STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0436

)

CARLOS C. GARAY, )

)

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 September 21, 1987, in Miami, Florida.

APPEARANCES

For Petitioner: Frank R. Harder, Esquire

175 Fontainebleau Boulevard, Suite 2A-3 Miami, Florida 33144

For Respondent: No appearance

BACKGROUND

By letter dated December 17, 1986, petitioner, School Board of Dade County, advised the parents of respondent, Carlos C. Garay, that respondent was being administratively assigned to an alternative educational program at J.R.E. Lee School because of respondent's "disruptive behavior and failure to adjust to the regular school." The assignment became effective upon receipt of the letter.

Thereafter, respondent's mother timely requested a hearing on January 7, 1987, to contest the transfer. The matter was referred to the Division of Administrative Hearings by petitioner on February 2, 1987, with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated March 18, 1987, a final hearing was scheduled on April 17, 1987, in Miami, Florida. At the request of petitioner, the matter was rescheduled to May 15, 1987, and then to September 21, 1987, at the same location. At final hearing, petitioner presented the testimony of Richard Wards Eric Stephen, Adrian Bezola, Enid Johnson and Willard Vredenburg. It also offered petitioner's exhibits 1-6 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.

The 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, Carlos C. Garay was a student in the school system of petitioner, School Board of Dade County. Most recently, he was a seventh grader at South Miami Junior High School until he withdrew from school on January 5, 1987.

   
   

2. Petitioner proposes to reassign Carlos from the regular school program to J.R.E. Lee School. The basis for reassignment is Carlos' "disruptive behavior and failure to adjust to the regular school." This action was formalized in a letter dated December 17, 1986, a copy of which was forwarded to Carlos' mother. The reassignment prompted a request for a due process hearing.

   
   

3. Carlos has been a student in the Dade County public school system since at least academic year 1984-85. That year he attended West Miami Junior High School (WJHS), and received final grades of F in all six subjects. His effort was generally rated insufficient, and his conduct was unsatisfactory in most classes for all grading periods.

   
   

4. As a result of having a knife in his possession on or about June 7, 1985, Carlos was expelled from WJHS for the first semester of school year 1985- 86, and reassigned to another school for second semester. On February 3, 1986, he enrolled at South Miami Junior High School (SMJHS).

   
   

5. At SMJHS, Carlos exhibited a continuing pattern of disruptive and rebellious behavior. This is documented in numerous case management referral forms received in evidence as petitioner's exhibits 2, 3 and 6. These forms are prepared whenever a student is referred by a teacher to the principal's office for disciplinary action. Carlos' conduct included incidents of disruptive behavior in class, hitting other students and refusing to obey his teachers. This conduct not only prevented Carlos from learning in the classroom, but also interfered with the educational process of other students.

   
   

6. As a result of the above referrals, school officials held a number of conferences with Carlos' parents in an effort to improve his behavior. In addition, Carlos was given frequent counseling, and was referred to a child team study. None of these measures produced any positive change in his behavior.

   
   

7. During 1986 Carlos did not demonstrate satisfactory academic progress. Indeed, he received more F's than any other grade. He also had numerous absences from class, and his effort in class was generally rated unsatisfactory.

   
   

8. Because of his disruptive behavior and lack of academic progress, a reassignment of Carlos to an alternative school is justified.

   
   

   CONCLUSIONS OF LAW

   
   

9. 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).

   
   

10. 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

1. Lee School. 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-1.0994(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 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 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-1.0994(2)(a) or "unsuccessful or disinterested" as defined in Rule 6A-1.0994(2)(b). According to the proposed agency action, petitioner is relying on Carlos' "disruptive behavior and failure to adjust to the regular school program" as bases for his reassignment.

11. The evidence reveals a pattern of persistent disruptive behavior by Carlos, as defined in Rule 6A-1.0994(2)(a), during school year 1986-87. Such behavior interfered with not only Carlos' learning, but also with the educational process of other students. It also tended to undermine the authority of school officials. In addition, Carlos' academic progress has not progressed for several years, and he most recently received failing grades in all courses. Therefore, he can be characterized as an "unsuccessful or disinterested" student within the meaning of the rule. Despite numerous conferences with the student's father, counseling, and lesser disciplinary measures, there has been no improvement in Carlos' conduct or academic progress. This being so, a reassignment to J.R.E. Lee 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 Carlos C. Garay be reassigned to J.R.E. Lee School. DONE AND ORDERED this 23rd day of September, 1987, in Tallahassee, Leon

County, Florida.

COPIES FURNISHED:

Frank R. Harder, Esquire

175 Fontainebleau Boulevard Suite 2A-3

Miami, Florida 33172

Ms. Carmelino Garay

6707 Southwest 215th Terrace Miami, Florida 33155

Dr. Leonard Britton Superintendent

Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132

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 23rd day of September, 1987.

Docket for Case No: 87-000436

Orders for Case No: 87-000436