STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-02311

)

DWAYNE REVONNE WILSON, )

)

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., Esq.

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

3050 Biscayne Boulevard Miami, Florida

For Respondent: No appearance

ISSUE

Whether the Respondent should be reassigned to the Opportunity School.

BACKGROUND

By letter dated December 17, 1984, the Respondent's parents were notified that the Respondent had been assigned to Jan Mann Opportunity School-North. The basis for the action was the Respondent's disruption of the educational process in the regular school program and his failure to adjust to the regular school program. On January 15, 1985, Respondent's mother requested a hearing on her son's assignment. One January 16,

1985, the matter was forwarded to the Division of Administrative Hearings for further proceedings.

At the hearing the Petitioner presented the testimony of one witness, Mr. Martin Bonny, Assistant Principal at Thomas Jefferson Junior High School. Petitioner entered no exhibits into evidence. The Respondent did not make an appearance.

Neither Petitioner nor Respondent have filed proposed findings of fact and conclusions of law. However, on July 29, 1985, a letter from the Assistant Board Attorney to Mrs. Arlevia Taylor, Respondent's mother, was filed. The letter indicates that Mrs. Taylor informed the Assistant Board Attorney that she had not received the Notice of Hearing or any of the other pleadings in this case. The Notice of Hearing and the prehearing order entered February 1, 1985, were both sent to the same address as that on the request for hearing and on the letter filed July 29, 1985, and neither the Notice of Hearing nor the prehearing order were returned to the Division of Administrative Hearings.

Therefore, it would appear that Mrs. Taylor received proper notification of the hearing.

FINDINGS OF FACT

1. Dwayne was repeating the seventh grade during the 1984-

   85 school year. He has a history of truancy and disruptive behavior. In an effort to remedy Dwayne's behavior several parent conferences were held and various disciplinary measures were imposed, including indoor and outdoor suspension. Dwayne was referred to the visiting teacher in an attempt to improve his attendance record, but his attendance did not improve.

   
   

2. Dwayne began the school year on September 6, 1984, and on October 16, 1984, he was referred to the visiting teacher because he had already passed the threshold requirement of 10 absences. Further, when Dwayne went to school he often would not attend class.

   
   

3. Dwayne has a history of disciplinary problems. He was involved in fights in October of 1983, March of 1984, and December of 1984. In the fight occurring in March a classroom window was broken and a sewing machine knocked over. In the December fight the grill of a car was broken. On May 23, 1984, he threatened a teacher. Dwayne was also referred to the office on November 2, November 8, and November 28, 1984, because he was disruptive and skipped class. Dwayne's behavior was bad enough for him to be expelled.

4. Along with his poor attendance and disciplinary records, Dwayne had a poor academic record.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. 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.

The Petitioner has the burden to prove that the child is disruptive, unsuccessful, or disinterested as those terms are defined above. In this case the Petitioner has presented sufficient evidence to show that Dwayne was disruptive and unsuccessful or disinterested. His history of fighting shows persistent behavior which not only interferes with his own learning but interferes with the educational process of others. His behavior resulted in frequent conflicts of a disruptive nature, and severely threatened the general welfare of the student and other members of the school population. Further, his failure to attend school demonstrates a lack of sufficient in volvement in the traditional school program to achieve success. Therefore, the assignment of Dwayne Wilson to an alternative school was appropriate and in fulfillment of Petitioner's duty to offer an educational alternative program to the Respondent.

RECOMMENDATION

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

RECOMMENDED that a final order be entered approving the assignment of the Respondent to the opportunity school program at Jan Mann Opportunity School - North.

DONE and ENTERED this 6th day of August, 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 6th day of August, 1985.

COPIES FURNISHED:

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

3050 Biscayne Boulevard Miami, Florida

Honorable Ralph D. Turlington Commissioner of Education

The Capitol

Tallahassee, Florida 32301

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

Mrs. Arlevia Taylor, 1099 N. W. 151st Street

North Miami, Florida 33169

Madelyn P. Schere Assistant Board Attorney Dade County Public Schools 1450 N.E. 2nd Avenue Miami, Florida 33132

Jesse J. McCrary, Jr., Esq. 3000 Executive Plaza

Suite 800

3050 Biscayne Boulevard

Miami, Florida 33137

Phyllis O. Douglas Assistant Board Attorney

Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 85-000231

Orders for Case No: 85-000231