STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSA ALCANTARA on behalf of ) NICHOLAS PENN, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5553

) SCHOOL BOARD OF DADE COUNTY ) FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Rosa Alcantara, as the mother of Nicholas Penn, for Petitioner. Frank Harder, Esquire, for the School Board of Dade County.

A hearing was held in this matter on May 24, 1988, in Miami, Florida, by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. No transcript of the proceeding was filed, nor did the parties file proposed findings of fact and conclusions of law.

ISSUE

The issue is whether Nicholas Penn should be administratively assigned to the J. R. E. Lee Opportunity School Program in lieu of expulsion for misconduct at the W. R. Thomas Jr. High School.

FINDINGS OF FACT

1. During the 1987-88 school year Nicholas Penn was an eighth grade student at W. R. Thomas Jr. High School in Dade County, Florida.

   
   

2. At the beginning of each year students receive a locally prepared handbook which informs the students of the code of student conduct for the Dade County Public Schools. During social studies classes early in the year the code of student conduct is reviewed.

   
   

3. Nicholas Penn cut class on September 8, 1987. He was picked up by the police. When he was picked up he had a knife with him. Charges resulting from possession of that knife were dropped. As a result of truancy, he was seen by the Assistant Principal, Donal Helip, who referred Nicholas to the guidance counselor, Betty Thomas.

   
   

4. When Betty Thomas saw Nicholas, he told Thomas that he did not enjoy school, did not have many friends, and felt frustrated at home. After a discussion with his mother, Ms. Alcantara, it was agreed that Nicholas would be put on work assignment around the school. Nicholas was also processed for a psychological referral on or about September 20, 1987, because he did not seem to be performing at his academic potential.

5. On October 22, 1987, Nicholas was involved in a fight at school as a result of which he received a bloody nose and a head injury. As a result of the fight, Nicholas was put on a 2-day suspension. He did not attend school on Friday, October 23, or Monday, October 26. Mr. Helip spoke with him on Tuesday, October 27, when he returned to school. Nicholas told Mr. Helip the incident was closed and there would be no more problems about the fight. The other boy involved told Mr. Helip the same thing.

   
   

6. On October 28, a student commented to Mr. Helip that Nicholas had a knife. Mr. Helip had the school security monitor bring Nicholas to his office, where Mr. Helip asked Nicholas to unload his backpack. At the bottom of the backpack was a wooden handled knife with a seven inch blade encased in a homemade, black sheath. Ms. Alcantara was called to the school where she identified the knife as one of the type which she had at home, which were part of a knife set purchased at J. C. Penny's.

   
   

7. Nicholas was suspended for 10 days with a recommendation of expulsion. A request for waiver of expulsion and reduction of the penalty to suspension was made because the knife had not been used to threaten anyone else. At the time that Nicholas was withdrawn from W. R. Thomas Jr. High School he had a D in math, an F in shop and in physical education and incomplete grades for his other classes.

   
   

8. The explanation offered by Nicholas for having the knife in his bag was that he had not brought it to school. During computer class his backpack was on a table and the students involved in the October 22, fight came up to him and said, "Nick, you got a weapon on you?," and when the class ended he picked up his bag and was going to the next class when the school security monitor asked him to go with him to Mr. Helip's office, who wanted to search his things. They went through his locker and in the backpack found the knife. Nicholas originally said that it was not his, but his mother told Mr. Helip that it was a knife like others she had at home. Of course, her knives did not have a black, homemade sheath like the one found on the knife in the backpack. When she returned home she determined that her knife set was complete. Mrs. Alcantara then informed school officials that she had been mistaken when she identified the knife as one of hers.

   
   

9. There was nothing about Nicholas' expression at the time his backpack was searched which gave any indication that he was surprised about the knife found in his bag; in Mr. Helip's view, if the knife had been planted, it should have been closer to the top of the bag. Nicholas maintains that when he arrived home he found a rip in the corner of the backpack which would have allowed someone to plant the knife in the bag. The backpack was never produced at the hearing. The Hearing Officer finds it more probable than not, given all the circumstances, that the knife was not planted and Nicholas brought the knife to school.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over this matter. See Sections 120.57(1), and 230.2316(8), Florida Statutes (1987).

    
    

11. The Dade County Public School's Code of Student Conduct is found in Board Rule 6Gx13-5D-1.08, Florida Administrative Code. That Code defines Group V violations which include possession and/or concealment of weapons, and weapons

    are defined to include knives. The recommended disciplinary actions for Group V violations include a 10-day suspension and recommendation for expulsion.

    
    

12. In lieu of expulsion, the district has assigned Nicholas Penn to the dropout prevention program at the J. R. E. Lee Opportunity School. A parent or guardian of a student assigned to a dropout prevention program is entitled to an administrative review of the placement of the student in such a program under Section 230.2316(8), Florida Statutes (1987). Here, based on the offense of having a concealed knife at school, the assignment to the J. R. E. Lee Opportunity School is appropriate.

RECOMMENDATION

It is recommended that the assignment of Nicholas Penn at the J. R. E. Lee Opportunity School be maintained.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June, 1988.

WILLIAM R. DORSEY, JR.

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 28th day of June, 1988.

COPIES FURNISHED:

Ms. Rosa Alcantara Frank R. Harder, Esquire 13173 Southwest 11th Lane Circle Suite 2A-3

Miami, Florida 33184 175 Fontaineblau Boulevard

Miami, Florida 33172

Madelyn P. Schere, Esquire Dr. Joseph A. Fernandez Assistant Board Attorney Superintendent of Schools 1450 Northeast 2nd Avenue Dade County Public Schools Suite 301 School Board Administration Miami, Florida 33132 Building

1450 Northeast Second Avenue Miami, Florida 33132

The Honorable Betty Castor Sydney H. McKenzie, Esquire Commission of Education General Counsel

The Capitol Department of Education Tallahassee, Florida 32399 Knott Building

Tallahassee, Florida 32399

Docket for Case No: 87-005553

Orders for Case No: 87-005553