The Issue The issue in this case is whether the adoption of a rule by the Orange County School Board (Respondent) creating and revising high school attendance zones is an invalid exercise of delegated legislative authority.
Findings Of Fact The Respondent is responsible for operation of the public school system in Orange County, Florida. Specifically relevant to this dispute, such responsibilities include planning all aspects of physical plant operations sufficient to accommodate student enrollment and creation of student attendance zones to populate new and existing school facilities. School facility planning is a multi-year process in Orange County, due to significant population growth historically experienced in the metropolitan Orlando area. The Respondent has developed a standard prototype high school facility designed to accommodate 2,776 students. The development and deployment of the prototype facility is not at issue in this proceeding. In projecting the need to construct new schools, the Respondent's planning staff generally relies upon population growth projections supplied by various local government agencies including the local municipalities within an affected area. In this case, the information reviewed included the general routine data including growth projections received from the City of Ocoee. Western Orange County, including the municipalities of Ocoee and Wekiva, has been a rapidly-growing part of the county, primarily because of the availability of undeveloped land in that portion of the county. The number of schools in the area doubled within the past six years. Three additional new schools are included in the Respondent's ten-year planning horizon for the area. Ocoee High School was constructed to relieve overcrowding at Apopka and West Orange High Schools, and to accommodate 2,776 students. Despite having opened only two years ago, 3,236 students were enrolled at Ocoee High School for the 2006-2007 school year, and the student population was projected at 3,300 to 3,400 students for the 2007-2008 school year. In 2006, the staff of the Orange County School District began the process of creating a school zoning plan intended to populate Wekiva High School, a new facility opening for the start of the 2007-2008 school year. Wekiva High School was constructed to address excess student enrollment at Ocoee and Apopka High Schools and to accommodate projected growth in the vicinity of the school. The Respondent eventually adopted a rezoning plan (the "initial plan") intended to populate the new school with students from other area schools. The Petitioners are parents and students residing in an area previously zoned for attendance at Ocoee High School. (During the rezoning process, the Petitioners' residential area was identified as "Area Z.") Under the initial plan, the student-Petitioners would have been assigned to attend Wekiva High School, approximately five miles from Area Z. The initial plan was the subject of a legal challenge by many of the same Petitioners involved in the instant case. On April 10, 2007, the Respondent rescinded the initial plan. Following the rescission of the initial plan, the Respondent immediately adopted a new 13-step School Attendance Rezoning Process to govern future school rezoning efforts. The rezoning process took effect upon adoption and has not been challenged in this proceeding. On April 11, 2007, the Respondent initiated a second attempt to create a zoning plan to populate Wekiva High School and, ultimately, adopted the plan at issue in this proceeding (the "current plan"). Under the current plan, the students residing in Area Z were again assigned to attend Wekiva High School. The Petitioners have asserted that the current plan is an invalid exercise of delegated legislative authority in that it is "(a) arbitrary and capricious, (b) not supported by competent or substantial evidence grounded in the specific variables identified by School Board policy as controlling in such matters, and (c) is the product of procedural errors that render the Rezoning Ruling unfair and/or incorrect." Four of the Petitioners testified at the hearing on behalf of themselves and their children: Joanne Zeise, Tambra Blevins, James Frey, and Tim MacAllister. Joanne Zeise is the mother of two daughters. One daughter is a senior at Ocoee High School and was not affected by this rezoning proposal. There is no senior class at Wekiva High School. Seniors were allowed to remain in, and graduate from, their previously assigned schools. Ms. Zeise's other daughter is in the 7th grade and, under the current plan, will go to Wekiva High School. The child has not yet attended any high school. Ms. Zeise had hoped that her younger daughter would be assigned to Ocoee High School. Ms. Zeise was previously very involved with Ocoee High School activities. She assisted in setting up the school library, including unpacking and shelving books. She and other parents were apparently instrumental in establishing the school's aquatics program. Her participation in school activities waned as she became involved in the effort to keep her neighborhood assigned to the Ocoee High School attendance zone. Ms. Zeise is opposed to all of the proposed rezoning options that affected her neighborhood. She helped organize neighbors to oppose the rezoning, conducted meetings in her home, and helped raise funds to obtain legal counsel. She attended community and School Board meetings, the Bi-Racial Advisory Committee meeting addressed herein, and met individually with some, if not all, members of the School Board to discuss her opposition to the rezoning. Ms. Zeise is concerned about the alteration to school "feeder patterns" further addressed herein. She testified that her neighborhood had been rezoned previously and that she expected it to be rezoned again, if and when the school district implements improvements to Evans High School, which lies to the east of her neighborhood. Although Ms. Zeise testified as to curriculum differences between Ocoee and Wekiva High Schools, specifically as to upper level math and art classes, the evidence fails to establish that such classes will not be available at Wekiva High School to her younger daughter, who has not yet entered high school. Further, there is no evidence that such classes will remain available to students at Ocoee High School. Ms. Zeise testified that she requested demographic data of assorted residential areas at various meetings so that she could propose additional zoning options, but stated that the requests were verbal and undocumented. School district staff testified that they responded to all formal information requests. The evidence is insufficient to establish that the Respondent failed to comply with any requests for information. Tambra Blevins is the mother of a 9th grade son who will transfer from Ocoee High School to Wekiva High School under the current plan. Ms. Blevins testified that he is unhappy and emotional with the prospect of being severed from school friends by the rezoning, but acknowledged that his academic performance has been stable. There was no evidence offered that the change in schools would impact his academic opportunities or performance. Ms. Blevins was also involved with organizing the effort to oppose the rezoning plan and helping to raise funds and to distribute information to persons who were expected to oppose the plan. There is no credible evidence that Ms. Blevins requested information or data from the Respondent which was not provided. James Frey is the father of a son, a student in the 10th grade at Ocoee High School, who will transfer to Wekiva High School under the current plan. Mr. Frey testified that his son was feeling emotionally stressed by the rezoning changes, but that his grades remained high and that he had a good attitude. Mr. Frey noted that there are curriculum differences between the two schools. The evidence fails to establish that the academic curriculum at either school is superior to the other. Mr. Frey testified that his son wanted to remain at Ocoee High School to take advantage of a building construction program offered there, and which is not offered at Wekiva High School. His son has not yet enrolled in the building construction program. Mr. Frey testified that his son had been unable to enroll because the classes were filled. Mr. Frey testified that his son's application to remain at Ocoee High School had been denied by the Respondent. The basis for the application was unclear; but, according to the letter of denial dated May 23, 2007, the Respondent denied the application "because the Orange County School Board has been placed under a court order by the United States District Court and the United States Fifth Circuit Court of Appeals, which does not permit us to grant an exemption on the basis of your request." Mr. Frey also testified that his son was interested in the Japanese language program at Ocoee High School; but, at the time of the hearing, his son was enrolled in Spanish language classes that are offered at both Ocoee and Wekiva High Schools. He has not enrolled in the Japanese language courses. There is no evidence that the Ocoee High School Japanese classes were unavailable to Mr. Frey's son. Mr. Frey also noted that his son was involved in a freshman mentoring program that was part of his son's work towards becoming an Eagle Scout and that his son was very interested in achieving his goal. Although Wekiva High School apparently had no similar extracurricular program at the time of the hearing, it is reasonable to presume that extracurricular activities will be available at Wekiva High School in response to student interests. There is no credible evidence that Mr. Frey requested information or data from the Respondent which was not provided. Tim MacAllister is the father of a son attending 9th grade at Ocoee High School who will transfer to Wekiva High School under the current plan. Prior to this school year, Mr. MacAllister's son had not entered high school and had never attended Ocoee High School. Mr. MacAllister's son is enrolled in honors classes at Ocoee High School and is enrolled in the Japanese language course that is not offered at Wekiva High School. The Respondent has a policy that permits students to obtain academic transfers from an assigned school to another school in order to complete course sequences not available at the assigned school. There is no evidence as to whether Mr. MacAllister's son has applied for an academic transfer to remain at Ocoee High School. Mr. MacAllister noted that there were curriculum differences between the two schools; but, other than the Japanese class, his son has not enrolled in any courses that are unavailable at Wekiva High School. Mr. MacAllister's son wants to continue on to college after graduating from high school, and his family supports his interest. There is no evidence suggesting that graduating from either Ocoee or Wekiva High Schools would affect a student's college admission prospects. Mr. MacAllister's son is eligible for transportation by bus to either Ocoee or Wekiva High schools. Mr. MacAllister testified that he takes his son to school, and that Ocoee High School is on his way to work, whereas Wekiva High School is not. Wekiva High School is closer to the MacAllister home than is Ocoee High School, and, although Mr. MacAllister opined that the traffic makes travel to Wekiva High School less safe that to Ocoee High, there was no empirical support for his opinion. There is no credible evidence that Mr. MacAllister requested information or data from the Respondent which was not provided. No evidence was presented as to the Petitioners who did not testify at the hearing. As set forth previously, the Respondent, after rescinding the initial rezoning plan, adopted a revised rezoning process. The 13 steps of the revised process are as follows: Step 1: Superintendent commences the rezoning process for the affected schools. Step 2: Pupil Assignment Department prepares a master calendar identifying provisional dates for the rezoning process, including a community information meeting, Bi-Racial Advisory Committee meeting, Rule Development Workshop and Final Public Hearing with their corresponding public notice deadlines. Step 3: Pupil Assignment Department distributes the rezoning master calendar to each Board Member, Superintendent, area superintendents and potentially affected school principals. The master calendar shall be posted at the Educational Leadership Center and at the affected schools, as well as conspicuously posted at the potentially affected schools in the front office. Step 4: Pupil Assignment Department commences its school rezoning analysis for purposes of developing one or more proposed rezoning options. Pupil Assignment staff may consult with each Board member, individually; the affected area superintendents and school principals; and the transportation Department, in order to acquire relevant information and technical assistance needed to formulate suitable attendance zone options. Each rezoning option devised by staff must comply with the applicable desegregation orders. Staff may consider any of the following factors in developing each rezoning option: Anticipated growth and development within the attendance zone Facility design capacities for each affected school Distances and duration of student travel School feeder patterns Adverse impacts to neighborhoods, residential subdivisions or other discrete residential area Step 5: The Director of Pupil Assignment shall certify that each proposed rezoning option is compliant with current desegregation orders; is not arbitrary; and is supported by staff consideration and analysis of one or more of the factors enumerated in Step 4. Step 6: Pupil Assignment staff shall convey the proposed rezoning options to the Bi- Racial Advisory Committee with a request that the Committee consider and make recommendations to the Superintendent concerning any aspect of the proposed attendance zones. The Bi-Racial Advisory Committee is required under the desegregation orders to review proposed changes to school attendance zones. Step 7: Pupil Assignment staff will schedule, notice and attend community meetings. At the community meetings staff will explain the rezoning process, discuss factors considered for each proposed attendance zone, engage in discussion as to each proposal's attributes and obtain community feedback. Step 8: The Director of Pupil Assignment will present each proposed rezoning option to the Superintendent with his or her recommendation, along with the Bi-Racial Committee's recommendations and a report on the community's response to the rezoning options. The Superintendent may reject any or all proposals submitted by the Director of Pupil Assignment and direct that staff undertake an additional review for the purposes of devising alternate options. The Superintendent shall select those proposals to be advertised for a Rule Development Workshop that, in his or her discretion, reasonably balance the factors described above, any Bi-Racial Committee recommendations and community interests. Step 9: School Board Services shall prepare a Notice of Public Rule-Development Workshop ("Workshop Notice") identifying each attendance zone proposal for the affected schools as required by Florida Statutes Sections 120.54(2) and 120.81(d). Step 10: Members of the public shall have an opportunity to speak at the workshop. During the workshop the Board may make modifications to the proposed attendance zones recommended by staff and any recommendations for implementation of those attendance zones. School Board Services Department shall then schedule a public hearing for the formal adoption of a proposed attendance zone. Step 11: Notice of Public Hearing on Proposed Board Action concerning School Attendance Zone Changes will be prepared by Pupil Assignment Department for advertisement in a newspaper of general circulation not less than 28 days prior to the date of the public hearing. The notice shall contain information required by Florida Statutes Sections 120.54(3) and 120.81(1)(d). At the conclusion of the public hearing, the School board may take action to either: (1) adopt one of the recommended options; (2) direct staff to re-advertise for public hearing any substantive modification to a recommended option in accordance with step 11 or (3) reject recommended options and direct that staff undertake an additional review for the purpose of devising alternative attendance zone options. Step 12: Pupil Assignment shall compile a rulemaking record which shall include those materials identified in Florida Statute section 120.54(8), in addition to the following: Written comments and/or questionnaire responses received in connection with the community meetings. Written comments and recommendations received by the Bi-Racial Committee. Step 13: Pupil Assignment shall cause to be filed a certified copy of the proposed attendance zones, the rulemaking record and other relevant materials in the office of Pupil Assignment and make such materials available for public inspection upon request. The Petitioners presented no credible evidence that the Respondent materially failed to comply with any of the steps in the rezoning process. As required by Step 1, the superintendent commenced the rezoning process by approval of a memo dated April 11, 2007, from Sandra R. Simpson, director of Pupil Assignment. The memo included a proposed timeline which formed the basis for the master calendar required in Step 2. The master calendar was distributed to various school officials and posted at the Educational Leadership Center and in various locations at the affected schools as required by Step 3. Additionally, the schedule of meetings and workshops identified in the master calendar was published in a series of legal notices contained in the April 15, 2007, issue of the Orlando Sentinel. The publication included notice of the Bi- Racial Advisory Committee meeting scheduled for April 30, 2007; notice of a community meeting scheduled for May 1, 2007; and notice of the Rule Development Workshop scheduled for May 2, 2007. The notice for the rule development workshop provided an explanation of school zoning and set forth the purpose of the proposed rezoning (i.e., to populate the new school and "equitably and efficiently" redistribute current student populations at existing schools.) The notice specifically identified the new school to be opened and identified the school zones which could be potentially altered by rezoning. As required by Step 4, the Respondent's Pupil Assignment staff eventually developed eight proposed options intended to populate Wekiva High School and reduce student populations at Ocoee and Apopka High Schools. In developing the school zones, the staff utilized information collected during the initial rezoning effort. There is no credible evidence that the information was invalid or unreliable at the time that the options were developed. The analysis began with a review of the two-mile radius surrounding Wekiva High School to identify the number of students residing therein. Approximately 1,100 eligible students resided within the specified area. A two-mile radius was considered because students residing within two miles of the school would not be eligible to ride a school bus to the school, thereby reducing the Respondent's transportation costs. The staff then began to alter the zones to reach an acceptable population level for the three grades, 9 through 11, to be available during the first year of operation at Wekiva High School. In designing the zones, the staff relied upon a highly specialized computer software program that utilizes demographic data capable of identifying individual students residing in specific homes. Some of the data used was sufficiently detailed to provide personal information, including race, grades and FCAT scores, and economic status applicable to individual students. Essentially, the software allowed the staff to create various proposals and review the specific demographic characteristics for each. In relevant part, each option placed approximately 1,750 students in grades 9 through 11 at Wekiva High School, taken from a varying mix of Apopka, Evans, Edgewater, and Ocoee High School zones. All of the affected zones were contiguous to the Wekiva High School zone. The relatively-similar rezoning options differed essentially as to which zone students residing in three specific areas (identified on maps as Areas "X," "Y," and "Z") were assigned. The Petitioners have asserted that the Respondent failed to provide the data upon which the zones were created. The evidence fails to establish that the school board staff refused to assist any person requesting to use the software to devise alternative attendance zones. It is reasonable for the disclosure of the detailed demographic data to be restricted so as to protect information related to individual students. The Petitioners have asserted that the Respondent ignored feeder patterns and issues related to neighborhoods in the rezoning process. The evidence fails to support the assertion. The staff considered the factors set forth in Step 4 of the rezoning process, including existing and anticipated school feeder patterns, neighborhood integrity concerns, various types of transportation barriers, and projected growth within the attendance zones, in developing the rezoning options. To the extent that factors conflicted, those conflicts were reflected within the various proposals eventually submitted to the superintendent for review. The staff did not limit its review to the factors set forth in Step 4. For example, the staff also considered FCAT scores. Students attending poorly performing schools (commonly referred to as "F-Schools") are permitted by law to transfer out of their assigned schools and into other schools. Ocoee High School is a "C-School." Evans High School is an "F-School." The Evans High School zone is immediately adjacent and to the east of the Ocoee High School zone. Staff reasonably presumed that rezoning students from the C-School zone into the closer F-School, rather than into the Wekiva High School zone, would not adequately address issues of overcrowding at Ocoee High School because the newly-transferred students would transfer back from Evans to Ocoee. By federal court order dated September 2, 1980, Orange County was required to revise school attendance zones to desegregate the school system. The court order specifically addressed procedures of modification of school attendance zones. The court order has been amended at various times and was still in effect at the time of the hearing. Minority students comprise 28 percent of the Orange County student population. The Respondent attempted to create attendance zones reflective of the county's general racial demographics. In creating the proposed zones, the staff reviewed matters of racial and economic diversity in order to meet the requirements of a federal court order related to desegregating the Orange County School System. As required by Step 5, Pupil Assignment Director Simpson certified by memo dated April 26, 2007, that each zoning option complied with the desegregation order and was prepared after a logical analysis of the factors set forth in Step 4. As required by Step 6, the eight options were presented to the members of the Bi-Racial Advisory Committee by school board staff on April 30, 2007. The purpose of the committee meeting was to review the rezoning proposals to determine whether any appeared to result in re-segregation of the school system. Some committee members took the opportunity to comment on the proposals at the meeting, while others submitted additional comments to staff on May 1, 2007. All comments were provided to the School Board members at the rule development workshop on May 2, 2007. As required by Step 7, the Pupil Assignment staff attended a previously noticed community meeting held on May 1, 2007, at the Educational Leadership Center and presented the options to the various attending members of the public. Persons in attendance were provided an opportunity to submit oral or written comments regarding the proposed options, and some took advantage of the opportunity. Staff email addresses were also provided to attendees, and more than 40 emails were eventually received by staff. A petition signed by opponents to the plans was also presented to and received by the staff. All communications from the public were summarized and provided to School Board members at the rule development workshop. The Petitioners have asserted that the Respondent failed to comply with the Step 7 requirement that the staff attend community "meetings" because only one meeting occurred. At the hearing, Ms. Simpson testified that she believed it was within her discretion to conduct a single meeting under the rezoning process. Although the requirement does not appear to provide for such discretion, the failure to conduct more than one community meeting is immaterial to this dispute. There is no statutory requirement that a "community meeting" be conducted as part of rulemaking. Additionally, there is no evidence that any potentially-affected person was unaware of the rezoning proposals or was denied an opportunity to review the proposals, to engage in discussion regarding the proposals, or to provide feedback to the Respondent. As required by Step 8, Pupil Assignment Director Simpson met with the superintendent on May 2, 2007, to present the options to him. The superintendent was also provided with the comments from the Bi-Racial Advisory Committee. The staff recommended that Options 1 and 3 be presented to the School Board members at the workshop. The staff disfavored Options 2, 5, 7, and 8 because all four required the purchase of additional school buses to transport eligible students, resulting in increased initial and subsequent operating costs to the Respondent. The staff disfavored Options 4 and 6 because they did not resolve excess population concerns at Ocoee High School. Although the superintendent agreed with the staff, he directed that all eight options be presented to the School Board members at the scheduled workshop. The Notice of Public Rule-Development Workshop required by Step 9 had been published with the other legal notices on April 15, 2007. The notice adequately identified each potentially impacted attendance zone and properly included all information required by statute. The Petitioners have asserted that the Respondent failed to provide notice by mail of various meetings, including the workshop, to persons requesting such notice as required by statute. There is no credible evidence that any person formally requested advance notice of the workshop or other proceedings. In any event, any failure by the Respondent in this regard is immaterial. There is no allegation or evidence that any person potentially affected by proposed rezoning was unaware of the workshop or was denied an opportunity to participate at the workshop based on lack of sufficient notice. The Rule Development Workshop referenced in Step 10 occurred as scheduled on May 2, 2007. The eight options were presented to the Respondent by staff who answered various questions from board members. An opportunity for public comment was provided and a number of persons, including several Petitioners and their legal counsel, spoke at the meeting regarding the options. The Petitioners' legal counsel suggested an additional rezoning option to the Respondent. Ocoee City Commissioner Joel Keller, within whose district the Petitioners reside and who testified at the administrative hearing, made an extended presentation at the meeting. Following a period of discussion, the board members decided to move forward with the proposed "Option 3" rezoning plan and scheduled the public hearing to consider formally adopting the option for June 12, 2007. As required by Step 11, notice of the public hearing (titled "Notice of Intended Action on School Attendance Zone Changes") was published in the May 13, 2007, edition of the Orlando Sentinel. The notice clearly included the information required by Subsections 120.54(3) and 120.81(1)(d), Florida Statutes. The notice was also posted at the Educational Leadership Center and at the potentially affected schools. Approximately two weeks prior to the public hearing, Pupil Assignment Director Simpson prepared a draft resolution for consideration by the board. Ms. Simpson detailed the staff analysis of the process and the various factors considered in the eventual recommendation. The public hearing was conducted on June 12, 2007. The selected option was presented to the board members by the staff, and all of the zoning options and supporting demographic information was available for their review. Another opportunity for public comment was provided, and a number of Petitioners, in addition to other speakers, again advised the board members of their objections. Petitioners' legal counsel again made the same proposal as had been presented at the workshop, and elected officials from the City of Ocoee also spoke to the board. Staff members responded to questions from both speakers and school board members. Following the conclusion of the comment and question session, board members discussed the issue and then adopted Option 3 (the rezoning option challenged in this proceeding) on a vote of 5 to 1. There is no assertion or evidence that the Respondent failed to comply with Steps 12 and 13 of the rezoning process. As stated previously herein, the Petitioners have asserted that the current plan is an invalid exercise of delegated legislative authority in that it is "(a) arbitrary and capricious, (b) not supported by competent or substantial evidence grounded in the specific variables identified by School Board policy as controlling in such matters, and (c) is the product of procedural errors that render the Rezoning Ruling unfair and/or incorrect." The Petitioners presented no credible evidence that the Respondent's adoption of the current plan was arbitrary or capricious. The evidence offered in support of the assertion that the adoption of the rezoning plan was arbitrary or capricious essentially focused on two other high schools in the Orange County School System, Olympia and Evans. The Petitioners asserted that the Petitioners were treated arbitrarily by the Respondent's application of the prototype high school population of 2,776 to this rezoning, while allowing the Olympia High School population to substantially exceed 2,776 and leaving Evans High School operating under capacity. The evidence fails to support the assertion. The Respondent previously attempted to rezone Olympia High School, which was operating in excess of the facility's original attendance design capacity, prior to the rezoning at issue in this proceeding. The Olympia rezoning plan was the subject of a successful legal challenge, and the rezoning did not occur. Permanent modular classroom buildings were placed on the Olympia campus to accommodate the excess student capacity. The Petitioners suggest that the capacity of Ocoee High School be increased in a similar manner. There are more than 20 modular classroom buildings already on the Ocoee High School campus. There is no evidence that the Respondent attempted to rezone Olympia High School for the purpose of expanding the student population beyond 2,776 students. The increase in the authorized capacity at Olympia occurred subsequently to the successful legal challenge and reflected the necessity to accommodate the student population remaining thereafter. The purpose of the current plan is to populate Wekiva High School and relieve the overcrowding at Ocoee and Apopka High Schools. There is no evidence that the purpose of the current rezoning plan is unreasonable. There is no evidence that the Respondent's adoption of the current rezoning plan was arbitrary or capricious. Evans High School has historically operated with a student population significantly less than the facility can accommodate, primarily because many of the approximately 4,000 students living within the Evans zone do not attend school on the Evans campus. Evans High School has a predominately African- American student population. Students in a racial majority at a specific school are permitted to transfer into a school where they are in a racial minority and an apparent significant number exercise the option. Evans is scheduled to be redesigned and relocated during the 2009-2010 school year. School officials believe that in addition to offering "magnet" programs at Evans, the relocation and redesign will increase enrollment and encourage students living within the Evans zone to attend school at the new facility. The Respondent's plans for the Evans High School project are not at issue in this proceeding. There is no credible evidence that the Evans proposal has any relevance to the current rezoning plan. The Petitioners presented no credible evidence to support the assertion that the Respondent failed to comply with "controlling" variables as required by the policy. The specific policy being implemented indicates that the variables, specifically those identified in Step 4, "may" be considered by the staff in developing each rezoning option. The evidence establishes that the staff considered the variables to the extent necessary to develop the options and that the relevant information was available for the Respondent's review of the options prior to adoption of the current plan. The Petitioners assert that the current plan disrupts school "feeder" patterns. A feeder pattern is based on attendance zones whereby students attending a specified school move as a group to another school as their education progresses. The concept of feeder patterns is one of the factors that the Pupil Assignment staff may consider during Step 4 of the rezoning process. The evidence establishes that the staff considered the feeder patterns impacted by the current plan. The policy does not prohibit the Respondent from altering feeder patterns when school attendance zones are created or revised. In addition to consideration of feeder patterns, Step 4 identifies other factors which staff may consider in developing proposals for rezoning. The evidence establishes that the staff considered the factors relevant to each option. To the extent that there was conflict between various factors, the conflicts were recognized, and the information was communicated by staff to the Respondent. The Petitioners presented no credible evidence that the current plan "is the product of procedural errors that render the Rezoning Ruling unfair and/or incorrect." There was no evidence that there were any material procedural errors committed during the adoption of the current plan. Because the Respondent was intent on having the rezoning plan in place by June 2007 so that Wekiva High School could be populated by August 2007, the rezoning process was accelerated, but there is no evidence that the Respondent failed to comply with any deadline set forth within the rezoning process or within the applicable rulemaking provisions of Florida Statutes. The Petitioners generally assert that the Respondent failed to provide "the full panoply of public notice protections mandated by law." There is no credible evidence that the Respondent did not comply with the public notice provisions set forth in Florida Statutes and within the Respondent's new rezoning procedure. The evidence fails to support any assertion that the notice provided by the Respondent was insufficient. The evidence clearly establishes that Petitioners were aware of, and opposed to, the proposed changes to school attendance zones and that they participated throughout the full course of public events. There is no evidence that any potentially-affected person was unaware of the rezoning process. The evidence also clearly establishes that local officials from the City of Ocoee, including Commissioner Keller, were aware of the rezoning proposals. The commissioner engaged in discussions at city meetings, attended various school board meetings and made a significant public presentation to the school board members, submitted written information, and met with individual school board officials regarding opposition to the rezoning plan. The Petitioners asserted that the Respondent failed to comply with applicable rulemaking requirements set forth in Chapter 120, Florida Statutes. There is no evidence that the Respondent materially failed to comply with any statutory requirement related to the adoption of the current plan. The Petitioners asserted that the Respondent violated Subsection 120.54(3), Florida Statutes, by failing to publish a written analysis that would have permitted the "affected public" to challenge the options and formulate a "superior" proposal. The cited statute does not require such publication. The Petitioners asserted that the accelerated process undertaken by the school board in adopting the current plan prohibited them from gathering data and proposing alternative zoning plans to the Respondent. The assertion is not supported by the evidence. The Petitioners have been actively involved in the issue from the beginning of the Respondent's rezoning efforts. There is little apparent substantive difference between the initial plan and the current plan insofar as the rezoning is applicable to the Petitioners. During various presentations and meetings with the Respondent, the Petitioners and their legal counsel made proposals to transfer other neighborhoods in lieu of Area Z into the Wekiva High School zone. The Petitioners assert that the Respondent denied access to data that would have permitted the Petitioners to propose alternative zones. Although the Respondent is required to have sufficient data to support the ultimate outcome of the rezoning process, there is no requirement that the Respondent provide such data to persons seeking to devise alternative zoning plans. There is no evidence that such data was sought through discovery as part of this proceeding. Nonetheless, the Respondent presented evidence that school board staff would accommodate public requests to assist in utilization of the Respondent's software to generate proposals. The Petitioners asserted that the Respondent violated Subsection 120.54(3), Florida Statutes, by failing to publish an analysis of the federal court order's relevance to and impact upon the proposed options. The cited statute does not require such publication. The Petitioners asserted that the Respondent violated Subsection 120.54(3), Florida Statutes, by failing to include a summary of the agency's statement of estimated regulatory costs per Subsection 120.54(3)(a), Florida Statutes. The referenced requirement is only applicable if such a statement has been prepared. There is no evidence that such a statement was prepared in this case. There is no evidence that there are any "regulatory costs" involved in the rezoning plan. The Petitioners asserted that the Respondent violated Subsection 120.54(3)(a)1., Florida Statutes, by failing to include in the published notice of rulemaking a reference to the date and place where the notice of rule development appeared. The evidence establishes that the Notice of Intended Action dated May 13, 2007, stated that the rule development workshop was "advertised on April 15, 2007" and "was conducted at the Educational Leadership Center on May 2," but failed to state that the advertisement was published in the Orlando Sentinel, as were all legal notices relevant to this proceeding. The failure to identify the place of publication is immaterial under the facts and circumstances of this dispute. There is no evidence that the Respondent's failure to note that the advertisement appeared in the Orlando Sentinel resulted in any potentially-affected person being denied an opportunity to participate in the process. The Petitioners asserted that the Respondent failed to comply with Subsections 120.54(3)(a)4. and 120.54(3)(e), Florida Statutes, which require the filing of specified materials with the Administrative Procedures Committee. The Respondent is exempted from such requirements by Subsection 120.81(1)(e), Florida Statutes. The Petitioners asserted that the Respondent violated Subsections 120.54(1)(a)2. and 120.54(2), Florida Statutes, by failing to publish a "complete and readily comprehensive summary of proposed rezoning action in newspaper of general circulation to alert and apprise the average reader of the Respondent's contemplated decision and the public's ability to formulate alternative proposals based upon the same pertinent data." The cited statutes do not require such publication. The Petitioners asserted that the Respondent violated Subsection 120.54(1)(d), Florida Statutes, by failing to "select the rezoning alternative that does not impose regulatory costs on Petitioners and/or Orange County that could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives." There is no evidence that there are any regulatory costs at issue in this proceeding. The Petitioners asserted that the Respondent violated notice requirements by failing to publish all notices required by Chapter 120, Florida Statutes, on the Respondent's website, but there is no statutory notice provision that requires publication on the Respondent's website. The Petitioners asserted that the Respondent failed to provide, by mail, advance notices related to the rezoning to persons requesting such information be provided. There is no evidence that the Respondent disregarded any formal request for information. There is no credible evidence that the Respondent disregarded any informal request for information. To the extent that the Respondent potentially failed to comply with any informal request, there is no evidence that such failure resulted in any potentially affected person being denied an opportunity to participate in the proceeding, and such alleged failure is immaterial. The Petitioners asserted that the Respondent failed to comply with the requirements of the rezoning process, but as discussed previously, the Respondent followed the process and materially complied with the requirements included therein. The Petitioners asserted that the data used by the staff in drafting the proposed zones was flawed. The evidence establishes that there were minor errors, including transposition of numerals in an initial calculation, which were corrected after it was brought to the staff's attention by Commissioner Keller. There is no credible evidence that the data was erroneous at the time the Respondent began considering the proposed zoning options, or when the Respondent adopted the current plan. The Petitioners asserted that the planning projections utilized by the Respondent were erroneous and overestimated the need for facility construction, in turn resulting in unnecessary student transfers caused by rezoning. The Petitioners suggested that the projections include a substantial quantity of residential units either existing or planned in the areas affected by the current rezoning plan, which are unoccupied and unnecessary to accommodate the current residential population. There is no evidence that the Respondent's use of standard population growth data was inappropriate. There is no evidence that at the time the Respondent began planning the construction of the Wekiva High School facility, the Respondent had any reason to presume that projected student population figures may have overstated the need for school facilities. The Petitioners offered no credible evidence that the quantity of residential units in the relevant areas, constructed and unoccupied, is of such significance to be relevant to this dispute. There is no evidence that the Respondent has constructed unnecessary school facilities.
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 The issue is whether Juan Jiminez should be assigned to J.R.E. Lee Opportunity School-South?
Findings Of Fact Juan is an 8th grade student at the Citrus Grove Middle School in Dade County, Florida. According to the school records, Juan has been involved in a number of instances of misconduct. On January 12, 1988, he received a referral to the school office for generally disruptive conduct, defiance of school authority, and excessive tardiness. On January 14, 1988, he received another referral for general disruptive conduct, and received in-school suspension. On March 9, 1988, he was involved in a fight, was suspended from the school grounds, and a letter concerning the matter was written to his parents. After he returned to school, on March 21, 1988, he again received a referral for disruptive behavior, followed by another suspension on April 18, 1988, for generally disruptive conduct and defiance of school authority, for which he received an in-school suspension. On May 2, 1988, he received a referral for cutting classes, which resulted in a conference with his parents. He received another referral on May 6, 1988, for general disruptive conduct and excessive tardiness, for which he received an in-school suspension. As the result of his poor performance during the 1987-88 school year, at the beginning of the 1988-9 school year in September of 1988, Juan was selected for participation in a drop-out prevention program, known in the Dade County schools as the Student At Risk Program (SARP). As a result of, the referral, a multi-disciplinary child study team considered his record. It was recommended to Juan's mother that Juan be placed in an opportunity school, but she resisted the suggestion, and the school's administrators agreed to continue the placement at Citrus Grove Middle School while Juan participated in the SARP program. In that program, Juan would be in small classes (usually 18-20) students in order to provide him additional attention. The school and the parents have been working, to some extent, at cross purposes. The parents regard Juan as a good child because he was not a gang member. The school was not concerned because they thought Juan was a member of a gang, but because of his disinterest in his subjects, and his cutting classes, being tardy, or acting out in class which inhibited not only his learning, but that of other students in the class. Even in the SARP program, Juan's situation did not improve a great deal. On November 15, 1988, he received another disciplinary referral for general disruptive conduct, for which he received a reprimand. On November 23, 1988 he received another referral for fighting, and he was suspended from the school grounds. On January 25, 1989, he received a referral to the administration from his reading teacher in the drop-out prevention program, Ms. Jane Liberman. Juan and two friends had come in late, been disruptive in class, and disturbed other students. He was reprimanded and given detention. Juan's excessive absences resulted in a home visit by W. Chester on March 8, 1989. The school administrators hoped for behavioral improvement following the visit, but Juan's behavior did not improve. Juan received at least three more disciplinary referrals that year for disruptive conduct, defiance of school authority, and for cutting class. Juan's disruptive behavior continued in the 1989-90 school year. On September 21, 1989, he received a disciplinary referral from Ms. Sonia Alcazar, his math teacher, for arriving late, being disruptive in class, using foul language, and making fun of the teacher. September 21, 1989, was only his fourth day in math class. He had come to school on September 5, 1989, but then had cut class until September 19, 1989. He attended on the 19th, 20th, and 21st, when the disciplinary referral occurred. Juan needs the increased structure and discipline that is available for students disinterested in education and which is offered at an opportunity school. That program should assist him academically. His current pattern of conduct is a substantial disruption which inhibits other students in his classes at Citrus Grove Middle School from taking advantage of instruction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the assignment of Juan Jiminez to the J.R.E. Lee Opportunity School-South be upheld. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March, 1990. WILLIAM R. DORSEY, JR. 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 23rd day of March, 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Gladys Jiminez 1512 Northwest 25th Avenue Miami, Florida 33125 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Joseph Cabaleiro was a student at Shenandoah Junior High School during the 1983-84 and 1984-85 school years until his assignment to the alternative school. During his attendance at Shenandoah, Cabaleiro was involved in numerous instances of misbehavior that required disciplinary action. During the 1983-84 school year, Cabaleiro was suspended for fighting on October 19, 1983, and for being continually disruptive in class on May 11, 1984. On December 13, 1984, Cabaleiro received a warning for being at an off-limits area during lunch. On January 17, 1985, he was disciplined for constant disruptive conduct in the classroom. He was given a three-day outdoor suspension for fighting on February 8, 1985, and a ten-day outdoor suspension for assault and battery on a teacher on February 20, 1985. This February 20, 1985, incident merits some discussion. An altercation occurred between Mr. Long, a P. E. teacher, and Cabaleiro. During the incident Cabaleiro cursed Mr. Long and Mr. Long allegedly threw a ball at Cabaleiro more than once. Cabaleiro then threw a set of wooden starting blocks at Mr. Long and went to the office to report that Mr. Long injured him with the ball. Cabaleiro alleges that he threw the wooden blocks to protect himself; but the evidence fails to support the need for such action in self defense. Cabaleiro left the playing field and went to the office without any attempt by Long to stop him. He could have left as easily before throwing the blocks. Throwing the blocks was not an act of self defense. On March 28, 1985, Cabaleiro was again suspended for general disruptive behavior. Finally on April 17, 1985, he was suspended for ten days for fighting. That same day he was reported for vandalism when a student saw him placing a piece of glass under the tire of Mr. Long's car. On April 18, 1985, Cabaleiro was recommended for assignment to the opportunity school. Academically, Cabaleiro has not been successful. His final grades for the 1983-84 school year were three F's and two D's with unsatisfactory grades in all classes for conduct and ratings of insufficient in effort for all classes. For the 1984-85 school year, Cabaleiro received F's in all classes academically, F's in all class for conduct, and 3's (insufficient) grades in all classes for effort. Additionally, from September 4, 1984 to March 5, 1985, Cabaleiro missed 41 days of school, with 13 of those days being outdoor suspensions and 28 of those days being absences.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Joseph Cabaleiro to the alternative school program at Youth Opportunity School-South. DONE and ENTERED this 26th of September, 1985, in Tallahassee; Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of September, 1985. COPIES FURNISHED: Mr. Joseph Cabaleiro 3000 N.W. 16th Street Miami, FL 33125 Frank R. Harder; Esq. Suite 100, Twin Oaks Building 2780 Galloway Road Miami, FL 33132 Mrs. Maeva Hipps School Board Clerk 1450 N.E. 2nd Avenue Room 401 Miami, FL 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. 2nd Avenue Miami, FL 33132
The Issue Whether Respondent, between August, 1975 and May 26, 1976, committed acts constituting misconduct in office and immorality, as set forth in the letter to him dated June 10, 1976, from L. Linton Deck, Jr. This proceeding involves allegations against the Respondent, a teacher employed in the public schools, by the School Board of Orange County, Florida. By letter of May 26, 1976, the Superintendent of schools for Orange County informed the Respondent that he was relieved of duty pending an investigation into allegations made by students concerning possible improper conduct with a student or students. After an investigation into the allegations, the Superintendent formally charged him with misconduct in office and immorality and suspended him, with pay, pursuant to Section 231.36 and 230.33, Florida Statutes. Respondent requested a public hearing concerning the allegations on June 14, 1976. The school board requested that the Division of Administrative Hearings provide a hearing officer for this purpose by letter from its counsel, dated June 21, 1976.
Findings Of Fact Respondent was employed in the public school system of Orange County in 1972. At the start of the academic year 1975-76, he was a teacher of mathematics at the Union Park Junior High School. In December, 1925, he transferred to the new Liberty Junior High School. Students whom he had taught in the eighth grade at Union Park also were transferred to the new school. During the course of the aforesaid year, the following incidents took place at the schools involving the Respondent and certain of his eighth grade students: Patricia Renee Riggs - In September, 1975, Riggs was sitting at a desk in the front of Respondent's homeroom conducting voting procedures for student school officers. Respondent, who was sitting on the corner of the desk, took away her pen. She asked for it and he pinched her on the arm. She pinched him back. Riggs testified that Respondent then said, "Do you want me to pinch you down there?" (See Finding No. 6) In February, 1976, Riggs asked the Respondent for assistance with her course work while in the classroom. He put his hand on her shoulder and she backed away. He walked toward her and pushed her shoulder and she fell in a trash can. Also during the second term, on one occasion while Riggs was in the back of the classroom, and after having made a facetious remark to Respondent, he put his hands on her shoulders and pinned them back onto a nearby desk. Another time during the second term, she asked the Respondent for assistance after class. He told her to "Come at 2:00 and we will finger it out." During March or April, 1976, while Riggs was in the lunch line at school, Respondent approached her, placed his hands under her arms and moved her aside. The above incidents made Riggs uncomfortable to be in Respondent's class. (Testimony of Riggs) Debra S. Muns - During the first semester at Union Park Junior High School, Muns was wearing a beaded shirt in the classroom one day. Another student asked Respondent to feel the shirt. Muns testified that Respondent stated, "That's not all I would like to feel." (See Finding No. 6) During the second semester, after arriving in the classroom from a visit to an orthodontist, Muns remarked to the Respondent that her teeth were hurting her. Respondent put his hands on her shoulders and said, "I know a good way to make them stop hurting," or words to that effect. Also during the second semester, while Muns was looking at a poster on the classroom wall, Respondent placed his hands on the wall above her and, although not touching her, effectively pinned her against the wall. At this time he made a statement concerning tutoring her after class to the effect that he didn't have only work in mind. His actions made her feel uncomfortable. (Testimony of Muns) Lisa Fox - On several occasions during the school year, while asking for assistance with classroom work, Respondent came to her desk and placed his arm on her back and sometimes rubbed her back while assisting her. This bothered her and made her feel uncomfortable. Fox tried to get transferred from Respondent's class early in the year because it was disruptive and she was not doing well in mathematics. She also complained about the class being noisy on several other occasions. (Testimony of Fox) Penny Seifert - At various times during the school year, Seifert asked for assistance in her work and Respondent knelt by her desk and sometimes placed his hand on her back and rubbed it. On several occasions when Respondent was helping her with mathematics after the regular school period, he pulled up a chair to her desk on the side where she could not get out and rubbed her back. During the second semester she stayed after class once to ask Respodent a question and he attempted to back her into a corner of the classroom. She pushed him in the stomach to move him aside. These events bothered her and made her feel uncomfortable. Once she kissed him on the cheek to be "friendly" with him. (Testimony of Seifert) Virginia Niemensky - In May, 1976, this student was erasing the blackboard in the classroom. She tripped and the eraser flew out of her hand and hit the Respondent in the head. He retrieved it, put chalk on it, and started placing it in her hair. After asking him to stop, Respondent wrestled her to the floor, pinned her arms with his knees and proceeded to place chalk on her clothes. Mary Atkisson - At various times during the year, Mary purchased pencils from the Respondent. At such times, she would hand him a nickel and he would try to hold her hand. During the last half of the second semester she asked the Respondent for assistance with a mathematics problem. He came back to her desk, knelt by the open side and kept "scooting over" toward her to the point where she crawled out over the closed side of her desk to avoid him and left the classroom. On another occasion during the second semester, Mary was having a conversation with two other students, Teresa Skipper and Danny Smith. Teresa had stated that she was cold. Respondent heard the conversation and said to Teresa and Danny, "Why don't you two warm up." Danny responded, "Me warm up with you?" Respondent replied, "It is not my week for boys." During the second semester, Mary was once in the classroom before the other students arrived and asked the Respondent, "Why is it cold here?" He responded, "Because it encourages my favorite body contact sport." Respondent told a joke during class in which he asked if the students had heard the joke about the constipated mathematician who had to work it out with a pencil. During the latter part of the second semester, she told Respondent that she had made a mistake in a mathematics problem and he said, "In doing that, you did it right, because, you know, you are beautiful and I love you." When she later asked him what he meant by the statement, he said, "Pelly, I love my students in every Christian sense of the word." She was upset by this and the "scooting" incident. (Testimony of Atkissan) Mary O'Connell - During the second semester, Mary went to the front of the classroom to ask Respondent if he would move her seat in the classroom. Respondent took her wrist and laid her backwards against a desk. On another occasion, she was sitting at her desk and raised her hand to ask Respondent a question. He came to her desk and she asked him if she could go to another classroom. While she asked him, he pinched the skin on her arm. This bothered and upset her. (Testimony of O'Connell) Beverly Young - In May, 1976, Beverly called the Respondent to her desk to assist her with her work. He bent down beside her desk and while responding to her question, rubbed her back. She told him that Lisa Fox had given a cold to her and that he would have to get on her for doing so. Respondent answered, "I will get on to her but not for giving you a cold," or words to that effect. He also asked her if she would share her cold with him or give it to him. The incident made her uncomfortable, although they were joking at the time. (Testimony of Beverly Young). Teresa Skipper - In May, 1976, Teresa requested that Respondent help her with her work. He came back to her desk, assisted her, and whispered "Do you understand?" She replied, "Yes, sir." Then she felt his tongue touch her ear whereupon she asked him to leave her alone. The incident upset and disturbed her. (Testimony of Skipper) In the latter part of January, 1976, Joyce Krapf, guidance counselor at Liberty Junior High school, received a call from Renee Riggs' mother complaining about "off color" remarks made by Respondent in the class and asking her to speak to Renee about the situation. During approximately the same period, an English instructor in the school, who taught a number of the same students who were in Respondent's classes, became aware of certain of the incidents involving Respondent by conversations of students in his classroom. He made the guidance counselor aware of this information. She talked to several of the girls and then reported the information to the school principal. As a result, the principal talked to some of the students and then, in February, called the Respondent into his office for a conference. He specifically mentioned the remark Respondent was alleged to have made during the "blouse" incident and complaints of having put his arms around the students at their desk, and warned him that he should exercise care in the future to avoid having physical contact with the students or making remarks that would embarrass them or which could be misinterpreted by them. He further stated that if any other such incidents were reported, he would have to ask for a full investigation and that therefore Respondent should make every effort not to be placed in a situation where he could be accused of improper conduct. Respondent said that he would do the best he could to avoid such problems in the future. Toward the end of the school year, the guidance counselor brought to the principal's attention the alleged incident involving Teresa Skipper. The principal again talked to the Respondent, informed him of the complaint and gave him the option of resigning his position or requesting an investigation. Respondent chose the latter course of action. (Testimony of Boyte, Krapf, Dominey) Respondent is an excellent teacher of mathematics and goes out of his way to assist students and other teachers alike. He enjoys a fine reputation as an academician and for good character in the community in which he lives. (Testimony of Boyte, Way, Dominey, Gary, Bloxsom, Case) On May 28 and July 21, 1976, Respondent voluntarily underwent polygraph examinations concerning certain of the incidents forming the basis of the charges against him. During these examinations, he specifically denied touching or placing his tongue in the ear of Teresa Skipper. Concerning his alleged statement regarding Debra Muns' blouse, he claimed he had said "If I did [touch her blouse], I would touch more than that," rather than "That's not all I would like to feel." He further denied stating to Renee Riggs, "Do you want me to pinch you down there?" Although conceding that he had made certain of the other statements and engaged in certain of the actions complained of, he denied any sexual intent or desire on his part. It was concluded by the polygraph examiner that Respondent had not attempted deception in any of his statements or responses and therefore was telling the truth. (Testimony of Levy, Respondent'S Exhibit l; Stipulation) Upon entering the teaching profession in Orange County, Florida, Respondent signed a statement acknowledging that he had read the Code of Ethics of The Education Profession. (Testimony of Respondent, Petitioner's Exhibit 1) The Respondent testified as a witness and denied stating to Biggs, "Do you want me to pinch you down there?" There was no corroboration of Riggs' testimony in this regard, even though another student was nearby at the time. In view of this fact and the delay in reporting the alleged remark to school authorities, it is found that the making of the alleged statement was not established. In like manner, due to the absence of corroboration and the delay in reporting the remark, it is found that Respondent's version of the statement that he made to Muns, i.e., "If I did [touch her blouse], I would touch more than that," is accepted rather than the alleged statement, "That's not all I would like to feel." However, his denial of touching Teresa Skipper's ear with his tongue is not accepted in the light of the circumstances surrounding the incident. Respondent sought to explain various other of his statements and actions directed to his students by asserting that, in most instances, they were designed to create warmth or rapport. Hence, the telling of the joke concerning the mathematician and his use of the term "finger it out." With regard to the scooting incident involving Mary Atkisson he stated, "when she first moved away, I shouldered up to her to just tease her more about it..." His explanation for putting his arms around students at their desks was that when he would kneel to help them with their problems, he had to grasp the back of the chair in order to keep his balance. He admitted, however, that he occasionally patted tbe students on the back for encouragement. His explanation for the statement concerning after school tutoring, that he "had more than work in mind," was designed to tell the students that mathematics could be fun and was not all work. As to the lunch line incident with Riggs, he claimed that she had blocked his progress in the line and that he first said, "Excuse me," and then put his hands on her waist and moved her aside. He further claimed that some of the statements and incidents were precipitated by the students themselves and that he was merely attempting to restore order and get on with the classroom work. The evidence bears out the foregoing explanations and they were accepted as credible. (Testimony of Respondent)
Recommendation That Respondent Robert Gay Ridgeway be dismissed from employment as an instructor with the Orange County public school system for misconduct in office and immorality, pursuant to Section 231.36(6), Florida Statutes. DONE and ENTERED this 25th day of October, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1976. COPIES FURNISHED: John W. Bowen, Esquire Post Office Box 305 Orlando, Florida 32802 James W. Markel, Esquire Markel and Scott Post Office Box 1991 Orlando, Florida 32802 Robert Gatton, Esquire Johnson, Motsinger, Trismen & Sharp 100 East Robinson Street Orlando, Florida 32801 Alan Todd, Esquire 180 Park Avenue North Post Office Box 986 Winter Park, Florida 32289
Findings Of Fact During the 1983-84 school year, Respondent was an eighth grade student at North Miami Junior High School. Due to academic deficiencies, she would be required to repeat the eighth grade if she remains in the regular program. Petitioner related some 12 incidents of disruptive or rebellious behavior by Respondent over the past two academic years which resulted in disciplinary action. She was also disciplined on at least two occasions for repeated tardiness and unexcused absences. Petitioner has made reasonable efforts to assist Respondent in adjusting to regular junior high school. She was transferred from one class due to disagreements with her teacher and she has received counseling on at least four occasions regarding her behavior problems. Respondent's year-end grades are unsatisfactory in mathematics and language arts, which are both remedial courses. She is thus experiencing serious academic as well as behavior difficulties.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Celia Lela Benjamin to its opportunity school. DONE and ENTERED this 5th day of September, 1983, at Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Maebelle Bolden Abner 2396 North West 73rd Terrace Miami, Florida 33147 Daniella S. Levine, squire Legal Services of Greater Miami, Inc. 149 West Plaza, Suite 210 7900 North West 27 Avenue Miami, Florida 33147 Dr. Leonard Britton Superintendent of Schools School Board of Dade County Lindsey Hopkins Building 1410 North East 2nd Avenue Miami, Florida 33132
The Issue Whether the respondent should be reassigned to the Opportunity School.
Findings Of Fact Mr. Aron Brumm, Assistant Principal at Cutler Ridge, handles about 95% of the disciplinary cases at Cutler Ridge. He was personally involved in investigating the incidents involving Charlotte and in the efforts to correct Charlotte's behavior. The following is an outline of Charlotte's disciplinary record at Cutler Ridge: DATE REASON FOR REFERRAL 9/17/84 Charlotte was disruptive in class, rude, and constantly tardy. 9/25/84 Charlotte was found in possession of pens stolen from the school store. She admitted that she had taken them. 10/4/84 Charlotte was rude, insulting, and disrespectful in class. Class disrupted. 10/31/84 Charlotte threatened another student. 11/1/84 Charlotte talked back to her teacher in class and was rude. She was putting on make-up during the class. 12/6/84 Charlotte constantly tardy to class and disruptive when she gets to class. 12/6/84 Charlotte was disruptive on the school bus. 12/19/84 Charlotte was disruptive in reading class. 1/18/85 Charlotte was found in possession of "Request for Student" blank forms that are used by school to get a student out of class. Charlotte forged the later signature of Mrs. King to get out of class and was found out near the band room; the forms were found in her purse. 1/22/85 Charlotte completely disrupted indoor suspension, which she was attending due to the prior incident. She was defiant and disrespectful. 1/23/85 Charlotte disrupted indoor suspension once again, despite warning given to her the day before. 1/25/85 A pre-opportunity school conference was held, at which time it is discovered that Charlotte had forged Mrs. Steele's name on Charlotte's progress reports. Every effort was made by school personnel to help Charlotte correct her disruptive behavior. From the time of the first incident, contact was made with Charlotte's guardian. By October 4, 1984, Charlotte had been referred to the school counselor. She was placed in an academic study group which met once a week for four weeks. She had special counseling sessions with some of her teachers. She received reprimands, indoor suspensions, and outdoor suspensions. All efforts were ineffective. Although Charlotte had some good days and would show improvement for a short period of time after certain counseling sessions, she ultimately would revert to her former behavior. Charlotte was not removed from the classes where she was having the most difficulty. However, none of the evidence indicates that a change in teachers would have brought about a change in Charlotte's behavior. Charlotte's disruptive behavior was not confined to one class or one teacher. Three different teachers had to refer Charlotte to the assistant principal for disciplinary action because of her intolerable behavior in the classroom. Further, Charlotte's disruptive behavior was not limited to the classroom. She was disruptive on the school bus, she threatened a fellow student, she stole pens from the school store, she forged her guardian's name on her progress reports, and she used a forged pass to get out of class. She was disruptive in indoor suspension. This is clearly not a case of a personality conflict between a student and teacher which can be resolved by transferring the student out of the teacher's class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered approving the assignment of respondent to the opportunity school program at Youth Opportunity School South. DONE and ENTERED this 21th day of August, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1985. COPIES FURNISHED: Dr. Leonard Britton Superintendent of Schools Board Administrative Building Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Mark A. Valentine, Jr., Esq. Assistant School Board Attorney McCrary & Valentine, P.A. 3050 Biscayne Boulevard Miami, Florida Mitchell A. Horwich, Esq. Education Advocacy Project Legal Services of Greater Miami, Inc. Northside Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami, Florida 33147-4796 Phyllis O. Douglas, Esq. Assistant Board Attorney Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
Findings Of Fact Clifton Dukes, Jr., was a student at Parkway Junior High School during the 1982-83 school year and the 1984-85 school year until his reassignment to the alternative school on February 11, 1985. During his attendance at Parkway, Dukes was involved in numerous incidents of misconduct. During the 1982-1983 school year he was involved in seven incidents involving profanity, rudeness, defiance to a teacher, class disruption, skipping class, refusing to participate in Physical Education, and sexual harassment of a student. On March 10, 1983, Dukes was sent to an alternative school placement at Jan Mann Opportunity School. Dukes was returned to the regular school program for the 1984-85 school year. On September 20, 1984, Dukes was involved in the suspected smoking of a mood modifier and received a five- day suspension. On October 26, 1984, he was involved in a fight and received a three-day suspension. On November 13, 1984, Dukes threatened a teacher and received a three-day suspension. Finally, on January 15, 1985, Dukes was found in possession of a mood modifier and was placed on a ten-day suspension. Following the last incident, he was reassigned to the alternative school.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Clifton Dukes, Jr. to the alternative school program at Miami Douglas MacArthur Senior High School- North. DONE and ENTERED this 6th day of August, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1985. COPIES FURNISHED: Mr. & Mrs. Clifton Dukes, Sr. 3511 N. W. 176th Street Opa Locka, Florida 33056 Jesse J. McCrary, Jr., Esquire Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ms. Maeva Hipps Clerk of the School Board of Dade County Board of Administration Building 1450 N. E. Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 ================================================================ =
Findings Of Fact During the 1982-83 school year, Respondent was enrolled in the seventh grade at Petitioner's Palm Springs Junior High School. This was his second year in seventh grade, and due to academic deficiencies, he would be required to attend the seventh grade for a third year in 1983-84. Respondent was absent from school without excuse eight times during the past school year and was sent to the principal's office on three or four occasions by his teachers due to disruptive classroom behavior. Three conferences with Respondent's parents were held by school officials in an effort to resolve Respondent's truancy and behavior difficulties. He was also given a requested class change during the year and was seen by the school counselor. These actions produced no improvement in his conduct. On January 24, 1983, Respondent was suspended for ten days following a fight during which he kicked another student. On May 25, 1983, he ripped a female student's blouse in an attempt to touch her breast. He was charged by juvenile authorities as a result of this incident and was assigned community work by the juvenile court. These incidents seriously interfered with the educational process as it applies to Respondent and other students at Palm Springs Junior High School. These incidents, along with Respondent's truancies, disruptive classroom behavior and academic failure, establish the need for the alternative placement proposed by Petitioner.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Lazaro Miguel Aquiar to its opportunity school. DONE AND ENTERED this 28th day of September, 1983, at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1983. COPIES FURNISHED: Larry Hanfield, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mr. Julio Ferrer 3899 Northwest 7th Street Miami, Florida 33120 Miguel Del Aquila, Esquire 3899 Northwest 7th Street Miami, Florida 33120 Phyllis O. Douglas, Esquire Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33137 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether Everett meets the criteria for assignment to an educational alternative program. The Petitioner presented the testimony of Charles F. Thompson, assistant principal at Madison Junior High School; Ollie Yeager, guidance counselor Ben Simmons, social worker; Arline Shapiro, teacher; and Betty T. Orfly, teacher. Petitioner also had 30 exhibits admitted in evidence. Petitioner waived the filing of a transcript and proposed order.
Findings Of Fact Elizabeth Everett was a student at Madison Junior High School during the 1983-84, 1984-85 and 1985-86 school years until her assignment to the alternative school. She also attended summer school in 1984 and 1985. Everett has an extensive history of disciplinary problems. She entered school at Madison on November 14, 1983. On December 1, 1983, Everett was referred for discipline for defiance and cursing at the teacher and other students. She was placed on a 3-day indoor suspension on December 14, 1983, for defiance of school personnel. On January 12, 1984, Everett was disciplined for stealing from another student. On February 16, 1984, Everett cut class. Everett was disciplined on February 28, 1984, for disruption of the class, disrespect, defiance and excessive tardiness. Everett continued to disrupt class and was disciplined on March 7, 1984. She was placed in CSI on May 30, 1984, for disruption and defiance. On May 31, 1984, Everett was disciplined for disruption, disrespect, defiance and excessive tardiness. During summer school, Everett was disciplined for fighting in class on August 10, 1984. During the 1984-85 school year, Everett's disruptive behavior continued. On October 5, 1984, she was disciplined for popping caps in class and on October 9, 1984, she was again disciplined for disruption, disrespect and defiance. Everett was disruptive, disrespectful and defiant on November 9, 1984, and on November 27, 1984, she left class without permission. Again on January 18, 1985, Everett was disruptive, disrespectful and defiant. She was suspended on February 13, 1985, for disruption and fighting in class. On March 11, 1985, Everett entered another classroom during class and disrupted that class, and again on April 4, 1985, she disrupted another class by throwing rocks in the door at another student. Everett was abusive and disruptive on May 22, 1985. On May 31; 1985, Everett was disruptive and abusive and instigated a near fight with another student. Finally on June 5, 1985, Everett was fighting with another student and she was suspended for three days for the fight and her disruptive behavior. On September 9, 1985, Everett was removed from class after her disruptive behavior. On September 13, 1985, Everett was suspended for 10 days for causing a major disruption and battery on another student. Throughout the time she attended Madison, Everett was counseled, conferences were held with her parents, and warnings were given. Everett was referred to outside agencies for assistance. She was seen regularly by Youth and Family Services and assistance was provided to both Everett and her family. None of these measures were effective in modifying Everett's disruptive and aggressive behavior. Everett's behavior problems prevented her from succeeding academically. Even though she attended seventh grade for the 1983-84 and 1984-85 school years and summer school in 1984 and 1985, Everett has failed to passed enough classes and earn enough credits to be promoted to the eighth grade. In the 1983-84 school year Everett passed only two classes with a D and one with a C. She earned three credits. In summer school, 1984, she passed only two classes and earned 1.5 credits. In 1984-1985, Everett earned 4 credits with grades of C and D. In summer, 1985, she failed all classes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Elizabeth Everett to the alternative school program at Jan Mann Opportunity School-North. DONE and ENTERED this 7th day of March, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1986. COPIES FURNISHED: Jackie Gabe, Esquire 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Mr. Jeffery Everett 9000 Northwest 35 Court Miami, Florida 33147 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Ms. Maeva Hipps School Board Clerk 1450 N. E. 2nd Avenue Miami, Florida 33132
