STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0851

)

GREGORY SCOTT SAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for final formal hearing in Miami, Florida, on July 21, 1987, before Ella Jane P. Davis, the duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frank R. Harder, Esquire

175 Fontainebleau Boulevard, Suite 2A-3 Miami, Florida 33172

For Respondent: Fred Sage, Father

o/b/o Gregory Scott Sage 10198 Southwest 202nd Terrace Miami, Florida 33189

ISSUE

Whether or not Respondent should be assigned to J.R.E. Lee Opportunity School.

BACKGROUND AND PROCEDURE

Petitioner presented the oral testimony of Anya Cooper and Aaron Brumm and had admitted Exhibits P-1 (two pages of subpoena), P-2 (case management form 676566), P-3 (composite of Student Observation 1/12/87), P-4 (Composite Student Case Management Referral Forms), P-5 (Second Report for School Year 1986-1987), P-6 (Composite of Student Academic and Behavioral Reports), and P-7 (Individualized Education Program, IEP). Respondent presented the oral testimony of Fred Sage and had admitted R-1 (Computer printout), R-2 (Computer printout), R-3 (Child Study Team Conference Notes), and R-4 (composite of report card with progress notes of Grace Baptist Academy). Joint Exhibit A (Multi- Disciplinary Team Report) was also admitted.

Due to the failure of Bonnie Edison to respond to a validly served subpoena, the parties stipulated to the taking and filing of her deposition by Petitioner subsequent to July 21, 1987. Respondent's father's August 22, 1987,

letter has been treated as a Motion to Strike or Amend the Edison deposition, and the Edison deposition with attached exhibits has been admitted as amended by the Order of September 10, 1987.

Petitioner filed a "Memorandum of Law on Jurisdiction, Substantial Interest, and Case or Controversy," and Respondent filed a letter styled, "Request for Ruling." These documents are addressed the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.

FINDINGS OF FACT

1. Respondent's parents were notified by a letter dated January 30, 1987, that Respondent had been administratively assigned to the Dade County School Board's alternative education program at J.R.E. Lee Opportunity School. Being previously aware that the recommendation for administrative assignment had been made, Respondent's parents had formally withdrawn Respondent from the public school effective January 29, 1987, and timely petitioned for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.

   
   

2. Respondent's parents are currently complying with State law by continuing their son in a private educational facility, however Respondent's substantial interest entitling him to a formal hearing continues to exist in that the parents desire their son to be enrolled in the regular program of the Dade County public school system and in that they propose to re-enroll him in that system if they prevail in these proceedings.

   
   

3. At all times prior to his withdrawal from public school, Respondent was enrolled at Cutler Ridge Junior High School, located in Dade County, Florida.

   He attended summer school in the summer of 1986, and was 13 years old and in the seventh grade for the regular 1986-1987 school year.

   
   

4. During the regular 1986-1987 school year, Anya Cooper was Respondent's mathematics teacher. In her class, Respondent performed his basic skill work below grade level. She described his conduct in her class as very "fidgety, constantly moving around, bothering other students, and talking and kicking purses." However, she also described the foregoing behavior as all done "in fun" and described Respondent's usual responses to admonishment as being, "Okay, Okay." Apparently she interpreted these responses to her correction as being in the nature of back-talk but admitted that following a smart retort, Respondent usually would not say more beyond "Okay" and often complied with her requests.

   
   

5. Beginning September 22, 1986, Ms. Cooper kept a daily record of negative behaviors of Respondent. That day, Respondent was extremely talkative and refused to participate in boardwork. He also lied, saying a paper without a name on it which had received a grade of "B" was his own paper when, in fact, it had been submitted by someone else. When confronted with his lie, Respondent admitted the lie immediately. On September 24, he was too talkative and changed his seat. On September 26, he talked during a test and refused twice to take the test before actually taking it. On September 30, he chewed gum and was required to remove it. On an occasion in early October, he talked back to Ms. Cooper and was instructed not to talk in class anymore. On October 22, he threw a piece of staple which hit another student. Ms. Cooper counselled with Respondent about the danger of throwing staples, but Respondent interrupted her and refused to work. On October 23, Respondent kicked a female student, and on October 28, he put his foot on her arm. Ms. Cooper put him out of her class. There is no evidence that any student was ever injured. On October 27, Respondent refused to work and talked during the entire class period. Later

   that month, he threw a pen into the trash can, creating a loud noise and distraction. Nonetheless, despite the number of these incidents, Ms. Cooper only referred Respondent for discipline by the school administration one time.

   
   

6. During summer school the previous summer, the Respondent had been referred by the coach to Assistant Principal Brumm for running around the cafeteria. Respondent was reprimanded and warned without being assigned to indoor or outdoor suspension.

   
   

7. On July 22, 1986, also during summer school, Respondent had been referred to the office for disruptive and non-attentive behavior in one class. Assistant Principal Brumm sent Respondent home for one-half day as a disciplinary measure.

   
   

8. By October 6, 1986, Respondent was in the Student-At-Risk-Program (SARP). This program assembles a special group of teachers within the school who are able to deal particularly effectively with disciplinary problems. The student members of the program are assigned their own counsellor and attend classes of much smaller size than do those students in the academic mainstream. The target goal of SARP is to identify students at risk for dropping out of school and modify their behavior so as to retain them in the school system.

   
   

9. The testimony of Bonnie Edison, Respondent's seventh grade SARP life science teacher for the regular 1986-1987 school year, was submitted by after- filed deposition. Ms. Edison did not routinely refer Respondent to the administration for his discipline problems, nor did she involve the SARP counsellor. She addressed Respondent's disruptive behavior solely with SARP behavior modification techniques. In Ms. Edison's class, Respondent was "off task" and disruptive seventy to eighty percent of the time unless Ms. Edison addressed him on a one-to-one basis, or unless she included him in a group of no more than three students. Despite measurably high ability, Respondent's work effort was below standard ninety percent of the time. He consistently failed to bring proper materials to class but admitted he should do so. Ms. Edison counselled with Respondent a few minutes daily and occasionally for longer periods, sometimes with temporary success, but never with lasting success. Her greatest concern was that Respondent's need for one-on-one attention deprived her of teaching time and limited her time for other students. She also was concerned because, in their conversations, Respondent could name no rewards or goals she could integrate into her program at school. Nonetheless, noting that Respondent related better to plants than to people, and recognizing his very superior ability with horticulture, Ms. Edison involved him in independent study with plants as a reward. She also devised a reward system based upon Respondent's interest in wrestling as a contact sport, and upon his affection and respect for the wrestling coach who had previously referred Respondent for discipline. This coach helped Respondent study for his second grading period exam in Ms. Edison's class, and Respondent earned an "A" on this final exam.

   
   

10. Between September 1986 and the end of January 1987, Respondent had a total of seven referrals to the school administration, although some referrals covered several incidents. The constant theme of the referrals of Respondent to the administration was that Respondent had the ability to learn, but insufficient self-discipline to allow him to learn. Respondent had been assigned to six days of CSI (indoor suspension) and one day of outdoor suspension.

    
    

11. In the first grading period of the regular 1986-1987 school year, Respondent earned two F's, one D, two C's and one B. By January 29, 1987, in

    the second grading period, Respondent had earned two F's, two D's and two C's. In the second grading period, he had only been absent 2 or 3 times in each class except for math, in which he had 8 absences. There is no evidence that any teacher or administrator viewed these absences as excessive.

    
    

12. On January 20, 1987, a teacher referred Respondent for disrupting other students in CSI by making squeaking sounds. Thereafter, a Child Study Team was convened. Each of Respondent' a teachers participated in a conference with Respondent's mother on January 28, 1987. The consensus of the team and teachers was that Respondent needed extremely close supervision. Each teacher consulted with Respondent's mother on this occasion. Although there is evidence of some parental contact due to previous disciplinary problems, it appears that January 28, 1987, when the alternative education program was being actively explored, was the first time the parents were made aware of the serious penalties attendant upon Respondent's grades, behavior, and absences. The probable explanation for the lack of prior communication is that Respondent never gave contact slips/reports to his parents, but it is also clear that there was little or no administrative follow-up on the written material sent home and that the parents also resented and reacted hostilely to two oral contacts by the administration.

    
    

13. Mr. Brumm opined that all disciplinary and counselling techniques at his disposal had been tried but had proven ineffectual. It was Respondent's parents' position that the school had failed to adequately communicate with them concerning their son's disinterested and disruptive behavior; had failed to involve them early enough in disciplinary and academic correction of their son; and had failed to use corporal punishment to discipline Respondent.

    
    

14. To buttress their assertion that the school had failed to adequately communicate with them, the parents asserted that since certain disciplinary reports/referrals had not been committed to writing or consigned to the computer prior to the administrative school assignment (January 30, 1987) or prior to the formal withdrawal of their son from the Dade County School System (January 29, 1987), there was little or no credibility in any of the disciplinary reports/referrals admitted in evidence and particularly no credibility in those reports/referrals dated February 6, 1987, and later. The failure of teachers and administrators to timely commit to writing the reports does not diminish the credibility of the oral testimony on the same facts by the teachers and Mr. Brumm. It does, however, render less credible the administration's assertion that adequate communication was made with the parents simultaneously with the alleged disciplinary actions.

    
    

15. The parents' assertion that the school failed to use corporal punishment as an accepted disciplinary technique is ill-founded. The administration's failure to employ corporal punishment was consistent with established policy, and not demonstrated to be unreasonable.

    
    

16. Respondent's exhibits of report cards and progress reports from the private school which he entered subsequent to withdrawal from the Dade County Public School System are irrelevant to the statutory issues discussed in the conclusions of law. They are also virtually unintelligible without any "key" by which they may be interpreted.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the subject matter of this cause and the parties thereto. See, Section 120.57(1),

    Florida Statutes, and by analogy as to issues of standing, see also, Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), School Board of Orange County v. Blackford, 369 So.2d 689 (Fla.

    1st DCA 1979).

    
    

18. Section 230.2315, Florida Statutes, provides in pertinent part:

    
    

    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...

       
       

19. Assignment by a school board to an alternative education program is dependent upon the student meeting one or more of the following eligibility criteria set out by Rule 6A-1.994, Florida Administrative Code:

    
    

    (2) Criteria for eligibility. A student may be eligible for an educational alternative program if the student meets one (1) or more of the criteria

    prescribed 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 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 student or other members of the school population; or

       * * *

    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.

    
    

20. There are no excessive absences in this case. There is no behavior that acutely or chronically endangers teachers, students, or the Respondent himself, either physically or emotionally. No one's general welfare is severely threatened by this student. There is at least a minimal failure on behalf of the school system to communicate with and involve the parents in behavior modification at crucial stages of this child's education. Except for administrative responses to some vague disruptions in summer school, only minimal traditional disciplinary measures were tried with this student. Less than two full grading periods of SARP behavior modification intervention were utilized. The counsellor for SARP was not fully involved, but the child had begun to respond to the behavior modification techniques anyway, as evidenced by the A on one final exam. All educators concurred that this child is academically sound, but apparently unmotivated and emotionally at risk. All of the evidence indicates that if this child and his family receive some responsible psychological and motivational counselling on an ongoing basis, and if the student continues in the SARP program, he has the chance to turn around his disruptive and disinterested behavior.

    
    

21. The School Board, which bears the burden of proof herein, has failed to demonstrate by a preponderance of the evidence that this child presently meets the statutory and rule criteria for assignment to an alternative education program. Therefore, it is,

RECOMMENDED that the School Board of Dade County enter a Final Order reassigning this child to the Student-at-Risk-Program at Cutler Ridge Junior High School.

DONE and RECOMMENDED this 7th day of October, 1987, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 7th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0851

Pursuant to Section 120.59(2), Florida Statutes, the following rulings are made:

Petitioner's Memorandum has been accepted as set out in Findings of Fact 1-

2 and Conclusions of Law 1. Otherwise it is rejected as mere legal argument.

Respondent's Request:

1. Rejected as a recitation of testimony, as argument and as not supported by the record as a whole.

2. Rejected as not supported by the record as a whole; covered in Findings of Fact 7 and 10.

3. Except as covered in Finding of Fact 1 and 12-14 and in the Conclusions of Law this is rejected as not supported by the record as a whole and as argument.

4. Covered in Finding of Fact 14; Otherwise rejected as subordinate and unnecessary and as argument.

5. Covered in Finding of Fact 9, and 12-14; Otherwise rejected as subordinate and unnecessary.

6. This proposal was resolved by substitution of correct copies of the exhibits.

7. Covered in Finding of Fact 12; Otherwise rejected as argument. The remainder of the request is rejected as mere argument.

COPIES FURNISHED:

Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132

Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools

1410 Northeast Second Avenue Miami, Florida 33132

Frank R. Harder, Esquire

175 Fontainebleau Boulevard Suite 2A-3

Miami, Florida 33172

Fred Sage

10198 Southest 202nd Terrace Miami, Florida 33189

Docket for Case No: 87-000851

Orders for Case No: 87-000851