STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0289

)

ALEJANDRA GUERRA, )

)

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

STATEMENT OF THE ISSUE

Whether the Respondent should be reassigned to the Opportunity School.

BACKGROUND

By letter dated June 22, 1984, the Respondent's parents were notified that the Respondent had been assigned to Youth Opportunity School South. The basis for the action was the Respondent's disruption of the educational process in the regular school program and her failure to adjust to the regular school program. On December 10, 1984, the Respondent's mother requested a hearing on her daughter's assignment. On January

21, 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. Lewis Plate, Assistant Principal at Rockway) Junior High School. No exhibits were entered into evidence. Neither Petitioner nor Respondent have filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Alejandra entered Rockway Junior High on March 19, 1984. Prior to entering Rockway, Alejandra had been an attendance problem at her former school. Three days after starting at Rockway, on March 21, 1984, Alejandra was picked-up for truancy. On April 9, 1984, Alejandra was again truant and was placed in the indoor suspension program. On April 10, she was warned about her behavior in the indoor suspension program, and on April 11, she was caught smoking cigarettes. On April 12, she disrupted indoor suspension and, therefore, was suspended from school. Her father was contacted concerning Alejandra's behavior.

   
   

2. On April 23, 1984, a conference was held with Alejandra's father. At that time he explained that he had only had temporary custody of Alejandra and that Alejandra was again living with her mother. It was determined that the mother did live in the Rockway Junior High district and that Alejandra should transfer to West Miami Junior High School.

   
   

3. On April 24, 1984, Mr. Plate found Alejandra on the school grounds. Mr. Plate initially testified that Alejandra was "trespassing" on school property because she was still suspended from school. He later changed his testimony because the suspension was for 10 days and the last day of the suspension was April 22, 1984. Mr. Plate testified that he saw Alejandra in the late afternoon and she was not appropriately dressed for class. Mr. Plate told Alejandra that she should have her mother come to the school and fill out the forms necessary to accomplish Alejandra's transfer. He also informed Alejandra that she no longer belonged at Rockway and she should not return.

   
   

4. At no time did school personnel verify that Alejandra was living with her mother or verify the mother's address. Mr. Plate thought that the visiting teacher had been sent to the home, but he did not know whether contact had ever been made

   with Alejandra's mother. On May 21, 1984, Alejandra was referred to HRS because of her truancy, and on June 22, 1984, she was recommended for transfer to Opportunity School.

   Alejandra's last day in school was April 12, 1984.

   
   

   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.

      
      

7. Petitioner has not proved that Alejandra was a disruptive student. During the time Alejandra was at Rockway, she displayed disruptive behavior once. One incident does not constitute "persistent" or "consistent" disruptive behavior, and there was no evidence that Alejandra's behavior on that one occasion severely threatened the general welfare of anyone. Therefore, Alejandra does not meet the criteria set forth in Rule 6A-1994(2)(a).

   
   

8. Petitioner also has failed to prove that Alejandra is an unsuccessful or disinterested student. Although Alejandra could not have shown satisfactory academic progress due to her failure to attend school, there was no effort made to provide assistance. Therefore, Alejandra does not meet the criteria set forth in Rule 6A-1994(2)(b). Although under most circumstances, the failure to attend school for over two months would certainly demonstrate "a lack of sufficient involvement in the traditional school program to achieve success because the interests, needs or talents are not being addressed...", in this case such a conclusion is not warranted. Alejandra did not simply choose to stop attending Rockway Junior High, she was specifically told by the assistant principal at the school that she could not return and did not belong there. Therefore, Alejandra's failure to attend class after April 24th can not be considered evidence of a lack of involvement in the traditional school program because interests, needs or talents are not being addressed. From the evidence presented it is clear that Alejandra was never given a chance to participate in the traditional school program at Rockway. Alejandra spent only 14 school days in the regular classes, from March 19th to April 6th. On Monday, April 9th,

she did not go to school, and on April 10th, 11th, and 12th she was in the indoor suspension program. Although Alejandra was truant two days out of the nineteen days that she was permitted to attend Rockway, that alone is not sufficient evidence to support the conclusion that Alejandra lacked sufficient involvement in the traditional school program. There was no evidence that Alejandra's interests, needs, or talents were not being addressed in the regular school program. Finally, there was no evidence presented that Alejandra ever lived in a school district other than the Rockway school district. Mr. Plate stated that the address on the letter to the parents advising them of Alejandra's assignment to the alternative school appeared to be within the Rockway district, and also the different address that was given on the Request for Hearing form filled out by Alejandra's mother was within the Rockway district. It therefore appears that Alejandra was told that she could not return to the only school that she may have been eligible to attend. Based on the foregoing, it must be concluded that Petitioner failed to prove-that Alejandra met the criteria for educational alternative placement set forth in Rule 6A-1.994(2) ( b ) 1.

RECOMMENDATION

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

RECOMMENDED that a final order be entered disapproving the assignment of the Respondent to the opportunity school program at Youth Opportunity School South and assigning the Respondent to the appropriate regular school program.

DONE and ENTERED this 16th 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 16th day of August, 1985

COPIES FURNISHED:

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

3050 Biscayne Boulevard

Miami, Florida 33137

Phyllis Douglas, Esq. 1410 N.E. 2nd Avenue Miami, Florida 33132

Madelyn P. Schere

1410 N.E. Second Avenue Miami, Florida

Mr. and Mrs. Julio Guerra 3331 S.W. 90 Avenue

Miami, Florida 33165

Honorable Ralph D. Turlington Commissioner of Education

The Capitol

Tallahassee, Florida 32301

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

Docket for Case No: 85-000289

Orders for Case No: 85-000289