STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2599

)

ANTHONY NEWKIRK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on August 21, 1986 in Miami, Florida.

APPEARANCES

For Petitioner: Frank R. Harder, Esquire

Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165 For Respondent: No appearance.

BACKGROUND

By letter dated May 18, 1986, petitioner, School Board of Dade County, advised the parents of respondent, Anthony Newkirk, that respondent was being administratively assigned to an educational alternative program at Jan Mann Opportunity School-North because of respondent's "disruptive behavior and failure to adjust to the regular school program." The assignment became effective upon receipt of the letter. Thereafter, respondent's mother timely requested a hearing on July 1, 1986, to contest the transfer. The matter was referred to the Division of Administrative Hearings by petitioner on July 18, 1986, with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated July 23, 1986, a final hearing was scheduled on August 21, 1986 in Miami, Florida. At final hearing, petitioner presented the testimony of Jo Anne Kouri, an art teacher at Thomas Jefferson Junior High School, and Marvin Bonney, assistant principal at the same school. It also offered petitioner's exhibits 1-5 which were received in evidence. There was no appearance by respondent.

There is no transcript of hearing. Petitioner waived its right to submit proposed findings of fact and conclusions of law.

At issue is whether respondent was properly assigned to an alternative school program.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all time relevant hereto, respondent, Anthony Newkirk, was a student at Thomas Jefferson Junior High School (TJJHS) in Dade County, Florida during school years 1984-85 and 1985-86. The school is under the jurisdiction of petitioner, School Board of Dade County (Board).

   
   

2. During school year 1984-85, Anthony was a thirteen year old seventh grade student at TJJHS. His attendance calendar card reflects that he was absent from first period home room at least twenty times that year. In addition, he was absent from his first through sixth period classes on 28, 22, 9, 37, 27 and 30 occasions, respectively. He also received failing grades in two subjects. During this same year, Anthony received a number of detention assignments and suspensions from school for disciplinary problems. These included class referrals by teachers, fighting at school, skipping detention and using profanity. On at least two occasions, his parents were contacted regarding his behavior.

   
   

3. Anthony's behavior gradually deteriorated in school year 1985-85. He was referred by his art teacher to the assistant principal at least seven times for disruptive actions in her class. For example, Anthony would not remain seated when asked to do so, he would deliberately begin talking in a loud manner while the teacher was attempting to instruct the class, and he refused to remove his hat in class as required by the school dress code. Such conduct interfered with the student's own learning as well as the educational process of others in the classroom.

   
   

4. In addition to the above problems, Anthony was referred to the principal by other teachers for similar conduct in 1985-86. He was also cited for excessive absenteeism and tardiness, and for skipping detention hall. On several occasions his parents were contacted regarding his behavior.

   
   

5. On April 17, 1986, Anthony was referred to a child study team consisting of a guidance counselor, teacher and school psychologist. Despite this counseling effort, Anthony skipped a detention hall on April 26. The assistant principal then made a decision that Anthony could not function in a normal school environment. He accordingly recommended that Anthony be reassigned to Jan Mann Opportunity School-North, an alternative education program designed to meet the needs of students who are disruptive, disinterested or unsuccessful in a normal school environment. His reassignment became effective on June 3, 1986, and Anthony is to begin the 1986-87 school year at Jan Mann on September 2, 1986.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

7. Subsection 230.2315(3), Florida Statutes (1985), authorizes each district school board to establish "educational alternative programs" for students who are disruptive or unsuccessful in a normal school environment. In this vein, petitioner has established an educational alternative program at Jan Mann Opportunity School-North. Subsection 230.2315(4), Florida Statutes (1985),

   provides that a student may be eligible for such a program if "the student is disruptive, unsuccessful, or disinterested in the regular school environment as determined by grades, achievement test scores, referral for suspension or other disciplinary action, and rate of absences." Rule 6A-1.994(2), Florida Administrative Code, defines a disruptive, unsuccessful or disinterested student in the following manner:

   
   

   1. Disruptive. A student who:

      1. Displays persistent behavior which interferes with the student's own learning or the educational process of others and re- quires 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 class- room; or

      3. Displays disruptive behavior which severely threatens the general welfare of the students 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.

      * * *

      
      

      Therefore, a student may be reassigned to an alternative program if the school finds that the student is "disruptive" as defined in Rule 6A-1.994(2)(a) or "unsuccessful or disinterested" as defined in Rule 6A-1.994(2)(b). According to the proposed agency action, petitioner is relying on Anthony's disruptive behavior as a basis for his reassignment.

      
      

8. The evidence reveals a pattern of consistent disruptive behavior by Anthony, as defined in Rule 6A-1.994(1)(a), beginning in school year 1984-85 and continuing through school year 1985-85. It further shows that despite efforts by school personnel to correct this behavior, including counseling and contact with the student's parents, Anthony's conduct actually deteriorated. This being so, a reassignment to Jan Mann Opportunity School is appropriate, and in the best interests of the student.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Anthony Newkirk be reassigned to Jan Mann Opportunity

School-North.

DONE and ORDERED this 29th day of August, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 29th day of August, 1986.

COPIES FURNISHED:

Frank R. Harder, Esquire Twin Oaks Bldg., Ste. 100 2780 Galloway Road

Miami, Florida 33165

Ms. Willie Newkirk 7286 N.W. 21st Court Miami, Florida 33147

Dr. Leonard Britton, Superintendent Dade County Public Schools

1450 N.E. 2nd Ave.

Miami, Florida 33132

Docket for Case No: 86-002599

Orders for Case No: 86-002599