STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 93-5483
)
ANTWAN JOAQUIN CLARK, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on February 10-11, 1994, in Miami, Florida.
APPEARANCES
For Petitioner: James Claude Bovell, Esquire
33211 Ponce de Leon Boulevard Coral Gables, Florida 33134
For Respondent: Anne G. Telasco, Esquire
Anne G. Telasco, P.A. First Nationwide Building
633 Northeast 167th Street, Suite 304 North Miami Beach, Florida 33162
STATEMENT OF THE ISSUES
Whether Respondent should be transferred to Jan Mann Opportunity School.
PRELIMINARY STATEMENT
Petitioner, Dade County School Board, transferred Respondent, Antwan Joaquin Clark, from Carol City Middle School Jan Mann Opportunity School. Respondent requested an administrative hearing, and Petitioner forwarded the request to the Division of Administrative Hearings for formal proceedings on September 21, 1993. The hearing was scheduled for January 13-14, 1994. On January 4, 1994, Respondent filed a Motion for Continuance which was granted and the case was rescheduled for hearing on February 10-11, 1994.
Petitioner called the following persons as witnesses: John Strachan, Christopher Burgain, Janet Evans, Cheryl Johnson, Helen Kramer, Arlene Shapiro, Martha Schrager, Sandra Knowles, Don DeLucas, and Mary Henry. Petitioners Exhibits 1-21 were admitted into evidence. Respondent called Karen Clark and Alfred Clark as witnesses. Respondent's Exhibit 1 was admitted into evidence.
At the close of the final hearing, Petitioner made an ore tenus motion pursuant to Fla. R. Civ. P. 1.380(c) for attorney fees and costs for Respondent's failure to admit facts requested under Fla. R. Civ. P. 1.370. The ore tenus motion was followed by a written motion, Petitioner's Motion for Reasonable Expenses, which was filed on March 3, 1994. The motion is DENIED.
No transcript was filed. The parties agreed to file proposed recommended orders on or before March 3, 1994. Petitioner filed its proposed recommended order on March 3, 1994. Respondent filed his proposed recommended order on March 10, 1994. The parties' proposed findings of fact are ruled upon in the Appendix to this Recommended Order.
FINDINGS OF FACT
Respondent, Antwan Clark (Antwan), attended the sixth and seventh grades at Carol City Middle School during the academic years 1991-1992, and 1992-1993, respectively.
On October 10, 1991, Antwan was suspended outdoors for three days for fighting.
On October 22, 1991, Antwan was caught running in the school hallways by the assistant principal Don DeLucas. When Antwan was told to stop, he ignored the verbal request. Antwan was given a detention for his behavior.
On November 5, 1991, Antwan was referred by his sixth period teacher to Assistant Principal DeLucas for being tardy to class, refusing to sign for detention, and walking out of class without a pass. Antwan was issued a reprimand/warning for his behavior and a conference was held with school administrators and his parents.
After school was dismissed on March 10, 1992, the school principal Mary Henry walked toward the Carol City Elementary School while watching the students leave the middle school grounds. Antwan, across the street in a gas station parking lot, threw rocks across the street in the direction of Ms. Henry.
Police Officer Christopher Burgain observed Antwan tossing the rocks. When Antwan saw the police officer, he moved to another group of students in the parking lot. Officer Burgain got Antwan and took him to Ms. Henry who told him to take Antwan back to the school. Ms. Henry called Antwan's parents. Antwan was suspended outdoors for two days for this incident.
On March 16, 1992, Antwan's teacher, Ms. Viamonte, referred him to Assistant Principal DeLucas for getting out of his seat, coming to class unprepared, responding to the teacher when she asked for his daily progress report that she "was wasting his time" and threatening to tear up the daily progress report. Antwan was given a reprimand/warning and a conference was held with his parents.
On April 16, 1992, Antwan cut his sixth period and was given a three- day indoor suspension. Another conference was held with his parents.
On May 11, 1992, Antwan was caught gambling at a nearby senior high school. The assistant principal for the senior high school returned Antwan to Ms. Henry at the middle school. Antwan was suspended outdoors for three days.
On July 22, 1992, Antwan was referred to Assistant Principal John Strachan for disciplinary action for telling a teacher that he didn't have to do what the teacher told him to do. Antwan was suspended outdoors for one day.
During the 1992-1993 school year, Antwan was placed in the Student At Risk Program (SARP), which is a program designed for students who are at risk of dropping out of school. Students participating in SARP are given more attention than the students in the mainstream population. A counselor is assigned to the SARP program.
On September 21, 1992, Ms. McGraw, Antwan's fifth period teacher referred Antwan to Assistant Principal Strachan for refusing to do his work, yelling at her about a pass to the office after she told him he could not have a pass, and refusing to give her a working telephone number for his parents so that she could call them. Antwan was given an indoor suspension until school administrators could meet with his parents.
Antwan failed to stay in his class area during physical education class. His teacher, Janet Evans, would have to stop her class and call Antwan back into the class area. On September 24, 1992, Antwan left class without permission, and Ms. Evans found him and some other students outside the girls' locker room gambling by flipping coins. For these actions he was given a one- day indoor suspension.
On October 29, 1992, Antwan was referred to Assistant Principal Strachan for excessive tardiness to school. Antwan refused direction by Mr. Strachan and was verbal and disruptive about being given a suspension. Antwan's mother was called to come and pick up him. Antwan was given a three-day outdoor suspension.
On November 20, 1992, Teacher Golditch referred Antwan to the principal for shouting across the room to the extent that the teacher had to stop the class lesson and change what the class was doing. When Antwan got to the principal's office he got out of his seat, made noises, and went to the staff's counter when he was not supposed to do so. Antwan was given a one-day outdoor suspension for these actions.
On January 6, 1993, Antwan and four other students were horseplaying in the cafeteria, resulting in the breaking of a window. He received a three- day indoor suspension for this behavior.
On February 11, 1993, Antwan was walking around in Ms. Schrager's class and would not take his seat even though Ms. Schrager repeatedly asked him to do so. Antwan was distracting other students in the class, and Ms. Schrager had to stop the class to correct Antwan. Ms. Schrager referred the matter to Assistant Principal Strachan. A security officer was required to remove Antwan from the classroom. When asked by Mr. Strachan why he would not take his seat when asked by Ms. Schrager, Antwan responded that he wanted to sit where he wanted to sit. For this incident, Antwan received a five-day indoor suspension.
Cheryl Johnson, Antwan's math teacher, had witnessed incidents in Ms. Schrager's class when Antwan would get out of his seat, walk around the classroom, and talk to other students, thereby disrupting Ms. Schrager's class. Ms. Johnson also had problems with Antwan in her classroom. Antwan would bring his drumsticks to class and tap on his desk. He was tardy to class, failed to do his homework assignments and participated very little in class.
On March 8, 1993, Antwan and other students were throwing books at each other in Ms. Schrager's classroom during class. Ms. Schrager referred the incident to Mr. Strachan, who talked with Antwan. Antwan told Mr. Strachan that a student had hit him so he threw several books in retaliation. Other students were also written up for this incident by Ms. Schrager. Antwan received a five- day outdoor suspension for this episode.
On March 23, 1993, Ms. Kramer, Antwan's language arts teacher, referred him to Mr. Strachan for disciplinary action for the following behavior: walking around the classroom, talking to other students, refusing to take his seat when asked to do so by his teacher, telling his teacher he didn't have to do what she was telling him to do, and rolling his eyes while continuing to move around. He received a detention.
On April 21, 1993, Ms. Schrager observed Antwan showing his friend an object which resembled the outline of a gun. She asked Antwan to come talk to her. He began to walk toward her and then walked to the other side of the room. She called a security guard to come into the classroom but they were unable to find the object. Antwan was given a ten-day outdoor suspension which was reduced to a six-day suspension after school administrators talked with Antwan's parents.
On May 7, 1993, Antwan was in the hallway and was fifteen minutes late for class. Mr. Strachan saw him and told Antwan to come to him. Antwan ran away from Mr. Strachan. When Mr. Strachan caught up with him, Antwan wanted to know what he had done wrong. Antwan received two detentions for the incident.
On May 13, 1993, Antwan chased a female student into Ms. Arlene Shapiro's classroom. He grabbed the front of the girl's blouse trying to get a beeper which she had underneath her blouse. The girl called for help. Antwan was not Ms. Shapiro's student and was not supposed to be in her classroom. Ms. Shapiro told Antwan to let the girl go and he replied, "No. Make me." She put her hand on his back to guide him out of the classroom, and he told her not to touch him or he would hit her. She took her hand away. He punched her on her arm and then ran down the hall. Ms. Shapiro referred the matter to Assistant Principal DeLucas. Mr. DeLucas questioned Antwan about the incident and Antwan admitted hitting the teacher. Antwan received a ten-day outdoor suspension.
Antwan was not doing well academically at Carol City Middle School. His report card for the school year ending June, 1993, showed final grades of four "F's" and three "D's."
While at Carol City Middle School, Antwan received numerous group and individual counseling sessions with guidance counselors. Additionally, Ms. Henry, the principal, took Antwan "under her wing" and tried to counsel him. School administrators met with Antwan and his parents to discuss the problems that Antwan was having at school. However, these efforts to correct Antwan's disruptive behavior were unsuccessful. Additionally, as Antwan's disruptive behavior continued to escalate, resulting in more frequent conferences with his parents, Mr. and Mrs. Clark's attitude seemed to change from conciliatory to hostile and defensive.
Antwan was reassigned to Jan Mann Opportunity School during the summer of 1993. The classes are smaller than the traditional school class. There are counselors and a full-time psychologist on staff. The focus at Jan Mann is to try build self-esteem, teach conflict resolution, develop social skills, and correct past behavior problems.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Petitioner has the burden of establishing by a preponderance of the evidence that Respondent should be placed in a disciplinary program and, in this particular case, the Jan Mann Opportunity School.
The Florida Legislature enacted the Dropout Prevention Act, Section 230.2316, Florida Statutes, to provide authorization to the district school boards to establish comprehensive dropout prevention programs designed to meet the needs of students who are not effectively served by conventional education programs in the public schools. One of the programs is the disciplinary program which Section 230.2316(3)(e) defines as a program "designed to provide intervention for students who are disruptive in the traditional school environment." To qualify for a disciplinary program, a student must have a history of disruptive behavior or have committed an offense which warrants suspension or expulsion. Section 230.2316(4)(d)1. defines "disruptive behavior" as 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 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.
Petitioner has established by a preponderance of the evidence that Antwan has a history of disruptive behavior. Such behavior was continuous during his stay at Carol City Middle School. By his defiance of school authority, Antwan has not only interfered with his educational process but he has deprived other students of an environment conducive to learning. His teachers were required to stop their classes and correct Antwan or resort to help from the principal's office to correct his behavior.
Section 230.2316(4)(d)5, Florida Statutes provides:
Prior to assigning a student to a disciplinary program of more than 10 days' duration, the district shall attempt a continuum of education and student services to identify the causes of the disruptive behavior, to modify the behavior, or to provide more appropriate educational services to the student; however a student who has committed an offense which warrants expulsion according to the district code of student conduct may be assigned to a disciplinary program without attempting a continuum of services.
Petitioner has overwhelmingly demonstrated that prior to assigning Antwan to Jan Mann Opportunity School, it attempted to provide Antwan with services which were designed to identify the causes of his disruptive behavior
and to modify the behavior. He was placed in SARP to attempt to stem the disruptive behavior that could lead to his dropping out of school. He received counseling sessions from the school guidance counselors. He was also counseled by the school principal. There were numerous meetings between Antwan's parents and school officials, but as Antwan's behavior worsened, what began as an amicable relationship between the parents and the school officials started to decline.
It is clear from the evidence presented that Antwan's needs were not being effectively met by the traditional education program at Carol City Middle School. The Jan Mann Opportunity School is an educational environment that will more effectively meet Antwan's needs.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered affirming the assignment of
Antwan J. Clark to the Jan Mann Opportunity School.
DONE AND ENTERED this 18th day of March, 1994, in Tallahassee, Leon County, Florida.
SUSAN B. KIRKLAND
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 18th day of March, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5483
To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
Paragraph 1: Accepted in substance.
Paragraph 2: Rejected as unnecessary and subordinate to the facts actually found.
Paragraph 3: The first two sentences are accepted in substance. The first part of the third sentence stating that Mr. Strachan personally removed Antwan from the classroom from five to ten times is rejected as not supported by the greater weight of the evidence.
The remainder of the sentence is accepted in substance.
Paragraph 4: Accepted in substance.
Paragraph 5: Accepted in substance.
Paragraph 6: The first three sentences and the first half of the fourth sentence are rejected as subordinate to the facts actually found. The second half of the fourth sentence and the last two sentences are accepted in substance.
Paragraph 7: Accepted in substance.
Paragraph 8: Accepted in substance.
Paragraph 9: The first sentence is rejected as not supported by the greater weight of the evidence. Ms. Schrager saw an object which resembled a cap gun. The second sentence is rejected as not supported by the greater weight of the evidence. The first part of the third sentence is accepted in substance. The second part of the third sentence is rejected as constituting argument. The last sentence is accepted.
Paragraph 10: Accepted in substance.
Paragraph 11: Rejected as unnecessary and subordinate to the facts actually found.
Paragraph 12: The first sentence is rejected as constituting argument. The remainder of the paragraph is accepted in substance.
Paragraph 13: The first sentence is rejected as constituting argument except the fact that Antwan threw rocks at Ms. Henry is accepted. The remainder of the paragraph is accepted in substance.
Paragraphs 14-15: Accepted in substance.
Paragraph 16: The first three sentences are accepted in substance. The last sentence is rejected as unnecessary.
Paragraphs 17-19: Accepted in substance.
Paragraph 18: Accepted in substance.
Paragraph 20: Rejected as subordinate to the facts actually found.
Paragraph 21: The two sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument.
Respondent's Proposed Findings of Fact.
Paragraphs 1-3: Accepted in substance.
Paragraph 4: Rejected as constituting argument.
Paragraph 5: Accepted in substance except to the extent that gambling occurred on only one occasion.
Paragraph 6: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence.
Paragraph 7: The first two sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance.
Paragraph 8: Rejected as constituting argument.
Paragraph 9: Rejected as not supported by the greater weight of the evidence. Respondent's Exhibit 1 shows numerous counseling sessions between Antwan and his counselor and at least one conference between Antwan's parents and a counselor.
Paragraph 10: Rejected as not supported by the greater weight of the evidence.
Paragraph 11: Rejected as not supported by competent substantial evidence.
Paragraphs 12-14: Rejected as subordinate to the facts actually found.
Paragraph 15: The first sentence is rejected as not supported by the greater weight of the evidence. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. I find that the parents' testimony is not credible.
Paragraph 16: Rejected as not supported by the greater weight of the evidence.
Paragraphs 17-19: Rejected as constituting argument.
Paragraph 20: Rejected as irrelevant to this proceeding.
Paragraph 21: Rejected as not supported by the greater weight of the evidence.
Paragraph 22: Rejected as constituting argument.
Paragraph 23: The first sentence is accepted in substance as it relates to early conferences with the parents and school officials. The remainder of the paragraph is rejected as constituting argument.
COPIES FURNISHED:
Anne G. Telasco, Esquire First Nationwide Building
633 NE 167th Street, Suite 304 North Miami Beach, Florida 33162
Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132
Jaime C. Bovell, Esquire
3211 Ponce De Leon Blvd., Suite 210 Miami, Florida 33134
Mr. Octavio J. Visiedo
1450 Northeast 2nd Avenue, #403
Miami, Florida 33312-1308
Douglas L. "Tim" Jamerson Commissioner of Education The Capitol
Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Feb. 24, 1995 | Letter to DOAH from A. Ghattas (RE: request for copy of final order);Release and Authorization filed. |
| Apr. 19, 1994 | Final Order of The School Board of Dade County filed. |
| Apr. 18, 1994 | Final Order of School Board of Dade County, Florida filed. |
| Mar. 18, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held February 10-11, 1994. |
| Mar. 10, 1994 | Respondent's Finding of Facts & Memorandum of Law in Support Thereof w/Exhibits A-D filed. |
| Mar. 03, 1994 | (Petitioner Proposed) Recommended Order; Petitioner's Motion for Reasonable Expenses filed. |
| Feb. 16, 1994 | Petitioner`s Composite Exhibits 9 & 20 filed. |
| Feb. 15, 1994 | Post-Hearing Order sent out. |
| Feb. 14, 1994 | (Petitioner) Subpoena Ad Testificandum filed. |
| Feb. 11, 1994 | CASE STATUS: Hearing Held. |
| Feb. 07, 1994 | Petitioner's Notice of Filing Answers to Respondent's Second Set of Interrogatories; Petitioner's Prehearing Statement; Petitioner's Answers to Respondent's Second Set of Interrogatories filed. |
| Feb. 03, 1994 | Petitioner's Notice of Filing Answers to Respondent's Second Set of Interrogatories; Petitioner's Prehearing Statement filed. |
| Feb. 03, 1994 | Amended Notice of Hearing sent out. (Amended to change time only; hearing set for 1/10/94; 10:00am) |
| Feb. 03, 1994 | Order sent out. (Petitioner's Motion for Sanctions Denied; Respondent's Motion to Compel Granted) |
| Jan. 31, 1994 | Respondent's Prehearing Statement; Answer to Petitioner's Motion for Sanctions Against Respondent for Refusal to Comply With Discovery Order filed. |
| Jan. 26, 1994 | (Respondent) Notice of Filing Response to Interrogatories; Petitioner`s Motion for Sanctions Against Respondent for Refusal to Comply With Discovery Order filed. |
| Jan. 21, 1994 | (Respondent) Notice of Filing Response to Interrogatories w/Petitioner's First Set of Interrogatories filed. |
| Jan. 18, 1994 | Order of Prehearing Instructions sent out. |
| Jan. 14, 1994 | Petitioner's Motion Requesting Hearing Officer's Order Requiring Prehearing Statements filed. |
| Jan. 10, 1994 | Order Granting Motion for Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 2/10-11/94; 9:00am; Miami) |
| Jan. 10, 1994 | Order sent out. (Re: Motion to Compel Answer Denied; Motion for Enlargement of Time Granted) |
| Jan. 04, 1994 | (Respondent) Motion for Continuance of Hearing Date Set for January 13 and 14, 1994; Respondent`s Motion to Compel Answer; respondent`s Motion for Enlargement of Time filed. |
| Dec. 23, 1993 | (Respondent) Notice of Filing Response to Request for Admissions of Petitioner filed. |
| Dec. 16, 1993 | Respondent Second Set of Interrogatories and Request for Production filed. |
| Dec. 14, 1993 | Petitioner`s Notice of filing Answers to Respondent`s Interrogs and Request for Production; Petitioners Response to Respondent`s Demand for Production of Documents; Petitioner`s Answers to Respondent`s Interrogs filed. |
| Dec. 14, 1993 | (Petitioner) Notice of Attorney Unavailability filed. |
| Dec. 08, 1993 | Notice of Trial filed. (From Anne G. Telasco) |
| Dec. 03, 1993 | Petitioner's First Set of Interrogatories; Notice of Filing Petitioner's First Set of Interrogatories filed. |
| Nov. 15, 1993 | Respondent Interrogatories and Request for Production of Documents From Petitioner filed. |
| Oct. 27, 1993 | (Respondent) Addendum to Issues filed. |
| Oct. 19, 1993 | Amended Notice of Hearing sent out. (hearing set for 1/13-14/94) |
| Oct. 13, 1993 | Notice of Hearing sent out. (hearing set for 1/13-14/94; 9:00am; Miami) |
| Oct. 07, 1993 | Petitioner's Response to Notice of Assignment and Order filed. |
| Oct. 07, 1993 | (Respondent) Unilateral Response filed. |
| Sep. 24, 1993 | Initial Order issued. |
| Sep. 21, 1993 | Agency referral letter; Request For Hearing; Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 13, 1994 | Agency Final Order | |
| Mar. 18, 1994 | Recommended Order | Respondent property placed in disciplinary program due to disruptive behavior. |
