STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4831

)

DANIEL Z. DUNCAN, )

)

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: Frank R. Harder, Esquire

8360 West Flagler Street, Suite 205

Miami, Florida 33144

For Respondent: Minerva Duncan

2614 Northwest 65th Street Miami, Florida 33147

BACKGROUND

By letter dated October 30, 1986, petitioner, School Board of Dade County, advised the parents of respondent, Daniel Z. Duncan, 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 on November 19, 1986 to contest the transfer. The matter was referred to the Division of Administrative Hearings by petitioner on December 8, 1986 with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated December 22, 1986, a final hearing was scheduled on January 20, 1987 in Miami, Florida. At final hearing, petitioner presented the testimony of Judy M. Byrum, Mario Stincer, Ronald Coyle, W. J. Robertson and Alberta DeFhavior. It also offered petitioner's exhibits 1-10 which were received in evidence. Respondent's mother testified on his behalf.

There is no transcript of hearing. The parties waived their 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 times relevant hereto, respondent, Daniel Z. Duncan, was a student at Hialeah Junior High School (HJHS) in Hialeah, Florida during school years 1985-86 and 1986-87. The school is under the jurisdiction of petitioner, School Board of Dade County (Board).

   
   

2. During school year 1985-86, Daniel was a thirteen year old eighth grade student at HJHS. According to his grade reports, he received one B, one C, three D's and one F during the school year. Nonetheless, he was promoted to the ninth grade. The following school year, a deterioration in grades occurred. In fact, Daniel was absent at least twenty-one days between September 10 and November 3, 1986, and received F's in every course.

   
   

3. During the fall of 1986 Daniel was involved in a series of disruptive incidents which culminated in a child study team's recommendation that he be transferred to an opportunity school. An opportunity school offers smaller classes for its students and has personnel who are specially trained to deal with students having behavioral or related academic problems in the regular school environment. The incidents which led to this recommendation are discussed below.

   
   

4. On September 13, Daniel snatched a gold chain from another student while the two were in the second floor school restroom during class break. Daniel was charged with theft and was suspended from school for five days for this misconduct.

   
   

5. On September 24, while on a five day suspension for misconduct, Daniel returned to the school campus. This was in violation of school rules which prohibit a suspended student from being on the school grounds. Despite having been told by a teacher to leave the premises, Daniel returned a second time later that day. He was cited for trespassing after his second Visit and received a two-day indoor suspension.

   
   

6. On October 1, Daniel entered Judy Byrum's classroom and placed his books on his desk. He then left the classroom and never returned. After Daniel lied to her the next day about his whereabouts on October 1, Byrum referred Daniel to the assistant principal because of his absence. Daniel received an indoor suspension for this conduct.

   
   

7. On October 3, Daniel and a fellow student were "horseplaying" in the school hallway. For this Daniel was cited for disruptive behavior and given a three-day-indoor suspension beginning on October 6.

   
   

8. In view of his repetitive disruptive conduct, a school child study team was convened on October 3 to determine what action, if any, was required to deal with Daniel's problems. After reviewing his grades, attendance and behavior, a decision was made to recommend Daniel's transfer to an opportunity school. It was also recommended that he be given individual counseling and that weekly progress reports be compiled. Because of subsequent disruptive conduct which prompted his transfer a few weeks later, Daniel did not receive the recommended individual counseling at HJHS.

9. On the morning of October 9 Daniel came to school wearing a baseball hat with the words "suck my dick" written on the hat. When his science teacher observed this, he instructed Daniel to give him the hat. Daniel refused and retreated to the school yard. Subsequent efforts by a security guard to retrieve the hat were unsuccessful, and it was finally necessary that an assistant principal escort Daniel to the principal's office. It should be noted that Daniel's refusal to obey the orders of the teacher and security guard was in the presence of other students, and had the effect of undermining his superiors' authority. After Daniel's mother was telephoned by the assistant principal regarding the incident, Daniel "bolted" out of the office and left the school premises. He was later given a five day suspension from school.

   
   

10. A conference with Daniel's mother was held on October 10. At that time, all circumstances surrounding the "hat" incident were discussed, and other teachers were brought in to explain various problems they were having with her son. Daniel was transferred to Douglas MacArthur High School-North after the "hat" incident and has remained there since that time. His grades have improved, and he has apparently adjusted to that school environment.

    
    

11. Daniel's mother testified that she was very concerned about her son's welfare. She felt that other alternatives existed besides transferring her son out of Hialeah Junior High School. However, she acknowledged that she had met in conference with school officials at least five or six times to discuss Daniel's disruptive behavior, and that her son's grades were very poor. She contended, however, that counseling might improve Daniel's behavior, and that HJHS had not made a serious effort to correct his behavior before the transfer decision was made.

    
    

    CONCLUSIONS OF LAW

    
    

12. 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).

    
    

13. Subsection 230.2315(3), Florida Statutes (Supp.1986), 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 Douglas MacArthur Senior High School-North. Subsection 230.2315(4) 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 in- volvement 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 Daniel's "disruptive behavior and failure to adjust to the regular school program" as bases for his reassignment.

          
          

14. The evidence reveals a pattern of consistent disruptive behavior by Daniel, as defined in Rule 6A-1.994(2)(a), during school year 1986-87. Such behavior interfered with Daniel's learning as evidenced by his numerous suspensions from school and tended to undermine the authority of school officials. In addition, Daniel's academic progress has sharply declined to a level where he received failing grades in all courses. Therefore, he may now be characterized as an unsuccessful or disinterested" student within the meaning of the rule. Despite numerous conferences with the student's mother, there has been no improvement in Daniel's conduct or academic progress. 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 Daniel Z. Duncan be reassigned to Douglas MacArthur

Senior High School-North.

DONE and Ordered this 3rd day of February, 1987 in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1987.

COPIES FURNISHED:

Frank R. Harder, Esquire Suite 205

8360 West Flagler Street Miami, Florida 33144

Ms. Minerva Duncan 2614 N.W. 65th Street Miami, Florida 33147

Dr. Leonard Britton Superintendent

Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132

Docket for Case No: 86-004831

Orders for Case No: 86-004831