STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3453

)

DARRIEN BYRD )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on February 25, 1985, in Miami, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Frank R. Harder

Assistant School Board Attorney Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

For Respondent: Ms. Mary Cusack

Parent of Darrien Byrd 2929 Northwest 49th Street Miami, Florida 33142

This matter arose on the assignment by the School Board of Dade County of Darrien Byrd to an alternative school placement at McArthur Senior High School North. Darrien Byrd's mother, Ms. Mary Cusack objected to such placement and requested a formal hearing.

The School Board of Dade County presented the testimony of Nettie Thomas, Freddie Robinson and Dr. Kenneth D. Walker, together with six exhibits. Byrd presented his own testimony.

Procedurally, this matter was consolidated for purposes of conducting part of the final hearing with DOAH Case Nos. 84-3608, 84-3685, 84-4028, and 84-4029. This partial consolidation consisted of consolidation for purposes of presentation by the School Board of its case-in-chief. Thereafter, the respondent in each of the above-mentioned cases presented his case in a separate and distinct presentation. A separate Recommended Order will be entered in each case based upon the facts and the law as applicable to each individual respondent.

The School Board of Dade County filed proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have

been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the competent and credible evidence.

FINDINGS OFF FACT

1. This matter concerns an incident which took place at Brownsville Junior High School on August 16, 1984, during the last week of the summer school session. The incident involved a female victim and several male students. It is undisputed that a sexual assault on a female student did take place. The only question involved here is what part, if any, the respondent played in this incident.

   
   

2. The sexual assault was initiated by another male student, John Felder. Essentially, Felder pulled the victim, Nettie Thomas, into room 101 at the school. That room contained a television set which also served as a computer monitor. After the victim was pulled into room 101, various attempts were made to remove her clothing and she was fondled and touched by several male students. At one point during the victim's struggles, she was forced down on the teacher's desk and was held on top of the desk by her arms. While on the desk, she was assaulted by a male student who laid on top of her and made motions which simulated the motions made during sexual intercourse. At times, someone held his hand over her mouth so that she could not cry out for help. Additionally, during the time the incident occurred, the lights in the room were turned on and off on more than one occasion. The assault was stopped when the assistant principal walked up the hall to investigate the noises which were reported to be coming from room 101. The students involved in the assault fled the room.

   
   

3. The assistant principal, Freddie Robinson, observed and identified five boys fleeing room 101. Specifically, he identified Darrien Byrd, John Felder, Anthony Dowdell, Richard Daniels, and Vernon Clark.

   
   

4. The victim, Nettie Thomas, identified these same five, either in written or verbal statements made during the investigation of this incident.

   
   

5. Nettie Thomas identified Darrien Byrd as having fondled and touched her in the crotch area on three separate occasions during the assault.

   
   

6. Darrien Byrd was in room 101 when the sexual assault took place and he had been in the room before the female victim was pulled into the room. Byrd was in the room in violation of rules and he had no valid purpose for being in the room. He was watching TV when he should have been in class.

   
   

7. Substantial weight is given to the written statement of the victim which was made shortly after the incident. The written report specifically names Byrd by name as having fondled and touched her in her crotch. In light of this written statement and having judged the demeanor of the various witnesses, it is found that Darrien Byrd did fondle and touch the victim in her crotch area during the sexual assault.

   
   

8. Darrien Byrd did not make any attempt to assist or rescue the victim during the assault nor did he leave the room to seek any assistance for her.

9. Darrien Byrd had an extensive record of misconduct at Brownsville Junior High School prior to this incident. These incidents included fighting, disruptive behavior and disrespectful behavior to teachers.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to these proceedings. Section 120.57(1) and Section 230.2315, Florida Statutes (1983).

    
    

11. Section 230.2315, Florida Statutes (1983), provides in part:

    
    

    1. ELIGIBILITY OF STUDENTS.- Pursuant to rules adopted by the State Board of Education, a student may be eligible for an educational alternative program if the student is disruptive, unsuccessful, or disinterested in the regular school environment as determined by grades, achievement test scores,

       referrals for suspension or other disciplinary action, and rate of absences.

       
       

    2. REVIEW OF PLACEMENT.- The parents or guardians of a student shall be entitled to an administrative review of any action by school district personnel

       relating to placement of the student in an alternative program, pursuant to the provisions of chapter

       120. . . .

       
       

12. Rule 6A-1.994, Florida Administrative Code (FAC), provides in part:

1. Definition. Educational alternative programs designed to meet the needs of students who are disruptive, disinterested, or unsuccessful in a normal school environment. The educational alternative may occur within the school system or in another agency authorized by the school board.

   
   

2. Criteria for eligibility. A student may be eligible for an educational alternative program if the student meets one (1) or more of the criteria prescribed below as determined by grades, achieve ment test scores, referrals for suspension or other disciplinary action, and rate of absences.

   1. Disruptive. A student who:

1. Displays persistent 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

2. Displays consistent behavior resulting 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

3. Displays disruptive behavior which severely

   threatens the general welfare of the student or other members of the school population; or

4. Has a juvenile justice record and is placed in any youth services residential or day program of the Department of Health and Rehabilitative Services.

It is concluded that Darrien Byrd is properly classified as a disruptive student in that his involvement in this incident "displays disruptive behavior which severely threatens the general welfare of the student or other members of the school population." It is also concluded that the alternative school placement is appropriate because of the severe nature of the incident. The disruptive behavior exhibited by Darrien Byrd includes his presence during the attack, his failure to intervene on behalf of the victim or to seek any help for her during the attack, and his involvement in the attack by way of touching and fondling the victim's crotch.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Dade County enter a Final Order

assigning Darrien Byrd to the McArthur Senior High School North.

DONE and ENTERED this 11th day April, 1985, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1985.

COPIES FURNISHED:

Ms. Mary Cusack Parent of Darrien Byrd

2929 N. W. 49th Street Miami, Florida 33142

Frank R. Harder, Esquire Assistant School Board Attorney Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

Ms. Maeva Hipps School Board Clerk

School Board of Dade County 1450 N. E. Second Avenue Suite 301

Miami, Florida 33132

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N. E. Second Avenue Miami, Florida 33132

Docket for Case No: 84-003453

Orders for Case No: 84-003453