STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2452

)

EDUARDO HERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

By a May 18, 1985 letter of assignment, the School Board of Dade County assigned the student, Eduardo Hernandez to Jan Mann Opportunity School-North, an alternative school placement.

Timely request for review pursuant to Section 230.2315(5) was made by letter of Jorge A. Hernandez, father of the student, which letter was received by the School Board on May 31, 1985 and forwarded to the Division of Administrative Hearings on July 10, 1985.

Upon due notice, this cause came on for formal hearing before Ella Jane P Davis, the assigned Hearing Officer of the Division of Administrative Hearings on September 3, 1985, in Miami, Florida.

APPEARANCES

For Petitioner: Frank R. Harder, Esquire

Twin Oaks Building

Suite 100, 2780 Galloway Road

Miami, Florida 33165

For Respondent: Jorge Hernandez, father (with an

interpreter)

461 Southwest 10th Street, Apt 2 Miami Beach, Florida 33130

Petitioner presented the testimony of Dr. Paul Smith, and Ralph William Schmidt. Respondent presented the testimony of Jorge A. Hernandez.

No transcript was provided. Both parties indicated no proposals of findings of fact and conclusions of law would be filed because they would be working on a settlement of the issues involved. No settlement documents have been filed with the Division of Administrative Hearings prior to entry of this order.

FINDINGS OF FACT

1. In the 1984-1985 regular school year. Eduardo Hernandez was in the 7th grade at Nautilus Junior High School.

   
   

2. On December 4, 1984 Eduardo disrupted science teacher Ralph William Schmidt's science class by speaking loudly in Spanish and called the teacher a pejorative name in Spanish before the entire class. He was assigned classroom detention by Mr. Schmidt which he did not serve. On December 6, 1985 Mr. Schmidt tried to send him to the principal, Mr. Walker, with a note of detention but Eduardo ran out of the room. On that date, Eduardo wrote some obscene notes to Mr. Walker containing curse words in Spanish and passed the notes in class.

   
   

3. On February 6, 1985 Eduardo wrote with blue magic marker on a science lab table. Thereafter, the same markings (fancy signature marks and cartoons) were discovered in bathroom stalls, on desks, and other parts of the school and Eduardo and another boy were discovered in the vicinity with blue magic markers in their possession. Dr. Paul Smith, assistant principal of Nautilus Jr. High School confirmed that Eduardo was referred for discipline as a result of this incident.

   
   

4. In this year, Eduardo's science grades were mostly failures with many absences. He frequently disrupted the concentration of other students in the class. Some days he was cooperative and other days he was not. In most cases he was disruptive and discourteous to the teacher and students.

   
   

5. In response to many referrals by Mr. Schmidt, Dr. Paul Smith, spoke to Eduardo on a number of occasions. Very frequently Dr. Smith was required to speak with him about tardiness and cutting classes. In the first nine weeks grading period alone Eduardo was absent without proper excuse two times from one class, two times from another class and three times from another.

6. On December 11, 1984 Dr. Smith counselled with Eduardo due to a disruptive behavior referral from another teacher, Mr. Lawless.

   
   

7. On January 18, 1985, Dr. Smith personally received Eduardo when he was brought to school by the police as a truant.

   
   

8. On another occasion, Dr. Smith caught Eduardo "skipping" or truant after lunch period.

   
   

9. On March 19, 1985 Dr. Smith counselled with Eduardo on a referral for disruptive behavior in the classroom of another teacher, Mr. Burger.

   
   

10. On April 1, 1985, Eduardo was brought to the office for refusing to work in class and he thereafter left the office without permission from Dr. Smith.

    
    

11. Throughout the 1984-1985 school year, Eduardo's unexcused absences increased and his grades decreased. Eventually he was absent 20 days out of 45 in a grading period. His highest grade was a "D" and the others were failing or - unsatisfactory, designated as "F3F." In Dr. Smith's opinion, Eduardo cannot successfully complete a regular school program and although the Opportunity School may not be the only acceptable program, it was selected as the best solution under present circumstances.

    
    

12. Jorge A. Hernandez opposed the alternative school assignment on the basis of danger from other students behavior to his son. He did not challenge the existence of his son's prior disruptive behavior but submitted that a telecommunication program would be a better alternative if Eduardo cannot be returned to a regular school program. He offered that Eduardo's behavior will change since Eduardo is now living with his father and certain family stresses contributing to his disruptive behavior have been resolved.

    
    

    CONCLUSIONS OF LAW

    
    

13. The foregoing findings demonstrate that, regardless of the contributing factor of family stresses, Eduardo Hernandez met all of the criteria for eligibility for an alternative school placement set out in Section 6A-1.994(2)(a) and (b) Florida Administrative Code

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order continuing the alternative placement of Eduardo Harnandez at Jan Mann Opportunity School-North until such time as an annual or other evaluation indicates other appropriate assignment.

DONE and ORDERED this 27th day of September, 1985, in Tallahassee, Florida.

ELLA JANE P. DAVIS

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 27th day of September, 1985.

COPIES FURNISHED:

Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools,

Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132

Frank R. Harder, Esquire Twin Oaks Building

Suite 100, 2780 Galloway Road

Miami, Florida 33165

Mr. Jorge Hernandez

461 Southwest 10th Street, Apt 2 Miami Beach, Florida 33130

Mrs. Maeva Hipps School-Board Clerk

1450 Northeast 2nd Avenue, Room 401

Miami, Florida 33132

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

Mrs. Maeva Hipps School Board Clerk

1450 Northeast 2nd Avenue, Room 401

Miami, Florida 33132

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

Docket for Case No: 85-002452

Orders for Case No: 85-002452