STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM R. MULDROW on behalf ) of WILLIAM R. MULDROW, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 90-2396RX

)

LEON COUNTY SCHOOL BOARD, )

)

Respondent. )

)

FINAL ORDER

This matter came on for hearing in Tallahassee, Florida before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 10, 1990. Unrepresented by counsel, William R. Muldrow appeared, not as a qualified representative, but as father of William R. Muldrow, Jr.

APPEARANCE

C. Graham Carrothers, Esquire Ausley, McMullen, McGehee,

For Respondent: Carrothers and Proctor

Post Office Box 391 Tallahassee, FL 32302

STATEMENT OF THE ISSUE

Whether portions of Leon County School Board's "Pupil Progression Plan" constitute an invalid exercise of delegated legislative authority?

PRELIMINARY STATEMENT

By petition filed April 20, 1990, petitioner challenged, as an invalid exercise of delegated legislative authority, sections 4.15(d)2, 3, 4 and specifically 4.15(d)4.c of respondent's policy, portions of the Leon County School Board's "Pupil Progression Plan" for secondary schools, which have been formally adopted as administrative rules. "Because the rules are deficient," the petition alleges, "`Petitioner received inappropriate and failing evaluations," including a failing grade for the first semester of a physics course.

The petition challenges the rule under attack as arbitrary and capricious, vague and overly broad. It alleges that the rule provisions "fail to establish adequate standards allowing for unbridled discretion of the agency, its employees, servants and agents," and that the challenged rule "enlarges,

modifies, and contravenes the specific provisions of law implemented of Section 232.2454 and 232.245, of the Florida Statu[t]es."

The petition requests not only that the challenged provisions be declared invalid but also that the School Board be ordered to "remove any unacceptable grades of Petitioner retroactive to" the fall of 1989, and "use the model of the State Board for assessing Petitioner's mastery of the performance standards for each of the courses taken . . . by Petitioner." The petition also seeks an award of "cost and any legal relief resulting from bringing this action."

Petitioner was granted leave to file excerpts from

minutes of School Board meetings after the hearing concluded, and did so. Other materials proffered after the hearing concluded have not been received in evidence.

FINDINGS OF FACT

1. The parties stipulated that petitioner has standing

   to challenge respondent's "Pupil Progression Plan," Petitioner's Exhibit No. 1, because William R. Muldrow, Jr., failed physics, which will prevent or delay his graduation from Lincoln High School.

   
   

2. He began the course in the fall of 1989, and earned

   "C"s for the first and second grading periods. Report cards with this information were sent home. At the end of the third or the beginning of the fourth week of the third six-week grading period, the physics teacher sent word home that he was in danger of failing.

   
   

3. Respondent's policy requires that high school students and their parents receive report cards every six weeks and, if a student appears to be in danger of failing, academic warnings half way through any six-week grading period. Results of standardized tests are also reported to parents..

   
   

4. As feared, young Mr. Muldrow flunked the third six weeks, and he also failed the final semester examination. As a result he received an "F" for the semester.

   
   

5. Applicable in these circumstances is respondent's Policy 4.15(3)(d) "Grading - High School, 9-12." An earlier version, voted on by the School Board on August 29, 1989, would have "remove[d] the requirement for earning one quality point during the final six weeks or exam for promotion, effective date

   August 1, 1990." Petitioner's late-filed exhibit. But this version was repealed before it took effect. The challenged rule now provides:

   1. The semester grade for each course is determined by totalling the points earned in both [sic] the three six-week grading periods with the points earned on the semester examination. The point values . . . are as follows:

      GRADE GRADING PERIOD SEMESTER EXAMINATION

      "A" 8 points 4 points

      6 points 3 points

      4 points 2 points

      2 points 1 point

      0 points 0 points

   2. The semester grade is assigned as follows:

      5 through 10 points

      0 through 4 points

      c. A student earning more than five (5) grade points during the first two six--week marking periods must earn at least one additional point in order to earn credit for the semester. Should a student earn no additional points, the teacher will place an F as the final grade average for the course for the semester.

      
      

      In its present form, the rule attaches particular importance to students' performance on the final exam and in the final grading period because, as respondent's Mr. Felton testified, "education is cumulative." Physics in particular, like mathematics and foreign languages, builds on what has gone before.

      
      

6. The Leon County School Board established course performance standards for the physics course William R. Muldrow, Jr. failed (as well as for some 400 other courses.) Although the State Board of Education has adopted course performance standards for some twelfth grade courses, physics is not among them.

   
   

7. Mastery of 65 percent of the physics course performance standards is a necessary, but not a sufficient, condition for passing. The physics teacher was free to add pertinent material and evaluate the students' performance, in accordance with grading policy filed at the beginning of the year with Carol Cowdry, who, as the principal's designee, was the local school board's representative.

   
   

8. At respondent's request, the State Department of Education reviewed respondent's pupil progression plan for, among other things, conformity with state law, and found the plan fully consonant with pertinent statutory requirements. Petitioner produced no evidence to the contrary.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of petitions like the present one challenging administrative rules as an invalid delegation of legislative authority. Section 120.54(4), Florida Statutes (1985).

   
   

10. As the "one who attacks the proposed rule", Agrico Chemical Co. v. State Department of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978) cert. den. 376 So. 2d 74 (Fla. 1979) petitioner has the burden to:

    
    

    show that (1) the agency adopting the rule

    has exceeded its authority; (2) that the requirements of the rule are not appropriate to the ends specified in the legislative act; and (3) the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation but are arbitrary or capricious. Department of Administration, Division of Retirement v. Albanese, 455 So. 2d 639, 641 (Fla. 1st DCA

    1984).

    
    

    The challenger's burden "is a stringent one indeed." Agrico Chemical Co. v. State Department of Environment Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978 cert. den 376 So. 2d 74 (Fla.

    1979).

    
    

11. "[T]he validity of . . . [a challenged] rule must be upheld if it is reasonably related to the purpose of the legislation interpreted and it is not arbitrary and capricious." Department of Professional Regulation v. Durrani, 455 So. 2d 515, 517 (Fla. 1st DCA 1984). Florida Beverage Corp. v. Wynn, 306 So. 2d 200 (Fla. 1st DCA (1975).

    
    

    Moreover, the agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations. Department of Health and Rehabilitative Services v. Wright,

    439 So. 2d 937 (Fla. 1st DCA 1933) (Ervin C.J., dissenting); Department of Administration v. Nelson 424 So. 2d 852 (Fla. 1st DCA 1982); Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So. 2d 238 (Fla. 1st DCA 1981).

    455 So. 2d at 417.

    
    

    Special deference is owed, moreover, to "an administrative agency's exercise of delegated discretion in respect to technical matters requiring substantial expertise." Island Harbor Beach Club, Ltd. v. Department of Natural Resources, No.

    BE-355 (Fla. 1st DCA; Sept. 10, 1986).

12. Petitioner contends that, if the father had known earlier of the son's academic problems, he could have required greater efforts of him; and would have done so if his lack of academic progress had been reported to him as promptly as allegedly required by law. But these facts were not proven, and state law requires less reporting than the Leon County School Board requires.

    
    

13. The School Board is "encouraged," but not required, "to establish no fewer than two districtwide report card pickup days per year." Section 232.2452, Florida Statutes (1989). (Emphasis supplied.) The four reports petitioner got in one semester are double what the statute specifies.

    
    

14. Petitioner also alleges that the real purpose of the rule requiring that students pass either the final six-weeks grading period or the semester examination is to keep attendance from falling off in the final grading period, which is not a purpose, petitioner alleges, that the statutes authorize school board policy to foster. But the evidence failed to prove the contention that school grading policy is a clandestine scheme to assure class attendance. Nor is it clear that school boards lack statutory authority to encourage class attendance.

    
    

15. In adopting course performance standards for the physics course young Mr. Muldrow failed and in requiring mastery of 65 percent of these standards, respondent School Board complied with Section 232.2454(2), Florida Statutes (1989), which provides:

Each district school board shall adopt student performance standards for each academic program in grades 9 through 12 for which credit toward high school graduation is awarded. The board shall also establish policies as to student mastery of performance standards before credit for a program may be awarded. Teacher observations, classroom assignments, and examinations may be considered appropriate methods of assessing student mastery.

No question was raised as to the substance of the course performance standards themselves. Course contents would, in any case, constitute "curricula" for purposes of Section 120.52(16)(c)5., Florida Statutes (1989).

It is, accordingly, ORDERED:

The petition challenging provisions of Section 4.15(d) of respondent's policies is denied.

DONE and ENTERED this 31st day of May, 1990, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1990.

COPIES FURNISHED:

William R. Muldrow, Sr. 3070 Waterford Drive

Tallahassee, FL 32308

C. Graham Carrothers, Esquire Ausley, McMullen, McGehee, Carrothers, & Proctor

Post Office Box 391 Tallahassee, FL 32302

The Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Leslie Weaver Procedural Safeguards Department of Education

325 West Gaines Street Tallahassee, FL 32399-0400

Bill Woolley, Superintendent Leon County School Board 2757 W. Pensacola Street Tallahassee, FL 32304

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 129.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 90-002396RX

Orders for Case No: 90-002396RX