R.E. Lee School.

   
   

3. Karega has been a student at KES since at least the fourth grade. In school year 1986-87, Karega, then a fifth grader, attended, among other classes, those taught by teachers Arias and Holden. Arias taught Spanish (second language) while Holden taught fifth grade English.

   
   

4. At hearings Arias established that Karega was late for her Spanish class at least two or three times per week. Although repeatedly reminded by Arias to do so, he would frequently fail to bring his Spanish materials to class each day. When this occurred, Arias would have to send Karega out of class to retrieve his materials. Despite these orders, he would often return to class without them. This caused a disruption of the class and a loss of ten to fifteen minutes of instruction time whenever Arias had to deal with this problem. On occasion, Arias would order Karega to do something in class, and he would refuse saying words to the effect "I don't want to do that." He would then ask her "What are you going to do now, Mrs. Arias?" Karega also had occasional temper tantrums, and would make obscene gestures with his finger at the teacher. This behavior took place in the presence of other students. Efforts by Arias to counsel Karega and to change his behavior were unsuccessful.

   
   

5. Because of several serious disruptive incidents with Karega during school year 1986-87, Arias prepared four disciplinary record reports or student case management referral forms which described the disruptive activity. These have been received in evidence as petitioner's exhibits 1, 2, 7 and 15 and reflect that Karega was referred to the assistant principal for disciplinary action on February 19, March 11, and May 15 and 17, 1987, respectively. The reports were prompted by Karega's disruptive conduct in class and the allegations therein were later admitted to by the student in meetings with the assistant principal.

   
   

6. Holden did not testify at final hearing. She too prepared a number of disciplinary record reports as a result of disruptive activity by Karega in her classroom. The reports have been received in evidence as petitioner's exhibits 4, 5, 6, 8, 9, 11, 12, 14 and 16. Although her comments on the reports are hearsay, they corroborate admissions by Karega to the assistant principal and principal, and are therefore considered supplemental and corroborative evidence.

   These reports reflect disruptive activity by Karega throughout school year 1986-

   87 that not only interfered with Karega's learning process but with the learning process of other students as well.

   
   

7. On May 5, 1987, Karega was suspended from school for three days for "defiance of school authority." On June 1, 1987, while being escorted to the principal's office by Holden for certain disruptive conduct, Karega tripped Holden causing her to fall down and sustain a broken hip. For this action, Karega received a ten day suspension from school for "defiance of school personnel's authority and battery."

   
   

8. Respondent's grades, while not failing, were described as being "poor." The Board's witnesses characterized Karega as being "above average," and possibly a "gifted" child, and this was corroborated by Stanford Achievement Tests administered to Karega. However, since Karega's grades were not introduced into evidenced a finding cannot be made that his academic progress has been "unsatisfactory."

   
   

9. No other KES student had ever been sent to an alternative education program since the school considers this to be a last resort to all other measures. For this reason, school personnel attempted to change Karega's behavior by counseling, taking less drastic disciplinary action, and by seeking the help and cooperation of his parents. These efforts proved unsuccessful, and eventually a child study team consisting of the school psychologist, counselor, assistant principal, principal and a classroom teacher unanimously recommended that Karega be sent to J.R.E. Lee School, a school dealing with disruptive students. That school offers a more structured environment, individualized educational plans, favorable teacher-pupil ratio (3:1 at the time of hearing) and full-time on-campus counselors and a psychologist. In view of Karega's persistent disruptive behavior, this placement was appropriate.

   
   

10. Respondent's father did not testify or present any evidence. He contended through arguments and suggested by interrogation of witnesses, that the disciplinary reports were fabricated and that his son was transferred solely because of racist policies of KES. However, the evidence shows the charges are totally unfounded, and without merit. The father also suggested that his complaints about the school system have been ignored, and that his son did not admit the allegations described in the disciplinary reports to the principal and assistant principal. Again, these charges were unsubstantiated.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).

    
    

12. Subsection 230.2315(3), Florida Statutes (Supp. 1986), authorizes each district school board to establish "educational alternative programs" for students who are disruptive or unsuccessful in a normal school environment. In this vein, petitioner has established an educational alternative program at

    1. Lee School. Subsection 230.2315(4) provides that a student may be eligible for such a 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." Rule 6A-1.0994(2), Florida Administrative Code (1987), defines a disruptive, unsuccessful or disinterested student in the following manner:

       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 students 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.

    * * *

    
    

    Therefore, a student may be reassigned to an alternative program if the school finds that the student is "disruptive" as defined in Rule 6A-1.0994(2)(a) or "unsuccessful or disinterested" as defined in Rule 6A-1.0994(2)(b). According to the proposed agency action, petitioner is relying on Karega's "disruptive behavior and failure to adjust to the regular school program" as bases for his reassignment.

    
    

13. The evidence reveals a pattern of persistent disruptive behavior by Karega as defined in Rule 6A-1.0994(2)(a) during school year 1986-87. 1/ Such behavior interfered not only with Karega's learning, but also with the educational process of other students. It also tended to undermine the authority of school officials. Despite numerous actual or attempted contacts with the student's parents, counseling, and lesser disciplinary measures, there has been no improvement in Karega's conduct. This being so, a reassignment to

J.R.E. Lee School is appropriate, and in the best interests of the student.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered reassigning Karega Y. Paisley to

1. Lee School.

   DONE AND ORDERED this 13th day of November, 1987, in Tallahassee, Leon County, Florida.

   
   

   DONALD R. ALEXANDER

   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 13th day of November, 1987.

   
   

   ENDNOTE

   
   

   1/ There is insufficient evidence to establish that Karega falls into the category of an "unsuccessful or disinterested" student within the meaning of the rule.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4472

   
   

   Petitioner:

   
   

   1. Covered in finding of fact 1 except that Karega was a fifth grader in school year 1986-87, and not a sixth grader.

   2. Covered in finding of fact 2.

   3. Covered in finding of fact 4.

   4. Covered in finding of fact 5.

   5. Covered in finding of fact 6.

   6. Covered in findings of fact 5 and 6.

   7. Covered in finding of fact 9.

   8. Covered in finding of fact 8.

   9. Covered in finding of fact 9.

   10. Rejected as being irrelevant.

Respondent did not file proposed findings of fact.

COPIES FURNISHED:

Jaime C. Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

Mr. Robert Paisley

10740 Southwest 8th Street Miami, Florida 33176

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

Madelyn P. Schere, Esquire Room 301

1450 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 87-004472

Orders for Case No: 87-004472