STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1850

)

DAISY PEREZ-CERNUDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 10, 1986, in Miami, Florida.

Petitioner School Board of Dade County was represented by Jaime Claudio Bovell, Esquire, Coral Gables, Florida, and the Respondent Daisy Perez-Cernuda was represented by her mother, Daisy Perez-Cernuda.

By letter dated April 1, 1986, Petitioner notified Respondent's parents that she was being administratively reassigned to J. R. E. Lee, an alternative school placement, and Respondent's mother requested a hearing regarding that re- assignment. Accordingly, the issue for determination herein is whether Respondent should be re-assigned to that educational alternative program.

Petitioner presented the testimony of Leslie Vogel; Charles Kavalir, Jr.; Dr. John B. Sanchez; Mary S. Chapman, and Armando J. Sanchez. The Respondent testified on her own behalf. Additionally, Petitioner's Exhibits numbered 1-13 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact.

Petitioner's proposed findings of fact numbered 1, 2, and 4 have been adopted in substance; 3 has been rejected as not being supported by the evidence; 6 and 8 have been rejected as being subordinate; and 5 and 7 have been rejected as not constituting findings of fact but rather as being recitations of individual testimony. Respondent's proposed findings of fact have been rejected as being immaterial.

FINDINGS OF FACT

1. During the 1985-86 school year, Respondent Daisy Perez-Cernuda was a student in the eighth grade at Riviera Junior High School.

   
   

2. During that school year, Respondent arrived late for her first period class or simply did not attend that particular class. On December 2, 1985, Respondent became angry in that class because someone was in her seat when she arrived late. when the teacher Mrs. Vogel tried to calm her, Respondent started moving toward the teacher in a menacing way while screaming at her. Respondent was permanently removed from Mrs. Vogel's class.

3. Respondent was instead appointed to be an office aide during the first period. Although normally bestowed as a privilege, the administration gave Respondent this assignment after her behavior in Mrs. Vogel's class in an attempt to rehabilitate Respondent by giving her a sense of responsibility and an opportunity to be successful.

   
   

4. On February 25, 1986, Respondent came to Mrs. Vogel's classroom to deliver the attendance report during third period, together with the third period office aide. Since Mrs. Vogel knew that Respondent was an office aide only during the first period, she went to the office later in the day to inquire as to why Respondent was not attending her third-period class. When Respondent, who happened to be in the office at the time, saw Mrs. Vogel approach the principal, she started screaming at Mrs. Vogel and threatening Mrs. Vogel with physical harm. The principal had to physically block Respondent's path as Respondent moved toward Mrs. Vogel in what appeared to be an attempt to carry out her threats.

   
   

5. On four occasions during the school year, Respondent was placed in the School Center for Special Instruction, a class wherein students serve in-door suspensions, due to her defiant and disruptive behavior. On two occasions, she left that classroom as soon as the security guard or assistant principal who accompanied her there had left. On one of those occasions-- March 3, 1986-- Respondent started screaming, yelling, and threatening students in that classroom to the extent that the other students became frightened for their physical safety and Respondent had to be removed by a security guard. On the last occasion--March 11, 1986--Respondent came in yelling racial slurs, profanities, and threats of physical violence to other students in that class.

   
   

6. On December 6, 1985, Respondent threatened another student with physical violence during physical education to the extent that she disrupted two classes that were on the physical education field at that time.

   
   

7. As a result of the above-described incidents, Respondent's failing grades in all classes, Respondent's cutting classes in addition to those already described above, Respondent's refusal to do her work while in class, Respondent's ten suspensions between October 1985 and March 1986, and Respondent's excessive absences and tardiness, a staffing conference was held on March 19, 1986, to consider Respondent's re-assignment into an educational alternative program. At that conference attended by Respondent, Respondent's mother, and numerous school system personnel, Respondent once again became uncontrolled. Her yelling and screaming of profanity culminated with her threat of physical violence against Mrs. Chapman, her counselor at Riviera Junior high School.

   
   

8. No corporal punishment is administered at Riviera Junior High School.

   
   

9. Respondent is a totally indisciplined child who should benefit by placement in an educational alternative program which has very small classes thereby allowing substantial individual attention to each student. Respondent would benefit from such special attention since it is clear from the demeanor of her parents at the final hearing in this cause that neither of them has any control over Respondent. Moreover, neither one appears to understand the need to discipline Respondent since neither one finds her behavior in school at all inappropriate.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

11. Section 231.2315, Florida Statutes, requires the various public school systems to establish educational alternative programs to meet the needs of students who are disruptive or unsuccessful in a normal school environment. Attendant thereto, the Department of Education has adopted criteria for eligibility for such programs. Section 6A-1.994(2), Florida Administrative Code, provides as follows:

    
    

    (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, achievement 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

    2. Unsuccessful or disinterested. 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.

    
    

12. Petitioner has clearly met its burden of proving that Respondent is both a disruptive student and an unsuccessful or disinterested student. Respondent is clearly in need of an educational program which can better fulfill her needs for specialized attention than the traditional program.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Daisy Perez-

Cernuda to the educational alternative program at J. R. E. Lee until such time as her performance reveals that she can be returned to the regular school program.

DONE and RECOMMENDED this 4th day of September, 1986, at Tallahassee, Florida.

LINDA M. RIGOT, 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 September, 1986.

COPIES FURNISHED:

Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132

Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools

1410 Northeast Second Avenue Miami, Florida 33132

Jaime Claudio Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134

Daisy Perez-Cernuda 4520 S.W. 5th Street Miami, Florida 33134

Ramon Perez-Cernuda #405

8871 Fountainbleau Boulevard

Miami, Florida 33172

Docket for Case No: 86-001850

Orders for Case No: 86-001850