STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2398

)

JEREMIAH SAMUELS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on August 5, 1986, in Miami, Florida. The following appearances were entered:

For Petitioner: James C. Bovell, Esquire

1401 Ponce de Leon Blvd. Coral Gables, Florida 33134

For Respondent: (No Appearance)

This issue in this case is whether the Respondent, Jeremiah Samuels, should be assigned to the Dade County School Board's opportunity school program at Jan Mann Opportunity School-North.

BACKGROUND

By letter dated May 27, 1986, the Petitioner advised the Respondent's mother that Respondent had been administratively assigned to Jan Mann Opportunity School-North, in accordance with the recommendation of the Principal and the Screening Committee of the Department of Alternative Education Placement. By letter dated June 11, 1986, the Respondent's mother, Eldie Samuels, requested a formal hearing on the assignment, and the matter was forwarded to the Division of Administrative Hearings for further proceedings.

At the final hearing, Petitioner presented the testimony of the following witnesses, all personnel of the Highland Oaks Junior High School: Arnold Golditch, teacher; Emma Garcia-Mendoza, teacher; Evelyn Van Dam, counselor; and Raymond Fontana, assistant principal. In addition, Petitioner's exhibits one through twelve were duly offered and admitted into evidence.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:

1. During the 1984-85 and 1985-86 academic years, Respondent attended Highland Oaks Junior High School.

   
   

2. During the 1985-86 academic year, Respondent was absent thirty-six (36) times, tardy thirty (30) times, and under suspension for twenty-eight (28) days. The Respondent did not receive a final grade for the 1985-86 academic year because he was transferred to Jan Mann Opportunity School on May 29, 1986. The last grading period for which Respondent received grades for the 1985-86 academic year was the third grading period which covered February 3, 1986 through March 27, 1986. For that grading period, the Respondent received five "F's" and one "D" for academic performance.

   
   

3. When a teacher or other staff member at Highland Oaks Junior High School has difficulty with a student's behavior, the teacher may submit a report of the incident to the front office, The reports are called Student Case Management Referral Forms and are reserved for serious behavior problems.

   During the 1985-86 academic year, nine Student Case Management Referral Forms were written regarding Respondent's behavior.

   
   

4. On December 2, 1985, a Student Case Management Referral Form was written because Respondent was rude and disruptive in class and did not serve detention as requested.

   
   

5. On December 10, 1985, a Student Case Management Referral Form was written because Respondent was disruptive in class and was so out of control that while swinging his arms, he struck one of his teachers in the mouth (apparently unintentional). The Respondent was suspended for five days.

   
   

6. On January 9, 1986, a Student Case Management Referral Form was written because the Respondent used provocative language to one of his teachers.

   
   

7. On February 7, 1986, a Student Case Management Referral Form was written because Respondent repeatedly talked back and was very disrespectful and defiant to one of his teachers. The Respondent was suspended for three days.

   
   

8. On March 7, 1986, a Student Case Management Referral Form was written because Respondent cut class and was returned to the school by police.

   
   

9. On April 21, 1986, a Student Case Management Referral Form was written because Respondent was found in the hallway cutting class by administrators at approximately 9:00 a.m. The Assistant Principal told the Respondent to report to the office. The Respondent did not report to the office as requested, and at 3:00 p.m., a second Student Case Management Referral Form was written on April 21, 1986, because of Respondent's failure to obey the Assistant Principal's directives to report to the office.

   
   

10. On May 5, 1986, a Student Case Management Referral Form was written because Respondent used profanity in class. The Respondent was suspended for five days.

    
    

11. On May 12, 1986, a Student Case Management Referral Form was written because Respondent cut class and was with a group of boys who set off a fire alarm. The Respondent was suspended for five days.

    
    

12. Ms. Van Dam is the building substitute teacher at Highland Oaks Junior High School and substituted in many classes where the Respondent was present. The Respondent was very defiant and resisted authority in all Ms. Van Dam's

    classes. The Respondent failed to obey simple requests and stated that he did not have to do certain things and that no one could force him to do certain things. On one occasion, Ms. Van Dam asked the Respondent to change seats. The Respondent replied, "F--- you, I will not change seats". During one class period, the Respondent went under an art table and refused to come out.

    Respondent's conduct consistently caused Ms. Van Dam to interrupt her normal classroom lessons.

    
    

13. Ms. Emma Garcia-Mendoza is an art teacher at Highland Oaks Junior High School and had Respondent as a student during the 1984-85 and 1985-86 academic years. In all classes, the Respondent was disruptive and defiant. On one occasion, the Respondent was out of his seat, and Ms. Garcia-Mendoza told the Respondent to sit down two or three times. Respondent refused to sit down and walked out of class without permission. During class, Respondent had a habit of blurting comments out, not directed to anyone in particular. On one occasion, the Respondent returned to class after a suspension and was annoying a female student in the back of the room. Ms. Garcia-Mendoza told the Respondent not to bother the other student and told Respondent to move. The Respondent shouted to Ms. Garcia-Mendoza, "F--- you, you f---ing b----, I hate you", and walked out of the door. On another occasion, Respondent got into an altercation with another student, and when Ms. Garcia-Mendoza attempted to break-up the altercation, the Respondent pulled his fist back as if to strike Ms. Garcia- Mendoza, but stopped. The Respondent's conduct consistently caused Ms. Garcia- Mendoza to interrupt her regular classroom instruction and routine.

    
    

14. Mr. Arnold Golditch teaches manufacturing or "shop" at Highland Oaks Junior High School. Golditch had Respondent as a student for the 1984-85 academic year and part of the 1985-86 academic year. The Respondent had a habit of blurting out comments in class and getting up and walking around during the lesson. The Respondent was consistently defiant during the 1985-86 academic year. Mr. Golditch was required to move the Respondent's seat on several occasions. The Respondent's conduct consistently required Mr. Golditch to interrupt his prepared classroom lesson.

    
    

15. Ms. Margaret Stanley is a guidance counselor at Highland Oaks Junior High School. During the 1984-85 academic year, each of Respondent's teachers complained to Ms. Stanley about Respondent's disruptive behavior and work performance. Particularly, the teachers complained that the Respondent would talk out in class. During the 1984-85 and 1985-86 academic years, Ms. Stanley held many conferences with the Respondent and his mother. The conferences did not result in any changed behavior on the Respondent's part.

    
    

16. Mr. Fontana, the assistant principal at Highland Oaks Junior High School, held a conference with Respondent's mother during the 1985-86 academic year but her reaction was mainly one of hostility.

    
    

17. For the 1984-85 academic year, the Respondent received three "F's", one "C" and one "Incomplete" as final academic grades.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

19. Education Alternative Programs have been established by the Legislature for students who are not successful in a regular school environment

    because of disruptive behavior and/or lack of interest or success. Pursuant to rules adopted by the State Board of Education, a student may be eligible for an Educational Alternative Program if the student 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". Section 230.2315(4), Florida Statutes (1985). The criteria for determining whether a student is eligible for such a placement is set forth in Rule 6A-1.994(2), F.A.C., which provides in relevant part as follows:

    
    

    Criteria for Eligibility. A student may be eligible for an educational alternative program if the student meets one or more of the criteria described 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;

    2. Unsuccessful or Disinterested. A student who: (1) demonstrates a lack of sufficient involvement in the traditional school program to achieve success because interest, 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.

       
       

20. The Petitioner has met its burden of proving that Respondent meets the criteria to qualify as a student that is disruptive and/or unsuccessful or disinterested, as defined in Rule 6A-1.994(2), F.A.C. The Respondent habitually engaged in disruptive conduct requiring the interruption of classroom lessons. Respondent was rude and disrespectful to his teachers and persistently defied the authority of school personnel. Despite the efforts of teachers and other school personnel to modify Respondent's attitude and improve his behavior, Respondent continued to interfere with the proper functioning of teachers and the education of other students. As a result, the Respondent was referred numerous times for suspensions and other disciplinary actions. The Respondent showed unsatisfactory academic progress and the effort to provide assistance was either rejected or ineffective.

    
    

21. The Petitioner has met its burden of proving that Respondent is a disruptive, disinterested or unsuccessful student in a normal school environment. Accordingly, the assignment of Respondent to an alternative school

was appropriate and in fulfillment of Petitioner's duty to offer an Educational Alternative Program to Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order affirming the assignment of Respondent to Jan Mann Opportunity School-North.

DONE and ORDERED this 21st day of September, 1986 in Tallahassee, Florida.

W. MATTHEW STEVENSON 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 21st day of September, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2398

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case:

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Findings of Fact 1, 2 and 3.

2. Adopted in Finding of Fact 13.

3. Adopted in Finding of Fact 12.

4. Adopted in Findings of Fact 8 and 10.

5. Adopted in Finding of Fact 11.

6. Adopted in Findings of Fact IS, 16 and 17.

COPIES FURNISHED:

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

James C. Bovell, Esquire 1401 Ponce de Leon Blvd. Coral Gables, Florida 33134

Ms. Eldie Samuels

2529 N.E. 191st Street, Apt. 4 North Miami Beach, Florida 33100

Dr. Leonard Britton, Superintendent Dade County Public Schools

Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132

Judith Brechner, Esquire General Counsel Department of Education Knott Building

Tallahassee, Florida 32301

Honorable Ralph D. Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

Docket for Case No: 86-002398

Orders for Case No: 86-002398