STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4529

)

DOUGLAS FREEMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 19, 1989, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stuart M. Gold, Esquire

1570 Madruga Avenue, Suite 211 Coral Gables, Florida 33146

For Respondent: Jewel Harper

11001 Southwest 224th Street Miami, Florida 33170

STATEMENT OF THE ISSUES

The ultimate issue in the instant case is whether Respondent should be administratively reassigned to Petitioner's alternative education/disciplinary program at the Youth Opportunity School-South.

PRELIMINARY STATEMENT

By letter dated July 25, 1989, Respondent's mother, Jewel Harper, was notified by Petitioner that a decision had been made to reassign Respondent from Centennial Middle School to Youth Opportunity School-South because of his "disruption of the educational process in the regular school program and failure to adjust to the regular school program." The letter further advised Harper that she had a right to request a hearing regarding this reassignment. Harper requested such a hearing and on August 21, 1989, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the hearing Harper had requested.

At hearing, Petitioner presented the testimony of two witnesses: Ted Hennis, Jr., one of the Assistant Principals at Centennial Middle School; and Peggy Major, Respondent's English teacher at the school during the 1988-89 school year. In addition to the testimony of these witnesses, Petitioner offered into evidence two exhibits: Respondent's middle school records; and an informational pamphlet disseminated to students at Centennial Middle School.

Both of these exhibits were received into evidence by the Hearing Officer. Respondent and his mother appeared at hearing, but they presented no evidence or argument.

At the close of the hearing on October 19, 1989, the Hearing Officer announced on the record that post-hearing pleadings had to be filed within ten days. Petitioner filed a proposed recommended order on October 31, 1989. The Hearing Officer has accepted and incorporated in substance in this Recommended Order all of the factual findings proposed by Petitioner in its proposed recommended order. To date, no post-hearing pleading has been filed on behalf of Respondent. Neither party has furnished the Hearing Officer with a copy of the transcript of the hearing in the instant case.

FINDINGS OF FACT

Based on the record evidence, the Hearing Officer makes the following Findings of Fact:

1. Centennial Middle School is a public school operated by Petitioner.

   
   

2. Respondent has been a student at Centennial Middle School since the beginning of the 1987-88 school year.

   
   

3. As a student at the school, Respondent has consistently engaged in disruptive conduct that has adversely affected the educational process at the school.

   
   

4. On approximately nineteen separate occasions, Respondent has been formally referred to the school administration by one of his teachers for disciplinary reasons.

   
   

5. The school administration has made exhaustive efforts to help Respondent improve his behavior, but these efforts have been unsuccessful.

   
   

6. The incident that precipitated the decision to remove Respondent from the regular school program at Centennial Middle School occurred on July 19, 1989, while Respondent was attending summer school. On that date Respondent brought to school a weapon in the form of a steak knife that he concealed in his sock the entire school day. He intended to use the knife to defend himself, if necessary, against a group of students with whom he had an ongoing dispute.

   
   

7. Pursuant to Petitioner's Code of Student Conduct, students who bring weapons to school are subject to expulsion.

   
   

8. On July 20, 1989, upon learning that Respondent had a concealed weapon on his person while on school grounds the previous day, Ted Hennis, Jr., one of the Assistant Principals at Centennial Middle School, suspended Respondent and recommended to the Dade County School Superintendent that Respondent be expelled from the Dade County public school system.

   
   

9. In lieu of expulsion, the Superintendent decided to administratively reassign Respondent from Centennial Middle School to the alternative education/disciplinary program at the Youth Opportunity School-South. This decision to reassign Respondent is the subject of the instant controversy.

   CONCLUSIONS OF LAW

   
   

10. A public school student in the State of Florida, such as Respondent, may be assigned to an alternative education/disciplinary program in lieu of a regular school program if the "student has a history of disruptive behavior in school or has committed an offense which warrants suspension or expulsion according to the district code of student conduct." Section 230.2316(4)(d)1, Fla. Stat.

    
    

11. "Disruptive behavior" is defined in Section 230.2316(4)(d)1, Florida Statutes, as 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 Severely threatens the general

       welfare of students or others with whom the student comes in contact.

       
       

12. Respondent has had a history of "disruptive behavior" at Centennial Middle School since his arrival at the school at the beginning of the 1987-88 school year. The school administration has patiently sought to help him modify his behavior, but its efforts have been to no avail. In view of Respondent's continuing misbehavior, it is apparent that he is in need of more individualized attention and assistance than he is able to receive in the regular school program at Centennial Middle School.

    
    

13. Moreover, by bringing a weapon to school on July 19, 1989, Respondent committed an offense warranting his expulsion from the Dade County public school system pursuant to Petitioner's Code of Student Conduct.

    
    

14. Because Respondent has had a history of "disruptive behavior" at Centennial Middle School and, in addition, has engaged in conduct constituting grounds for expulsion in accordance with Petitioner's Code of Student Conduct, the decision to reassign him to the alternative education/disciplinary program at the Youth Opportunity School- South should be upheld.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is hereby

RECOMMENDED that the School Board of Dade County enter a final order approving Douglas Freeman's reassignment to the alternative education/disciplinary program at the Youth Opportunity School-South.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of November, 1989.

STUART M. LERNER

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 November, 1989.

COPIES FURNISHED:

Stuart M. Gold, Esquire

1570 Madruga Avenue, Suite 211 Coral Gables, Florida 33146

Jewel Harper

11001 Southwest 224th Street Miami, Florida 33170

Madelyn P. Schere, Esquire Assistant Board Attorney 1450 Northeast Second Avenue Miami, Florida 33132

Russell W. Wheatley, Assistant Superintendent Office of Alternative Education

1450 Northeast Second Avenue Miami, Florida 33132

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Docket for Case No: 89-004529

Orders for Case No: 89-004529