STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1367

)

MICHAEL ERIC POSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on September 4, 1987, in Miami, Florida, before Ella Jane P. Davis, the duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

For Respondent: Mrs. Eridania Pose

9373 Fountainbleau Boulevard Apartment K115

Miami, Florida 33172 ISSUE

Whether or not the Respondent student, Michael Eric Pose, should be assigned to J.R.E. Lee, an opportunity school.

BACKGROUND

During the 1986-87 school year, Respondent was enrolled at West Miami Junior High School, a school within the Dade County school system. By letter dated February 24, 1987, Respondent's parents were notified that Respondent was being administratively assigned to J.R.E. Lee Opportunity School. 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 oral testimony of the following personnel of West Miami Junior High School (West Miami): Jorge O. Sotolongo, Assistant Principal, Louise Johnson, math teacher, Harriet Wade, physical education teacher, and Tania Martinez-Cruz, English teacher. Petitioner had admitted into evidence 12 exhibits. Mrs. Eridania Pose (mother) testified on Respondent's behalf and had no exhibits admitted.

No transcript was provided. Petitioner submitted proposed findings of fact and conclusions of law within the extended timeframe to which the parties stipulated. These are ruled upon in the appendix to this Recommended Order pursuant to Section 120.59(2), Florida Statutes. Respondent submitted no post- hearing proposals.

FINDINGS OF FACT

1. At all times material, Respondent Michael Eric Pose, age fifteen, was a student at West Miami Junior High School (West Miami) in Dade County, Florida.

   
   

2. Respondent's academic performance during the 1986-1987 school year was very poor. He received the grade of "F" in every class. His grades for conduct were also mostly "Fs." In addition, he received the lowest grade for effort (3). Respondent's poor academic performance, lack of effort, and unacceptable conduct resulted in his rot being promoted to the next grade.

   
   

3. During the first three marking periods of the 1986-1987 school year, Respondent was enrolled in Louise Johnson's math class, where he was marked absent about 58 times and late 12 times. When Respondent did attend classes he would come without materials and refused to do work when materials were provided by his teacher. He failed to complete 99 percent of his homework assignments and refused 95 percent of the time to perform any class work. On at least two occasions, Respondent was caught sleeping in class by Ms. Johnson. The grades he received in that class for academic performance, effort and conduct were "F- 3-F" (scholarship-effort-conduct).

   
   

4. Ms. Harriet Wade, physical education teacher, also had Respondent as a student during the 1986-87 school year. In that class, he was absent 60 times and late 8 times. He refused to wear his gym clothing to the physical education class, refused to participate in games or perform exercises, and frequently engaged in activities which disrupted the class, such as talking to other students and wandering over to talk to other groups. He earned "F-3-F". Ms. Wade's normal form of discipline is to assign detentions and/or the running of laps. Respondent refused to serve either punishment on each occasion it was assigned.

   
   

5. Respondent's mother offered as an excuse for Respondent's failure to meet the physical education requirements that he had dislocated his hip when he was four years old. However, she also stated that the surgery was deemed successful and it is clear that the proper medical excuses or records were never submitted to school personnel. There is no competent medical opinion that Michael is presently disabled from normal sports or participation in other school activities.

   
   

6. In the same school year, Respondent was also a student of Ms. Tania Martinez-Cruz, English teacher. He was absent from her class 64 times and late

   6 times. He refused to do classwork 98 percent of the time and never turned in any homework assignments. After it became apparent that Respondent would not bring materials to class, Ms. Martinez-Cruz kept materials in her classroom for him so that he would have no excuse to avoid working in her class. This method failed. Moreover, during the times he did attend class, Respondent spent 90 percent of the class period sleeping, even though she placed him in the front of the class and required him to participate in classwork as much as possible.

   
   

7. Student Case Management Referral Forms (SCMRFs) generally reserved for serious behavior problems, were issued on Respondent's behavior by Ms. Johnson,

   Ms. Wade, and Ms. Martinez-Cruz due to his lack of interest in school, poor behavior, absences, and tardies. In addition, Respondent received five other SCMRFs from different teachers and/or administrators, all of whom complained of his disinterest in school and unacceptable behavior. One such complaint involved breaking in to a teacher's automobile. Because Respondent was frequently engaged in conflicts of a disruptive nature, he was suspended five times during the 1986-87 school year. Mr. Sotolongo, Assistant Principal, had numerous conversations with Respondent's mother regarding his excessive absences, poor behavior and lack of progress. However, to date the mother has not been able to improve Respondent's interest in school. After numerous attempts at counseling the mother and Respondent, a child study team report was made and conference thereon was held. This report and conference resulted in the administrative assignment of Respondent to J.R.E. Lee Opportunity School.

   
   

8. The opinions of the Assistant Principal and the other teachers and administrators who had conferences regarding Respondent was that the more structured environment of an opportunity school would be better for him, as opposed to permitting him to remain in the regular school program where he was making no progress.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. 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 education al 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...

       
       

11. 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.

    
    

12. Except for some chatting with other students which takes them off task and except for falling in with bad companions in connection with the car break- in, Respondent's misbehavior is mostly to his own detriment. He is endangering his own academic and general welfare by his lackadaisical approach to bringing necessary study materials, his sleeping in class, and his frequent and consistent refusal to perform academically. These commissions coupled with the persistent and consistent omission on numerous occasions of attending classes altogether qualify him for an alternative education program. It is common sense that the school system cannot teach those it cannot reach. A regular school cannot reach a child who cuts class on such a consistent basis as does this one. This child's overwhelming record of unexcused absences and tardies qualify him as a candidate for an alternative education program since be can make no academic progress until his faulty attendance behavior is modified.

    
    

13. The school board has clearly demonstrated that Respondent meets eligibility criteria (2)(a)1 and 2, and (b) and 2.

Therefore, it is,

RECOMMENDED that the School Board of Dade County enter its final order affirming the assignment of Respondent Micheal Eric Pose to J.R.E. Lee Opportunity School until a timely reassessment determines that he qualifies for return to the regular school system.

DONE AND ORDERED this 9th day of October, 1987, in Tallahassee, Leon County, 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 9th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1367

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

1, 2, 4, 5, 6 and 8 are accepted with the modifications necessary to conform them to the record as a whole.

3 is rejected as immaterial.

7 is accepted as to ultimate material facts of this case. General assertions therein concerning the opportunity school program in general are rejected as subordinate and unnecessary and as proposed conclusions of law.

Respondent filed no proposals.

COPIES FURNISHED:

Leonard Britton, Superintendent School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132

Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

Eridania Pose

9373 Fountainbleau Boulevard Apartment K115

Miami, Florida 33172

Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 87-001367

Orders for Case No: 87-001367