STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1256

)

DAVID LEE LOCKHART, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for final formal hearing on May 12, 1987, in Miami, Dade County, Florida, before Ella Jane P. Davis, the undersigned duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

For Respondent: Martha Washington, Grandmother

o/b/o David Lee Lockhart 15525 Southwest 140th Terrace

Richmond Heights, Florida 33176 BACKGROUND AND PROCEDURE

During the 1986-1987 school year, Respondent was enrolled at Arvida Junior High School, a school within the Dade County School system. By letter dated February 26, 1987, Respondent's mother was officially notified that Respondent was being administratively assigned to J.R.E. Lee Center, an opportunity school. The administrative assignment of Respondent was made after a staffing conference attended by Respondent's mother. Respondent's mother originally consented to the assignment, however she later decided to challenge the justification for the assignment and timely filed a request for a formal hearing which was granted by the School Board. The matter was forwarded to the Division of Administrative Hearings for these proceedings. Subsequently, Petitioner learned that Respondent was not attending any school. Rather than allow Respondent to remain on a truancy status, Petitioner permitted him to attend school at Arvida Junior High School pending the outcome of these proceedings.

Petitioner offered the oral testimony of Katheleen L. Belews, Myra Lowell, Judy Roberts, Jeanne Knauber, and Robert Kalinsky, all of Arvida Junior High School. Petitioner had 28 exhibits admitted in evidence. Respondent's grandmother, Martha Washington, represented Respondent with consent of Respondent and his mother. Respondent testified on his own behalf and offered the oral testimony of his mother, Queenester Lockhart, and his grandmother, Martha Washington.

No transcript was provided. The parties agreed to an extended period subsequent to the conclusion of formal hearing in which to file written proposed findings of fact and conclusions of law. Only Petitioner timely filed post- hearing proposals, which are ruled upon pursuant to Section 120.59(2), Florida Statutes, in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent David Lee Lockhart, age 14, has been a student at Arvida Junior High School (Arvida), in Dade County, Florida, during the school years 1985-1986 and 1986-1987.

   
   

2. Respondent has been enrolled at Arvida in an exceptional student program where he attends mainstream classes with a general student population and classes especially designed for students found to have learning disabilities. Respondent has been diagnosed as a learning disabled child.

   
   

3. The academic grades Respondent received the 1985-1986 and 1986-1987 school years and 1986 summer session were mostly "F"s and "D"s. Similarly, his conduct and effort rating for the same period were poor.

   
   

4. Mrs. Katheleen L. Belews, a special learning disabilities teacher, had Respondent as a student during the 1986-1987 school year. While enrolled in that class, Respondent would frequently arrive late and without materials. He performed only about 10 percent of his homework assignments. During class time Respondent required much personalized attention from Mrs. Belews before going on task, resulting in his completing only about 50 percent of his assigned class work. In Mrs. Belews' class, Respondent interrupted other students with constant talking, repeatedly refusing to sit in his assigned seat when asked to, and frequently being rude and disrespectful to Mrs. Belews with considerable verbal sparring which could be interpreted as "back talk." Respondent repeatedly refused to serve the detentions assigned by Mrs. Belews for disciplinary purposes.

   
   

5. Myra Lowell, a special education teacher, also had Respondent as a student. Respondent repeated the same pattern of behavior in her class as had been experienced by Mrs. Belews. He refused to go on task immediately, remaining idle for as much as 16 minutes, performed very little homework or class work, refused to take his assigned seat, and caused frequent disruptions in class. Respondent acted as if Mrs. Lowell had no right to direct him, insisting always upon having the last word. His verbal sparring with her became argumentative and disrespectful. On one occasion, as a result of his argumentativeness and defiance, Mrs. Lowell had cause to remove him from her classroom.

   
   

6. Mrs. Judy Roberts is a varying exceptionality teacher who also taught Respondent. In her class, Respondent turned in only one homework assignment during the 1986-1987 school year. By her estimate, 90 percent of the time he refused to do any class work. Unlike other learning disabled students that regularly come to class on time and behave reasonably well, Respondent was excessively tardy to class, frequently cut class, and engaged in generally disruptive behavior in class. In one instance, Mrs. Roberts intercepted a note written by Respondent indicating that he was urging another student to cause a distraction so that Respondent could take the keys from Mrs. Roberts' desk.

   Upon investigation, Mrs. Roberts determined that her keys had in fact been taken and found them among Respondent's belongings. Although Respondent defended this

   action as something akin to horsing around or playing a practical joke, it clearly was of a more serious nature and disrupted the class.

   
   

7. At Arvida, student case management referral forms are generally reserved for serious behavior problems. Mrs. Belews, Mrs. Lowell, and Mrs. Roberts each issued one or more student case management referral forms in regard to Respondent. These forms specified, among other causes for referral, Respondent's lack of interest in school, failing grade average, argumentative and disrespectful behavior, and disruptive attitude. Respondent received 25 other student case management referral forms from other teachers. These reports also dealt with Respondent's lack of interest in school and complained of his defiance of reasonable authority, his skipping class, his excessive talking in class, and his refusal to do work respectfully and without argument. As a result, Respondent was frequently involved in conflicts of a disruptive nature which led to his being placed on outdoor suspension 11 times between May 1986 and March 1987, and on indoor suspension 5 times between February and December 1986. However, it is noted that referrals alleging violence or potential violence either were not substantiated or were adequately refuted by Respondent's testimony.

   
   

8. As a counselor at Arvida, Mrs. Jeanne Knauber worked very frequently with Respondent. From her testimony, it is apparent that Respondent was disinterested in school and was simply not responding to the various techniques used by teachers, counselors, and administrators to make him more interested, and discourage his misbehavior and thereby improve his academic performance. Mrs. Knauber volunteered that the only technique she knew of that had not been tried with Respondent was the cork Experience Program, a program in which students are placed in part-time employment while still in school. This could not be tried because such a program is not available at Arvida. Mrs. Knauber, who is a psychologist, was careful to protect the essential confidentially of disclosures made by Respondent to her, however, her professional assessment of his situation is threefold: (1) Respondent's learning disability is not the primary cause of his misbehavior; (2) the primary cause of Respondent's misbehavior is his poor self image; (3) it is in the best interest of Respondent both from a learning disability treatment perspective and from a disciplinary perspective that he be assigned to the J.R.E. Lee Center, an opportunity school, because the opportunity school's lower student-to-teacher ratio and more structured program can assist Respondent in directing his energies to successful academic performance. Mrs. Knauber volunteered that if Respondent can achieve a satisfactory academic performance at J.R.E. Lee Center in the next year, he will then become eligible for a senior high school which offers a work experience program and a work experience program will be in Respondent's best interest toward rendering him employable.

   
   

9. Mr. Robert Kalinsky, assistant principal, had numerous conversations with Respondent's mother and grandmother concerning his excessive absences, poor behavior, and lack of progress. Further, he counseled with Respondent on a one- to-one basis almost every day during certain periods of the two academic years Respondent has been at Arvida. However, neither the mother nor the grandmother have so far been able to cause a significant change in Respondent's defiant and disinterested attitude at school. Although Respondent has recently (since the administrative reassignment process began) been placed in the custody of his grandmother and she testified that she could control him, he has still received several student case management referrals during her short tenure as guardian. Several of these referrals seem to overlap and seem to be the result of misunderstandings of whether or not detentions were properly given or served. However, due to the time frame involved and the problems of communication

   between the school administrators and teachers and the grandmother when the Respondent is used as a conduit, there is little realistic hope that Respondent can "shape up" in a regular school system.

   
   

10. The criteria used for identifying students with learning disabilities involves an assessment of learning skills such as attention span, coordination, reading ability, etc. From the testimony of Mrs. Belews, Mrs. Roberts, and Mrs. Knauber it was evident that Respondent's current problems are not related in any meaningful way to his learning disability, but rather are related to persistent unacceptable conduct which interferes with his learning, interferes with the learning process of others, and results in frequent conflicts of a disruptive nature during the school day. Indeed, like many learning disabled students, Respondent has a high intelligence quotient (IQ) but is in need of continuous individualized special attention so that he may learn to process information correctly. It appears that he can receive that type of attention in J.R.E. Lee Center. Further, the opinion of Mrs. Knauber was that the Exceptional Student Program at the J.R.E. Lee Center would meet Respondent's learning disability needs and that the more structured disciplinary environment there would provide additional opportunities for his overall improvement, whereas permitting Respondent to remain in a regular school would be counterproductive for him personally and would improperly disrupt the education process of other students.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause.

    
    

12. 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...

       
       

13. 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.

    
    

14. Petitioner has clearly demonstrated that Respondent meets eligibility criteria (2)(a)1 and 2, and (b)1 and 2. That Respondent is an exceptional student who requires specialized classes for children with learning disabilities does not change the result. Transferring an exceptional education student from one school to substantially similar classes in another school within the same school district is permissible. See Concerned Parents and Citizens for the Continuing Education at Malcolm X et al. v. New York City Board of Education, et al., 629 F.2d 751 (2d Cir. 1980). Because the special education program at

    J.R.E. Lee Center is substantially the same, if not better, than that available at Arvida, the fact that Respondent is an exceptional student should not preclude an administrative assignment on the basis of needed discipline.

    
    

15. The sincere and various efforts made by Arvida school administrators and teachers to cause positive changes in Respondent's attitude and improve his academic performance were either rejected or simply not effective. Similarly, the numerous suspensions and other disciplinary actions taken at Arvida to correct Respondent's unacceptable behavior were not successful.

    
    

16. The love and concern of Respondent's mother and grandmother for him are evident in their testimony and it is to be hoped that the grandmother will retain custody and continue her personal assistance and concern for Respondent, who, with her individualized attention and the appropriate school environment has great potential. Nonetheless, Respondent's past track record combined with the opinion of trained educators, administrators, and the psychologist show that an administrative assignment is clearly in this child's best interest at this time.

RECOMMENDATION

Upon consideration of the foregoing, it is,

RECOMMENDED that the School Board of Dade County enter its Final Order assigning Respondent to the school system's opportunity school program at J.R.E. Lee Center with the specific requirement that he be assigned to an appropriate Exceptional Student Program based upon his existing diagnosis and analysis.

DONE and RECOMMENDED this 12th day of June, 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 12th day of June, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1256

The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon Petitioner's proposed findings of fact.

1. Covered in FOF 1.

2. Covered under Background and Procedure; not necessary to disposition of the issues at bar.

3. Covered in FOF 2.

4. Covered in FOF 3.

5-7. Covered in FOF 4; what is rejected is rejected as not supported by the record as a whole.

1. Covered in FOF 5.

2. Covered in FOF 6.

3. Covered in FOF 7; what is rejected is rejected as not supported by the record as a whole.

11 & 14. Covered in FOF 3 and 10 but modified to reflect the competent substantial evidence as a whole; what is rejected is rejected as not supported by the record as a whole.

1. Covered in FOF 9; what is rejected is rejected as not supported by the record as a whole.

2. Covered in FOF 10.

COPIES FURNISHED:

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

Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132

Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

Martha Washington

o/b/o David Lee Lockhart 15525 Southwest 140th Terrace

Richmond Heights, Florida 33176

Docket for Case No: 87-001256

Orders for Case No: 87-001256