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.
Findings Of Fact During the 1985-86 school year Respondent Gregory Hunter Stephens was a student in the tenth grade at Miami Sunset Senior High School. On April 18, 1986, during the lunch period Respondent drove into the faculty parking lot in his Corvette with the police following closely behind. It was determined that during his lunch break Respondent had been driving his Corvette in a nearby condominium development threatening residents and throwing beer cans on the lawns. The residents had summoned the police. An Assistant Principal held a conference with Respondent's father whose response was that the police should have better things to do than to bother his son for drinking beer and driving around during his lunch break. Respondent was given a three-day suspension. On May 22, 1986, Respondent got into a fight in class, a Group III violation of the Code of Student Conduct. A conference was held with Respondent's father, and Respondent was given a ten-day suspension. Although other informal discussions were held with Respondent's father during that school year, by the end of the third grading period Respondent's grades were one "C," one "D," and 4 "Fs." His absences from his classes during the third grading period alone ranged between 2 and 13. He received only a "3" for his effort in each and every class. During the 1985-86 school year, Respondent was absent 95 days out of the 180-day school year. On March 3, 1987, an Assistant Principal observed Respondent leaving the campus during Respondent's second-period class. He stopped Respondent and gave him a warning. A few minutes later he caught Respondent again attempting to leave. Respondent's mother was contacted, and Respondent was given a "work detail detention." On April 2, 1987, a fight broke out off campus between a group of Latin students and a group of Anglo students. On the following day Respondent admitted to an Assistant Principal that he was one of the participants. All of the students involved (including Respondent) were suspended for three days for that Group III Code violation. On October 19, 1987, Respondent was nearly involved in a collision in the parking lot. Respondent got out of his car and started pushing the other driver. A fight ensued. Respondent's parents were contacted, and he was given a ten-day suspension. By the time of the October 19th incident, Respondent had already been absent 6 days that school year. Further, although the Assistant Principal had two conferences with Respondent's father during the month of October, Respondent was receiving one "C," one "D," and five "Fs" in his classes. A Child Study Team was convened, and a meeting was held on November 3, 1987. Respondent and his parents refused to attend. The Team recommended that Respondent be transferred to Douglas MacArthur Senior High School-South, based upon the October 19, 1987, incident, his failing grades during the most-recent two years, and Respondent's chronic aggressive behavior which constituted a threat to the welfare of the other students. It was determined that Respondent required assistance a normal school could not provide and that a structured environment would be more appropriate since the educators at Miami Sunset Senior High School had unsuccessfully attempted to modify Respondent's behavior by conferences between Respondent and a counselor, meetings between Respondent's parents and assistant principals, indoor suspensions, outdoor suspensions, and work detail suspensions
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Gregory Hunter Stephens to the opportunity school program at Douglas MacArthur Senior High School-South until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 29th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1988. COPIES FURNISHED: JOSEPH A. FERNANDEZ, SUPERINTENDENT SCHOOL BOARD OF DADE COUNTY 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 FRANK R. HARDER, ESQUIRE 175 FONTAINEBLEAU BOULEVARD SUITE 2A-3 MIAMI, FLORIDA 33172 LANA STEPHENS 15490 S.W. 85TH LANE MIAMI, FLORIDA 33183 MADELYN P. SCHERE, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 PHYLLIS O. DOUGLAS, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132
The Issue The issues in this proceeding involve Petitioners' challenge, pursuant to Section 120.54(4), Florida Statutes, of the proposed adoption by the School Board of school attendance boundaries and attendant policy changes for implementation beginning with the 1981-82 school year. Initially, Petitioners challenged both the proposed zones for high and elementary schools. However, during the pendency of this proceeding, Respondent withdrew the proposed attendance zone changes for elementary schools, thereby rendering issues related thereto moot, and leaving only the high school boundaries for further consideration. In summary, Petitioners claim that the proposed rule amendments, including maps prepared in conjunction therewith, are an invalid exercise of delegated legislative authority by virtue of the School Board's failure to comply with procedural and substantive requirements of Chapter 120, Florida Statutes. Petitioners allege that deficiencies exist in procedures utilized by the School Board prior to publication of its notice of intent to adopt the proposed rules, in the advertisements and economic impact statement prepared in conjunction with the proposed rule amendments, and in the allegedly arbitrary and capricious nature of the Proposed changes from current attendance boundaries. Petitioners further claim that the School Board's announced intention to utilize student race as a factor in drawing attendance zones is unconstitutional and beyond the School Board's delegated legislative authority. The Respondent contends that each of the Petitioners is without standing to maintain this rule challenge pursuant to Section 120.54(4), Florida Statutes; that the preadvertisement procedures followed by the School Board are not jurisdictional insofar as this present proceeding is concerned; that any deficiencies in the legal notices or economic impact statement constitute harmless error; and that the proposed rules are a valid exercise of legislative authority delegated to it in Sections 230.23(4) and 230.232, Florida Statutes.
Findings Of Fact The School Board of Leon County, Florida, 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 certain amendments to its existing rules which will have the effect of changing attendance boundaries for middle and high 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. 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 May 26 special emergency meeting were contained in a special section set off from the remainder of the article. The Petitioners challenging the modification of the high school attendance boundaries in this proceeding testified that they were each present at the May 26 meeting. At the School Board meeting on May 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) Middle 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 high school attendance boundaries are Respondent's Exhibits 8(d) High School City Map, and 8(e) High School County Map. The two high school maps were referenced in the legal advertisement denominated 6GX37-3.02(1) High 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 atten- dance 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: 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. The Board shall, upon request, allow students who were enrolled in a high school during the 1980-81 school year to remain at that same high school if the new zones for the 1981-82 school year put them in the attendance zone of a different high school so long as the parents shall be responsible for all necessary transportation. (Emphasis added). 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 express purpose in rezoning Leon County high schools for the 1981-82 school year is . . . to make more effective use of school facilities and to seek greater racial balance among the four high 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 rezoing process. Current enrollment figures at the high school level were updated through April 8, 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 resi- dence 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 atten- dance 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 compo- sition 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 four high schools in Leon County: Leon, Godby, Rickards and Lincoln. Enrollment figures for the four high schools, as of April 8, 1981, are as follows: Leon, 1,690; Godby, 1,430; Lincoln, 1,664; and Rickards, 928. White students attending each of the four high schools comprise the following percentages of the total student body: Leon, 78 percent; Godby, 64 percent; Lincoln, 73 percent; and Rickards, 49 percent. The recommended capacities for the high schools in Leon County, based upon the School Plant Survey of Leon District Schools conducted by the Florida Department of Education, are: Leon, 1,644; Godby, 1,556; Lincoln, 1,704; and Rickards, 1,465. 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. The most reliable prediction of future enrollments at the various high schools, which takes into account the estimated effect of grandfathering under the proposed amendments, reveals that for the first three years in which the proposed school boundaries are to be in effect, anticipated enrollments will be within the physical plant capacities of the various high schools. In addition, under the proposed zone changes, the racial composition of the student populations at each of the four high schools is projected to be within the 10 percent criteria established by the School Board by March of 1984. Rickards is the only high school in Leon County which does not presently meet the plus-or- minus 10 percent racial composition criteria. However, as indicated above, according to the School Board's projections, Rickards should meet that criteria during the 1983-84 school year. The greater number of students assigned to Rickards under the proposed zoning changes will make use of available and currently unused space, and, because of increased student enrollment, the diversity of course offerings should also increase. This is so because the amount of funds allocated to a given school is directly related to the number of students enrolled. Thus, for an under-enrolled school such as Rickards, fewer funds are generated under the statewide funding formula for that facility, which, in turn, may result in fewer programs being offered to students. There are, in fact, some courses not presently offered at Rickards that are available in other county high schools, due, at least in part, to under-enrollment at Rickards. 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, all student petitioners in this proceeding eligible for grandfathering testified that they would take advantage of that option. The reasons for this choice generally dealt with current school activities and friendships, and was consistent with the policy expressed by the School Board "to preserve 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 "grandfather- ing" 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 tee 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. Petitioners, Joseph and Piercie Ehrlich, reside in Leon County, Florida, with their two daughters, Stephanie and Betty, who presently attend Lincoln High School. Under the proposed rezoning plan, the Ehrlichs' daughters would be required to attend Rickards High School, unless they choose the grandfather option in order to remain at Lincoln High School. Lincoln High School is located 1.58 miles from the Ehrlich home, and it is approximately 5 miles to Rickards High School from their residence. In the event that the proposed amendments to the school attendance zones are adopted, both of the Ehrlichs' daughters testified that they will exercise the grandfather option in order to continue to attend Lincoln High School. Petitioners, Robert and Joni McDermott, reside in Leon County, Florida, with their daughter, Dana, who is presently a student at Lincoln High School. The McDermotts' daughter will be required to attend Rickards High School, unless, as she testified, she exercises the grandfather option, should the proposed school attendance zones be adopted. The McDermott residence is located 2 miles from Lincoln High School, and approximately 3.5 to 4 miles from Rickards High School. Curt and Linda McKenzie reside in Leon County, Florida, with their daughter, Kris, who is a student at Lincoln High School. If the proposed rezoning amendments are adopted, Kris will be required to attend Rickards High School, unless she chooses to remain at Lincoln under the grand fathering provision. The McKenzie residence is located 1.6 miles from Lincoln High School, and approximately 4 miles from Rickards. A. P. and Judy Floyd reside in Leon County, Florida, with their child, Tracy, who would be entering the 9th grade at Lincoln High School, absent the proposed amendments to the school attendance zones. However, under the proposed plan, Tracy will be required to attend Rickards High School for the 1981-82 school year. Lincoln High School is located 1.6 miles from the Floyd residence, and Rickards High School is located 4.4 miles from their home. 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.
Findings Of Fact Charles Duhart resides at 956 Forest Ridge Court, Apartment 202, Lake Mary, Florida. His residence is a condominium, which he owns. He has resided there for 10 months. Mr. Duhart was married to Mary Duhart in April, 1974. The Final Judgment of Dissolution of Marriage entered October 25, 1988, which terminated their marriage, states: The parties shall have shared parental responsibility for the minor children of the marriage. The Wife is designated as the primary residential custodian of the minor children of the marriage. The non-custodian parent, the Husband, shall have liberal and reasonable contact and visitation with the children of the marriage, subject to reasonable notice by the Husband to the Wife. . . . Mary Duhart resides at 121 Wildwood Drive, Sanford, Florida. She and Mr. Duhart jointly bought the property in 1985, and she was awarded the property in the Final Judgment of Dissolution of Marriage. The two children in question are Katisha, who is 15 years old, and Serita, who is 14 years old. Both girls, together with a third child aged eight years, were born of the Duhart's marriage. During the 1988-89 school year, Katisha, who was in ninth grade, attended Lake Mary High School, and Serita, who was in eighth grade, attended Greenwood Lakes Middle School, as well as special programs at Lake Mary High School. Greenwood Lakes Middle School is in the Lake Mary High School attendance zone. Both girls enrolled in Lake Mary High School at the beginning of the 1989-90 school year. During the 1988-89 school year, the two children lived with their grandmother part of the time and their mother the remainder of the time. Their grandmother lived in the Lake Mary High School attendance zone. Mr. and Mrs. Duhart caused the grandmother to be appointed the legal guardian of the children, pursuant to Letters of Guardianship of the Person entered November 28, 1988. By so doing, under a procedure no longer available, the children could attend the schools whose attendance zone serves the grandmother's residence. This guardianship has never been dissolved or terminated. At the beginning of the 1989-90 school year, the two children went to live with their father, whose condominium is in the Lake Mary High School attendance zone. Although they spend the weekends with their mother and infrequent nights with their grandmother or at friends' homes, Katisha and Serita regularly reside with their father each weeknight from Sunday through Thursday nights, inclusive. Since the beginning of the 1989-90 school year began, the children primarily have lived with their father. Since the beginning of the 1989-90 school year, Mr. and Mrs. Duhart have reduced the child support payments required of Mr. Duhart by the Final Judgement of Dissolution of Marriage. Although Mr. Duhart continues to pay the usual amount through the clerk's office, Mrs. Duhart returns to him approximately one half of the support money in recognition of the fact that he now has two of the three children most of the time. By letter dated September 27, 1989, Respondent informed Petitioners that it had determined that Katisha and Serita were attending Lake Mary High School in violation of Policy 4.003. Consequently, the children had been administratively withdrawn from Lake Mary High School and administratively enrolled at Seminole High School, which serves their correct attendance zone, according to the letter.
Recommendation Based on the foregoing, it is hereby recommended that the School Board of Seminole County, Florida enter a Final Order enrolling Katisha and Serita Duhart in Lake Mary High School. RECOMMENDED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5898 Treatment Accorded Proposed Findings of Respondent 1-4: adopted. 5: rejected as subordinate. 6-10: adopted. 11: first sentence adopted as to children spending weekends with Mrs. Duhart and rejected as unsupported by the greater weight of the evidence as to the suggestion that they do not spend the remainder of the time with their father, with the possible exception of isolated overnight visits with friends or their grandmother. Remainder rejected as subordinate. 12: adopted. 13: rejected as irrelevant. 14: rejected as irrelevant and subordinate. 15: rejected as subordinate. 16: rejected as irrelevant. COPIES FURNISHED: Harry L. Lamb, Jr. Perry & Lamb, P.A. 135 Wall St., Ste. 200 Orlando, FL 32801 Ned N. Julian, Jr. Stenstrom, McIntosh, Julian, et al. P.O. Box 1330 Sanford, FL 32772-1330 Robert W. Hughes, Superintendent The School Board of Seminole County, Florida 1211 Mellonville Avenue Sanford, FL 32772 Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
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.
Findings Of Fact Carter holds Florida teaching certificate number 383679, graduate, rank III, valid through June 30, 1978, covering the area of music education, and at all times pertinent hereto was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a Band teacher. During the summer school session of 1978, at Matthew Gilbert, Carter was assigned as teacher for the Band class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 15 band students be enrolled and in attendance. In previous summers, band was an enrichment program which received no FTE money and did not require attendance records. However, during summer school of 1978, these requirements were changed and it was necessary to maintain a register of attendance of the Band class for FTE auditing purposes. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Carter prepared a student attendance register for the summer school of 1978 band class beginning June 16, 1978, and ending July 28, 1978. That register reflects 18 enrolled students in the course. Carter also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 30, 1978, and shows 19 students enrolled in Band. The second is dated July 10, through July 14, 1978, and reflects 18 full-time students and 1 half-time student enrolled in Band. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Carter. Deidre Sampson was reported as having been present for thirty (30) days between June 16, 1978, and July 28, 1978. Ms. Sampson also received a grade of "C" in the course. While Ms. Sampson was enrolled in the course, she attended no more than two or three days. Deborah Grant Lewis enrolled for the course and attended it for a period of three weeks and then lost interest and withdrew from the course. She received a "B" for the course and the attendance register reflects that she was present for twenty-nine (29) days with one day absent. Lloyd Gillespie neither enrolled in the course nor ever attended the course, yet he received a grade of "C". The attendance register reflects that Lloyd Gillespie was present for twenty-nine (29) days with one day absent. Ricky King enrolled in the course and attended for two or three weeks and then dropped out. The attendance register reflects that he was present twenty-seven (27) days with three days absent. LeVonne Sinclair enrolled in the class and attended through July 3, 1978, at which time she dropped out because of other employment responsibilities. While Ms. Sinclair did not receive a grade, her attendance register reflects twenty-seven (27) days in attendance with three days absent. Patricia Willis enrolled in the band course but never attended any classes. Nonetheless, Ms. Willis received a grade of "C" in the course and the attendance register reflects she attended twenty-six (26) out of the thirty days. Laura Redden enrolled in the Band course but never attended. She did not receive a grade but the attendance register reflects thirty days attendance with no absences. Vanessa McBride never enrolled in or attended the Band class but shows on the attendance register as having attended twenty-seven days with three days absent and receiving a grade of "C". It was the responsibility of Carter to prepare the student attendance registers and grade reporting forms for his class. The evidence establishes that Carter's signature appears on those forms which reflect the inaccurate attendance data and the award of undeserved grades. Mr. James E. Thompson, who is principal of Matthew school where Carter teaches, is willing to accept Carter in the future as one of his teachers because of Carter's overall abilities. Carter's efficiency ratings reflect that he is, otherwise, an effective teacher. The evidence establishes that Carter signed his name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the Band class, the class would have been cancelled and Carter would not have received remuneration for services as a Band instructor during that summer session of school. The evidence does not establish Carter's motivation as being that of protecting his income or insuring that the course was made available to those students who did attend.
The Issue The issues are whether the proposed change of school attendance boundaries for five middle schools and five high schools (West Side Schools) located in southwest Pasco County (County) is a rule, and, if so, whether the proposed rule is an invalid exercise of delegated legislative authority.
Findings Of Fact The School Board is an educational unit and an agency defined in sections 120.52(1)(a) and (6), Florida Statutes. One of its duties is to assign students to schools after consultation with the Superintendent. See § 1001.41(6), Fla. Stat. The School Board has divided the County into geographic areas for purposes of drawing attendance boundaries. At issue here is an area that encompasses the West Side Schools, comprised of 35 designated areas, all west of the Sunshine Parkway, in which five middle schools and five high schools are located. Petitioners and Intervenors are students or parents who reside in area 12. Students in area 12 are currently assigned to J.W. Mitchell High School (Mitchell) or Seven Springs Middle School (Seven Springs). With a few exceptions cited below, under the new attendance plan, area 12 students will be reassigned to the River Ridge Middle School or River Ridge High School (River Ridge) beginning in school year 2017-2018. Only the rezoning for area 12 is being challenged in this case. Around 140 students will be moved from Mitchell and Seven Springs to other schools during the first year. Intervenors Evelyn Nessler and Dominic Faiella, who are in the third and second grades, respectively, will not change schools this fall and are unaffected by the new rezoning. Petitioner Nicholas Carvalho is currently in the eighth grade at Seven Springs and, as a result of his graduation, will be assigned to River Ridge this fall. Intervenor Brady Nessler is in the terminal grade for elementary school and, upon graduation, will be assigned to River Ridge this fall. Thus, the reason for reassignment of Carvalho and Nessler is unconnected to the new rezoning. The County is experiencing an increase in population caused by new residential development in the western part of the County. As a result, enrollment in some West Side Schools has exceeded capacity. For the spring term of school year 2016- 2017, Mitchell exceeds capacity by 18 percent, while Seven Springs exceeds capacity by 22 percent. Without a change in boundaries, in school year 2017-2018, Mitchell is projected to exceed capacity by 27 percent, while Seven Springs is projected to exceed capacity by 31 percent. In contrast, both River Ridge High School and River Ridge Middle School are currently below capacity, operating at 86 and 93 percent capacity, respectively. The over-capacity at the two schools is expected to continue, as more residential development is being planned in the State Road 54 corridor near area 12, Mitchell, and Seven Springs. To counter this condition, attendance zones are periodically redrawn in an effort to balance school enrollment. A School Board planner recalled there have been 27 boundary changes during his tenure as an employee. This case, and one other, Case No. 17-0629RP, which challenges the East Side Schools rezoning plan, are the first instances when attendance zones have been formally challenged. As the Superintendent observed, school rezoning "can be an incredibly painful process" because parents often move into neighborhoods with the belief that schools come with the homes. A fair assumption is that as long as rezoning does not affect their children, parents are content with a new rezoning plan. Because of anticipated growth in the County and existing disparities in school enrollment, in August 2016, the Superintendent instructed his planning staff to begin the process of developing a plan for amending school attendance boundaries, including the West Side Schools. The stated goal was to "review and alter the southwest secondary school boundaries in order to redistribute the school populations between overcrowded and under crowded schools and to provide for future growth as much as possible." Resp. Ex. 17, p. 00285. He further directed that a recommendation be formulated in time for the School Board to approve a new plan before February 1, 2017. This deadline was necessary because by April of each year, the School Board must prepare a proposed budget for the following year; adequate lead time is required to develop a new transportation routing plan; and once new boundary lines are drawn, an open enrollment plan, known as the School Choice program, allows students, between February 1 and March 1 of each year, to apply for enrollment in another school, i.e., in this case their former school. The School Board has adopted a set of Bylaws and Policies, which apply to "Legislative/Policymaking," or rulemaking, and follow the requirements found in chapter 120. See Pet'r Ex. 1. Policy 0131 provides that "the term 'rule' and 'policy' shall have the same definition." Id. at 1. The policy spells out in detail the procedural requirements for adopting policies (rules), which include notice of the proposed policy, a hearing, preparation of a rulemaking record, Board action, and appropriate notices. Id. at 2-3. The policy also describes how a substantially affected person may challenge a proposed policy (rule). Id. at 4. Reference to a "rule" and chapter 120 was made in various announcements, notices, and statements throughout the rezoning process. Also, the School Board acknowledges in a discovery response that section 120.54 is one of the statutes that apply to the rezoning process. Even so, the School Board takes the position that its policies and chapter 120 do not govern the redrawing of attendance boundaries. As a consequence, the Superintendent did not review the Bylaws and Policies or chapter 120 before he established the rezoning process. As explained by one witness, the School Board has not used formal rulemaking in prior rezoning plans, and it was its intention to follow usual past practice. The Superintendent opted to follow the same rezoning process used since at least 2004 or 2005. Under this process, a boundary committee, advisory in nature, is appointed for the purpose of developing multiple boundary maps and then recommending one of them to the Superintendent. The Superintendent does not attend the meetings or direct any member to draw a plan in a particular way. The Superintendent considers, but is not required to accept, the committee recommendation. A parent meeting is also conducted to allow parents to provide input into the process. After the committee and parent meetings are concluded, the committee submits a recommendation to the Superintendent, who then submits a final recommendation to the School Board. By law, two adoption hearings must be conducted by the School Board, which makes the final decision. A boundary committee is comprised of parents, district staff, and principals of affected schools. The committee is intended to represent the interests of students, parents, communities, schools, and the district. The committee for the West Side Schools consisted of 27 members, three of whom reside in Longleaf, a residential community in area 12 where most Petitioners and Intervenors reside. During the rezoning process, a committee will typically conduct three meetings before making its recommendation. In this case, the Superintendent scheduled a fourth meeting to be held after the parent meeting so that parent input could be considered. In developing new school attendance boundaries, the committee was instructed to follow certain guidelines. Under these guidelines, a new boundary should provide socioeconomic balance, maintain to the extent possible an in-line feeder pattern, provide for future growth and capacity, provide safe and efficient transportation, maintain subdivision integrity, and consider long-term school construction plans. See Pet'r Ex. 23. The committee was also given "lots of information" at the first meeting including, among other things, existing and projected enrollments for each school for school years 2016-2017 and 2017-2018; five and ten-year projected enrollments for each school; long-term school construction plans; future growth potential in the area; minority, low income, and special education population by area; and total population history for each school. The School Board employs a full-time public information officer who directs and coordinates the dissemination of information to the public. This is accomplished through social media (Twitter, Instagram, and Facebook) and a School Board website accessible to the public. In addition, a special zoning website was established during the rezoning process. The website and social media profiles are identified on the inside front cover of the student planner issued to every student at the beginning of the school year. The district also operates a program known as School Connect, which is capable of sending telephone messages, emails, and text messages to the parents. School Connect was used to make automated telephone calls to the contact telephone number listed on a student's information card informing the parents of the time and date of the parent meeting. See Resp. Ex. 6. All parents with a valid telephone number received a call, although some parents either did not personally answer the call or did not remember its substance. School Connect also sent emails and texts to parents, including notification of the plan the Superintendent was going to recommend to the School Board. Signs and notices regarding the rezoning were not posted in the neighborhoods before any meeting. However, multiple notices were posted on social media and websites, and text messages, emails, and telephone messages were sent to parents. This constituted substantial compliance with the requirement that notice of rulemaking be "post[ed] in appropriate places so that those particular classes of persons to whom the action is directed may be duly noticed." § 120.81(1)(d)3., Fla. Stat. Besides telephone calls, text messages, emails, and social media, on November 7, 2016, letters were sent to affected parents informing them of the parent meeting on November 14, 2016. See Resp. Ex. 3. Although the final plan was not known at that time, the letter put parents on notice that Mitchell and Seven Springs were overcrowded due to the influx of new homes being built in that area. Many parents knew as early as August 2016 that a new rezoning plan was going to be adopted that fall, but none believed area 12 would be affected due to its proximity to Mitchell and Seven Springs. This mistaken belief probably explains why some parents did not diligently follow the process until the parent meeting or even the School Board meetings when a final plan was adopted. However, one Intervenor formed a group known as "Delay West Pasco Rezoning" in August 2016 in an effort to prevent area 12 from being moved. There is no evidence that any parent or homeowner association requested that they be provided advance written notice of any meeting during the entire process. On September 6, 2016, the procedures for school rezoning were announced on Facebook and other social media. A press release for various media was issued on September 14, 2016. The press release provided the day, time, and location of each boundary committee meeting. The press release was also published on the School Board's Twitter account. The boundary committee for the West Side Schools was appointed on September 16, 2016. Committee meetings were conducted on October 5, October 26, and November 7, 2016. These meetings were open to the public, and all were live-streamed on YouTube.com., although some parents say portions of the broadcast were inaudible. The meetings were also broadcast live on the School Board's Facebook account, and a link to the broadcast was published on its Twitter account. Only around 30 parents attended each meeting. Members of the public who attend the committee meetings are observers only, they do not have input into the meeting process, and they are not allowed to participate in committee discussions. However, there is nothing to prevent an observer from asking a member a question before or after the meeting, or in another setting. As noted above, three committee members lived in Longleaf where most Petitioners and Intervenors reside, and members were encouraged to speak with neighbors and homeowner associations to keep them updated on what was occurring. All documents considered by the committee were posted on the School Board and special zoning websites. Finally, minutes for each meeting, which summarized decisions of the committee and gave notice to parents as to which path the committee was taking, were published before the following meeting. On November 14, 2016, "hundreds" of parents attended a parent meeting, which lasted more than three hours. Before the meeting began, parents were told which options were still being considered by the committee. Although committee members were present, Petitioners stated that questions were not answered by the members, and the entire meeting consisted of comments by the parents. So that their input would be considered, the Superintendent scheduled a fourth committee meeting on November 17, 2016. Five plans were considered by the committee at its fourth meeting, but there was no consensus on which plan to adopt. By a 13-to-12 vote, with two members absent, the committee recommended approval of a new plan known as Plan 4A2, which was posted on the website and social media the same day. Under the plan, effective school year 2017-2018, area 12 students (and others) would be reassigned to River Ridge. Notably, Plan 5A2, the option with the second most votes, garnered 12 votes and is "very similar" to Plan 4A2. It also reassigned area 12 students to River Ridge. The River Ridge joint campus is approximately eight or nine miles north of area 12, while Mitchell and Seven Springs, also a joint campus, are only two or three miles south of area 12. The Superintendent concurred in the recommendation to approve Plan 4A2 with one modification which did not affect area 12: students in areas 1 through 4, previously unaffected, would be reassigned to Gulf Middle School and Gulf High School. In developing the new plan, the committee followed the guidelines given to it at the outset of the process. The new plan took into account future growth and capacity of the schools. Consideration was also given to providing socioeconomic balance. Subdivision integrity was maintained, in that the entire Longleaf community was reassigned to the same schools. During the development of the plan, the committee had available the long-term school construction plans of the district. The district transportation coordinator was a member of the committee and ensured that the new plan provided safe and efficient transportation. Finally, because of overcrowding and anticipated growth in the area, the school feeder pattern structure, which now directs area 12 students to Mitchell and Seven Springs, was necessarily impacted. On balance, however, the guidelines were observed. A few alternative plans were submitted by parents during the committee process, including at least one plan prepared by an unidentified observer that was left on the committee's table before a meeting. The alternative plans are not of record. Pursuant to other district policies, certain exceptions apply to the new area 12 attendance boundary. Students who are rising seniors at Mitchell are grandfathered and remain at Mitchell. Students approved under the School Choice program to remain in Mitchell or Seven Springs may also do so. To take advantage of this program, a student must give a valid reason, such as hardship, separation of siblings, participation in certain extracurricular activities, or acceptance into the Mitchell Academy for Medical Arts Program, which is not offered at River Ridge. Many Petitioners and Intervenors have applied for School Choice to remain at Mitchell or Seven Springs, but there is no guarantee their requests will be approved. Notice of the Superintendent's recommended plan, including the map, was posted on the Board's website seven days before the first School Board meeting. In addition, the same information was posted on the district's Twitter and Facebook accounts, and emails were sent to those parents who provided an email address. Finally, the Superintendent published a letter on December 12, 2016, explaining his reasons for recommending Plan 4A2. It is fair to say that all parents had actual notice well before the first School Board meeting that area 12 was being reassigned to different schools. On November 20, 2016, a Public Notice (Notice) was published in the Tampa Times advising that a first reading on the new school attendance boundaries would be conducted by the School Board on December 20, 2016, and that final action would be taken at a second meeting on January 17, 2017. The Notice read in relevant part as follows: PUBLIC NOTICE INTENT TO ADOPT A RULE TO ESTABLISH SCHOOL BOUNDARIES FOR THE 2017-2018 SCHOOL YEAR The District School Board of Pasco County intends to change attendance boundaries for the 2017-2018 school year for the schools listed below: * * * West Pasco County Schools Chasco Middle, Gulf Middle, Paul R. Smith Middle, River Ridge Middle, Seven Springs Middle, Anclote High, Gulf High, J.W. Mitchell High, Ridgewood High, River Ridge High First reading on this matter is scheduled for the regular meeting of the District School Board of Pasco County on December 20, 2016. School Board action on this matter is scheduled for the regular meeting of the District School Board of Pasco County on January 17, 2017. Even though none of Petitioners or Intervenors read the Notice, they now complain that it does not contain a detailed summary of the new boundary lines, a reference to the grant of rulemaking authority, a reference to the statute being implemented, a summary of the estimated regulatory costs, or the other details normally included in agency rulemaking pursuant to section 120.54. There is, however, no evidence that the parents were prejudiced by a lack of more information in the Notice. With the exception of those parents who voluntarily chose not to attend, virtually all other parents who were not working or were not out of town had actual notice and attended the two School Board meetings. Sensing that Plan 4A2 was going to be selected, on December 17, 2016, with the assistance of a committee member who happened to be an attorney, Petitioners James Stanley and Cecilia Loyola, husband and wife, drafted a letter to the Superintendent and School Board Chairman. See Pet'r Ex. 2. The letter stated the proposed rule (new attendance boundaries) was arbitrary and capricious. It requested (a) a workshop pursuant to section 120.54(2)(c) mediated by a neutral party, and (b) the attendance of committee members at the workshop to answer questions. The letter also asked that if a workshop was not conducted, the rulemaking process be suspended and a separate draw-out proceeding be conducted pursuant to sections 120.569 and 120.57. Finally, the letter asserted that by limiting each speaker to only "one or three minutes," the School Board was violating section 120.54(3)(c). This was the first and only time that a parent invoked a chapter 120 rulemaking requirement in an effort to slow or derail the rezoning process. The letter was delivered to the Superintendent and Board Chairman on the day of the meeting. By that late date, the request was untimely, and the Superintendent had insufficient time to prepare a written response stating why a workshop was unnecessary, as required by section 120.54(2)(c). See § 120.54(3)(c)2., Fla. Stat. (a person must "timely" assert and affirmatively demonstrate to the agency that the rulemaking proceeding does not protect his substantial interests). No draw-out or workshop was conducted, and except for the Superintendent's reply letter, discussed below, no formal ruling was made by the School Board at the meeting on the untimely draw-out and workshop requests. On February 17, 2017, the Superintendent replied to the Stanley/Loyola letter. See Pet'r Ex. 3. The three-page letter outlined the multi-step rezoning process that was followed by the School Board, the efforts to solicit and facilitate parent participation, and the numerous types of notice given to the parents. Thus, he concluded that a workshop was unnecessary. At both School Board meetings, members of the public were allowed to speak. Normally, one hour of public testimony is permitted for an agenda item, with a three-minute time limitation for each speaker. Because three sets of attendance boundary plans were being considered as a single item, this time was expanded, and each plan was allotted one hour, for a total of three hours. To accommodate the large turnout of parents wishing to speak (58), only 90 seconds was allotted to each speaker, including those representing groups. Given the time constraints, not every parent was given the opportunity to speak. However, 16 speakers who were not allowed to speak at the first meeting were scheduled to speak first at the second meeting on January 17, 2017. Committee members were not required to attend either School Board meeting to explain Plan 4A2 or to answer questions posed by the audience. At this point in the process, the Superintendent, and not the committee, bore the responsibility of making a final recommendation to the School Board and to answer any questions members had. At the close of public comment on December 20, 2016, the School Board considered and approved Plan 4A2. However, one Board member suggested a modification to Plan 4A2, which would delay by one year the reassignment of students in areas 1 through 4 from Mitchell and Seven Springs to Gulf High School and Gulf Middle School. In all other respects, Plan 4A2 remained the same. This suggestion was to be reviewed by the Superintendent prior to the second meeting the following month. On January 17, 2017, the day of the second School Board meeting, the Superintendent sent a memorandum to School Board members regarding the rezoning issue. Among other things, he stated that "[t]he establishment of school attendance boundaries is authorized by Section 1001.42, Florida Statutes. In addition, the Administrative Procedures [sic] Act requires that the District publish a Notice of Intent to Adopt a Rule twenty-one days prior to the public hearing. The first reading was held on December 20, 2016." Pet'r Ex. 19. On January 17, 2017, the day of the second School Board meeting, the Superintendent tweeted on his Twitter account that he intended to recommend the adoption of Plan 4A2, as modified. See Pet'r Ex. 9. After public comment, final action was taken by the School Board and Plan 4A2 was adopted as the new school attendance boundaries for the West Side Schools. Unlike typical agency rulemaking, the adopted plan is in the form of a map, rather than a numbered rule. See Resp. Ex. 16. The additional cost for parents to transport their children to a new school is highly speculative, and no evidence was adduced to show that the new plan would increase regulatory costs, directly or indirectly, more than $200,000.00 within one year after implementation. See § 120.54(3)(a)b., Fla. Stat. Therefore, a statement of estimated regulatory costs for implementing the new boundary lines was not prepared by the School Board, and none was requested nor submitted by a third party. As required by section 120.54(3)(e)6., a copy of the new boundaries was filed with the "office of the agency head" after it was adopted at the second meeting. The parties stipulated that had the students who are named as parties testified at the final hearing, they would have reiterated the allegations set forth in the Second Amended Petition and Motion for Leave to Intervene. These include allegations that the students will be emotionally affected by the transfer; they will be separated from friends, teachers, counselors, and certain extracurricular programs in which they now participate; the change will limit their ability to walk or bike to school; and they will have increased travel time to attend the new schools. The parents expressed a wide range of concerns with the new attendance boundaries. Many wondered why area 13, which lies just west of area 12, was not reassigned to River Ridge. However, the committee decided early on to use State Road 54 as a demarcation line, sending students who reside north of State Road 54 to River Ridge. Area 12 lies north of the roadway, while area 13 is just south of the line. The reassignment of area 12 students was based on this consideration and is not illogical or unreasonable. Most parents purchased their homes with the understanding that their children would always be attending the schools located closest to their homes. The new school assignments will result in longer bus rides, inconvenience for parents who drive their children to school in the morning, or pick them up after regular school hours if they participate in extracurricular activities. The parents also noted that driving on Starkey Boulevard (Starkey) is the shortest route to the new schools. They described the route as unsafe and one that requires them to make a difficult left turn onto Starkey when leaving Longleaf. There are, however, other routes to the new school, and the district transportation coordinator established that student safety is a top priority. Several parents, including one who is a realtor, expressed a concern that the value of their homes would decline since buyers would not choose to purchase a home if their children could not attend the schools closest to their homes. However, the record gives no indication that any homes have been offered for sale, any homes have been sold at a distressed price, or any homeowners have not been able to sell their homes due to the proposed rezoning. Parents are concerned that River Ridge does not have the same clubs, extracurricular activities, or educational opportunities that are found in Mitchell and Seven Hills. The record shows, however, that both schools are ranked as "B" schools; they have the same core academic and educational programmatic offerings; they both have advanced offerings for students who excel; they both have magnet programs; and both are accredited by AdvancED/Southern Association of Colleges and Schools. There is no evidence that classes currently available at Mitchell and Seven Hills will not be available at River Ridge this fall, or even that such classes will remain available to the students at Seven Springs and Mitchell. In summary, there is no evidence that the students will not have the same educational opportunities at the River Ridge schools as they now receive at Mitchell and Seven Springs. Some students visit doctors and dentists who have offices near Mitchell and Seven Springs. Having to travel from River Ridge to those offices will be more time-consuming and inconvenient. This is not, however, a ground to invalidate a rule. It was contended that some parents provide a false address to the School Board in order to have their children enrolled in Mitchell and Seven Springs, rather than their assigned schools under the current school attendance plan. Petitioners assert that if all addresses are verified, those students can be removed, and the overcrowding at Mitchell and Seven Springs alleviated. However, no evidence to support this assertion was produced. Some parents complained that emails requesting answers to questions that were sent to the Superintendent or planning staff during the process were never answered. Although the Superintendent instructed staff to reply to all emails, if hundreds or thousands of emails were received by staff during the process, it is likely that some were not answered.
Findings Of Fact Doris Zimmer held the position of Secretary II, Community Services Department, Ybor Campus, Hillsborough Community College Tampa, Florida, during the pendency of the accusations set forth in the Petition for Discipline. In addition, she was employed within that time period in the position of part-time instructor at the Community College. On November 14, 1978, the Respondent had received a letter from Sybil Barnes, Director, Community Services, Ybor Campus, Hillsborough Community College, stating that the Respondent had been recommended as a Community Services instructor for the Winter II Term of the 1978-1979 school year, subject to the final approval of the Hillsborough Community College Board of Trustees and subject to the possible withdrawal of this opportunity to act as instructor if the classes in question were canceled due to insufficient enrollment. A copy of this tentative letter of appointment may be found as Respondent's Exhibit 1 admitted into evidence. The letter of recommendation indicated that if the offer was withdrawn for lack of sufficient enrollment, the withdrawal would be without compensation to the Respondent. The classes to be taught by the Respondent were non-credit classes to be held at the Ybor Campus running January 10, 1979, through February 28, 1979. The classes were STS 003-G25, also referred to as Shorthand I, and STS 004-G25, also referred to as Shorthand II. The minimum number of students necessary for enrollment to conduct the above-referenced courses was fifteen (15). The Respondent was cognizant of the minimum requirement for student enrollment if cancellation of the class was to be avoided. The only exception to this requirement was the possibility that the courses could be taught if an enrollment of thirteen (13) or fourteen (14) students was achieved, provided permission was given from the Provost at the Hillsborough Community College to hold short enrollment classes. This permission would be requested by Sybil Barnes by a written communication, to be responded to by the Provost. (An example of this form of request to allow the classes to proceed with less than the normal enrollment may be found as Petitioner's Exhibit 7 admitted into evidence.) Zimmer was acquainted with the procedures for enrolling students for courses with less than the prescribed number and had this awareness at the time she undertook to teach the two courses in question. When the term began for the course, STS 003-G25, twelve (12) students were enrolled, less than the prescribed number. Sybil Barnes never requested permission from the Provost to proceed with a lesser number of students and the Provost necessarily did not grant the permission. The number of students enrolled in the Respondent's STS 004-G25 course exceeded the number fifteen (15). Three (3) of the students who were enrolled in the course, STS 004-G25, were Diane Wiesman, Joan Roberts and Polly Pettus. There were approximately twenty (20) to twenty-five (25) in attendance at the first session of the course, STS 004-G25. Subsequent to the commencement of the course, STS 003-G25, Zimmer caused the names of Polly Pettus, Joan Roberts and Diane Wiesman to be placed on her class roll for that course, bringing the number of students enrolled to the prescribed number fifteen (15). This roll may be found as Petitioner's Exhibit 1 admitted into evidence. While making these arrangements to have the three (3) students placed on the roll in the course, STS 003-G25, the Respondent completed an adjustment form which showed that Diane Wiesman had dropped course STS 004-G25 and adjusted to the course, STS 003-G25. A copy of this adjustment form may be found as Petitioner's Exhibit 2 admitted into evidence. On the form Zimmer signed Diane Wiesman's signature with a parenthetical remark, "per dz" and stated that the reason for the adjustment was due to class cancellation. Wiesman had already received the course instruction in STS 003-G25 and she was unaware that the Respondent had completed the adjustment form, Petitioner's Exhibit 2. It was Wiesman's desire to drop STS 004-G25 and be reimbursed the $9.00 charge for the course and this is shown by the Petitioner's Exhibit 4 admitted into evidence. Wiesman did not want to retake STS 003-G25 and she never attended that second term 1979 course taught by the Respondent after the first night. Wiesman was also unaware that her name was carried on the class roll for STS 003-G25 in that session. Wiesman never spoke to the Respondent about the subject of dropping course STS 004-G25 and adjusting to course STS 003-G25. (The policy for dropping courses and adjusting the students' enrollment status into another course was to have the student complete the adjustment form or, in the alternative, contact the student and receive the permission of the student to make those adjustments and the Respondent understood this policy. Joan Roberts had signed for the second term 1979 course, STS 004-G25, but never attended the course. She had already taken the course, STS 003-G25, and did not wish to retake that course. Zimmer, in making the arrangement to carry Joan Roberts on the roll of her second term STS 003-G25 course, took the additional action of completing an adjustment form indicating that Roberts had dropped course STS 004-G25 and adjusted to course STS 003-G25. A copy of this adjustment form may be found as the Petitioner's Exhibit 6 admitted into evidence and reflects the signature of Joan Roberts with the parenthetical entry, "per dz". It carries Doris Zimmer's signature as advisor and states as a reason for this change that the class had been canceled. Roberts was unaware of the fact that Zimmer had caused Roberts's name to be placed on the class roll for the course, STS 003-G25, Petitioner's Exhibit 1, and was unaware of the completion of the adjustment form, Petitioner's Exhibit 6. Roberts had never authorized anyone to sign her name or to complete the adjustment form. She did not wish to retake the course, STS 003-G25, and she did not attend the second term course STS 003-G25. Roberts received a refund of $9.00 which represented the cost for course STS 004-G25. Polly Pettus never attended the second term 1979 course, STS 003-G25, taught by Doris Zimmer. Although none of the three (3) students who have been mentioned attended the second term 1979 course, STS 003-G25, taught by Doris Zimmer, other than one session by Wiesman; Polly Pettus was marked present eight (8) times and Diane Wiesman was marked present twice as reflected in Petitioner's Exhibit 1, the official class roll which was signed by the Respondent after she had marked these students present. Subsequent to the time that the matter of the students' non-attendance had been brought to the attention of the Respondent, she caused a line to be drawn through the indication of attendance. The Respondent received $192.00 in payment for instruction given in the second term 1979 course, STS 003-G25, which was short three (3) students. By way of explanation, the Respondent has indicated that she understood that she should have received their permission to transfer the students in question from course STS 004-G25 to course STS 003-G25, and that it was a mistake not to do it this time. She stated that she signed the adjustment forms thinking that the necessary authority would be given to conduct the course, STS 003-G25, in the second term 1979 with less than fifteen (15) students, but there is no indication in the record that she asked Sybil Barnes to request this authority from the Provost.
Recommendation Based upon the finding that the Respondent did violate the provisions of Section 6A-14.411(C), Florida Administrative Code, as alleged in Charges One (1), Two (2) and Three (3), it is RECOMMENDED that the Respondent, Doris Zimmer, be dismissed as an employee of Hillsborough Community College, Florida. DONE AND ENTERED this 3rd day of July, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1980.
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
The Issue Whether the respondent should be reassigned to the Opportunity School.
Findings Of Fact Emil Perez attended Kinloch Park Junior High School during the 1983-84 school year. He was then assigned to opportunity school at Lee and enrolled there at the beginning of the 1984-85 school year. Because petitioner failed to file the deposition of its witness, there was no competent evidence presented concerning the reason or reasons why Emilo was assigned to the opportunity school. Emilo began to have serious attendance problems after being assigned to J.R.E. Lee. Both the school social workers and the school psychologist who testified at the hearing agreed that Emilo did not go to school at J.R.E. Lee because he was afraid to go to school there. The fear manifested itself through physical symptoms such as diarrhea and vomiting. Mr. Hayes, the school psychologist, defined Emilo's emotional problem as "school phobia", which is similar to separation anxiety disorder. However, although Emilo's fear of school was exaggerated, it was not totally baseless. The students at Lee are more aggressive than the students enrolled in the regular school program, and Emilo was threatened and harassed by the other students when he went to school. Emilo did not have attendance problems while enrolled at Kinloch. Because of Emilo's emotional problems, he would benefit from mental health counseling and assignment to a regular school program.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered disapproving the assignment of respondent to the opportunity school program at J.R.E. Lee and assigning the respondent to the regular school program. DONE and ENTERED this 17th day of September, 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 17th day of September, 1985. COPIES FURNISHED: Daniella S. Levine, Esq. Legal Services of Greater Miami, Inc. Northeide Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami, FL 33147-4796 Ms. Maeva Hipps School Board Clerk Dade County School Board 1450 N.E. 2nd Avenue, Suite 401 Miami, FL 33132 Mark A. Valentine, Jr., Esq. Assistant School Board Attorney McCrary & Valentine, P.A. Suite 800, 3050 Biscayne Boulevard Miami, FL 33137 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1450 Northeast Second Avenue Miami, FL 33132 Dr. Leonard Britton Superintendent of Schools Board Administration Building Dade County Public Schools 1450 Northeast Second Avenue Miami, FL 33132
