STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4588

)

ERRON L. EVANS, )

)

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 January 20, 1987 in Miami, Florida.

APPEARANCES

For Petitioner: Jaime C. Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134 For Respondent: No appearance.

BACKGROUND

By letter dated October 10, 1986, petitioner, School Board of Dade County, advised the parents of respondent, Erron L. Evans, that respondent was being administratively assigned to an educational alternative program at Douglas MacArthur Senior High 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 to contest the transfer. The matter was referred to the Division of Administrative Hearings by petitioner on November 24, 1986, with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated December 9, 1986, a final hearing was scheduled on December 29, 1986 in Miami, Florida. At the request of petitioner the final hearing was rescheduled to January 20, 1987 at the same location.

At final hearing petitioner presented the testimony of Louis Allen, Patricia Stubbs, Lucille E. Heywood, Richard Raphael and Rose M. Raphael. It also offered petitioners exhibits 1-11 which were received in evidence. There was no appearance by respondent. 1/

There is no transcript of hearing. Petitioner filed proposed findings of fact and conclusions of law on January 29, 1987. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

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 times relevant hereto, respondent, Erron L. Evans, was a student at Miami Norland Senior High School (MNSHS) in Dade County, Florida during school year 1986-87. The school is under the jurisdiction of petitioner, School Board of Dade County (Board).

   
   

2. During the first half of school year 1986-87, Erron was a thirteen year old ninth grade student. He turned fourteen on January 1, 1987. Between September 17, 1986 and January 6, 1987 Erron was the subject of at least five student case management referral forms for disruptive conduct in class or on the school premises. These forms are used whenever a student is referred to the principal's office for disciplinary action. They are used sparingly and only when the conduct is so "extreme" as to warrant their use. Such forms related to incidents occurring on September 17, October 3 and 27 and December 4, 1986 and January 6, 1987.

   
   

3. On September 17, Erron and R. W., another male student, became embroiled in a fight after Erron provoked R. W. by calling him names. The encounter was eventually broken up by a teacher, and Erron earned a ten-day suspension from school for his misconduct.

   
   

4. On October 3, or the day when Erron returned from his suspension, Louis Allen, a teacher and football coach at MNSHS, was in his classroom during lunch hour when three students entered the class and placed their books on empty desks. When Allen told them they could not leave their books in the classroom during lunch hour, one student responded they did it regularly. Allen said that was not true for he had never seen them do it before. The same student responded "You're a Goddamned liar." Not knowing the identity of any of the students, Allen took the three to the assistant principal's office where he learned from one of the three that Erron was the student who had used the profanity. Erron then became hysterical, began screaming, and made physical threats upon Allen. Erron briefly left the office, but returned a few minutes later shouting obscenities. It should be noted that this entire episode took place in front of several teachers, students and school employees and had the effect of undermining the authority of Erron's superiors. After leaving the office once again, Erron went to the classroom where the student who had identified him was sitting. He "stormed" into the classroom and backed the student against the wall. The teacher was forced to call another teacher to remove Erron from the classroom. Erron received a ten-day suspension for this misconduct.

   
   

5. On December 4, 1986, Erron was written up again on a student case management referral form for disruptive behavior while in the classroom. For this, he received punishment in the form of a work detail at school.

   
   

6. The final incident occurred on January 6, 1987 when Erron attempted to start a fight with a female student but ended up fighting with another male student. After Erron was brought to the administrative assistant's office to discuss the incident, the assistant telephoned Erron's mother. Erron briefly spoke with his mother, started screaming on the telephone, and slammed the

   telephone down. He then told the assistant "Fuck you assholes, I'm leaving the whole damn school," and departed the premises. Erron was thereafter given a ten-day suspension from school beginning on January 7.

   
   

7. During the fall of 1986, Erron's academic record was also poor. For the grading period ending November 6, 1986 he received four F's and two D's in his courses, and his conduct and effort were rated very poor. During this same period, he was absent from school at least fourteen days, many of which were due to disciplinary suspensions. It was further established that in one class (mathematics) Erron was generally unprepared and did not bring class materials. He was also argumentative with his teacher and interrupted the normal workings of the class. This interfered with the other students receiving an educational benefit from the instruction.

   
   

8. On October 17, 1986, a child study team at MNSHS convened to discuss Erron's situation. After reviewing his performance, behavior and attendance, the team recommended that Erron be reassigned to an opportunity school. Erron and his mother were invited to attend this conference. Whether they did so was not disclosed. In any event, Erron was given notice of transfer by letter dated October 30, 1986. That prompted the instant hearing. It is presumed (but not known) that Erron is now attending Douglas MacArthur Senior High School-North, an opportunity school in Miami. 2/

   
   

9. For disruptive behavior, Erron was previously assigned to an opportunity school for the last few months of school year 1985-86. While there, he showed remarkable progress over his prior performance in the regular school program. Indeed, his grades were better than a B average during the final grading period, and his effort and conduct were very good. This record prompted the team and ultimately the Board to reassign Erron back to MNSHS for school year 1986-87.

   
   

10. Erron's mother has been personally contacted by MNSHS personnel on a number of occasions regarding his conduct. In addition, several teacher-parent conferences have been held. Despite this parental contact, no improvement in Erron's grades or deportment has occurred.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).

    
    

12. Subsection 230.2315(3), Florida Statutes (Supp. 1986), authorizes each district school board to establish "education alternative programs" for students who are disruptive or unsuccessful in a normal school environment. To implement this provision, petitioner has established an educational alternative program at Douglas MacArthur Senior High School- North. Subsection 230.2315(4), Florida Statutes (Supp. 1986), 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:

       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

       1. 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

       2. 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 of disinterested" as defined in Rule 6A-1.994(2)(b). According to the proposed agency action, petitioner is relying on Erron's disruptive behavior and failure to adjust to the regular school program as bases for his reassignment.

       
       

13. The evidence reveals a pattern of consistent disruptive behavior by Erron during school year 1986-87, as defined in Rule 6A-1.994(1)(a). This behavior has interfered with Erron's learning process, as evidence by the number of days in which he has been suspended from school. In addition, his conduct has been of a "disruptive nature," and has tended to undermine the authority of school officials. Finally, his academic progress in the regular school environment has deteriorated to a level that meets the definition of an unsuccessful or disinterested student. This being so, a reassignment to Douglas MacArthur Senior High School-North 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 Erron L. Evans be reassigned to Douglas MacArthur Senior

High School-North.

DONE and ORDERED this 13th day of February, 1987, 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 13th day of February, 1987.

ENDNOTES

1/ The hearing was noticed to begin at 8:30 a.m. on the scheduled date. When the hearing ended some two hours later, respondent had not yet appeared.

Through correspondence from petitioner's counsel, it was later learned that respondent's mother arrived at the site of the hearing shortly after the hearing had ended.

2/ The letter of October 30 referred to in paragraph 8 advised Erron the transfer was effective immediately. This was obviously not correct since Erron continued to attend MNSHS at least until January 7, 1987 when he was suspended for ten days.

APPENDIX TO RECOMMENDED ORDER

Petitioner:

1. Covered in finding of fact 2.

2. Covered in finding of fact 9.

3. Covered in finding of fact 9.

4. Covered in finding of fact 2 except that Erron was the subject of five (and not four) student case management referral forms.

5. Covered in finding of fact 3.

6. Covered in finding of fact 4.

7. Covered in finding of fact 4.

8. Rejected as being unnecessary.

9. Covered in finding of fact 6.

10. Covered in finding of fact 7.

11. Covered in finding of fact 7.

12. Covered in finding of fact 7.

13. Rejected as being irrelevant. This incident occurred after school hours and off the school premises.

14. Covered in finding of fact 8.

COPIES FURNISHED:

Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

Mr. & Mrs. Karl Hylton 20211 N. W. 42nd Avenue Carol City, Florida 33055

Dr. Leonard Britton, Superintendent Dade County Public Schools

1450 N. E. 2nd Avenue Miami, Florida 33132

Docket for Case No: 86-004588

Orders for Case No: 86-004588