STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-6284

)

ROBERT L. WARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice issued December 28, 1988 by previously assigned Hearing Officer Donald R. Alexander, this cause was heard by Ella Jane P. Davis, another duly assigned Hearing Officer of the Division of Administrative Hearings, on January 20, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Frank R. Harder, Esquire

Twin Oaks Building--Suite 100 2780 Galloway Road (87th Avenue) Miami, Florida 33165

For Respondent Child

and Parents : No Appearance

ISSUE

Whether Respondent should be reassigned to Douglas MacArthur Senior High School--North.

PRELIMINARY STATEMENT

Petitioner School Board of Dade County was represented by Frank R. Harder, Esquire, Miami, Florida. Respondent child and his parents did not appear and were not represented. At the commencement of formal hearing, Mr. Harder acknowledged on the record that someone representing himself as the Respondent child had called Mr. Harder's office a few moments earlier to say he was unable to attend the hearing. No request for continuance was addressed to the Hearing Officer, and the formal hearing proceeded.

Petitioner presented the testimony of Arthur Lindsey, William E. Henderson, and Barbara Schpilberg. Petitioner had one exhibit admitted in evidence.

Official recognition was taken of Section 230.2316, F.S.

FINDINGS OF FACT

1. During the whole of the 1987-1988 and the beginning of the 1988-1989 school years, Respondent was a student at Carroll City Senior High School. As of fall, 1988, he was ranked as a 9th grader.

   
   

2. Ms. Schipelberg was Respondent's mathematics teacher during the 1987- 1988 school year. In her class, he was outspoken, never brought required supplies to class, and did not work productively when Ms. Schipelberg provided supplies to him. Although Ms. Schipelberg spoke with his father, who promised better behavior on his son's part, better behavior was not forthcoming from Respondent, and on February 18, 1988, Ms. Schipelberg referred Respondent to the office for the same repeated behavior.

   
   

3. On March 10, 1988, Respondent was referred by another teacher to Mr. William E. Henderson, a Carroll City High Assistant Principal, for cutting class and leaving school without permission. Three days indoor suspension was meted out as discipline.

   
   

4. On May 17, 1988, Respondent was again referred for the administration of discipline by Mr. Henderson. This referral was the culmination of an incident in which Respondent entered a classroom without permission while a class was in progress; "visited" with a student who was properly assigned to that class; refused to leave when requested to do so by the teacher; prevented the teacher from closing the door to shut him out; and directed profanity at the teacher. A security monitor had to be called to eject Respondent from the room, and Mr. Henderson counselled with Respondent's parents and imposed three days outdoor suspension on Respondent.

   
   

5. During the whole of the 1987-1988 school year, Respondent initiated repeated incidents of disruptive behavior. He frequently moved around the school without a hall pass, contrary to school rules and the Code of Student Conduct. He repeatedly had excessive absences, cut classes, and left the school grounds without permission. During that period he was referred to the guidance counsellor, the visiting teacher, the occupational specialist, and the dropout program. He was placed on a "behavioral contract" requiring weekly progress reports through him to his parents but he failed to comply. By the end of the 1987-1988 school year, Respondent's exit grades were seven failing classes (F's) and one "D," and he had accumulated 89 absences out of 180 days of school.

   
   

6. On September 8, 1988, approximately one month into the 1988-1989 school year, Respondent was referred to Mr. Arthur Lindsey, also an Assistant Principal of Carroll City High School. This referral was for counselling due to Respondent's verbal abuse of a substitute teacher. Mr. Lindsey advised Respondent that his behavior was in direct defiance of the Student Code, which it was. Later that same day, Mr. Lindsey was summoned by walkie talkie due to Respondent's presence in the hall without a hall pass, refusal to go back to class, defiance of a school security officer, and loud use of sexually explicit obscenities. Respondent's father was notified, and Respondent was suspended for

   10 days.

   
   

7. After review by a child study team on September 12, 1988, Mr. Lindsey formally recommended that Respondent be transferred to the alternative education program at Douglas MacArthur Senior High School--North, an "opportunity school" established by the Dade County School Board. The child study team concluded that this was the appropriate placement for Respondent since all of Respondent's infractions and suspensions fell in the Group 5 range of the Student Code.

   Group 5 offenses rate suspension, expulsion, or transfer to alternative

   education. The transfer was deemed the least harsh alternative. At formal hearing, Mr. Henderson stated that he concurred in Mr. Lindsey's recommendation.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), F.S.

   
   

9. Section 230.2316, F.S., is entitled the "Dropout Prevention Act," and provides that school districts may establish special programs which are subject to prior approval by the Commissioner of Education and which are subject to rules adopted by the State Board of Education. One of those types of programs-- educational alternative programs--is similar to the educational alternative programs previously allowed by Section 230.2315, F.S., but which are now voluntary programs only. Section 230.2316(4)(d), F.S., allows for the establishment, after approval has been properly obtained, of disciplinary programs for students meeting the following criteria:

   
   

   1. The student has a history of disruptive behavior in school or has committed an offense which warrants suspension or expulsion from school according to the district code of student conduct. For the purposes of this program, 'disruptive behavior' is behavior which:

      1. 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 results 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

      2. Severely threatens the general welfare of students or others with whom the student comes into contact.

Petitioner has met its burden of proving that Respondent has a history of disruptive behavior, excessive absences, and has committed offenses which warrant suspension or expulsion from school and that Respondent is in need of an educational program which can better fulfill his need for specialized attention than the traditional program.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered assigning Respondent Robert Ward to the opportunity school program at Douglas MacArthur Senior High School--North until such time as his performance reveals that he can be returned to the regular school program.

DONE and RECOMMENDED this 6th day of March, 1989, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1989.

COPIES FURNISHED:

Joseph A. Fernandez, Superintendent

School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132

Frank R. Harder, Esquire

Twin Oaks Building--Suite 100 2780 Galloway Road

Miami, Florida 33165

Mr. and Mrs. Derek Nesbitt 3130 Northwest 174th Street Miami, Florida 33056

Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 88-006284

Orders for Case No: 88-006284