STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4471

)

DWON BALLARD, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on February 15, 1985, in Miami, Florida before the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Mark A. Valentine

School Board of Assistant Board Attorney Dade County Dade County School Board

3050 Biscayne Boulevard, Suite 800

Miami, Florida 33137

For Respondent: Mitchell Horwich, Esquire Dwon Ballard Leslie Shear

7900 Northwest 27 Avenue

149 West Plaza, Suite 210 Northside Shopping Plaza Miami, Florida 33147-4796

This matter arose on the assignment by the School Board of Dade County of Dwon Ballard to Miami Douglas McArthur Senior High School-North, an alternative education placement. Ballard's mother objected to such placement and requested a formal hearing. The parties did not file proposed findings of fact and conclusions of law.

The School Board of Dade County presented the testimony of William George Murray. Dwon Ballard presented the testimony of Addie Sanders, Dwon Ballard, and Ernestine Ballard, together with one exhibit.

FINDINGS OF FACT

1. Dwon Ballard attended North Miami Junior High School from September 1983, to January 1984, and from May 1984, until his reassignment on November 29, 1984.

2. During these times, Dwon Ballard was involved in eight incidents of disruptive or rebellious behavior, including cutting class, truancy, leaving school ground without permission, defiance to a substitute teacher, fighting, and returning to school while on suspension.

   
   

3. The final incidents which resulted in reassignment involved a fight on November 1, 1984, which resulted in a five day suspension and a fight on November 19, 1984, during which Dwon Ballard struck another student in the face without warning or provocation. This last incident resulted in a ten day suspension and a decision to reassign Dwon Ballard to the Miami Douglas McArthur Senior High School-North.

   
   

4. Reasonable attempts were made to assist Dwon Ballard in resolving his problems. These attempts included counseling with Dwon Ballard and conferences with Ballard's mother and the students involved.

   
   

5. The other students involved were initially disciplined, but were not reassigned to the opportunity school. The other students involved were responsible for the first fight in that they attacked Ballard. During the intervening time, they continually threatened Ballard, called him names, harassed and otherwise antagonized him. It is however admitted that Ballard made the first physical contact in the second fight.

   
   

6. A review of Ballard's report card while attending Miami Douglas McArthur Senior High School-North shows that he has passing grades in all subjects. Prior to reassignment, Ballard was receiving a satisfactory mark in some subjects at North Miami Junior High School.

   
   

   CONCLUSIONS OF LAW

   
   

7. 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 Statute (1983).

   
   

8. 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. . . .

      
      

9. 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.

   2. Unsuccessful or disinterested. A student 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.

   
   

10. The above-quoted statute provides authority for review of the proposed placement. The quoted provisions also establish the criteria for classification and placement of disruptive or unsuccessful students.

    
    

11. Ballard argues that the standards for assignment to the opportunity school have not been met and that his needs are not met in the alternative school placement. Ballard also argues that the School Board did not make sufficient efforts to assist him in the regular school setting prior to initiating the alternative school placement. To the contrary, it is concluded that School Board of Dade County made good faith efforts to assist Ballard in adjusting to the regular school setting.

    
    

12. Dwon Ballard is properly classified as a disruptive student in that his behavior problems had been persistent and recurring over a two year period. Additionally, his academic performance was marginal at North Miami Junior High School and he has received passing grades at the opportunity school.

    
    

13. While it is unfortunate that Ballard was reassigned and the other students involved in the problems were not, that is not an adequate basis upon which to challenge the alternative school placement. It is concluded that the

alternative school placement is appropriate because of the nature of the incidents which presented a threat to the welfare and safety of other students. Assignment of Dwon Ballard to the Miami Douglas McArthur Senior High School is for the benefit of all the students and presents an opportunity for Dwon Ballard to succeed in his educational placement.

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 Dwon Ballard to Miami Douglas McArthur Senior High School-North. DONE and ENTERED this 4th day of March, 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 4th day of March, 1985.

COPIES FURNISHED:

Mitchell Horwich, Esquire 7900 N.W. 27th Avenue

149 West Plaza, Suite 210 Northside Shopping Plaza Miami, Florida 33147-4796

Mark A. Valentine, Esquire Assistant Board Attorney Dade County School Board 3050 Biscayne Boulevard

Suite 800

Miami, Florida 33137

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 84-004471

Orders for Case No: 84-004471