STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0294

)

ROMMEL LUIS MONTES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on February 24, 1987, in Miami, Florida.

APPEARANCES

For Petitioner: Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134 For Respondent: No Appearance.

ISSUE

Whether or not the Respondent student, Rommel Luis Montes, should be assigned to the J. R. E. Lee Center, an opportunity school.

BACKGROUND

During the 1984-85, 1985-86, and 1986-87 school years Respondent was enrolled at Riviera Junior High School, a school within the Dade County school system. By letter dated December 10, 1986, Respondent's mother was notified that Respondent was being administratively assigned to an opportunity school, the J. R. E. Lee Center. The basis for the assignment was Respondent's disruptive behavior and failure to adjust to the regular school program.

Respondent's mother filed a timely request for a formal hearing on the assignment, and the matter was forwarded to the Division of Administrative Hearings for further proceedings.

At the hearing Petitioner presented the testimony of the following personnel of the Riviera Junior High School: Carol Ann Golden, math teacher; Deanna A. Villalobos, history teacher; Ninette Waizenhofer, counselor; and Betty

1. Thomas, assistant principal. Petitioner's exhibits 1-14 were received into evidence.

   
   

   The parties were granted leave until March 6, 1987, to file proposed findings of fact. Petitioner filed proposed findings of fact in a timely manner, and they have been addressed in the appendix to this recommended order.

   FINDINGS OF FACT

   
   

   1. Respondent Rommel Luis Montes, age fifteen, was a student at Riviera Junior High School (Riviera) in Dade County, Florida, during the school years 1984-85, 1985-86, and 1986-87.

      
      

   2. During the 1984-85 school year Respondent's academic performance was very poor. He received five failing grades, passing only the subject of physical education with the grade of C. Also his ratings for effort during the four marking periods of that year were poor. The result of Respondent's lack of effort and poor academic performance was his not being promoted to the next grade.

      
      

   3. During the 1985-86 school year Respondent's academic performance was also poor. During that year he received poor ratings for effort, a D as a final grade in five subjects and the grade of F in two subjects.

      
      

   4. Respondent did not improve his academic performance during the 1986-87 school year. During the first grading period of that year, Respondent received grades of F in three subjects, grades of D in two subjects and one incomplete grade which subsequently was changed to an F. As before, Respondent's rating for effort was poor.

      
      

   5. Mrs. Carol Ann Golden, a math teacher, had Respondent as a student during the first marking period of the 1986-87 school year. While enrolled in that class, Respondent refused to do any work. Most of the time he would come to class without materials, he would rarely do homework and less than 10 percent of the time did he perform any class work. He had unexcused latenesses and out of forty-five school days he was absent twenty.

      
      

   6. In efforts to discourage tardiness, Mrs. Golden would issue detentions to Respondent (requiring him to stay in school after hours), but he would either serve them late or not at all, in defiance of school personnel authority. Those times when Respondent was issued indoor suspensions (CSI) as a disciplinary measure, he would refuse to do any work.

      
      

   7. Mrs. Deanna A. Villalobos, a history teacher at Riviera, also had Respondent as a student during the 1986-87 school year. Here again Respondent's behavior was the same: he would come to class without materials 70 percent of the time, hardly did any homework, performed approximately 5 percent of the work assigned in class, had approximately twenty absences (including one instance when he failed to return to class after lunch), was frequently tardy, would spend his time day dreaming and looking out the window, and as a result failed all the history tests administered. Respondent was also issued detentions by Mrs. Villalobos which he failed to serve.

      
      

   8. It is the practice at Riviera for teachers and school administrators to submit written reports relative to troublesome student behavior. Such reports are prepared on forms called Student Case Management Referral Forms (SCMRF) and are generally reserved for serious behavior problems. Mrs. Golden and Mrs. Villalobos each issued two SCMRFs on Respondent regarding, inter alia, his total lack of interest in school and failing grade average. In addition Respondent received five other SCMRFs from a different teacher. In addition to Respondent's lack of interest in school, these reports also complained of his skipping class, excessive talking in class, leaving class without permission, and simply refusing to do any work in class.

   9. As a counselor at Riviera, Mrs. Waizenhofer worked on a weekly basis with Respondent. From her testimony it was apparent that Respondent, although not a bad kid, was disinterested in school and was not responding to the various techniques used by teachers, counselors and administrators to make students more interested and improve their academic performance. During one counseling session Respondent, while in tears, promised Mrs. Waizenhofer to improve his school effort just a little. Twenty minutes later, Respondent was caught cutting class.

      
      

   10. One attempt at interesting Respondent in school, was to place him in the work experience program at Riviera. This consisted of securing employment for Respondent at Burger King on a part-time basis. Respondent was not able to hold the job for more than two weeks and he failed the program.

       
       

   11. Mrs. Thomas, assistant principal, and Mrs. Waizenhofer had numerous conferences with Respondent's mother. The parent, however, was not able to cause a change in Respondent's attitude toward school. It was recommended to both Respondent and his parent that assistance be sought at different community agencies, which could provide specialized counseling services at little or no cost. Despite the efforts made by the school administrators, no change was noted in Respondent.

       
       

   12. At Riviera, like other schools with regular school programs, the average number of students in a class is about thirty. Such schools are not geared to address peculiar student needs or provide individual students with continuous special attention. By contrast, at an opportunity school, such as the J. R. E. Lee Center, the ratio of teachers to students is about nine-to- one, students are the subject of individualized educational plans, and there are more counselors on staff, including a psychologist. The expert opinions of both Mrs. Thomas and Mrs. Waizenhofer was that the more structured environment at an opportunity school would be better for Respondent, as opposed to permitting him to remain in a regular school program where he was making no progress.

       
       

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

       
       

   14. Educational alternative programs have been established by Florida statute for students who are not successful in a regular school environment because of disruptive behavior and/or lack of interest or success. The relevant language of Section 230.2315, Florida Statutes, provides as follows:

       
       

       1. ELIGIBILITY OF STUDENTS. -- 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 . . . .

       2. REVIEW OF PLACEMENT. -- The parents or guardians of a student shall be entitled to an

          administrative review of any action by school district personnel relating to placement of the student in an alternative program, pursuant to the provisions of Chapter 120 . . . .

          
          

   15. A student may be assigned to an educational alternative program by a school board if he is either disruptive, or unsuccessful or disinterested. The criteria for determining whether a student is eligible foil such a placement is set forth in Rule 6A-1.994(2), Florida Administrative Code, which provides:

       
       

       Criteria for eligibility. A student may be eligible for an educational alternative program if the student meets one (1) 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 owns 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 member 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.

   16. In the case sub judice the record amply demonstrates that Respondent was unsuccessful or disinterested in school. Although he was not a troublesome student, in the sense of being disrespectful, violent or overly defiant of school personnel authority, Respondent was a problem because of his total lack of involvement in the traditional school program. He persistently refused to do homework assignments or to do any work in class, frequently preferring instead to sit quietly day dreaming and looking out the window. His continuous negative attitude and behavior toward school coupled with his excessive absences, class cutting, coming to class unprepared, and frequent latenesses, caused him to receive repeated failing grades over the course of three years and not being promoted to the next grade at the end of the 1985 school year.

       
       

   17. The record also shows that the sincere and various efforts made by the school administrators to cause Respondent to change his attitude toward school were either rejected or simply not effective. These efforts included counseling Respondent on a weekly basis, numerous conferences with his mother, placing him in the work experience program, and disciplinary measures. Unfortunately, nothing worked. It is obvious that Respondent has special needs that cannot be met in a regular school program. Given the facts of this case, the only conclusion that can be reached is that the hope for Respondent's progress may lie in the more structured environment of an opportunity school where he can receive far more individualized attention and perhaps his attitude toward school will be adjusted in a positive fashion.

       
       

   18. Petitioner has met its burden of proving that Respondent Rommel Luis Montes was a disinterested and unsuccessful student in a normal school environment. Furthermore, Petitioner has demonstrated that repeated efforts to assist Respondent were either rejected or ineffective. 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 Rommel Luis Montes to the J. R. E. Lee Center.

DONE AND ORDERED this 17th day of March, 1987, in Tallahassee, Florida.

WILLIAM J. KENDRICK

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 17th day of March, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0294

Petitioner's proposed findings of fact 1-12, have been adopted in paragraphs 1-12, respectively.

COPIES FURNISHED:

Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

Mrs. Estrella Montes

10030 Southwest 43rd Street Miami, Florida 33165

Dr. Leonard Britton, Superintendent Dade County Public Schools

The School Board of Dade County, Florida 1450 Northeast Second Avenue

Miami, Florida 33132

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Madelyn P. Schere, Esquire Assistant School Board Attorney

Board Administration Building, Suite 301 1450 Northeast Second Avenue

Miami, Florida 33132

Docket for Case No: 87-000294

Orders for Case No: 87-000294