STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3482

)

RITA COLLIER, ON BEHALF OF )

ANTONIO DOLL, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on January 21, 1985. Neither respondent nor anybody on his behalf appeared at the hearing. Petitioner was represented by counsel:

Mark Valentine, Esquire

3000 Executive Plaza, Suite 500

3050 Biscayne Boulevard

Miami, Florida 33137

These proceedings began with a letter petitioner Collier wrote, "requesting a hearing in reference to the recommendation of expulsion notice from Miami Norland Senior High School against Antonio Doll." Petitioner has administratively reassigned Antonio Doll to Douglas MacArthur Senior High

School-North "in lieu of expulsion."

ISSUE

Whether petitioner's assignment of Antonio Doll to an alternative educational program is justified on grounds of his "disruption of the educational process in the regular school program and failure to adjust to the regular school program?"

FINDINGS OF FACT

1. Antonio Doll's career at Norland Senior High School in Miami was not an unqualified success. On May 24, 1984, he was suspended for ten days after attempting to sell marijuana he had in his possession. About a month earlier, on April 25, 1984, his misconduct in the classroom had been called to the school administrator's attention, and had resulted in a parental conference with school authorities.

   
   

2. On March 7, 1984, he was suspended for ten days because of vandalism. This came after parental conferences on January 30, 1984, occasioned by insubordination in the classroom, and on December 9, 1983, after classroom misconduct and an episode of truancy. Antonio Doll was referred to the school administrator seven times in eight months.

3. As of January 25, 1984, his academic grades were worse than his conduct marks. He was failing five subjects and had a D in a sixth. Only in industrial arts was he doing better than D work.

   
   

   CONCLUSIONS OF LAW

   
   

4. Educational alternative programs are "programs designated to meet the needs of students who are disruptive or unsuccessful in a normal school environment." Section 230.2315(2), Florida Statutes (1984 Supp). The governing statute sets forth various criteria for "eligibility of students," in the disjunctive:

   
   

   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.

   Section 230.2315(4), Florida Statutes (1984 Supp.).

   
   

   These criteria are amplified by the provisions of Rule 6A-1.994(2), Florida Administrative Code, including the following definition of a disruptive student as one who

   
   

   1. Displays persistent behavior which interferes with the student's own learning

      or the education 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 class- room; 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. Rule 6A-1.994 (2)(a), Florida Administrative Code.

      
      

      The rule defines an unsuccessful or disinterested student as one who

      
      

      1. Demonstrates a lack of sufficient involvement in the traditional school program to achieve success because interests, needs or talents are not being addressed; or

      2. Shows unsatisfactory academic progress and the effort to provide assistance is either rejected or is ineffective.

      Petitioner is proceeding in the present case on the theory that Antonio Doll is both a "disruptive" and a "disinterested" student.

      
      

   5. In proceedings like these, where petitioner seeks to change the status quo and has complete access to school records, the burden is on petitioner to show that an alternative educa- tional placement is appropriate. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977); School Board of Dade County v. Bonnie Wolfe o/b/o David Michael Wolfe, No. 82-1143 (Recommended Order entered June 9, 1982); Robert J. and Anne Grix v. School Board of Dade County, No. 81-2386 (Final Order entered December 17, 1981); Mr. and Mrs. Alfred Burrows v. School Board of Dade County, No. 80-267 (Final Order entered May 21, 1980). Even though Section 230.2315(5), Florida Statutes (1984 Supp.) purports to authorize "an administrative review" of any action by respondent relating to alternative educational placements, the statutory reference to Chapter 120, Florida Statutes (1981), makes clear that any action by the school board must be viewed as free-form and tentative, pending adjudicatory proceedings, if a petition for hearing is timely filed. School Board of Dade County v. Bonnie Wolfe o/b/o David Michael Wolfe, No. 82- 1143 (Recommended Order entered June 9, 1982). See Department of Transportation

      v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Robert J. and Anne Grix v. School Board of Dade County, No. 81-2386 (Final Order entered December 17, 1981).

      
      

   6. Petitioner met its burden in the present case to establish that Antonio had displayed "persistent behavior which interferes with the student's own learning . . . and requires attention and assistance beyond that which the traditional programs can provide," Rule 6A-1.994(2)(a)(1), Florida Administrative Code, as well as proving that David "[d]emonstrated a lack of sufficient involvement in the traditional school program to achieve success because interests . . . [were] not being addressed," Rule 6A-1.994(2)(b)(1), Florida Administrative Code, and that Antonio has "[s]how[n] unsatisfactory academic progress," although petitioner failed to prove any effort to provide assistance." Rule CA-1.994(2)(b)(2), Florida Administrative Code.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That petitioner assign Antonio Doll to the opportunity program at Douglas MacArthur Senior High School-North.

DONE AND ENTERED this 31st day of January, 1985, in Tallahassee, Florida.

ROBERT T. BENTON II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 31st day of January, 1985.

COPIES FURNISHED:

Mark Valentine, Esquire 3000 Executive Plaza

Suite 800

3050 Biscayne Blvd.

Miami, Florida 33137

Mr. and Mrs. Collier 2560 N.W. 161 Street

Opa Locka, Florida 33055

Ralph D. Turlington Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32301

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 84-003482

Orders for Case No: 84-003482