STATE OF FLORID

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1368

)

GABRIEL VIEIRA, )

)

Respondent. )

)

RECOMMENDED ORDER

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

APPEARANCES

For Petitioner: Frank R. Harder, Esquire

8360 West Flagler Street, Suite 205

Miami, Florida 33144 For Respondent: No appearance

ISSUE

Whether Respondent should be placed in the school system's alternative education program at J. R. E. Lee Opportunity School.

BACKGROUND AND PROCEDURE

Petitioner presented the oral testimony of Evelyn R. Brown, Margaret Cullins, and Jacqelene Koptowsky, and had admitted into evidence four exhibits. There was no appearance on behalf of Respondent. No transcript was filed; no proposed findings of fact and conclusions of law were filed.

FINDINGS OF FACT

1. Respondent Gabriel Vieira, Student I.D. No. 7961148, was at all times material hereto, a student at Rockaway Junior High School in Dade County, Florida. During the 1985-1986 school year, Respondent was in the seventh grade. During the 1986-1987 school year, he was in both the seventh and eighth grades due to a mixed class schedule.

   
   

2. On April 11, 1986, Margaret Cullins had Respondent in her seventh grade English class. On that date, she had to step between Respondent and another student who were about to fight and she sent Respondent to the principal's office. After his parents were contacted, Respondent was assigned three days of School Center Special Instruction (SCSI). This is the equivalent of an indoor suspension.

3. On November 26, 1986, while he was assigned to her eighth grade English class, Ms. Cullins again referred Respondent for administrative management. The previous Friday, he had disrupted class. At that time, he also had no required materials, would not stay seated, and had not turned in any homework. That day Ms. Cullins had asked him for his telephone number; he gave her a false one.

   The request and false response were repeated Monday. It may be inferred that Respondent's false answers were intended by Respondent to prohibit Ms. Cullins from reaching Respondent's parents. On Tuesday, November 25, 1986, Ms. Cullins succeeded in contacting Respondent's parents on her own initiative, despite the false telephone numbers given her by Respondent. Respondent's misbehavior on November 26 apparently arose out of his anger at Ms. Cullins for having called his parents on November 25. That day he twice yelled at her, refusing to obey her instructions to work at assigned tasks and otherwise was loud, rude, belligerent, and surly to her in front of the other students, saying that he did not have to do anything she asked and would not do anything she asked. The disciplinary result of Ms. Cullins's November 26, 1986 referral is somewhat confused because Respondent was already on indoor suspension for someone else at the time.

   
   

4. During the 1986-1987 school year, Evelyn Brown, mathematics teacher, had cause to refer Respondent to the office on five occasions. On September 23, 1986, she referred Respondent for not doing his homework, consistently disrupting class, walking around the classroom, failing to follow class work directions, and failing to follow previous instructions to bring necessary materials to class. The student management referral form on this incident reflects that either the teacher or the administrator made contact with Respondent's parents concerning the situation and that Respondent was assigned three days of SCSI. On November 13, 1986, Respondent was again referred by Ms. Brown for wasting time, failing to do any class work, failing to turn in any homework assignments, and for continued refusal to stay in his assigned seat. His behavior disrupted the class and disturbed other students' concentration. Although contact with Respondent's parents was attempted by the teacher and school administrators, it was not consummated on this occasion, and Respondent served detention for the teacher.

   
   

5. On December 16, 1986, Ms. Brown told Respondent to change seats. He replied, " I will sit anywhere I want. You cannot tell me where to sit." This incident, together with other rude talk and walking around the room so as to disrupt the students who were trying to concentrate on the assigned work, resulted in the teacher contacting the Respondent's grandfather, since his parents were unavailable. Respondent was ultimately assigned four days of SCSI.

   
   

6. On January 15, 1987 and February 10, 1987, Ms. Brown referred Respondent for the same type of inappropriate, disruptive, and nonproductive classroom behavior as she had reported on September 23, 1986. After each incident, Respondent's parents were contacted and on the last date, three days of SCSI were assigned.

   
   

7. Jacqelne Koptowsky is assistant principal at Rockaway Junior High School. Her presentation of 20 pages of Student Case Management Referral Forms (P-3) reveal numerous incidents similar to those reported and testified to by Ms. Cull ins and Ms. Brown. Additionally, Respondent has been returned to the school by the security guard for truancy on one occasion. For this and other truancies, he has been referred by the school administration to the Department of Health and Rehabilitative Services and to the Dade County visiting teacher for correction of the truancy problem. Respondent also has failed to dress-out

   in physical education class thirteen times and has been reported to the administration on two occasions for use of provocative language in either Spanish or English to students or teachers. At various times; Respondent has been counseled reprimanded assigned teacher and administrative detentions, received two strokes of corporeal punishment, and been given indoor suspensions. It is a policy of the administration at Rockaway Junior High School not to assign an outdoor suspension to any individual with a truancy problem.

   
   

8. In the 1986-1987 school year, Respondent was absent 13 times; several times were as a result of refusals to serve detentions and his attempts to transfer to other schools so as to avoid serving assigned detentions.

   
   

9. In the 1985-1986 school year, Respondent failed four subjects and got D's in three others. At the conclusion of the first half of the 1986-1987 school year, Respondent had failing grades in all of his subjects.

   
   

10. Respondent has met with the school guidance counselor at least 20 times, primarily with a view toward dropout prevention. Ms. Koptowsky has worked with a Metro-Dade Social Worker to rethink the benefits and drawbacks of assignment of Respondent to an opportunity school. Having determined from psychological and intelligent quotient (I.Q.) test scores, that Respondent is normal and therefore not eligible for any special programs for low I.Q., hyperactive, or learning disabled students, Ms. Koptowsky recommended his assignment to an alternative education program at J. R. E. Lee Opportunity School.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Respondent's failure to appear at the formally noticed hearing may be deemed as his waiver of a formal 120.57(1) proceeding, pursuant to Rule 22I- 6.22, Florida Administrative Code, however, the burden of proof is upon Petitioner School Board and a prima facie case was presented.

    
    

13. 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. . . .

14. 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-1.0994, 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

       4. Has a juvenile justice record and is placed in any youth services residential or day program of the Department of

          Health and Rehabilitative Services.

          
          

    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.

    
    

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

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that the School Board of Dade County enter a Final Order assigning, Respondent to the alternative education program at J. R. E. Lee Opportunity School, until a competent evaluation determines that it is appropriate for him to be returned to the regular school system.

DONE and RECOMMENDED this 26th day of August, 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 26th day of August, 1987.

COPIES FURNISHED:

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

Phyllis 0. Douglas Assistant Board Attorney Dade County Public Schools

1410 Northeast Second Avenue Miami, Florida 33132

Frank R. Harder, Esquire 8360 West Flagler Street Suite 205

Miami, Florida 33144

Mr. and Mrs. Gabriel Vieira 3649 Southwest 99th Avenue Apartment #6

Miami, Florida 33165

Docket for Case No: 87-001368

Orders for Case No: 87-001368