STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY )

)

Petitioner, )

)

vs. ) CASE NO. 85-0097

)

EMILO A. PEREZ, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for hearing on April 24, 1985, in Miami, Dade County, Florida, before Diane A. Grubbs, a hearing officer with the Division of Administrative Hearings

APPEARANCES

For Petitioner: Mark A. Valentine, Jr., Esquire

Assistant School Board Attorney McCrary & Valentine, P.A.

3050 Biscayne Boulevard Miami, Florida

For Respondent: Daniella S. Levine, Esquire

Education Advocacy Project

Legal Services of Greater Miami, Inc. Northside Shopping Center

149 West Plaza, Suite 210 7900 Northwest 27th Avenue Miami, Florida 33147-4796

ISSUE

Whether the respondent should be reassigned to the Opportunity School.

BACKGROUND

By letter dated March 27, 1984, Emilo was advised that he had been transferred to J.R.E. Lee Opportunity School. On

December 14, 1984, Emilo's parents requested a hearing on the assignment, and on December 17, 1984, the matter was forwarded to the Division of Administrative Hearings for further proceedings, and a formal hearing was held on April 24, 1985.

At the beginning of the hearing the petitioner moved for a continuance on the ground that its only witness was not present at the hearing. The motion was denied; however, petitioner was given the opportunity to present the witness's testimony by way of deposition filed after the hearing. The respondent presented the testimony of Lillian Tricomi, school social worker; William Hayes, school psychologist; Emilo's mother and father; and Emilo. No exhibits were entered into evidence.

On June 13, 1985, an order was entered extending the time for petitioner to file the deposition in support of its position and for both parties to file their proposed recommended orders. Petitioner failed to file the deposition, and neither party filed proposed findings of fact or conclusions of law.

FINDINGS OF FACT

1. Emil Perez attended Kinloch Park Junior High School during the 1983-84 school year. He was then assigned to opportunity school at Lee and enrolled there at the beginning of the 1984-85 school year. Because petitioner failed to file the deposition of its witness, there was no competent evidence presented concerning the reason or reasons why Emilo was assigned to the opportunity school.

   
   

2. Emilo began to have serious attendance problems after being assigned to J.R.E. Lee. Both the school social workers and the school psychologist who testified at the hearing agreed that Emilo did not go to school at J.R.E. Lee because he was afraid to go to school there. The fear manifested itself through physical symptoms such as diarrhea and vomiting. Mr. Hayes, the school psychologist, defined Emilo's emotional problem as "school phobia", which is similar to separation anxiety disorder. However, although Emilo's fear of school was exaggerated, it was not totally baseless. The students at Lee are more aggressive than the students enrolled in the regular school program, and Emilo was threatened and harassed by the other students when he went to school. Emilo did not have attendance problems while enrolled at Kinloch.

   
   

3. Because of Emilo's emotional problems, he would benefit from mental health counseling and assignment to a regular school program.

   
   

   CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

5. Section 230.2315, Florida Statutes, provides for the establishment of educational alternative programs for a student who 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. Pursuant thereto, the Department of Education has promulgated rules for the determination of eligibility for such a program. Rule 6A-1.994(2), Florida Administrative Code, sets forth the criteria for eligibility for an educational alternative program and defines the disruptive and unsuccessful or disinterested student. A student is eligible for an educational alternative program if he meets one or more of the following criteria:

   
   

   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;

      
      

      * * *

      
      

   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.

      
      

6. The petitioner has the burden to prove that the child is disruptive, unsuccessful, or disinterested as those terms are defined above.

   
   

7. In the instant case, the petitioner failed to present any evidence, and therefore failed to carry its burden of proving that Emilo was a disruptive, unsuccessful or disinterested student while attending Kinloch Park Junior High. The evidence presented at the hearing showed only that Emilo was unsuccessful or disinterested while enrolled at J.R.E. Lee Opportunity School.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a final order be entered disapproving the assignment of respondent to the opportunity school program at

J.R.E. Lee and assigning the respondent to the regular school program.

DONE and ENTERED this 17th day of September, 1985, in Tallahassee, Leon County, Florida.

Diane A. Grubbs, 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 17th day of September, 1985.

COPIES FURNISHED:

Daniella S. Levine, Esq.

Legal Services of Greater Miami, Inc. Northeide Shopping Center

149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami, FL 33147-4796

Ms. Maeva Hipps School Board Clerk

Dade County School Board

1450 N.E. 2nd Avenue, Suite 401

Miami, FL 33132

Mark A. Valentine, Jr., Esq. Assistant School Board Attorney McCrary & Valentine, P.A.

Suite 800, 3050 Biscayne Boulevard

Miami, FL 33137

Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools

1450 Northeast Second Avenue Miami, FL 33132

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

Docket for Case No: 85-000097

Orders for Case No: 85-000097