STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6906

)

JOEY A. SEGURA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on March 3, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Johnny Brown, Esquire

School Board of Dade County

1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

For Respondent: Miguel Segura

6114 Southwest 127th Place Miami, Florida 33173

STATEMENT OF THE ISSUES

Whether the placement of Respondent in the opportunity school program at Douglas MacArthur South is appropriate.

PRELIMINARY STATEMENT

By letter dated October 27, 1994, Petitioner, School Board of Dade County (School Board), in lieu of expulsion administratively assigned Respondent, Joey Segura (Joey), to a disciplinary school program at Douglas MacArthur South.

Respondent's mother requested an administrative hearing. The case was forwarded to the Division of Administrative Hearings on December 6, 1993, for the assignment of a hearing officer.

The School Board called Thomas Jones, Richard Ladwig, Judith Cooper, and Merle Banaszak as witnesses. The School Board's Exhibits 1-5 were entered into evidence. Official recognition was taken of Section 230.2316, Florida Statutes, and School Board Rule 6Gx13-5D.08. At the hearing, Joey was represented by his father, Miguel Segura. Joey Segura testified on his own behalf, and Respondent's composite Exhibit 1 was admitted into evidence.

The parties agreed to file proposed recomended orders within ten days of the filing of the transcript. The transcript was filed on April 11, 1994. The School Board filed its proposed recommended order on April 15, 1994. Respondent did not file a proposed recommended order. The School Board's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. During the 1992-1993 and 1993-1994 school years, the Respondent, Joey Segura (Joey), was classified as an 11th grader and 12th grader, respectively, at Miami Killian Senior High School, Dade County, Florida.

   
   

2. On October 20, 1992, Steve Whaley, Joey's D.C.T. teacher, referred Joey to the Assistant Principal, Judith Cooper, for excessive absences. Joey's mother was advised of the absences. Ms. Cooper reprimanded Joey and referred him to Mr. Banaszak, his guidance counselor.

   
   

3. On Janaury 7, 1993, Joey's math teacher, Mrs. Rodriguez, referred Joey to Ms. Cooper for being late to class and presenting a bogus pass. Joey refused to serve detentions for the tardies and the pass. Joey was reprimanded and issued two Saturday schools for cutting class and refusing to serve the detentions. A Saturday school is a disciplinary measure used by the school system whereby the student attends class on Saturday. Joey was again referred to Mr. Banaszak for counseling.

   
   

4. On January 22, 1993, Mr. Whaley referred Joey to Ms. Cooper for excessive absences. Ms. Cooper talked to Joey's mother, reprimanded Joey, and referred Joey to Mr. Banaszak for counseling.

   
   

5. On January 25, 1993, Mrs. Rodriguez referred Joey to Ms. Cooper for leaving class without permission after Mrs. Rodiguez told him he could not leave. Ms. Cooper called Joey's mother, reprimanded Joey, and referred Joey to Mr. Banaszak for counseling.

   
   

6. On February 16, 1993, Joey was given a ten-day outdoor suspension for calling Mr. Whaley an "asshole" and a "fucking asshole." Joey was again referred to Mr. Banaszak.

   
   

7. On March 23, 1993, Mr. Flipse, one of Joey's teachers, referred Joey to Ms. Cooper for excessive tardiness and refusal to serve detentions. Joey told Mr. Flipse that he did not have to serve detentions. Ms. Cooper called Joey's father and related what was happening. Joey was reprimanded and given a Saturday school. Joey did not serve the Saturday school and was given a three- day indoor suspension. Joey stated he would not serve the indoor suspensions and instead chose to have a three-day outdoor suspension.

8 There was another incident in which Ms. Cooper had to suspend Joey.

Joey got angry about the suspension and told Ms. Cooper that she better not mess with him, he would blow up her car. Ms. Cooper informed the principal about the threat and a conference was set with Joey's parents and his teachers.

1. Ms. Cooper had recommended to the principal that Joey be referred to a disciplinary school program. Another conference was held in which an outside counselor hired by the Seguras participated along with Joey's parents and teachers. It was decided that since Joey was undergoing private counseling that he would be given another chance to stay in school and work at improving.

2. During the 1992-1993 school year Mr. Banaszak met with Joey not less than twelve times concerning tardiness and academic difficulties. Joey's final grades for 1992-1993 were four D's and two F's.

   
   

3. On September 20, 1993, Mr. Coyle, Joey's D.C.T. teacher, referred Joey to Thomas Jones, the assistant principal, for leaving class without permission. Joey was given a Saturday school.

   
   

4. For the first semester of 1993-1994, Joey chose to take a photography class taught by Richard Ladwig. Joey's lack of attendance and his tardiness were problems in Mr. Ladwig's class. Mr. Ladwig discussed the problems with Joey and issued several detention notices to him. Joey ripped up the detention notices. Mr. Ladwig finally gave Joey an exclusion notice. Instead of going to exclusion hall as he should have, Joey ripped up the exclusion notice, and told Mr. Ladwig that he was going to Ms. Cooper's office.

   
   

5. In September, 1993, Joey asked permission to leave Mr. Ladwig's class. Mr. Ladwig told him that he could not leave class. Joey retorted, "You're pissing me off."

   
   

6. In September, 1993, Mr. Banaszak met with Joey and his father to discuss absences and tardies. Joey requested to be transferred out of Mr. Ladwig's class. Mr. Banaszak told him that it was not the school's policy to transfer a student four weeks into the school semester, and that Joey needed the photography class to meet his fine arts requirement for graduation.

   
   

7. On October 11, 1993, Mr. Banaszak met with Joey, his parents, and Mr. Jones to discuss Joey's academic problems. Mr. Banaszak was concerned about whether Joey could graduate. Because of his failed courses he was almost an entire year behind in annual credits. A plan was devised to make up the credits through summer school and night school, thus, enabling Joey to graduate in the fall of 1994.

   
   

8. Mr. Banaszak had authorized Joey's taking night classes on other occasions to help make up credits. Although Joey enrolled in the night classes he never recieved any credits, indicating that he either did not attend or did not complete the work.

   
   

9. Joey was failing the photography class. He missed several quizzes, missed a lot of notes, resulting in a notebook grade of "F," failed some tests, and sometimes read a newspaper in class rather than doing his assigned work.

   
   

10. One of the assignments in the Mr. Ladwig's class was to develop negatives in class and make contact prints from the negatives. Joey did not develop negatives in class. Mr. Ladwig allowed students who failed to do the developing portion of the assignment to have negatives developed outside of class to be used in making the contact prints in class. Joey did bring some negatives to class and make contact prints in class.

    
    

11. One of Mr. Ladwig's sixth grade students had been complaining to Mr. Ladwig that someone had stolen his negatives. Mr. Ladwig told the student to take a look at the contact prints to see if any of the prints were made from his negatives. The student identified the prints made by Joey as being made from his negatives.

20 On several occasions, Mr. Ladwig asked Joey to bring his negatives to class. Finally on October 19, 1993, Mr. Ladwig told Joey that there was a dispute over the ownership of the negatives which he had used and told him to go and get the negatives from his locker. Joey got very angry and started to leave the class. At the doorway, Joey stopped and said, "If or when I see you on the street, Dude, I'm going to fucking kill you." The threat was heard by several of the students in the class.

21. Mr. Ladwig referred the matter to Mr. Jones. Later in the day, Joey along with Mr. Jones and Mr. Lewis, the security person, came to Mr. Ladwig's classroom while class was in session. Joey accused Mr. Ladwig of calling him a liar. Mr. Ladwig asked them to leave. On the way out, Joey said, "Ladwig, Dude, I'll deal with you later."

22 Joey gave Mr. Jones the names of several witness and Mr. Jones talked with them.

1. An assault on a staff member is a Group IV violation according to The Secondary Code of Student Conduct, which defines an assault on a staff member as follows:

   
   

   Intentional verbal or physical threat to do violence to a staff member by a student who possesses an apparent ability to do so and in doing so creates a well-founded fear that such violence is imminent.

   
   

   The Secondary Code of Student Conduct provides that the following disciplinary actions be taken for a Group IV violation:

   
   

   Parent contact/parent conference. Administrator/parent conference. Ten-day suspension.

   Recommendation for expulsion, administrative assignment to Opportunity School Program, or placement in a substance abuse program.

   Refer criminal acts to the Dade County Public School Police and the local police agency for appropriate legal action.

   When appropriate, seek restitution or restoration.

   
   

2. Mr. Jones reported the incident to the Dade County Police Department. Mr. Jones called Joey's mother and met with Joey's father. Joey was given a ten-day outdoor suspension with a recommendation for explusion.

   
   

3. Joey's father asked for a second conference with Mr. Jones and Mr. Ladwig so that Mr. Segura could confront the teacher. Mr. Ladwig told Mr. Segura that he thought Joey meant it when he said he was going to kill him.

   
   

4. Mr. Jones recommended that Joey be assigned to an opportunity school program rather than being expelled. His recommendation was based on Joey's continuous disruptive behavior, including the last incident with Mr. Ladwig.

   
   

5. Joey's grades for the first nine weeks of the 1993-1994 school year consisted of four F's, one Incomplete, and one "C."

6. Joey's behavior of excessive tardiness, verbal assault on his teacher, his continuous defiance of authority, and his disrespect for his teachers interferred with his own learning and the educational process of others. The needs of Joey are not being effectively met by the conventional education programs in the public schools.

   
   

7. Joey was assigned to the opportunity school program at Douglas MacArthur South in lieu of explusion. This program provides students an opportunity to learn in a small group environment, more counseling on a one-to- one basis, and a more structured environment.

   
   

8. Joey did not go to Douglas MacArthur South. He had been attending some adult education classes at night to get credit for classes which he had flunked, but he dropped out when he was assigned to Douglas MacArthur South.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

10. The Petitioner has the burden of establishing by a preponderance of the evidence that Respondent should be placed in a disciplinary program and, in this particular case, the opportunity school program at Douglas MacArthur South.

    
    

11. The Florida Legislature enacted the Dropout Prevention Act, Section 230.2316, Florida Statutes, to provide authorization to the district school boards to establish comprehensive dropout prevention programs designed to meet the needs of students who are not effectively served by conventional education programs in the public schools. One of the programs is the disciplinary program which Section 230.2316(3)(e) defines as a program "designed to provide intervention for students who are disruptive in the traditional school environment." To qualify for a disciplinary program, a student must have a history of disruptive behavior or have committed an offense which warrants suspension or expulsion. Section 230.2316(4)(d)1. defines "disruptive behavior" as behavior which:

    
    

    1. Intereferes 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 results 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

    2. Severely threatens the general welfare of students or others with whom the student comes in contact.

       
       

12. Section 230.2316(4)(d)5, Florida Statutes, provides:

    
    

    Prior to assigning a student to a disciplinary program of more than 10 days duration, the district shall attempt a continuum of education and student services to identify the causes

    of the disruptive behavior, to modify the behavior, or to provide more appropriate

    educational services to the student; however, a student who has committed an offense which warrants expulsion according to the district code of student conduct may be assigned to a disciplinary program without attempting a continuum of services.

    
    

13. School Board Rule 6Gx13-5D-1.08 incorporates the Secondary Code of Student Conduct by reference. The threat to Mr. Ladwig constituted a Group IV violation and, as such, constituted an offense which warranted expulsion.

    
    

14. Petitioner has established by a preponderance of the evidence that Joey has a history of disruptive behavior, which has interferred with his educational process and deprived others of an environment which is conducive to learning. Additionally, Joey's behavior has resulted in frequent conflicts of a disruptive nature.

    
    

15. Although the School Board was not required to provide a continuum of education and student services to identify the causes of Joey's disruptive behavior, to modify the behavior, or to provide more educational services prior to the reassignement because Joey's verbal assault of Mr. Ladwig is an offense for which Joey could be expelled, the evidence clearly demonstrates that Joey was provided such a continuum of education and student services. Joey's teachers and counselor met with Joey and his parents on numerous occasions, the counselor provided counseling sessions to Joey, and the counselor developed a plan to help Joey get the academic credits he needed for graduation.

    
    

16. Based on his academic peformance, his absences, his tardiness, and his continued defiance of authority it is clear that Miami Killian Senior High School is not effectively meeting Joey's needs. The opportunity school program at Douglas MacAthur South is an educational environment that will more effectively meet Joey's needs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered assigning Joey Segura to the

opportunity school program at Douglas MacArthur South.

DONE AND ENTERED this 4th day of May 1994 in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6906

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on Petitioner's proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraph 1: Accepted.

2. Paragraphs 2-7 Accepted in substance.

3. Paragraph 8: The first sentence is accepted in substance. The second sentence is rejected as to the number 12 as not supported by the greater weight of the evidence, but otherwise accepted in substance that there were referrals for the reasons stated.

4. Paragraphs 9-15: Accepted in substance.

COPIES FURNISHED:

Johnny Brown, Esquire School Board of Dade County

450 Northeast Second Avenue, Suite 301 Miami, Florida 33132

Miguel Segura

6114 Southwest 127th Place Miami, Florida 33173

Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast Second Avenue, Suite 403

Miami, Florida 33132-1308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-006906

Orders for Case No: 93-006906