STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS GARRET, )

)

Petitioner, )

)

vs. ) CASE NO. 78-708

)

DADE COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Miami, Florida, on June 14, 1978, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Harold Long, Jr., Esquire

Suite 2382, One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131

For Respondent: Phyllis O. Douglas, Esquire

Dade County School Board Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132

ISSUE PRESENTED

Validity of Respondent's placement decision concerning Petitioner, as set forth in letter of Wylamerle G. Marshall, dated March 28, 1978.

This cases arises from Petitioner's request for a hearing to review a decision of the Director, Exceptional Child Education, Dade County Public Schools, that placement of the Petitioner in a learning disabilities program was an appropriate placement in the Dade County School System. The decision was effected by letter of March 28, 1978 from Wylamerle G. Marshall to Mrs.

Constance Garrett, the mother of petitioner Thomas Garrett. She-thereafter requested review on behalf of her son by letter from legal counsel dated April 6, 1978. The case was referred to the Division of Administrative Hearings for appointment of Hearing Officer on April 12, 1978.

Although the hearing in this matter was originally set for May 11, 1978, the Hearing Officer granted Petitioner's request for a continuance and the case was heard on June 14, 1978.

FINDINGS OF FACT

1. Petitioner Thomas Garrett, a seven year old boy, who is the son of Constance Garrett, Miami, Florida, was enrolled in the first grade at Orchard Villa Elementary School, Miami, Florida, in September, 1977. Several days after school began, Thomas brought home classroom papers indicating that he had failed on certain tests. Mrs. Garrett spoke to his teacher who informed her that Thomas was hyperactive, disruptive and not able to do classroom work properly. She then went to the principal who told her that letter grades should not have been given in the first grade classes and suggested that the child be placed again in kindergarten. Mrs. Garrett asked that Thomas be tested to determine if he had any learning deficiencies and the principal agreed to initiate administrative processing in that respect. (Testimony of C. Garrett)

   
   

2. The normal procedure followed in the Dade County Public School System for placement of a child in a learning disabilities program is for the student's teacher to bring the matter to the attention of the local school authorities who refer the case to a school "team." The team assists the teacher in dealing with any problems arising in the classroom. If the team recommends that the child needs evaluation, the school sends a visiting teacher to the home to obtain the social history of the child to prepare for possible psychological testing and evaluation of the particular case. This information, together with routine school hearing and visual tests, and evaluation of the student's teacher are provided to a psychologist in the school system who performs psychological testing at the school to determine the need for special education. The results of testing are thereafter reviewed by a committee of the county area concerned and final approval of any placement is made by the area staff director of student services for special education. Normally, the local schools are reluctant to test a small child early in the year until school personnel have worked with the child for a reasonable period of time. (Testimony of Shkoler)

   
   

3. On September 15, 1977, a visiting teacher was sent to the Garrett home where he obtained necessary data as to the child's background and procured the parent's consent for psychological testing. He turned this material over to school authorities on the same day. At the time of his visit, Mrs. Garrett informed him that she intended to have a private psychologist test her son, and also utilize the services of a public school psychologist, after which she would compare the results. (Testimony of Walton)

   
   

4. In the middle of September, a school psychologist was assigned to test Thomas but did not actually perform the testing because Mrs. Garrett obtained the services of a private psychologist who tested her son on September 20. It was therefore necessary for him to postpone any testing until he could see what testing had been done by the private psychologist. In the meantime, however, Mrs. Garrett had been urging the area director of student services, Mrs. Betty Shkoler to hasten psychological testing, but had not made her aware of the fact that private testing had been accomplished. It was not until the latter part of October, however, that Mrs. Garrett took the report of the private psychologist to Mrs. Shkoler, although she had shown it to the Orchard Villa principal. The report stated that Thomas had a need for a fully clinical school with emphasis on motor and perceptual skills and academic learning experiences presented with manipulative-associative techniques. The director of student services had the report reviewed by an area psychologist and it was determined that Thomas should be placed in a learning disabilities program. Mrs. Garrett was contacted and agreed to placement at Westview Elementary School after personal visitation there. Thomas was thereafter placed in the first grade class of Martha L. Chinn at that school. The authorization for placement, dated October 27, 1977, stated

   that the child's primary educational needs were activities to remediate visual motor deficits, visual closure activities, visual association, and visual sequential memory activities, and a program for gross motor development. Mrs. Garrett signed a consent form to the placement on November 4, 1977. (Testimony of Armour, Shkoler, C. Garrett, Exhibits 1, 3 - 4)

   
   

5. Normal transportation arrangements were made by area school authorities whereby the parent is responsible for taking the child to the home school -- in this case Orchard Villa -- where school bus transportation would be provided to the new school, Westview Elementary. However, since Mrs. Garrett had specifically asked that Thomas be picked up by bus at his home for delivery to Orchard Villa, a special request was made to the school transportation office for this type of transportation. Pending receipt of information concerning such transportation, Mrs. Garrett personally transported Thomas to and from Westview Elementary on his first two days of class, October 31 and November 1, 1977. Although she anticipated having him picked up by bus on the following school day, November 3, as a result of Information provided in a note sent to her by the school teacher, this was not done because the school bus transportation office had not received a formal written request for such special treatment. Accordingly, Mrs. Garrett took Thomas to school on that day and was thereafter assured by school bus personnel that he would be picked up that afternoon from school. Conflicting testimony was presented at the hearing as to whether or not Mrs. Garrett was informed that the teacher would be notified as to the fact that Thomas would be picked up by bus that afternoon. In any event, Mrs. Chinn was not so informed and Thomas proceeded to wait for his mother outside the school after class. He was observed by his teacher waiting for his parent at the customary place, and she reassured him after some lapse of time that his mother would be there. She had assumed that Mrs. Garrett would pick him up since she had brought him to school that morning. Thomas later wandered off the school grounds and Mrs. Garrett, who had been waiting to meet the bus, became apprehensive when it did not arrive. She was later informed by the school secretary that Thomas had been found by a man some 24 blocks away from the school and returned there. Mrs. Garrett proceeded to school to pick him up and Thomas would not tell her what had happened, but was like a frightened animal." The next day Mrs. Garrett took him back to school, although he had had nightmares and did not want to return. She talked to a new assistant Principal at the school concerning the incident and was upset by what she perceived to be a callous attitude. On the following Monday, November 7, she took Thomas to the Orchard Villa School for bus pickup, but he was frightened and remained on the floor of the car. She thereafter did not let him return to Westview. Several days later, she was informed that bus pickup could be provided at home; however, she enrolled Thomas in Vanguard School, a private school in Coconut Grove in late November. (Testimony of C. Garrett, Chinn, Shkoler, Hart)

   
   

6. The class at Westview Elementary School where Thomas attended for several days is a full-time class for students with learning disabilities. It is taught by a teacher certified in that specialized area who is assisted by an aide certified in elementary education. By the end of the 1977-78 school year, there were 19 children in the class. However, individual attention is given by the teacher to each student to deal with their "deficits" and prepare "prescriptions" to assist in improving weak areas. It was found by Mrs. Chinn that Thomas was weakest in the "motor" area and consequently she prepared materials to deal with this problem. Although he had no particular problem in understanding instructions, he possessed a visual motor perceptive defect which causes difficulty for him to process and retain visual and auditory information. His condition results in inconsistent actions in response to auditory commands whereby in some instances he is capable of carrying out instructions but

   sometimes cannot do so. Although ideally he should be in a class with a low teacher/child ratio of ten or less children, this ratio may be higher in situations where an aide is present to assist the teacher. Thomas's teacher at Westview found that he seemed no different than any other child in her class and when he returned to school on November 4 after the unfortunate bus incident, he did not appear to be upset or pose any difficulty. (Testimony of Chinn, Armour, Cullen, Exhibit 2)

   
   

7. The learning disabilities program in the Dade County Public Schools is adequate for most children and Respondent refers children to private schools only in extreme cases involving children who cannot be properly handled in the public school system for unusual reasons. Although Thomas initially could have received a negative image of public schools from his receipt of failing grades at Orchard Villa, this would not necessarily predispose him against public schools. Although the bus incident undoubtedly produced a temporary stress and fear reaction, there is no evidence that it resulted in a phobia or any other permanent adverse result, although Thomas has never told his mother the details of the incident. (Testimony of Cullen, C. Garrett)

   
   

8. Mrs. Garrett paid tuition of approximately $350 a month at the Vanguard School, including transportation by van to and from school. (Testimony of C. Garrett)

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 230.23(4)(m) , Florida Statutes, reads as follows:

   
   

   230.23 Powers and Duties of school board.-- The school board, acting as a board, shall exercise all powers and perform all duties listed below:

   (4) ESTABLISHMENT, ORGANIZATION, AND OPERATION

   OF SCHOOLS -- Adopt and provide for the execution of plans for the establishment, organization, and

   operation of the schools of the district as foal lows:

   (m) Exceptional Students.-- Provide for an appro- priate program of special instruction, facilities, and services for exceptional students as prescribed

   by the state board as acceptable, including provisions that:

   2. The school board provides the special instruction, classes and services, either within the district school system, in cooperation with other district school systems, or through contractual arrangements with approved private non-public schools or community facilities.

   4. No student shall be given special instruction or services until he is properly classified as an exceptional student. The parent or guardian of an exceptional student placed or denied placement in a program of special education shall be notified pro- perly of such placement or impending placement or denial. Such notice shall contain a statement in-

   forming the parent or guardian that he is entitled to a review of the determination and of the procedure for obtaining such review.

   There is no dispute that Thomas is an exceptional student within the meaning of the statute. The sole question presented is whether or not the Respondent should underwrite his expenses for private school education from November of 1977 until the conclusion of the current school year, and whether he should be similarly financed during the coming school year. The basis for this contention is that Thomas has become alienated from the Dade County School System by reason of his experiences at Orchard Villa and Westview elementary schools. It is further claimed that even if Respondent can provide proper facilities for the child, it has failed to show the availability of the necessary supervisory and transportation services required and therefore cannot provide maximum educational benefits. Finally, Petitioner claims that private school tuition should be paid because Respondent was negligent in its handling of Thomas's case. Respondent, on the other hand, maintains that regardless of Thomas's experiences in the Dade County Schools, the public school system can appropriately educate the child pursuant to its duty under the statute.

   
   

10. This Hearing Officer agrees with the Respondent. At the outset, it is determined that no inordinate delay was occasioned in the initial placement of the child at Westview Elementary School. The evidence further establishes that Thomas can receive an appropriate education in the Dade County Public School System. As to the unfortunate bus incident, it appears that the fault therefor lies partially on both sides. School authorities should have provided clear instructions directly to Mrs. Garrett concerning bus arrangements on November 3, 1977, but Mrs. Garrett, after taking her child to school on that day when the school bus did not appear at her home, should have apprised the teacher or other school official of the problem and ensured her son's method of return transportation. Insufficient evidence was presented to show negligence on the part of school officials in failing to properly supervise Thomas to prevent his departure from the school grounds under the circumstances, nor was it shown that the child was thereby traumatically affected to the degree where he could not continue attendance at Westview Elementary or some other school in the Dade County system. Mrs. Garrett chose to enroll him in a private school at her own expense without prior consultation with Respondent's officials as to possible alternative arrangements. Under these facts, no justification exists for retroactive payment of tuition at such school by Dade County even if justification for attendance there had been established. In view of the conclusions set forth in the foregoing Paragraphs, there is no requirement that Dade County underwrite the expenses of private school tuition for the 1978-79 school year.

RECOMMENDATION

That Petitioner's request for relief be denied by the Dade County School Board.

DONE and ENTERED this 7th day of July, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Phyllis O. Douglas, Esquire Dade County School Board Lindsey Hopkins Building 1410 N.E. 2nd Avenue Miami, Florida 33132

Harold Long, Jr., Esquire

Suite 2382 - One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131

Docket for Case No: 78-000708

Orders for Case No: 78-000708