Findings Of Fact The School Board of Leon County, Florida, is an "agency" as defined in Section 128.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Leon County, Florida. Respondent is required by statute to promulgate rules and regulations establishing attendance zones for grades Kindergarten through 12, and has proposed for adoption certain amendments to its existing rules which will have the effect of changing attendance boundaries for middle schools located in Leon County, Florida. On May 5, 1981, the School Board withdrew previously advertised plans to adopt modified attendance boundaries for the 1981-82 school year, but announced its intention to continue its rezoning efforts. The School Board held a workshop meeting to discuss rezoning on May 14, 1981. This meeting was noticed in the legal advertisement section of the Tallahassee Democrat on that same date. No action on rezoning was taken at the meeting, and the meeting was recessed until the evening of May 18, 1981. No formal notice of the recessing of the May 14 meeting or the reconvening of that meeting on May 18 was published in any newspaper. On May 18, the May 14 workshop was reconvened. At this meeting the public addressed questions to the School Board members and staff. The Board announced at this meeting that it would discuss the matter further at its regular meeting the following night, May 19, 1981, and that the general issue of rezoning was already on the agenda for the May 19 meeting. The School Board also directed the Superintendent to "take administrative steps as are necessary to schedule a special meeting of the Board pursuant to provisions of Section 230.16, Florida Statutes." This reconvened meeting held on the evening of May 18, 1981, was the subject of an article in the May 18, 1981 edition of the Tallahassee Democrat, which carried a news article reporting on rezoning under the headline, "The rezoners are feeling the pressure. This newspaper article included a special separated section entitled "Meeting is Monday," which directed the public's attention to the time and location of the workshop meeting that night. Toward the end of the regular School Board meeting on May 19, 1981, the School Board recessed and subsequently reconvened to discuss rezoning. The School Board held an extensive discussion on various topics related to rezoning, and responded to questions from the public. Two subsequent meetings were then scheduled. The first was a workshop meeting on rezoning to be held on May 25, 1981, and the second was a meeting scheduled for May 26, 1981, to direct the Superintendent to advertise the proposed modified school attendance boundaries. On May 20, 1981, in the Special Notice section of the Tallahassee Democrat, an ad appeared noticing a "special meeting" of the School Board at Belle Vue Middle School on May 26, 1981, beginning at 7:00 p.m., to discuss rezoning. On May 21, 1981, in the Legal Advertisement section of the Tallahassee Democrat, an ad appeared noticing a "special emergency meeting" at Bond Elementary School beginning at 5:00 P.M.. on May 26, 1981, to deal with rezoning, which notice indicated that the meeting time and place was a rescheduling of the meeting previously set for Belle Vue Middle School. The May 25, 1981, workshop meeting was noticed in a legal advertisement in the Tallahassee Democrat on May 22, 1981. In a news article on rezoning published on Sunday, May 24, 1981, in the Tallahassee Democrat, which article was entitled "Rezoners can't find all the answers," the purpose, times and locations for both the May 25 workshop and the Day 26 special emergency meeting were contained in a special section set off from the remainder of the article. At the School Board meeting on Day 26, 1981, there were approximately forty to fifty members of the public in attendance. Members of the public addressed the School Board during the meeting. Several modifications were made to the maps and the language of the proposed rule amendments at this meeting. At the conclusion of the meeting, the Superintendent was directed to initiate in accordance with Chapter 120, Florida Statutes, the adoption of modified school attendance boundaries and associated language changes in as expeditious a fashion as possible. On June 3, 1981, four legal advertisements pertinent to this proceeding, each entitled "Notice of Intent to Adopt a Rule," appeared in the Legal Notices section of the Tallahassee Democrat. These notices were titled 6GX37-3.02(1) High School; 6GX37-3.02(1) Elementary School; and 6Gx37-3.02 Assignment of Pupils. Under the economic impact portion of the four advertisements is the phrase, ". . . [p]arents of students who elect to be grandfathered are responsible for transportation and the costs associated with that responsibility." The maps containing the proposed middle school attendance boundaries are Respondent's Exhibits 8(a) Middle School City Map, 8(b) Middle School County Map and 8(c) Middle School Killearn Map. The three middle school maps were referenced in the legal advertisement denominated 6GX37-3.02(1) Middle Schools. By its actions, the School Board proposes to amend Rule 6GX37-3.02(1) to read as follows: The Establishment of Schools. All public schools operated by the School Board of Leon County, Florida, shall be for its residents and for such other students as may be authorized by the Board and shall be fully desegregated. The School Board shall from time to time promulgate attendance zones so that each school will serve those students residing in each such zone. The Board shall also establish student capacities for, and grades served by, each school in the county, which may be modified by the Board as required. Maps showing the attendance zones applicable to each school, including grades served by each school, shall be maintained in the Office of Student Services and shall be available for public inspection. The School Board also proposes to amend Rule 6GX37-3.02(2) to add the following provision: (e) Grandfathering. The following standards shall be for grandfathering certain students, provided that their residence remains unchanged, in order to preserve educational continuity. Once a student has indicated his or her choice, in writing, changes may be made through application to the Board Reassignment Subcommittee. * * * (ii) Middle school students who will be in the eighth grade and elementary students who will be in the fifth grade during the 1981-82 school year shall, upon request, be allowed to remain at the school attended during the 1980-81 school year even though the 1981-82 school attendance zones place them in a new school so long as the parents shall be responsible for all necessary transportation. The School Board is not presently under any federal or state mandate to rezone the school system in Leon County. The School Board is, therefore, performing a purely discretionary function in undertaking its current rezoning effort. Respondent's expressed purpose in rezoning Leon County middle schools for the 1981-82 school year is ". . . to make more effective use of school facilities and to seek greater racial balance among the six middle schools." In the preparation of school attendance boundaries the School Board, for statistical purposes, divided Leon County into a large number of small geographical areas called "study areas or "study zones." The number of students residing in each study area was determined by both race and grade level, and this information was then placed in a computer to establish an accurate baseline of current attendance data for making various enrollment projections. In connection with the proposed zoning changes, the School Board administrative staff attempted to bring current and make as accurate as possible the data used in the rezoning process. Current enrollment figures at the middle school level were updated through March 27, 1981. In making the various projections based upon available data, the School Board, through its consultant, used "cohort survival rates," a student projection technique developed by the Florida Department of Education for use throughout the state by school districts considering modification of school attendance boundaries. It is recognized that, although this projection technique is commonly accepted, it is subject to the normal errors inherent in any such predictive technique. On February 3, 1981, the School Board adopted five of eight criteria recommended by the Superintendent to be considered in drawing new attendance boundaries. These criteria, although never formally adopted as "rules," were used by community volunteers, staff, consultants, and ultimately the School Board itself in the development of the maps delineating the proposed new attendance boundaries. These criteria are as follows: * * * That the concept of neighborhood schools be adhered to in the revision of the attendance areas, but that non-contiguous attendance areas be allowed where necessary to achieve the desired racial composition. That natural boundaries be used to define attendance areas insofar as it is possible, avoiding duplicate transportation service on individual roadways. That the minority enrollment in any school be not more than 10 percent above or 10 percent below the percent of minority enrollment in that school level in the county as a whole, excluding Chaires, Concord, Fort Braden and Woodville Elementary Schools. That rising 5th, 8th and 12th grade students, on request, be permitted to continue in attendance if their residence is placed in another school attendance area, with any needed transportation being provided by the parent and not the School Board (an exception to this rule should be made for students whose school of attendance was changed by the School Board in August, 1980, and transportation be provided at district expense in the event that the attendance areas affecting them are changed this year and the parents desire to have their children continue to attend the school they are attending in 1980-81) That the transportation needed to accomplish the desired racial composition of each school be provided in as efficient and cost effective manner as possible, consistent with Florida Laws and Regulations, and School Board policy on hazardous areas. (Emphasis added). There are six middle schools in Leon County: Belle Vue, Cobb, Fairview, Griffin, Nims and Raa. Enrollment figures for the four middle schools, as of March 27, 1981, are as follows: Belle Vue, 668; Cobb, 941; Fairview, 690; Griffin, 769; Nims, 694; and Raa, 1,069. White students attending each of the six middle schools comprise the following percentages of the total student body: Belle Vue, 67.5 percent; Cobb, 76.8 percent; Fairview, 57.27 percent; Griffin, 68.5 percent; Nims, 50.4 percent; and Raa, 80.9 percent. There are so many middle school students currently residing in the Raa attendance area that enrollment at that school has been capped, and 110 students who would have attended Raa are currently attending Cobb. The recommended capacities for the middle schools in Leon County, based upon the School Plant Survey of Leon District Schools conducted by the Florida Department of Education, are: Belle Vue, 946; Cobb, 938; Fairview, 1110; Griffin, 783; Nims, 888; and Raa, 887. In designing the proposed attendance boundaries for the 1981-82 school year, the School Board's consultant used a recommended enrollment figure supplied to him by the School Board staff. This recommended enrollment figure was not the same as the physical plant capacity figure. These recommended enrollment figures were, however, closely related to plant capacities, any differences between the two figures being reflective of various other program considerations. Among the primary goals of the proposed middle school attendance zone changes were reduction of the number of students attending Raa, due to the large number of students already living in that zone; increasing the number of students attending Belle Vue and Fairview because of their low enrollment in relation to the physical plant capacity of those school facilities; and finally, to improve racial composition at all the middle schools, particularly Fairview, with a view toward compliance with the School Board's plus or minus 10 percent racial composition criteria. Predictions of future enrollments at the various middle schools show that for each year the proposed boundaries are to be in effect, anticipated enrollments will be within the physical plant capacities of the various middle schools, with the exception of Raa, whose total enrollment will, nonetheless be reduced by about 10 percent. In addition, under the proposed zone changes, the racial composition of the student populations at each of the six middle schools is projected to meet or barely exceed the 10 percent criteria established by the School Board by March of 1984. Fairview, Nims and Raa currently do not meet the plus-or-minus 10 percent racial composition criteria. However, according to the School Board's projections, all middle schools should meet or barely exceed the 10 percent criteria during the 1981-82, 1982-83 and 1983-84 school years. The record in this proceeding does not establish with absolute certainty the total number of students either eligible for or expected to exercise the grandfathering option for the 1981-82 school year. However, a poll conducted by the School Board indicates that from 90 percent to 100 percent of students eligible for grandfathering will exercise that option, and estimates of potential school enrollments are partially based on that assumption. In fact, the student petitioner in this proceeding who is eligible for grand fathering testified that he would take advantage of that option because of current school activities and friendships. The School Board recognized the importance of making this choice available to middle school students and, in fact, based its decision to allow grandfathering on the desirability of preserving "educational continuity." The economic impact of the grandfathering provision on parents required to furnish transportation as a result of electing that option was not addressed quantitatively in the School Board's Economic Impact Statement. With regard to this cost factor, the Economic Impact Statement provided that: Current Board policy provides that bus transportation will be provided by the district if the residence of the parent is more than two miles from the assigned school. None of the proposed rule amendments modify this basic policy; however, the policy changes in 3.02 allow for the "grandfathering" of students in certain grade levels subject to the requirement that the parents provide all necessary transportation. To the extent that a parent voluntarily chooses to assume that responsibility, that parent may incur associated costs such as gas and oil. There is no indication in this record that the School Board considered the potential cost and feasibility of providing transportation at School Board expense to those students choosing the grandfather option who live two or more miles from the "grandfathered" school. Testimony at the final hearing estimated transportation costs of 367.20, based upon an average driving distance between a student's home and school of 5.1 miles (based on the length of the average bus route), full attendance for the full 180 student school days, and a 20 cents- per-mile cost, which is the current state reimbursement rate for travel by automobile. Naturally, actual transportation costs would vary substantially, depending upon the type of vehicle driven, the number of students transported, the student's actual attendance pattern, carpooling, travel routes, and other associated factors. The parents' responsibility to assume these transportation costs in the event of electing the grandfathering option is pointed out both in the rule advertisements and the Economic Impact Statement. The School Board has other existing policies which allow a student to attend a school different from that to which he is assigned based upon the location of his residence. These include the School Board's majority/minority transfer policy and instances in which a student requests to attend a special program at another school which is not available at his assigned school. In all such cases, the School Board requires that the student or his parents provide transportation at their own expense. The Economic Impact Statement prepared by the School Board in conjunction with the rule adoption process was based upon materials developed by the School Board staff on impact costs associated with rezoning in their areas of administrative responsibility. The Economic Impact Statement itself was based ". . . upon the premise that only those incremental, out-of-pocket costs attributable to the policy revision and rezoning process are included." Previously committed, or "sunk" costs such as salaries and related employee benefits were explicitly excluded from the analysis, although such costs were significant since the rezoning process absorbed a great deal of staff time. Similarly, "opportunity" costs, in the form of benefits foregone by directing district resources to rezoning rather than other goals were specifically excluded from consideration in the Economic Impact Statement. These base assumptions were described in the Economic Impact Statement itself. Fred H. White, Sr., and his wife, Linda, reside in Leon County with their son, Fred H White, Jr.. Fred, Jr. currently attends Cobb Middle School but under the proposed school attendance boundaries would attend Fairview Middle School. The White residence is located approximately 9.2 miles from Fairview and 5.1 miles from Cobb. The Whites' son is currently eligible for district provided bus transportation to Cobb and would be eligible for such transportation to Fairview. Fred, Jr. is eligible to be grandfathered and both he and his parents testified that they would take advantage of that option. E. Lamar Bailey resides in Leon County, and is the father of Lamar Blair Bailey and Sally Brocke Bailey, both of whom presently live in an area zoned for attendance at Cobb School. Both of the Bailey children would be required to attend Fairview if the proposed rule amendments are adopted. Should the proposed attendance zones be adopted, the Bailey children will be required to travel approximately 14 miles round trip to Fairview, an increase of approximately 3.4 miles over the distance to Cobb. Petitioners Sunshine Land Development, Inc., Elba, Inc. and Falls Chase Special Taxing District were dismissed as parties to this proceeding at the final hearing for failure to allege facts sufficient to demonstrate standing to maintain an action pursuant to Section 120.54, Florida Statutes. Counsel for both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact have not been adopted in this Order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue Respondent is charged in a five-count Administrative Complaint with violations of Subsection 231.2615(1)(c), Florida Statutes (gross immorality or an act involving moral turpitude); Subsection 231.2615(1)(f), Florida Statutes (personal conduct which seriously reduces her effectiveness as an employee of the school board); Subsection 231.2615(1)(i), Florida Statutes (violation of the Principles of Professional Conduct for the Education Profession in Florida as prescribed by the State Board of Education); Rule 6B-1.006(3)(a), Florida Administrative Code (failure to make a reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical safety), and Rule 6B-1.006(3)(e), Florida Administrative Code (intentionally exposing a student to unnecessary embarrassment or disparagement).
Findings Of Fact Respondent has continuously held Florida Educator's Certificate 734274, covering the area of English, since 1996. It is valid through June 30, 2006. Respondent was first employed by the Holmes County School District in November 2000 and served as a language arts teacher for seventh and eighth grades at Poplar Springs School for the remainder of the 2000-2001 School Year. During the 2000-2001 School Year, Respondent disciplined students in her seventh and eighth grade language arts (English) classes as more specifically described below. All instances of Respondent's discipline were employed in response to male students talking inappropriately or "cutting up" in her classroom so as to detract from the educational process. On one occasion, Respondent placed two pieces of masking tape over the mouth of student C.R. because he was talking in class. C.R. had the tape over his mouth for the remainder of the class period (approximately fifteen to twenty minutes). A science teacher saw C.R. in the hall, en route to his next class, and told him to take the tape off his mouth. Respondent placed masking tape over the mouth of student J.F. when he laughed out loud after being warned not to continue talking in class. J.F. had the tape over his mouth for approximately twenty minutes, until the bell rang to go to his next class. Respondent directed student T.J. to place tape on his own mouth after he had talked in class. The tape remained on his mouth until the end of the class period, or for approximately fifteen minutes. Respondent placed tape over the mouth of student W.W. because he was talking in class. W.W. had the tape over his mouth for the remainder of the class period, which ended approximately thirty minutes later. W.W. experienced difficulty breathing with the tape over his mouth, because he had a cold at the time and was having trouble breathing through his nose. Respondent placed masking tape over the mouth of student C.B. for talking in class. The tape remained on his mouth until the end of the class period, or approximately thirty minutes. All of the foregoing five students admitted that Respondent had warned them at least once not to continue talking, before she resorted to taping their mouths, but each of these students also was embarrassed as a result of sitting through the remainder of the class, surrounded by other students, while their mouths were taped. Also during the 2000-2001 School Year, Respondent required student C.R. to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of three or four heavy dictionaries for approximately fifteen minutes. This method of punishment caused C.R. to experience physical distress in his back. Respondent also required student J.C. to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of seven or eight heavy dictionaries, stacked to his chin, for approximately twenty minutes. This method of punishment caused J.C. to experience physical distress. His knees were buckling, and he was slumping against the wall. Respondent initially required student L.C. to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of twelve dictionaries. However, because the books were stacked almost two feet higher than L.C.'s head, Respondent removed four of them from his arms. L.C. was then required to hold the remaining eight dictionaries for approximately fifteen to twenty minutes. Respondent also required student J.H. to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of six or seven heavy dictionaries stacked up to his eyes, for approximately twenty minutes. Respondent required student E.M., who had talked out of turn early in the class period, to leave her classroom, stand outside in the hallway with his back against the wall, arms extended, palms up, and hold a stack of six or seven heavy dictionaries for approximately ten to fifteen minutes. At one point during this ordeal, Respondent came out of the classroom and felt E.M.'s forehead to see if he were sweating. When she found that he was not sweating, she returned to her classroom, leaving E.M. outside, still holding the dictionaries. Most students who testified indicated they were disciplined toward the end of a class period, and accordingly, their discipline was automatically ended by the change of classes' bell. However, the foregoing incident, when E.M. was disciplined with books, suggests that Respondent's theory concerning that type of discipline was that once a misbehaving student began to sweat, he had experienced enough punishment. A teacher saw E.M. in the hallway and went to fetch the Principal, Jerry Dixon. Mr. Dixon observed E.M. to be "in a strain," tired, and drooping. When Mr. Dixon discovered what was going on, he told E.M. to go back into Respondent's classroom and take the books with him. Each of the five students disciplined with books was embarrassed by the process, and the posture of holding the dictionaries caused most of them discomfort. After the incident with E.M., Mr. Dixon counseled with Respondent. He advised her that disciplining students as E.M. had been disciplined with the dictionaries was unacceptable and that if she felt future situations were bad enough to warrant punishment, she should send the misbehaving child to his office for him to administer appropriate discipline. In early April 2001, Respondent approached student T.W. at his desk, got down "in his face," and told him that if he did not behave, she would paddle him as hard as she had paddled student C.R., and that was "pretty damn hard." C.R. testified that Respondent had, in fact, actually paddled him, but apparently he was not intimidated or concerned over the paddling. Also, T.W. was not intimidated by Respondent's threat, because he smiled and laughed. However, T.W. was so concerned about Respondent's use of profanity that he approached Principal Dixon in the cafeteria that day and asked the principal if it were "right" for a teacher to curse at a student. Subsequently, in the principal's office, T.W. explained to Mr. Dixon the situation concerning Respondent's use of profanity. Principal Dixon also then learned for the first time that Respondent had been taping her students' mouths as a form of discipline. Mr. Dixon investigated further by talking with other students who verified all or some of T.W.'s account. Mr. Dixon testified that he also believed the incident of Respondent disciplining J.C. with dictionaries in the hallway (see Finding of Fact 11) had occurred after he had told Respondent not to use that procedure. On April 5, 2001, Mr. Dixon met with Respondent to discuss the allegations. In their meeting, Respondent admitted placing tape over students' mouths. She also admitted cursing at T.W. She told Mr. Dixon she had been mad and upset at the time. On April 10, 2001, Mr. Dixon issued Respondent a letter of reprimand for her conduct. In this letter he reminded her that he had, at the time of E.M.'s discipline, told her she was supposed to send students to the office for discipline, not undertake it herself. On June 6, 2001, Mr. Dixon notified Respondent that he would not recommend her reappointment for the 2001-2002 School Year. His decision to not recommend Respondent's appointment was based, at least in part, upon Respondent's admitted inappropriate discipline and use of profanity. There is no evidence Respondent's disciplinary method of causing students to hold heavy books while excluded from the classroom learning environment was effective in improving their behavior in the classroom. There is no evidence this disciplinary methodology was sanctioned by the School District, Principal Dixon, or any recognized educational text. Indeed, it was not sanctioned, and it is certain that the boys being disciplined were not being taught any curriculum while they were in the hallway. There is no evidence Respondent's method of taping her students' mouths shut and deliberately embarrassing them in the classroom before their peers was effective in teaching them to be quiet in class. There also is no evidence that this disciplinary methodology was sanctioned by the School District, the principal, or any recognized educational text. Indeed, the evidence is contrary. The disciplinary methods employed by Respondent were not approved or condoned by the Holmes County School Board or by the Poplar Springs School Administration. Her methods were inappropriate. Her inappropriate discipline and use of profanity with her Middle School students exposed them to unnecessary embarrassment and disparagement at a time in their development when they were particularly emotionally vulnerable. Her methods of discipline and use of profanity with her Middle School students seriously reduced her effectiveness as an employee of the Holmes County School Board. Respondent failed to take reasonable efforts to protect her students from conditions harmful to learning and/or to their mental health and/or physical safety by employing these inappropriate methods of discipline.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order which: Finds Respondent guilty of violating Subsections 231.2615(1)(f)and (i) and Rule 6B-1.006(3)(a) and (e), Florida Administrative Code; Suspends Respondent's Educator's Certificate for a period of one year; Requires that, as a condition precedent to Respondent's re-employment as an educator in Florida following the suspension, Respondent submit to a psychological evaluation by a qualified provider as required by the Recovery Network Program; Requires that Respondent follow the recommended course of treatment, if any, resulting from her evaluation and that she provide written verification to the Department of her successful completion of the evaluation and/or treatment; and Provides that if Respondent is reemployed as an educator in Florida, she be placed on three years' probation, upon such terms as the Education Practices Commission deems appropriate, including but not limited to successful completion of a college level course in the area of classroom management. DONE AND ENTERED this 12th day of November, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2002. COPIES FURNISHED: Linda Crawford Post Office Box 573 Ashford, Alabama 36312-0573 J. David Holder, Esquire 24357 U.S. Highway 331, South Santa Rosa Beach, Florida 32459 Kathleen M. Richards, Executive Director Bureau of Educator Standards Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact Respondent commenced the 1985-86 school year as a student in the eighth grade at Palms Springs Junior High School. By letter dated November 22, 1985, Petitioner advised Respondent's parents that Respondent "as being administratively assigned, effective immediately, to the Jan Mann Opportunity School-North. That letter further advised of a right of review of Respondent's placement into the opportunity school program until Respondent had made sufficient progress to be returned to the regular school program. Respondent's mother requested a hearing on that placement. On December 5 1985, a "withdrawal card" from the Dade County public schools was executed. At the hearing in this cause on March 17, 1986, Respondent testified that he has never attended the Jan Mann Opportunity School-North while waiting for review of that placement and in fact has been attending no school since he was administratively assigned. In response to questioning as to what he has been doing since his administrative reassignment of November 22, 1985, Respondent replied, "Nothing." Although Respondent's mother agreed during the formal hearing in this cause that she would place her son back into the school system and would send him to the opportunity school while awaiting the outcome of this proceeding, she has not done so. Pursuant to instructions from the undersigned, on March 31, 1986, Petitioner filed a Certification advising that as of March 27, 1986, Respondent was still not in attendance within the Dade County school system. Respondent was born on August 14, 1970.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing Respondent's request for an administrative review for lack of subject matter jurisdiction. DONE and RECOMMENDED this 15th day of May, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer, Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 486-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1986. COPIES FURNISHED: Frank R. Harder Esquire 2780 Galloway Road Suite 100 Twin Oaks Building Miami Florida 33165 James M. Ratliff Esquire Legal Services of Greater Miami, Inc. Northside Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami Florida 33147-4796 Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami Florida 33132
The Issue The issue presented for determination is whether the proposed high school attendance zone plan, Z2, is an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: This rule challenge to a proposed rule is a result of proposed changes to school attendance zones in Seminole County, Florida, which would result in students attending different schools than they presently attend. Hagerty High School (Hagerty) is a newly constructed Seminole County school. The opening of this new high school in August 2005 was the catalyst for the county-wide rezoning. Incidental to rezoning to accomplish populating the new high school, adjustments in student populations were made in an attempt to create appropriately balanced racial and ethnic student populations and to alleviate school over-crowding. Since 1970, schools in Seminole County have been subject to the jurisdiction of the Federal government regarding desegregation of the public schools. This continuing jurisdiction is the subject of "Consent Decrees" between the United States of America and Respondent in Case No. 70-152, ORL CIV (M.D. Fla. August 19, 1975). In particular, adjustments in school attendance zones have been the subject of the scrutiny of the Federal government. Several members of the current School Board were on the School Board when a rezoning plan was rejected by the Federal government. Since early in the 1990's, the School Board and school administration have aggressively pursued the goal of a "unitary" school system, i.e., a system that has accomplished a myriad of goals which equate to a system wherein any student, regardless of race and ethnicity, has an equal opportunity for a quality education. Once the status of a "unitary school district" is accomplished, direct Federal supervision will cease. In 2002, preparing for the day when "unitary" status would be achieved, the School Board developed an extensive post-unitary status policy. The Parties Petitioner, Jennifer Finch, is the mother of Christopher Brady; she and Christopher reside in Seminole County, in the residential community known as Sable Point. Christopher is currently in the sixth grade. The Finch residence is in Cell 27A; a "cell" is a geographic area created by the Core Committee when it divided the county into numerically identified “cells” for purposes of considering rezoning alternatives. The Finch residence is currently zoned for Lake Brantley High School. As a result of the proposed rezoning, children (with the exception of "grandfathered in" children) residing in Cell 27A will be zoned to attend Lyman High School. Lake Brantley High School is "over-crowded." The facility is designed to accommodate 3,000 students; it has a current student population of approximately 3,650. Because of Lake Brantley High School's over-crowding, its principal regularly audits the student population, using unique and creative methods, in an effort to assure that each of the students attending Lake Brantley High School is zoned to attend Lake Brantley High School. Petitioner, SC. Read, Inc., is a Florida corporation. Members of SC. Read, Inc., live in Cell 27A, and several of its members have children who are currently enrolled in the public schools of Seminole County. Intervenor, Tuscawilla Home Owners’ Association, Inc., is a Florida corporation. Part of Cell 10, and all of Cell 11, are within the area of subdivisions represented by Intervenor. Intervenor has 2,109 member households; 734 member households are in Cells 10 and 11. The homes in Cells 10 and 11 are single-family residences with many children who attend Seminole County public schools. The proposed rezoning contemplates students living in Cells 10 and 11, who are not specifically "grandfathered in," attending Oviedo High School instead of Winter Springs High School where they are currently zoned. One of the specific functions of Intervenor is to engage in efforts to secure educational opportunities and a stable educational environment for its members. It has historically worked with the schools to provide increased educational and extracurricular activities for its constituent members. The School Board is the governmental entity responsible for the operation, supervision, and control of public schools in Seminole County, Florida, including establishing attendance zones, determining the educational capacity of schools and assigning students to schools. The Rezoning Process Rezoning is a thankless responsibility; whenever the lives of children are disrupted, parents are unhappy. Moving a student from one school to another, places unanticipated demands on both parents and students. In January 2000, the School Board adopted a policy entitled “Revision of School Attendance Zones” (hereinafter referred to as “Policy J”). Section III of Policy J, entitled Process for Revision, at Step One provides, in relevant part: The Board establishes a Core Committee including, but not limited to district representatives . . . , affected school administrators, a representative from the affected School Advisory Councils, and a PTA representative from the affected schools to solicit public input, develop and evaluate alternative plans, and keep the local community informed of the progress . . . . The role of the Core Committee in the rezoning process is advisory. Its responsibilities, as enumerated in Policy J, are to serve as a conduit for public communication, receive demographic data, create "cells" to be considered in attendance zone shifts, consider public input, and create rezoning plans to be considered by the School Board. Policy J provides definitions of certain "words of art" used in the rezoning process, for example, "Over- enrolled/under-enrolled": an over-enrolled school has an enrollment that exceeds its permanent design capacity, and an under-enrolled school has an enrollment less than its design capacity -- both are identified on an annual basis, and "Design capacity": the permanent capacity of a school as calculated by the Department of Education. Portables are not included in the design capacity of a school. The calculation variables include class size, classroom program types, and scheduling. Based on appropriate definitions and criteria, Lake Brantley High School is "over-enrolled" and Lyman High School is "under-enrolled." In addition, Policy J specifies specific parameters that "current and proposed attendance zone plans will be measured against." The parameter having the highest priority according to this policy is: "[T]he plan is consistent with the district Consent Decrees as long as the decrees remain in effect." In April 2004, in anticipation of the August 2005 opening of Hagerty, the rezoning process was initiated. Because rezoning was county-wide and affected numerous schools, the Core Committee consisted of 54 people. The following schedule was established: Organizational Meeting June 15 Core Committee will identify "cells" Core Committee (CC) August 19 CC will use cell data to develop plan options Core Committee Sept. 2 CC will choose plans for public input Public Input Sept. 20 Lyman High 7:00 PM Public Input Sept. 23 Winter Springs High 7:00 PM Core Committee Sept. 30 CC uses public input to develop final drafts School Board Public Input Oct. 26 Educational Support Center 6:00 PM Final Adoption Nov. 9 This schedule outlined in paragraph 17, supra, was essentially followed. However, one meeting was cancelled and one shortened because of hurricanes. The Core Committee meetings, while they took place in public facilities, did not lend themselves to ongoing public input due to the nature of the work that was to be accomplished by the committee members. As would be expected, the committee members relied heavily on school administrators, Deputy Superintendent of Operations Dianne L. Kramer, in particular, who was the facilitator and contact between the committee and school administration, for information necessary for their consideration of student demographics, school populations, and other pertinent data for high schools and middle schools. Geographic enrollment numbers (all potential students living in a geographic area) were used, which is appropriate for rezoning planning. In addition to the information provided directly and electronically to the Core Committee members, which was more than adequate and conforming to Policy J requirements, the School Board made this information available to the interested public directly and electronically. Nothing in this record indicates that any Core Committee member was denied any needed information. Policy J charges the Core Committee with the responsibility "to solicit public input, develop and evaluate alternative plans, and keep the local community informed of the progress." This was accomplished. Because the Core Committee is composed of members of the Parent-Teacher Associations and School Advisory Councils from each affected school, parents were involved and made aware of the Core Committee activities. The Core Committee and the School Board meetings were advertised as required. There was a great deal of public awareness of the rezoning process. For example, it was estimated that 1,600 people attended the two scheduled "public input" sessions, and the School Board meeting and workshop where the plans were presented took more than seven hours. At the conclusion of the Core Committee's consideration of many alternatives, some of which were submitted by the public, three rezoning plans were advanced by the committee. These plans were identified as W, Z, and Z1. Plan Z1 was a plan modified by Deputy Superintendent Kramer at the direction of the committee. These plans were then published on the School Board web-site and made available to the School Board members. Policy J and the Core Committee's stated involvement and participation in the "process for revision," was substantially complied with and any deviation from Policy J or the Core Committee's purpose was insignificant and did not negatively affect the rezoning process. On October 19, 2005, the School Board members took an informational bus trip during which they traveled proposed bus routes for the rezoning plan alternatives. The School Board members are generally familiar with routes to and from the various schools in Seminole County. Seminole County, like most of Central Florida, has experienced dynamic growth in the past decades. This growth has burdened the infrastructure of all communities. As a result, not only are new schools needed, but roads must be constructed and improved. Traffic congestion, whether occasioned by too many vehicles, new construction or for whatever reason, is a daily challenge to central Floridians. Regardless of the particular school a student attends, buses transporting students will be a part of the traffic with which all motorists, including the bus drivers, must contend. Student transportation is a consideration in rezoning, but is not significant or controlling. The School Board has a safety advisory committee whose membership includes police officials and traffic safety personnel from the various governmental entities in Seminole County. As safety or traffic issues arise, this committee provides recommendations regarding those issues. As the need arises, bus routes can be adjusted to accommodate optimum travel time and safety. Subsequent to the publication of the Core Committee Plans W, Z, and Z1, several of the School Board members approached Superintendent Bill Vogel and indicated that they did not feel that any of the Core Committee plans would be acceptable to the Federal government. The School Board members are regularly informed of student demographics, school populations, over/under-crowding, and myriad other statistics which help them make informed judgments in their roles as School Board members. On each school day, every Seminole County school electronically provides the School Board administration with data, including attendance information, to assist in school governance. During the rezoning process, each School Board member was provided timely updates on the Core Committee's activities and had numerous contacts with the general public regarding concerns associated with rezoning. Perhaps, the School Board members who had previously seen a rezoning plan rejected by the Federal government were overly concerned; perhaps, in order to achieve "unitary" status, they wanted to see racial and ethnic ratios adjusted to meet county averages; or perhaps, they were concerned about under/over-crowding. For whatever reason, the School Board members directed Superintendent Vogel to create additional rezoning plans which would address over-crowding at Lake Brantley High School and student enrollment at Lyman High School that included disproportionately high percentages of students qualifying for free or reduced-price lunches. As a result, Superintendent Vogel directed Deputy Superintendent Kramer to prepare modified plans addressing the deficiencies in Plans W, Z, and Z1: that enrollment at Lake Brantley High School had not been reduced in the plans presented by the Core Committee to the extent that it needed to be and that the percentage of students receiving free and reduced-price lunches at Lyman High School was too high in each of the plans presented by the Core Committee. In addition, Superintendent Vogel believed a greater number of the district's high schools could be closer in enrollment percentages to the county-wide averages for black students, Hispanic students, and students receiving free and reduced-price lunches. This planning direction is one of the fundamental considerations of Policy J. Using essentially the same data and cells identified by the Core Committee, Deputy Superintendent Kramer developed Plans Z2 and Z3 in response to the Superintendent's directive. Plan Z2 incorporates the essential components of the plans advanced by the Core Committee with modification of the attendance zones for specific cells. The primary modification in Plan Z2 is moving Cell 27A from the Lake Brantley High School attendance zone to the Lyman High School attendance zone. Cells 10 and 11, which are included in the Intervenor's area of interest, were recommended for transfer from Winter Springs High School in Plan Z as well as Plans Z1 and Z2. Plans Z1 and Z2 were forwarded to the School Board and the Core Committee members electronically upon development. On October 26, 2004, after being appropriately advertised, all five rezoning plan alternatives were presented at an eight-hour public meeting of the School Board held at the School Board's administration building, at which time the public addressed the School Board on the subject rezoning plans. At the close of the public input, Superintendent Vogel recommended Plan Z2 to the School Board. During the presentation in which Plan Z2 was recommended, Superintendent Vogel presented an assessment of each of the five rezoning plan alternatives and how each impacted each Seminole County high school, including the new high school, Hagerty. This assessment included the current student enrollment, with black students, Hispanic students, and students receiving free or reduced-price lunches noted by percentage, current numeric enrollment, and target numeric enrollment. The assessment specifically addressed the effect of each rezoning plan alternative on these critical areas and demonstrated how each plan alternative measured against each critical area. Superintendent Vogel's recommendation reflects consideration of the criteria and process outlined in Policy J, as well as considerations fundamental to the basic objectives articulated by the School Board's commitment to becoming a "unified" school district. Members of the School Board were not bound by Superintendent Vogel's assessment; each had a worksheet by which each individual School Board member could render his or her own assessment. In addition, several of the School Board members had over 14 years of Board experience being first elected in 1990. These experienced members had participated in previous rezonings and had a wealth of experience and knowledge of critical information needed to make informed decisions with or without Superintendent Vogel's assessment of the various plans. The totality of the evidence presented revealed that each of the School Board members was well-informed on all significant data needed to make an informed decision. At the close of the October 26, 2004, meeting, the School Board unanimously voted to accept Superintendent Vogel's recommendation of Plan Z2 with certain modifications.
The Issue Whether Respondent should be assigned to the school system's opportunity school program.
Findings Of Fact At all times material hereto Respondent, Guillermmo Hernandez, was an eighth grade student assigned to South Miami Middle School. While in math class during November, 1988 through January, 1989, Respondent was disruptive in the classroom, tardy on several occasions and unprepared for class. In an attempt to ascertain the reasons for his behavior and to assist him, Respondent's parents were consulted, Respondent was consulted, and Respondent was assigned to detention and work detail. Again, while in home economics class during February through March, 1989, Respondent disrupted the classroom by his antics which on one occasion included piercing his ear and dressing as a girl. Respondent also chased other students, popping them with towels. Here too, his parents were consulted, Respondent was consulted and he was assigned to both outdoor and indoor supervision. Respondent is a disturbed young man who at first appears to be a class clown. He pushes a situation until is becomes a problem and then begs for forgiveness. Further, he does not appear to be learning disabled. However, after repeated attempts to help him, it is apparent that he is unable to control himself in a regular classroom and would benefit from a more structured setting such as the opportunity school program of the Dade County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order affirming the assignment of Respondent to school system's opportunity school program. DONE and ENTERED this 29th day of June, 1989 in Tallahassee, Florida. JANE C. HAYMAN 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 29th day of June, 1989. COPIES FURNISHED: Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Mr. and Mrs. Juan Hernandez 6361 S.W. 33rd Street Miami, Florida 33155 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact The School Board of Broward County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes. The Board is charged by law with direction and control of all grades Kindergarten through 12 for all public schools in Broward County. The Board is required by statute to promulgate rules and regulations establishing attendance zones for schools under its control. During the latter part of 1981 and early 1982, the Board performed a review of attendance areas for the 1981-1982 school year in order to determine whether changes should be made for the 1982-1983 school year. In making these determinations, it is the Board's established policy to consider the following factors: overcrowded schools; improved utilization of present facilities; maintenance of a "unitary school system"; safety for students as pedestrians; feeder patterns; transportation costs; newly established schools; consolidation of small school attendance areas; and, community involvement. The dispute in this consolidated proceeding arises from the Board's rezoning decision for the 1982-1983 school year relating to four high schools, Pompano Beach High School; Ely High School; Plantation High School; and Dillard High School. On March 30, 1982, at a special meeting, the Board approved its superintendent's school boundary proposal, as reflected in the rule here being challenged. On April 12, 1982, an advertisement advising the general public of the proposal appeared in the local newspaper, in compliance with the requirements of Chapter 120, Florida Statutes. The effect of the proposed high school boundary changes, insofar as here pertinent, is to remove approximately 125 ninth grade students from Ely High School and to replace them with approximately 72 ninth grade students currently zoned to attend Pompano Beach High, among whom are various of the Petitioners in this proceeding; and further, to remove approximately 81 ninth grade students from Dillard High School and to replace them with approximately 100 ninth grade students currently zoned to attend Plantation High School, including certain other of the Petitioners in this proceeding. One of the Board's primary policy considerations in proposing the challenged rules for adoption is the maintenance of a "unitary school system." Among the policy tools utilized by the Board to maintain what it perceives to be a "unitary school system" is retention of the existing student racial balance at Dillard and Ely High Schools. During the 1981-1982 school year, the student population at Ely High School was 52 percent black, while blacks comprised approximately 72 percent of the student population at Dillard High School. Because of the tremendous increase in the predominantly white population of western Broward County, and the declining school age population of eastern Broward County, where both Dillard and Ely High Schools are located, the Board has a long-standing policy of busing white high school students from the west to maintain the desired racial composition at Dillard and Ely. This problem is not limited to high schools alone. System-wide, approximately 6,000 students are bused from non-contiguous areas in Broward County for purposes of racial integration. Unlike Petitioners in this case, however, approximately 80 percent of those students who are bused are black. If the proposed high school boundary changes are adopted, the Board has reasonably estimated that the student population at Dillard High School will remain approximately 72 percent black, while the percentage of black students at Ely High School will increase by approximately 2 percent. A further factor in the Board's proposed high school boundary change as it relates to the four high schools involved in this proceeding is the problem of under-enrollment. Ely High School has a realistic program capacity of 1,800 students. However, during the 1981-1982 school year there were only 1,519 students enrolled at Ely. Pompano Beach High School had a student population of 1,456 students for the 1981-1982 school year, despite a student capacity of 1,950. Dillard High School's 2,307 student capacity was utilized by 2,075 students during the 1981-1982 school year. 1,812 students attended Plantation High School in 1981-1982 in a school facility designed to accommodate 2,000 students. With or without the proposed boundary changes, all four of these schools will remain under capacity for the 1982-1983 school year. It appears that the primary reason for the rezoning proposal contained in the rules here under attack was the Board's decision to replace certain students attending Dillard and Ely High Schools with other students, including the Petitioners herein, who had previously been zoned to attend Plantation High School or Pompano Beach High School. Students who are being reassigned from Dillard High School and Ely High School to other area schools reside some distance further from Dillard and Ely than do the students being reassigned from Plantation and Pompano Beach High Schools. One result of the proposed zoning changes will, therefore, be a reduction in the distance which students will have to be bused, and a concomitant reduction in transportation costs. Once the decision had been made to curtail longer distance busing, the Board was faced with the dual problem of maintaining desired racial composition and preventing under enrollment at Dillard and Ely High Schools. The choice of reassigning the students from Pompano Beach and Plantation High Schools was a reasoned and logical decision reached after considering a multitude of alternatives suggested by consultants and a very lengthy process of public participation. The curtailment of unduly lengthy student busing, with its accompanying social and economic cost was a logical policy alternative which is clearly supported by facts of record in this proceeding. Petitioners Theodor Huber and Suzan Huber, his high school age daughter, currently reside within a school boundary designated for attendance at Pompano Beach High School for the 1981-1982 school year. If the proposed rule is adopted, they will be rezoned to attend Ely High School for the 1982-1983 school year. Petitioners Janyce Becker, for herself and on behalf of her minor child, Page Becker, and Karen Coates, for herself and on behalf of her minor child, Peter Coates, reside within present school boundaries for Plantation High School, but, if the proposed rule is adopted, they will be rezoned to attend Dillard High School for the 1982-1983 school year. Petitioner Plantation Residents' Association, Inc., is a Florida corporation, comprised of persons with children of school age who have attended and are attending public schools in Broward County, Florida. Members of this organization have children who will be rezoned from Plantation High School to Dillard High School for the 1982-1983 school year, should the proposed rule be adopted. There is no showing in the record of this proceeding that adoption of the proposed high school boundary attendance zones will have any economic impact on the Petitioners involved in this proceeding. Further, there has been no showing that the notice requirements of Chapter 120 54, Florida Statutes, have in any way been violated by the Board
The Issue The issue presented is whether Respondent is guilty of the allegations in the Complaint and Notice of Hearing filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent began his employment with Petitioner on October 25, 1977. For the last 13-14 years, he has been employed as a head custodian. On August 24, 1994, he was demoted from his position as the head custodian at Fulford Elementary School to the rank of custodian. Several days later, he was assigned to a high school where he has been employed as the acting lead custodian, a rank between custodian and head custodian. During the 1993-94 school year while Respondent was employed as the head custodian at Fulford Elementary School, a conference for the record was held on November 30, 1993, to discuss Respondent's work performance, his alleged gross insubordination, and his future employment with Petitioner. At that conference, Principal Pope and Assistant Principal Galgano discussed specific instances of their dissatisfaction with the manner in which Respondent maintained the yard at Fulford Elementary. Respondent was specifically advised that further deficiencies in his performance and further acts of gross insubordination would not be tolerated and could lead to further disciplinary action, including non-reappointment. On December 15, 1993, Respondent was issued a written reprimand for the reasons discussed during the November 30 conference for the record. That document entitled "Reprimand for the Record" states, in part, as follows: You are hereby officially recommended [sic] for gross insubordination and your inadequate work performance as a head custodian that refuses to perform his job description and job assignment. On that same date Principal Pope gave Respondent eleven written directives regarding his job duties in maintaining the yard, attending training, and using his walkie-talkie. On February 23, 1994, Principal Pope issued a memorandum to Respondent complaining that Respondent had arrived at work late on January 31 without giving her an explanation. On March 2, 1994, Principal Pope issued a memorandum to Respondent noting that on Saturday February 26, when the teachers and staff and their families worked in the school yard weeding and planting, the "yard had not been picked up nor had the lawn been mowed". That memorandum contained 9 directives. On March 24, 1994, the Director of Petitioner's Department of Plant Operations issued a memorandum to Principal Pope questioning the leadership of Respondent as head custodian and noting that Fulford Elementary School could be kept cleaner. On April 15 Assistant Principal Galgano and Respondent performed a quality assurance audit at Fulford, noting that some of the classrooms, corridors, and grounds were not maintained properly. By memorandum dated April 18 Respondent was directed to better supervise the other custodians and improve the appearance of the courtyard. By memorandum dated May 13, 1994, Assistant Principal Galgano directed Respondent to perform specific tasks in the school yard. By memorandum dated June 7, 1994, Assistant Principal Galgano wrote to Principal Pope, noting her May 13 memo to Respondent, noting that Respondent had to work overtime to prepare the grounds for visitors on May 25, and noting that Respondent had "shedded [sic] paper" while mowing the lawn in preparation for visitors to the school on June 3. On June 29, 1994, a conference for the record was conducted to address Principal Pope's recommendation that Respondent be demoted from head custodian to custodian. During the 1993-94 school year Fulford Elementary School was allocated 4.5 custodians according to Petitioner's formula. Yet, Fulford Elementary only employed 3 full-time custodians, including Respondent. A part-time person helped in the cafeteria for some undisclosed portion of that school year. Principal Pope determined which custodians worked which shift and the specific duties assigned to each. During the 1993- 94 school year Respondent was the only custodian at Fulford assigned to the 7:00 a.m. shift which ended at 3:30 p.m. The other 2 custodians, whom Respondent was responsible for supervising, worked the night shift which began at 3:00 p.m. They were responsible for cleaning the classrooms, offices, bathrooms, corridors, and the remainder of the school facility. As the only custodian on the day shift at Fulford, Respondent was responsible for disarming the alarm, unlocking the building in the morning, and "policing" the grounds. He also unlocked specific classrooms for substitute teachers. He also set up the cafeteria and worked in the cafeteria during breakfast removing trash, wiping tables, and washing the floor. After the cafeteria was clean, he was free to do his yard work until lunch time when he returned to the cafeteria to work there, removing trash and washing the floor and tables. In addition to his cafeteria and yard duties, however, Respondent was responsible for emergency clean-ups whenever a child became sick or was incontinent. He helped unload delivery trucks. He moved furniture and cabinets for teachers and office staff. He performed any other tasks requested by the principal. Respondent carried a walkie-talkie in order that the principal and assistant principal could reach him whenever they wished. The principal paged him to perform special assignments once or twice a day as did the assistant principal. The assistant principal had no problem reaching Respondent on his walkie-talkie. The principal complained that Respondent ignored her when she summoned him on the walkie- talkie. On one such occasion, one of Petitioner's master custodians who was on site looked for Respondent and discovered that Respondent was riding a tractor at the other end of the school site and simply could not hear the principal paging him. Principal Pope asked Assistant Principal Galgano to assist her in supervising the custodians. Galgano discussed with Respondent his work performance on different occasions during the 1993-94 school year. Respondent maintained that he was doing the best he could in view of the fact that he had no one to help him. During the previous school year Respondent had also requested that someone else work with him during the day. Having only one custodian during the day shift is a deviation from the standard recommended by Petitioner's Department of Plant Operations. An employee of that Department specifically advised Principal Pope that Respondent needed help since he was the only custodial worker on the day shift. A principal can request that one of Petitioner's master custodians be sent to the school site to train that school's custodial staff. During the 1993-94 school year a master custodian was sent to Fulford on one occasion at Principal Pope's request to provide additional training for one of the custodians who worked on the night shift. On that occasion and the other time that master custodian was at Fulford he observed the yard and determined that it was "not bad." Principal Pope never requested a master custodian to assist Respondent with additional training. A different master custodian employed by Petitioner's Department of Plant Operations was present at Fulford Elementary on two occasions during the 1993-94 school year and observed the yard. On both of those days the maintenance of the yard met Petitioner's standards. Similarly, the other custodians who worked at Fulford that year observed the yard when they came to work and rated its maintenance as an "8" or a "9" on a scale with "10" being the highest score.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Complaint filed against Respondent in this cause and reinstating Respondent to the position of head custodian with full back pay and benefits. DONE AND ENTERED this 31st day of December, 1996, in Tallahassee, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1996. COPIES FURNISHED: J. Michael Haygood, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite No. 562 Miami, Florida 33132-1308 Ben R. Patterson, Esquire Patterson and Traynham Post Office Box 4289 Tallahassee, Florida 32315-4289 Mr. Octavio J. Visiedo Superintendent of Dade County Schools 1450 Northeast Second Avenue, Suite No. 403 Miami, Florida 33132-1308
The Issue Whether Respondent should be transferred from Glades Middle School to an opportunity school.
Findings Of Fact For the 1989-90 school year John Sarmiento was enrolled in the Dade County public school system and he was assigned to the eighth grade at Giades Middle School. On November 27, 1989, Petitioner administratively transferred him from Glades Middle School to J.R.E. Lee, an opportunity school. The stated basis for the transfer was the student's disruptive behavior and his failure to adjust to the regular school. As an opportunity school, J.R.E. Lee has a more structured program than a traditional school, such as Glades Middle School, and is designed to assist students with discipline problems. While attending Glades Middle School, John Sarmiento repeatedly engaged in disruptive conduct that interfered with his own learning and with the learning of others in his classes. This conduct resulted in his being referred to the assistant principal's office between five and ten times per week. On one occasion the student, while in class, threw a piece of chalk at another student. On another occasion, the student engaged in an argument with another student that almost resulted in a fight during class. On an almost daily basis, the student would wander around the class while making loud, boisterous comments. This student's misconduct would have merited his suspension according to the district code of student conduct. Instead of suspending this student, the school officials worked with him and with his parents in an effort to improve his behavior. Unfortunately the considerable efforts of the personnel at Glades Middle School to serve the student's educational needs did not succeed. The student needs the structured environment that the opportunity school can provide, and his educational needs will best be served by his transfer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which approves John Sarmiento's assignment to the J.R.E. Lee opportunity school. DONE AND ENTERED this 3rd day of April 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of April 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Maria Ruiz de la Torre, Esquire 7111 Biscayne Boulevard, Suite Three Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Paul W. Bell Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Brevard County School Board (Petitioner or School Board), has just cause to terminate the professional services contract held by Joyce D. Iloka (Respondent).
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise public schools within the Brevard County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff at THS. At all times material to the allegations of this case, Respondent was an employee of the School Board and was subject to the statutes, rules, and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach drafting at THS. All allegations relate to Respondent's tenure at THS and the performance of her duties as a drafting instructor. By letter dated February 2, 2009, Petitioner notified Respondent that a recommendation would be made to the School Board to terminate her employment with the school district. At its meeting on February 10, 2009, Petitioner accepted the recommendation of the school administration and voted to approve Respondent's employment termination. Respondent timely requested an administrative hearing to challenge the decision of the School Board. Petitioner charged Respondent with failure to correct deficiencies identified in a performance plan designed to assist Respondent to remediate unacceptable defects in her teaching performance. Second, Petitioner alleged that the deficiencies noted by THS personnel also constituted an additional basis for termination: incompetency. Respondent maintains that student performance must be considered in the review of her performance and that she was competent and qualified to perform her teaching responsibilities and had done so for a number of years without concern from the THS administration. Respondent began employment with the school district in 1996. She was assigned to THS from 2004-2008. From her first assignment until the 2007/2008 school year, Respondent received satisfactory performance evaluations. Petitioner utilizes an instructional personnel evaluation system known as the Performance Appraisal System (PAS). PAS was approved by state authorities and was cooperatively developed by teachers and administrators for use in Brevard County. PAS details the procedures, method, and forms to be utilized in the completion of instructional personnel evaluations. All such criteria were met in the evaluations performed of Respondent's work. Additionally, school administrators who perform employee evaluations must be thoroughly trained in PAS and must conform to the uniformity afforded by the PAS instrument. All administrators identified in this cause who performed evaluations of the Respondent were trained and were fully certified to evaluate personnel based upon the PAS instrument. Ron Philpot is an assistant principal at THS. He has worked in Brevard County for approximately 37 years and has been assigned to THS for the last 17. Lori Spinner is the principal at THS. For the 2006/2007 school year, Mr. Philpot was assigned to evaluate Respondent. Dr. Spinner signed off on Respondent's 2006/2007 performance evaluation on February 14, 2007. Respondent's 2006/2007 PAS evaluation found her to be overall "high performing." Mr. Philpot was the only administrator/observer who visited Respondent's classroom in order to complete the 2006/2007 evaluation. In his many years of performing evaluations, Mr. Philpot has given only one unsatisfactory evaluation. On December 4, 2007, Dr. Spinner visited Respondent's classroom for the purpose of observing the class and Respondent's performance. On that date there were 17 students present and Dr. Spinner made visual sweeps of the classroom every ten minutes to determine the engagement level of the students. For the time period from 12:25-12:55 p.m., no fewer than two and no more than four students were off-task or not engaged in the lesson. Dr. Spinner remained in Respondent's class for 45 minutes and completed notes from her observation. Pertinent to the allegations of this case are the following observations entered by Dr. Spinner: Instructional Organization - No teacher-based questioning was used during the entire lesson. No learning objective is evident and no agenda or objectives are noted on the board. Materials are not organized and six incidents of non-instructional/unrelated talk were noted. In the middle of the lesson, the teacher states, "Where are you third block?" "What are you working on?" Directions for activity are vague and non- specific. Teacher states "Put in a window anywhere"; "Put in a door somewhere". Teacher circulated several times to address individual concerns. Presentation of Subject Matter - Only 1 concept was presented during the lesson (rotating windows and doors)and appeared to be a review. No new concepts were presented. Instructions for the project were inadequate and vague. Visuals on the board are illegible and difficult to see. Students demonstrated confusion with assignment. Several questions went unanswered or ignored. Communication - Vague and sporadic. No teacher questioning for comprehension. Student questions went unanswered or hands- raised were ignored. In response to one question, teacher states, "I think it says something about that in your book, I think it says . . ." Teacher expressed confusion in demonstrating a plot plan. Was not able to implement the correct commands with Mechanical Desktop Architect program. Management of Conduct - Several students not engaged during lesson. Five incidents of misconduct were not addressed during the lesson. Based upon the observations noted above, Dr. Spinner met with Respondent to provide her with an interim evaluation of her performance. Of the nine individual assessment categories, Dr. Spinner identified only two items that needed improvement. Both were noted under the "Instructional Strand" heading. Comments entered by Dr. Spinner advised Respondent: Ms. Iloka had several students off task or not engaged in the lesson, throughout the class period. She did not have materials prepared in advance which resulted in lost instructional time. Teacher-student interactions often included unrelated talk and off-task discussions. There were long delays during the instructional lesson and instructions/directions were not clear for students. Requirements for the activity were not presented in advance and directions were vague. This resulted in delays in learning and gaps in instructional activities. Presentation of instructions and project directions were vague and difficult for students to follow. Requirements were not presented in advance. There was no instructional questioning during the lesson to ensure comprehension. Concepts were presented with examples only. Students did not have an instructional visual to reference as they worked with the program. Dr. Spinner attempted to communicate the areas of concern noted above but Respondent was resistant. Further, Dr. Spinner sought to encourage Respondent to continue her education and professional development as a means of continuous professional growth. Dr. Spinner hoped that Respondent would recruit more students into the drafting program because the enrollment had steadily declined during Respondent's tenure at THS. None of Dr. Spinner's suggestions were well-received by Respondent. On January 30, 2008, Dr. Spinner observed Respondent's class from 1:55-2:40 p.m. As before, Dr. Spinner made a visual sweep of the class to determine student engagement every ten minutes. Again, as before, Dr. Spinner observed two to four students not engaged during the sweeps. Many of the comments generated by the January 30, 2008, observation mirrored the prior observation. Dr. Spinner felt Respondent had made no serious effort to improve the areas of concern that needed improvement. The interim PAS evaluation signed by Dr. Skinner and Respondent on February 1, 2008, included three categories that needed improvement and noted that Respondent's overall evaluation needed improvement. To provide assistance for Respondent, Dr. Skinner assigned a teacher/peer mentor at the school level to provide direction and help to the Respondent in order to remediate the deficient areas of performance. Respondent did not avail herself of the mentor and did not implement meaningful changes to her instructional content or delivery. Later Dr. Skinner secured a mentor teacher from outside the school to assist the Respondent. Again, Respondent did not implement the suggestions made by that mentor. Dr. Spinner prepared professional development assistance (PDA) forms for areas of concern in order to identify the behaviors that were deficient, the strategies for improvement of the deficiency, and the assistance that the school would provide to Respondent. For example, the PDA dated February 1, 2008, to improve management of student conduct noted that peer mentor, Jane Speidel, would assist Respondent to develop a classroom management plan so that students who are off-task can be appropriately engaged in the learning process. According to Ms. Speidel, Respondent did not want assistance in this regard and had "no desire to adopt any new changes." On February 19, 2008, Dr. Spinner again observed Respondent's class. Many of the same deficiencies in the categories of instructional organization, presentation of subject matter, communication, and management of conduct were noted. At one point during the observation, Respondent received a sub sandwich and a drink from a colleague. As Respondent had just finished a duty-free lunch time prior to the observation time, the delivery of food during a class period seemed inappropriate to Dr. Skinner. Dr. Skinner’s next observation of Respondent's class was on February 28, 2008. Deficiencies were listed in the areas of instructional organization, presentation of subject matter, communication, and management of conduct. Many of the problems noted in prior observations were continuing. The common thread running through each observation was the failure on Respondent's part to even attempt to incorporate new strategies or concepts into her teaching effort. Specifically, with regard to student performance, students remained off task. Students continued to be confused by vague or confusing directions and exhibited an indifference to drafting. Students were observed sleeping, eating, playing solitaire, and computer games or surfing the Internet when they should have been working on projects or completing appropriate drafting assignments. On March 6, 2008, Dr. Skinner gave Respondent her annual evaluation. Unsurprisingly, Respondent was given an overall evaluation of unsatisfactory. As Respondent had made little or no effort to improve in the areas noted as deficient during the school year (as delineated in prior observations), Respondent was advised: Ms. Iloka is expected to improve in the areas noted as unsatisfactory. A formal plan and support has been provided to assist her in becoming more effective with her students. She is expected to demonstrate improvement as an expectation for continued employment. At the conclusion of the annual PAS evaluation, Respondent was advised that a 90-day probationary period would begin at the start of the 2008/2009 school year. Accordingly, from August 11, 2008, Respondent was subject to PDA plans to address deficiencies in the categories of instructional organization and development, presentation of subject matter, and management of student conduct. The same three areas of concern that were identified throughout the 2007/2008 school year continued to be a concern. On August 11, 2008, Respondent signed a letter acknowledging that she would be on probationary status for 90 days and that she would be evaluated periodically during that time. A resource teacher from the county, John Hays, was identified to Respondent as someone who would provide support and information for presenting the subject matter appropriately and developing a classroom management plan. During the fall of 2008, Respondent was observed on several occasions. None of the visits to Respondent's classroom evidenced any significant improvement on her part to address the deficient areas of performance. Assistant Principal Jerri Mallicoat completed PAS evaluations that noted the same deficiencies. Respondent did not complete lesson plans with sufficient detail so that a substitute could understand and step in for an absence. Respondent did not develop a classroom management plan to ensure that off-task students could be redirected to the assignment. Further, students committing violations of school rules (such as eating in the classroom) were not appropriately disciplined and redirected. Respondent did not avail herself of resources available through the school site mentor or county resource opportunities. Petitioner afforded Respondent with opportunities for improvement through in-service classes and mentor teachers. Respondent is a non-degreed vocational industrial arts teacher. Drafting and other vocational industrial arts classes are commonly taught by credentialed persons who achieve some industry-recognized authorization as sufficient to demonstrate knowledge of the subject matter. Respondent's knowledge of her subject area is not questioned. Her ability to translate that knowledge in a meaningful manner to a classroom of students while maintaining order and on-task behavior and her failure to recognize her need to improve performance in these areas is the subject of this cause. For whatever reason, Respondent would not or could not improve performance in the deficient areas. During the 2008/2009 school year THS used block scheduling. Teachers would have students for 90-minute blocks. Respondent was challenged to fill that time with educational content and maintain students in on-task efforts. Respondent had two blocks of drafting students. Enrollment in drafting declined such that the remainder of Respondent's work day was spent as a substitute for other teachers. Within a block, Respondent had multiple levels of drafting students, first-time drafting students up to the more advanced levels. Each level of proficiency required appropriate instruction. Drafting, like other vocational industrial arts classes, does not have a state-mandated performance assessment tool. Drafting students are recognized in the private sector by whether they are able to achieve an industry-recognized testing standard of performance. Classroom performance at THS was based upon proficient use of the program utilized to create plans and the written materials that accompanied the computer work. Students eating, sleeping, playing solitaire, computer games, or surfing the Internet did not demonstrate proficient use of drafting skills. All of these behaviors were repeatedly observed in Respondent's class. Respondent did not remediate the performance deficiencies noted in the evaluations of the 2007/2008 and 2008/2009 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Brevard County School Board enter a final order terminating Respondent's employment with the School District. DONE AND ENTERED this 8th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2010. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Jeffrey Scott Sirmons, Esquire Johnson, Haynes, & Miller 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard DiPatri, Ed. D., Superintendent Brevard County School Board 2700 Fran Jamieson Way Viera, Florida 32940-6601
Findings Of Fact The School Board of Leon County, Florida ("Respondent") is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Leon County, Florida. Respondent is required by statute to promulgate rules and regulations establishing attendance zones for grades Kindergarten through 12, and has proposed for adoption Rule Gx37-3.02, which establishes 1980-1981 school attendance zones for public school students in Leon County, Florida. Respondent published notice of its intent to adopt Rule Gx37-3.02 in the April 12, 1980, edition of the Tallahassee Democrat. In advertising its intent to adopt the proposed rule, insofar as relevant to this proceeding, Respondent indicated that attendance zones ". . . of several elementary schools are being examined for possible rezoning to reduce overcrowding and to eliminate underutilization." The proposed rule would modify attendance zones for the following Leon County elementary schools: Astoria Park, Riley, Ruediger, Sabal Palm and Kate Sullivan. The proposed attendance zones would also have some impact on students currently attending Carolyn Brevard. In its advertising notice Respondent listed Sections 230.22(2) and 230.23(4), Florida Statutes, as authority for adoption of the proposed rule. Section 230.22(2), Florida Statutes, empowers Respondent to: . . . adopt such rules and regulations to supplement those prescribed by the state board as in its opinion will contribute to the more orderly and efficient operation of the district school system. Section 230.23(4)(a), Florida Statutes, authorizes Respondent to "[a]dopt and provide for the execution of plans for the establishment, organization, and operation of the schools of the district . . .," and further, after considering recommendations of the superintendent of schools concerning attendance areas: . . . to authorize schools to be located and maintained in those communities in the district where they are needed to accommodate, as far as practicable and without unnecessary expense, all the youths who should be entitled to the facilities of such schools, and to approve the area from which children are to attend each such school. Although not cited by Respondent in its advertising notice as authority for adoption of the proposed rule, Section 230.232(1), Florida Statutes, provides that: The school boards of the several districts are hereby authorized and directed to provide for the enrollments in a public school in the district of each child residing in such district who is qualified under the laws of this state for admission to a public school and who applies for enrollment in or admission to a public school in such district. The authority of each such board in the matter of the enrollment of pupils in the public schools shall be full and complete. No pupil shall be enrolled in or admitted to attend any public school in which such child may not be enrolled pursuant to the rules, regulations, and decisions of such board. Section 230.232(2), Florida Statutes, also not cited in Respondent's public notice, provides that: In the exercise of authority conferred by subsection (1) upon the school boards, each such board shall provide for the enrollment of pupils in the respective public schools located within such district so as to provide for the orderly and efficient administration of such public schools, the effective instruction of the pupils therein enrolled, and the health, safety, education and general welfare of such pupils. In the exercise of such authority the board shall prescribed school attendance areas and school bus transportation routes and may adopt such reasonable rules and regulations as in the opinion of the board shall best accomplish such purposes. The school boards shall prescribe appropriate rules and regulations to implement the provisions of this subsection and other applicable laws of this state and to that end may use all means legitimate, necessary and proper to promote the health, safety, good order, education, and welfare of the public schools and the pupils enrolling therein or seeking to enroll therein. In the accomplishment of these objectives the rules and regulations to be prescribed by the board may include, but be not limited to, provisions for the conduct of such uniform tests as may be deemed necessary or advisable in classifying the pupils according to intellectual ability and scholastic proficiency to the end that there will be established in each school within the district an environment of equality among pupils of like qualifications and academic attainments. In the preparation and conduct of such tests and in classifying the pupils for assignment to the schools which they will attend, the board shall take into account such sociological, psychological and like intangible social scientific factors as will prevent, as nearly as practicable, any condition of socio-economic class consciousness among the pupils attending any given school in order that each pupil may be afforded an opportunity for a normal adjustment to his environment and receive the highest standard of instruction within his ability to understand and assimilate. In designating the school to which pupils may be assigned there shall be taken into consideration the request or consent of the parent or guardian or the person standing in loco parentis to the pupil, the available facilities and teaching capacity of the several schools within the district, the effect of the admission of new students upon established academic programs, the effect of admission of new pupils on the academic progress of the other pupils enrolled in a particular school, the suitability of established curriculum to the students enrolled or to be enrolled in a given school, the adequacy of a pupil's academic preparation for admission to a particular school, the scholastic aptitude, intelligence, mental energy or ability of the pupil applying for admission and the psychological, moral, ethical, and cultural background and qualifications of the pupil applying for admission as compared with other pupils previously assigned to the school in which admission is sought. It is the intention of the legislature to hereby delegate to the district school boards all necessary and proper administrative authority to prescribe such rules and regulations and to make such decisions and determinations as may be requisite for such purposes. The 1980-1981 enrollment in the elementary schools of Leon County, Florida, is projected to be approximately 10,404 students, excluding those elementary students participating in special programs. Of this total, the proposed rule would require an estimated 262 elementary school pupils to change schools for the 1980-1981 school year. Petitioners are a group of parents and children residing in the affected attendance areas who will be required to change schools if the proposed rule is adopted. Respondent proposes to modify its current attendance zones by shifting three study areas to new schools. If the proposed rule is adopted, Study Area 0360 will be moved from Sabal Palm Elementary to Astoria Park Elementary; Study Area 0460 will be moved from Sabal Palm Elementary; Study Area 0460 will be moved from Sabal Palm Elementary to Riley Elementary; Study Area 2365 will be moved from Kate Sullivan Elementary to Ruediger Elementary. Petitioners reside within Study Area 0460, and would be transferred under the proposed rule from Sabal Palm Elementary to Riley Elementary. The closest school to Study Area 0460, where Petitioners reside, is Astoria Park Elementary. Four of Respondent's elementary schools are closer to Study Area 0460 than Riley Elementary, where Petitioners will attend if the proposed rule is adopted. Study Area 0460 was rezoned in 1975 so as to shift Petitioners from Astoria Park Elementary, the school closest to their homes, to Sabal Palm Elementary, where they currently are enrolled. Respondent challenges Petitioner's standing to contest the validity of the proposed attendance boundaries, and, alternatively, contends that adoption of the proposed attendance boundaries is within Respondent's statutory authority under Sections 230.23(4) and 230.232, Florida Statutes. In support of their contention that they are "substantially affected" by the proposed rule in order to maintain this action pursuant to Section 120.54(4), Florida Statutes, Petitioners allege that: [They] attend the public schools of [Leon County], which are under the direction and control of the respondent . . . and [are] regulated by rules and regulations concerning public school zones promulgated by respondent. . . . Petitioners are entitled to an orderly and effective educational program which is not arbitrarily and unreasonably disturbed and disrupted. The proposed rule arbitrarily disrupts petitioners' educational progress by moving them to a different and less academically advantageous school facility and program. The proposed rule will disrupt the educational progress of petitioner children to their substantial detriment by transferring them to a school (Riley Elementary) which produces students who score persistently lower on the Statewide Student Assessment Tests (SSAT) than students from the school (Sabal Palm Elementary) petitioners currently attend. On the SSAT tests administered in October, 1979, Riley was designated as one of four elementary schools in the district which failed to meet the composite student performance criteria in mathematics, writing, and reading at the fifth grade level; on the same test, Sabal Palm fifth graders tied for second in mathematics, tied for first in writing, and ranked fourth in reading when compared with other district schools. The proposed rule will disrupt and adversely affect the educational progress of petitioner children by assigning them to a school (Riley) which produces students who demonstrate less proficiency on the Comprehensive Tests of Basic Skills than those students from the school (Sabal Palm) petitioners now attend. Although students at Sabal Palm and Riley schools show little difference in attainment of basic skills of reading, language, and mathematics when measured at the first grade level, by fifth grade the students at Riley are performing the basic skills at approximately a grade level lower than students at Sabal Palm. The academic progress of petitioner children will be substantially slowed and adversely affected by transferring them from a school which stimulates performance at or above grade level norms to a school whose program is geared to lower levels of attainment. The rule as proposed requires an estimated 262 public elementary students, including petitioner children, to leave the school and the educational program in which they are now enrolled while the remaining 10,142 elementary students are not required to move. Respondent is not required by court order to carry out this rezoning. The proposed rule contains no "grandfather" clause or exemption which would prevent its application to petitioners. The proposed rule will operate unequally and arbitrarily on petitioners by requiring them to change schools while others similarly situated are not so required. The proposed rule violates petitioners' right to equal protection under Article I, section 2 of the Florida Constitution and Amendment XIV of the United States Constitution. Section 229.57, Florida Statutes, establishes a statewide student assessment program, one of the purposes of which is to assess how well districts and schools are meeting state goals and minimum performance standards. Respondent administers two tests in elementary schools which measure mastery of basic skills. The Florida Statewide Student Assessment Tests, commonly know as "SSAT", are administered in October of each year to all third and fifth grade students not participating in exceptional education programs. Skills tested on the SSAT are reading, writing and mathematics. On the SSAT, schools with a composite student performance score below 70 are reported as below minimum standards in those areas tested. The 1980 SSAT results show a composite score for both Riley Elementary and Sabal Palm Elementary in excess of 70 in all areas tested at the third grade level. At the fifth grade level, Riley Elementary's composite scored were below 70 in all three areas, while composite scores of Sabal Palm Elementary students were among the top scores in the Leon County School District. The Comprehensive Test of Basic Skills ("CTBS") is administered by Respondent to students in the regular school program in grades one through five in the Spring of each school year. The CTBS measures achievement in reading, language and mathematics. On the 1979-1980 CTBS, both Riley Elementary and Sabal Palm Elementary students exceeded national norms at the first and third grade levels. At fourth and fifth grade levels, however, Sabal Palm Elementary students continued to perform at or above national norms, while Riley Elementary students dropped well below these norms. At the fifth grade level, Riley Elementary students performed a full grade level or more lower than Sabal Palm Elementary students in all areas tested. Testing data compiled over a five-year period indicate a pattern of comparable performance of basic skills at lower grade levels at both Riley Elementary and Sabal Palm Elementary. However, at the fourth and fifth grade levels, the test scores of Riley Elementary students are consistently lower than those obtained by Sabal Palm Elementary students. There exist recognized non-school variables which affect student performance on the SSAT. These variable are: percentage of students eligible for free or reduced-price lunches; percentage of students' families with some amount of college education; percentage of students' families whose head of household is employed in a white-collar occupation; percentage of students who are members of minority groups; percentage of black minority students; and percentage of students with Spanish has a native language. If accepted as accurate, these variables should affect test scores at all grade levels. However, as noted above, standardized test-score results at the first grade level indicate Sabal Palm Elementary and Riley Elementary students functioning at about the same level, whereas test scores obtained at later stages in their elementary school tenure indicate a drop-off in performance by Riley Elementary students. These test score results indicate that the instructional program at Riley Elementary School, for some reason not entirely clear from the record in this proceeding, is not meeting state goals and minimum performance standards as well as the program at Sabal Palm Elementary. Section 120.52(14), Florida Statutes, defines "rule" as ". . . each agency statement of general applicability that implements, interprets, or prescribes law or policy . . ." In Polk v. School Board of Polk County, 373 So.2d 960, 961 (2nd DCA Fla. 1979), the Court refused to invalidate the restructuring of high school attendance zones for failure of the school board to submit an economic impact statement. In the course of its decision, however, the Court specifically pointed out that "[b]y definition the action of the school board in adopting the attendance plan constituted the making of a rule." Id. at 961. Accordingly, Rule Gx37-3.02, as proposed by Respondent, is a rule within the meaning of Section 120.52(14), Florida Statutes. Section 120.54(4), Florida Statutes, provides that: Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority. Section 120.52(10)(b), Florida Statutes, defines "party" as: Any . . . person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party. (Emphasis added). Section 230.232(2), Florida Statutes, quoted fully above, requires that in the course of setting school attendance zones ". . . there shall be taken into consideration the request or consent of the parent or guardian or the person standing in loco parentis to the pupil. . . ." Thus, the interests of parents, and through them, their school-age children, must be considered by Respondent in the context of any proposed changes of school attendance zones. In School Board of Broward County v. Constant, 363 So.2d 859 (4th DCA Fla. 1978), the school board, after holding a series of public hearings, established school attendance lines, and several parents and school children filed complaints in circuit court to set aside the board's action. The school board moved to dismiss the complaint on the grounds that the sole remedy available for parents and school children to contest the Board's action was by appeal to the District Court of Appeals, pursuant to Chapter 120, Florida Statutes. The trial court denied the board's motion to dismiss and an appeal was taken. One of the contentions advanced by the parents and school children on appeal was that even if Chapter 120, Florida Statutes, were applicable to the decision of the school board in adopting the school attendance lines, the parents and children were not "parties" to that decision, and would not, therefore, have standing to pursue appellate review under Chapter 120. In reversing the decision by the trial court, the District Court of Appeal held, in part, that: . . . we reject appellees' contention that they are not parties within the meaning of Section 120.52(10). On the contrary, appellees fit the description of any person who, as a matter of agency regulation, have substantial interests which will be affected by the proposed agency action. Such a person is a party within the meaning of the [Administrative Procedure] Act. Thus, appellees are entitled to be heard but via the Administrative Procedure Act and not by resort to collateral action in the Circuit Court. In Polk v. the School Board of Polk County, supra, several members of a group known as "Concerned Citizens" opposed the restructuring of high school attendance zones because the proposed plan would force their children to move to a school further from their home than the school they had been attending, and asserted that such a change ". . . was an unwarranted disruption of their children's school lives and . . . would be the third or fourth such disruption." 373 So.2d at 961. In the course of its opinion, the Polk court pointed out that the "[a]ppellant represents a group known as Concerned Citizens, South Lakeland, who are adversely affected because the new attendance lines will require their children to attend a different school." Id. (Emphasis added).
