05-003583 Daniel B. Gopman vs. Department Of Education Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, July 8, 2008.

Summary: Petitioner is not eligible for a Bright Future scholarship because he failed to achieve at least a 3.5 weighted grade point average in 15 credits of college-preparatory academic courses, including two credits of a foreign language.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL B. GOPMAN , )

)

Petitioner, )

)

vs. ) Case No. 05 - 3583

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

November 14 and 15, 2006; January 30 , 2007 ; and June 19, 2007 ,

at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Miles J. Gopman, E squire

200 Towerside Terrace

Unit 1208, Quayside Tower II

Miami, Florida 33138

For Respondent: Margaret O'Sullivan Parker, Esquire

Department of Education

Office of the General Counsel

1244 Florida Education Center

Tallahassee, Florida 32399 - 0400

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is eligible

for a Bright Futures scholarship even though he did not take

foreign language classes in high school .

PRELIMINARY STATEMENT

The procedu ral history of this case is somewhat involved

and need not be recounted in full here. Anyone who is

interested in all the details can visit the website of the

Florida Division of Administrative Hearings ("DOAH") , whose

address is http://www.doah.state.fl. us/internet , and retrieve

the docket by performing a "case search."

The essential background is as follows. In or around July

2003 , Respondent Florida Department of Education determined that

Petitioner Daniel B. Gopman, then a recent high school graduate ,

was ineligible for a Bright Futures scholarship because he had

not taken any foreign language courses in high school.

Consequently, the Department denied Mr. Gopman's application for

an award. He timely requested that this decision be

reconsidered by t he Department's Reevaluation Committee, which

was done. The end result, however, was the same. By letter

dated October 10, 2003, the Department notified Mr. Gopman that

the Reevaluation Committee had upheld the original determination

of ineligibility, on the same grounds : namely , failure to

achieve a t least a 3.5 weighted grade point average in 15

credits of college - preparatory academic courses , including two

credits of a foreign language .

Mr. Gopman timely appealed the Reevaluation Committee's

decisio n to an Appeals Committee within the Department. The

Appeals Committee affirmed the previous determination of

ineligibility, entering a Final Order on January 27, 2004.

Mr. Gopman sought judicial review of this Final Order in the

First District Court of Appeal. In July 2005, the appellate

court held that Mr. Gopman was entitled to a formal hearing at

DOAH, which he then requested, giving rise to the instant

proceeding.

The final hearing took place over the course of several

days, the first of which was August 21, 2006, and the last of

which was June 19, 2007. There were a number of reasons for the

protracted nature of the hearing but, again, telling them in

this Order would serve no useful purpose.

Mr. Gopman testified on his own behalf and called no ot her

witnesses. He offered Petitioner's Exhibits 1 th r ough 24 , which

were received in evidence.

The Department called the following witnesses: Jack

Heinemann, guidance counselor; George A. Nunez, high school

principal; Teresa Antworth, State Programs Di rector, Department

of Education, Office of Student Financial Assistance; and Joann

Peterson McGonagill, Director of Initial Eligibility, Florida

Bright Futures Scholarship Program. In addition, the Department

introduced Respondent's Exhibits 1, 2, 3A, 3, 4A, 4, 5, and 6 ,

which were admitted.

T he deadline for filing Proposed Recommended Order s ——

originally December 14, 2007 —— was enlarged to January 4, 2008,

at Mr. Gopman's request. The Department timely filed a Proposed

Recommended Order. By letter dated J anuary 3, 2008, Mr.

Gopman's counsel informed the undersigned that he would not be

submitting a Proposed Recommended Order.

FINDINGS OF FACT

1. At the time of the final hearing, Petitioner Daniel B.

Gopman ("Gopman") was a fulltime college student enrol led in the

Harriet L. Wilkes Honors College of Florida Atlantic University

("FAU").

2. Respondent Department of Education ("Department")

administers the Florida Bright Futures Scholarship Program

("Bright Futures"), among other responsibilities.

3. Before graduating from Dr. Michael M. Krop Senior High

School ("Krop") in June 2003, Gopman had applied f or a Bright

Futures scholarship. Specifically, Gopman had sought a Florida

Academic Scholars Award, which is the most generous —— and

selective —— of the several types of scholarship available under

Bright Futures. The Department had found him ineligible for a

Bright Futures scholarship because Gopman had not earned two

high - school credits in a foreign language. 1

4. To his credit, Gopman had taken many ac ademically

challenging courses in high school, including honors and

advanced placement courses, and had done quite well, despite

having a learning disability that had resulted in his being

provided special education services pursuant to an individual

educa tion plan ("IEP"). He had not, however, taken any foreign

language courses in high school . Instead, a fter graduating from

high school ( and before beginning his studies at FAU ) , Gopman

successfully completed two courses of Russian at Miami - Dade

Community College ("M - DCC").

5. In the present case, Gopman has suggested that his

failure to study a foreign language in high school was due,

wholly or in part, to (a) taking the courses prescribed in his

IEP, which, coupled with other subjects required for gradu ation,

completely filled his scholastic schedule every semester ; and

(b) never receiving from school district personnel complete or

accurate information concerning the need to take foreign

language courses as a condition of qualifying for a Bright

Futures scholarship.

6 . Lending some support to the first of these purported

impediments is a "To Whom It May Concern" letter dated May 30,

2003, which George Nunez, then the principal of Krop, sent to

the Department around that time. In this letter, Mr. Nunez

u rged the Department to grant Gopman an "academic waiver" of the

foreign language requirement, arguing that Gopman's failure to

take "a second year of a foreign language" —— actually, he had not

taken even a first year —— "was not due to a conscious oversight

o n [Gopman's] part" but happened because "the mandates of his

IEP" had required him to take an "additional elective" instead

"of what would have been other academic electives including the

second year of his foreign language."

7. Even if scheduling confl icts had made it impossible for

Gopman to take foreign language courses in high school, however,

and even if he had been given poor advice regarding the

requirements for a Bright Futures award (which Mr. Nunez

pointedly did not suggest had occurred) , Gopma n's eligibility to

receive a scholarship would be unchanged , for legal reasons that

will be discussed below. In any event, though , the evidence in

its entirety does not support Gopman's claims in this regard;

rather, it disproves them.

8. Based on the greater weight of the persuasive evidence ,

it is found that Gopman could have taken two foreign language

classes in high school, special education services

notwithstan ding, had he wanted to do that. 2 It is found, as

well, that Gopman was not misinformed o r misled regarding the

requirements to qualify for a Bright Futures award. To the

contrary, his guidance counselor advised Gopman, in the tenth

grade, to start taking foreign language classes soon, while

there was still time to complete two years of study before

graduating from high school. Gopman told the guidance counselor

that, because he planned to attend an out - of - state college, he

would not need foreign language credits for admission (as is

generally required for admission to a Florida state univers ity)

and was not concerned with Bright Futures eligibility.

CONCLUSIONS OF LAW

9 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2007) .

10 . The burden of establishing the grounds which

demonstrate his eligibility for a Bright Futures award falls on

Gopman, who, as the applicant for benefits, must prove that he

met the requirements for a scholarship by a preponderance of

evidence. See Florida Dep ' t of Transp . v. J.W.C. Co., Inc. , 396

So. 2d 778, 788 (Fla. 1st DCA 1981)(burden of proof is usually

upon party asserting the affirmative of the issue); see also

§ 120.57(1)(j), Fla. Stat.

11. Gopman's position comprises the following principal

contentions: (1) Gopman m et all of the statutory eligibility

criteria , which do not include a foreign language requirement .

(2) The Department's "policy" of requiring two foreign language

credits is an unadopted rule upon which the Department cannot

lawfully base its determinatio n of Gopman's substantial

interests. (3) Even if the Department's "policy" were

enforceable, Gopman still would be eligible for an award because

(a) he earned the requisite foreign language credits at M - DCC;

(b) as a student who received special education services that

limited his ability to take electives , he is entitled to a

waiver of the foreign language requirement (or some other

special treatment, e.g. accepting his M - DCC credits in lieu of

high - school credits); and/or (c) school district personnel

fa iled properly to inform him of the scholarship requirements,

warranting some sort of special treatment.

12. The general requirements for a Bright Futures

scholarship, applicable to all three levels of award, are set

forth in Section 100 9.531, Florida Sta tutes (2002), 3 as follows:

(1) To be eligible for an initial award

from any of the three types of scholarships

under the Florida Bright Futures Scholarship

Program, a student must:

(a) Be a Florida resident as defined in s.

1009.40 and rules of the St ate Board of

Education.

(b) Earn a standard Florida high school

diploma or its equivalent as described in s.

1003.43 or s. 1003.45 unless:

1. The student is enrolled full time in the

early admission program of an eligible

postsecondary education instit ution or

completes a home education program according

to s. 1002.41 ; or

2. The student earns a high school diploma

from a non - Florida school while living with

a parent or guardian who is on military or

public service assignment away from Florida.

(c) B e accepted by and enroll in an

eligible Florida public or independent

postsecondary education institution.

(d) Be enrolled for at least 6 semester

credit hours or the equivalent in quarter

hours or clock hours.

(e) Not have been found guilty of, or ple ad

nolo contendere to, a felony charge, unless

the student has been granted clemency by the

Governor and Cabinet sitting as the

Executive Office of Clemency.

There has never been any dispute that Gopman met all of the

foregoing general requirements.

13. In addition to the general requirements, a student

must meet scholarship - specific requirements to be eligible for a

specific type of award. As relevant to this case, the specific

requirements for the Academic Scholars Award are the following:

(1) A stu dent is eligible for a Florida

Academic Scholars award if the student meets

the general eligibility requirements for the

Florida Bright Futures Scholarship Program

and the student:

(a) Has achieved a 3.5 weighted grade point

average as calculated pursuan t to s.

1009.531 , or its equivalent, in high school

courses that are designated by the State

Board of Education as college - preparatory

academic courses . . . .

§ 1009.534, Fla. Stat. (2002).

14. It is undisputed that Gopman achieved at least a 3.5

weigh ted grade point average ("GPA") in duly designated college -

preparatory academic courses ("C - PAC"). He contends that this

suffices to make him eligible for an award (all other criteria

having been satisfied) because Sec tion 1009.534 does not require

either (a) that the requisite GPA be computed based on any

par ticular number of C - PAC credits 4 or, more importantly, (b)

that such C - PAC credits as the applicant has earned , however

many that might be, be distributed among any particular academic

subjects. (The State Board of Education has designated dozens ,

if not hundreds , of high school courses as C - PAC, as will be

discussed below.) Gopman maintains further that Section

1003.43, Florida Statutes, which prescribes the general

requirements for high school grad uation, controls the credit -

distribution issue —— not Section 1009.534 .

15. Section 1003.43, Florida Statutes (2002), provides in

pertinent part as follows:

(1) Graduation requires successful

completion of either a minimum of 24

academic credits in grades 9 through 12 or

an International Baccalaureate curriculum.

The 24 credits shall be distributed as

follows:

(a) Four credits in English, with major

concentration in composition and literature.

(b) Three credits in mathematics. Effective

for students en tering the 9th grade in the

1997 - 1998 school year and thereafter, one of

these credits must be Algebra I, a series of

courses equivalent to Algebra I, or a

higher - level mathematics course.

(c) Three credits in science, two of which

must have a laboratory component. The State

Board of Education may grant an annual

waiver of the laboratory requirement to a

district school board that certifies that

its laboratory facilities are inadequate,

provided the district school board submits a

capital outlay plan to provide adequate

facilities and makes the funding of this

plan a priority of the district school

board. Agriscience Foundations I, the core

course in secondary Agriscience and Natural

Resources programs, counts as one of the

science credits.

(d) One cre dit in American history.

(e) One credit in world history, including

a comparative study of the history,

doctrines, and objectives of all major

political systems.

(f) One - half credit in economics, including

a comparative study of the history,

doctrines, and objectives of all major

economic systems. The Florida Council on

Economic Education shall provide technical

assistance to the department and district

school boards in developing curriculum

materials for the study of economics.

(g) One - half credit i n American government,

including study of the Constitution of the

United States. For students entering the

9th grade in the 1997 - 1998 school year and

thereafter, the study of Florida government,

including study of the State Constitution,

the three branche s of state government, and

municipal and county government, shall be

included as part of the required study of

American government.

(h)1. One credit in practical arts career

and technical education or exploratory

career and technical education. Any care er

and technical education course as defined in

s. 1003.01 may be taken to satisfy the high

school graduation requirement for one credit

in practical arts or exploratory career and

technical education provided in this

subparagraph;

2. One credit in perfo rming fine arts to be

selected from music, dance, drama, painting,

or sculpture. A course in any art form, in

addition to painting or sculpture, that

requires manual dexterity, or a course in

speech and debate, may be taken to satisfy

the high school grad uation requirement for

one credit in performing arts pursuant to

this subparagraph; or

3. One - half credit each in practical arts

career and technical education or

exploratory career and technical education

and performing fine arts, as defined in this

par agraph.

Such credit for practical arts career and

technical education or exploratory career

and technical education or for performing

fine arts shall be made available in the 9th

grade, and students shall be scheduled into

a 9th grade course as a priori ty.

(i) One - half credit in life management

skills to include consumer education,

positive emotional development, marriage and

relationship skill - based education,

nutrition, prevention of human

immunodeficiency virus infection and

acquired immune deficien cy syndrome and

other sexually transmissible diseases,

benefits of sexual abstinence and

consequences of teenage pregnancy,

information and instruction on breast cancer

detection and breast self - examination,

cardiopulmonary resuscitation, drug

education, a nd the hazards of smoking. Such

credit shall be given for a course to be

taken by all students in either the 9th or

10th grade.

(j) One credit in physical education to

include assessment, improvement, and

maintenance of personal fitness.

Participation in an interscholastic sport at

the junior varsity or varsity level, for two

full seasons, shall satisfy the one - credit

requirement in physical education if the

student passes a competency test on personal

fitness with a score of "C" or better. The

compete ncy test on personal fitness must be

developed by the Department of Education. A

district school board may not require that

the one credit in physical education be

taken during the 9th grade year. Completion

of one semester with a grade of "C" or

better i n a marching band class or in a

physical activity class that requires

participation in marching band activities as

an extracurricular activity shall satisfy a

one - half credit requirement in physical

education. This one - half credit may not be

used to satis fy the personal fitness

requirement or the requirement for adaptive

physical education under an individual

educational plan (IEP) or 504 plan.

(k) Eight and one - half elective credits.

District school boards may award a maximum

of one - half credit in soc ial studies and

one - half elective credit for student

completion of nonpaid voluntary community or

school service work. Students choosing this

option must complete a minimum of 75 hours

of service in order to earn the one - half

credit in either category of instruction.

Credit may not be earned for service

provided as a result of court action.

District school boards that approve the

award of credit for student volunteer

service shall develop guidelines regarding

the award of the credit, and school

principals are responsible for approving

specific volunteer activities. A course

designated in the Course Code Directory as

grade 9 through grade 12 that is taken below

the 9th grade may be used to satisfy high

school graduation requirements or Florida

Academic Sch olars award requirements as

specified in a district school board's

student progression plan. A student shall

be granted credit toward meeting the

requirements of this subsection for

equivalent courses, as identified pursuant

to s. 1007.271(6), taken throu gh dual

enrollment.

As is clear on the face of the Section 1003.43, foreign language

credits are not required for high school graduation.

16. Gopman reasons, therefore, that in determining whether

an applicant has satisfied the GPA requirement under S ection

1009.534(1)(a), Florida Statutes (2002), the Department must

look only at the C - PAC on the applicant's transcript , which need

not necessarily include foreign language credits . The logical

implication of Gopman's argument (although he did not actual ly

say this) is that any applicant having at least two C - PAC on his

final transcript would meet the GPA requirement of Section

1009.534(1)(a) if his GPA in those courses were 3.5 or better,

regardless of which C - PAC subject(s) ( e.g. English, math,

science, etc.) the student had taken. Gopman did not need to

press the argument quite this far, however, because he himself

had at least 13 credits of C - PAC, and his GPA in those courses

was higher than 3.5.

17. Gopman's reading of Section 1009.534(1)(a) reflec ts a

plausible understanding , at least, of the statute's plain

language. Yet, on closer examination, it becomes apparent that

if the statute were implemented according to this literal

interpretation , the results might be unreasonable, even unjust.

Imagin e, for example, a student who took just three C - PAC in

high school, achieving a 4.0 GPA in them. Imagine another

student who took the same three C - PAC as the first, achieving a

4.0 GPA in them, but who also earned 12 more credits in C - PAC,

in which his gr ades were not consistently as good, so that his

overall GPA in C - PAC was 3.4 —— respectable, certainly, but short

of the Section 1009.534(1)(a) mark. According to Gopman, the

first student would be eligible for an Academic Scholars Award

(provided he met al l the other requirements), while the second

one would not be, even though (indeed, probably because ) his

high school career was the more academically challenging one.

Not only might this seem unfair, but also it would provide an

incentive for students to take fewer C - PAC as a rational

strategy for improving their chances of meeting the eligibility

requirements for the top Bright Futures award, which latter

almost certainly was not the legislature's intent.

18. Whether to avoid the foregoing problems or f or other

reasons, the State Board of Education decided that, for Bright

Futures purposes, the applicant's GPA must be computed on no

few er than 15 (and no more than 19 5 ) credits of C - PAC. It

decided further that those 15 credits must be distributed among

specific academic subjects, including two sequential foreign

language courses. Taken together, these decisions comprise a

set of "C - PAC credit - distribution requirements" of which the

foreign language requirement is merely a component.

19. Gopman contend s that the foreign language requirement

is an unadopted rule (or rule - by - definition) —— that is, an agency

statement of general applicability that meets the definition of

the term "rule" but has not been properly adopted as a rule

according to the Administra tive Procedure Act. Gopman would be

on firm legal ground here except for one thing: the State Board

of Education has adopted its C - PAC credit - distribution

requirements as rule.

20. Florida Administrative Code (2002) Rule 6A - 1.09441(5)

provides as follo ws:

The "Course Code Directory and Instructional

Personnel Assignments 2002 - 2003" is hereby

incorporated by reference and made a part of

this rule. The Commissioner may publish the

document in appropriate and useful formats

such as printed copy, electron ic database

access, or electronic disc. The directory

may be obtained from the Division of Public

Schools and Community Education , Department

of Education, 325 West Gaines Street,

Tallahassee, Florida 32399. The

Commissioner of Education may approve

addi tional courses for which funding could

be generated through the Florida Education

Finance Program. Such additional course

listings will be made available as approved.

(Emphasis added.)

21. The Course Code Directory and Instructional Personnel

Assignment s 2002 - 2003 ("CCD"), incorporated by reference into

Rule 6A - 1.09441 and hence adopted in its entirety as part of the

Rule, contains an abundance of detailed information relating to

the curricul a and courses available in Florida's public schools.

Among man y other things, the CCD lists every course that can be

taken for credit toward high school graduation, together with a

designation of each course's relative degree of difficulty ( e.g.

remedial, regular, college preparatory, honors, etc.). It also

sets for th the standards governing Bright Futures, providing in

pertinent part as follows:

Requirements Florida Academic

Scholars Award

(FAS)

Grade Point Average · 3.5 weighted

(GPA) GPA using the

* * * credits listed

below . . .

Required Credits Courses m ust

* * * include 15 credits

of [C - PAC].

4 English . . .

3 Mathematics . . .

3 Natural Sciences

. . .

3 Social Science

2 Foreign Language

(in the same

language)

15 Credits

* * *

CCD (Section 1: Graduation Requirements and Special Program

Requirements), at 1 7 - 18 .

22. It is permissible for an agency to incorporate

extrinsic material into a rule and thereby make the extrinsic

material part of the rule. See § 120.54(1)(i)1. , Fla. Stat.;

Fla. Admin. Code R. 1S - 1.005. The foreign language requirement

is, there fore, an existing, adopted rule.

23. As an adopted rule, the foreign language requirement

is considered "presumptively valid, or merely voidable, and must

be given legal effect [unless and] until invalidated in a

section 120.56 rule challenge proceeding. " State Bd. of

Optometry v. Florida Soc. of Ophthalmology , 538 So. 2d 878, 889

(Fla. 1st DCA 198 8 ); see also § 120.56(3)(b), Florida Statutes

(rule declared invalid by ALJ becomes void when time for taking

appeal expires). Because Rule 6A - 1.09441, of whi ch the foreign

language requirement is a part, has not been invalidated

pursuant to Section 120.56, Florida Statutes, the undersigned

and the Department must give full effect to such Rule —— and

follow it. E.g. Vantage Healthcare Corp. v. Agency for Health

Care Admin. , 687 So. 2d 306, 308 (Fla. 1st DCA 1997)(an agency

must follow its rules).

24. Gopman argued at hearing that the Department had

surprised him by invoking Rule 6A - 1.09441 late in the

proceeding, long after the litigation had started. While th is

might be true, it is also irrelevant. The law, after all, is

the law. The Department is entitled to rely on Rule 6A - 1.0944 ——

indeed is bound to follow it —— even if the Department were slow

to discover the Rule. And, of course, the undersigned is

obliga ted to follow applicable law, whether the parties refer

him to it or not.

25. It is therefore concluded that, contrary to Gopman's

contention s , the foreign language requirement is not an

unadopted rule. Rather, to repeat for emphasis, it is an

existing, adopted, presumptively valid rule, which accordingly

must be given the full force and effect of law.

26. Because the foreign language requirement is

enforceable, it must next be decided whether Gopman met the

requirement or, alternatively, should be exc used from complying

therewith.

27. In asserting that he did, in fact, satisfy the foreign

language requirement, Gopman points to the credits of Russian

that he earned at M - DCC and argues that, because the statutes do

not require that all of the scholar ship eligibility criteria be

met prior to high school graduation, these college credits

should count as fulfilling the foreign language requirement.

28. Gopman is correct that some of the eligibility

requirements concern matters that necessarily occur after high

school graduation. For example, to receive a scholarship, the

applicant actually must be "enrolled for at least 6 semester

credit hours or the equivalent in quarter hours or clock hours"

at an eligible postsecondary institution. See § 1009.531 (1)(c),

(d), Fla. Stat. (2002). Gopman errs, however, in reasoning from

this premise to the conclusion that a ny academic criteri on may

be satisfied after high school graduation.

29. First of all, as the statute makes clear, the GPA

requirement (to whic h the foreign language requirement is

secondary) must be met in connection with "high school courses."

See § 1009.534(1)(a), Fla. Stat. (2002). This is unambiguous

language. As used in common, everyday discourse, the phrase

"high school courses" plainly refers to courses which are taken

for high school credit (including dual enrollment courses),

completed while enrolled in high school, and awarded a grade

that becomes part of a student's high school record. Courses

taken after high school graduation at a community college or

other postsecondary institution , exclusively for college credit,

are not "high school courses" under any reasonable understanding

of these words.

30. Confirming the correctness of this commonsense

implementation of Section 1009.5 34(1)(a), Florida Statutes, is a

second statutory provision, namely Section 1009.531(5), which

provides as follows:

A student who wishes to qualify for a

particular award within the Florida Bright

Futures Scholarship Program, but who does

not meet all of t he requirements for that

level of award, may, nevertheless, receive

the award if the principal of the student's

school or the district superintendent

verifies that the deficiency is caused by

the fact that school district personnel

provided inaccurate or i ncomplete

information to the student. The school

district must provide a means for the

student to correct the deficiencies and the

student must correct them, either by

completing comparable work at the

postsecondary institution or by completing a

directed individualized study program

developed and administered by the school

district. If the student does not complete

the requirements by December 31 immediately

following high school graduation , the

student is ineligible to participate in the

program.

(Em phasis added.)

31. Section 1009.531(5), Florida Statutes (2002), affords

a grace period of up to approximately six months after

graduation from high school to cure a deficiency in the

applicant's academic record, an accommodation that is neither

automati c nor widely available. Of course, such a grace period

would be superfluous if high school graduation were not the

deadline for completing the academic requireme nts for a Bright

Futures award. Section 1009.531(5) plainly takes for granted

that where the academic requirements for a scholarship were not

satisfied by high school graduation, which was precisely

Gopman's deficiency, the applicant will be found ineligible in

the run of cases ; indeed, without this presupposition, the

statute would make little or no sense.

32. It is concluded, therefore, that Gopman's M - DCC

credits, earned after his graduation from high school, cannot be

counted as fulfilling the foreign language requirement for a

Bright Futures scholarship.

33. Gopman contends that his M - DCC credits should be

counted (or the foreign language requirement waived) either

because he received special education services in high school

that precluded his taking foreign language classes , or because

school district personnel failed fully to apprise him that he

would be ineligible for a Bright Futures award unless he

graduated with two credits of a foreign language on his high

school transcript.

34. There is no statutory warrant, however, for granting

Gopman special treatment along these lines. The on ly provision

in the law that permits the Bright Futures requirements to be

bent is Section 1009.531(5), Florida Statutes (2002), which was

quoted above. Gopman did not qualify for the limited grace

period available under this statute as a remedy for

"misa dvisement" because, as a matter of fact, neither the

principal of his high school nor the district superintendent

ever verified that school district personnel had provided him

inaccurate or incomplete information , which latter in fact had

not happened . Ab sent such verification, resort to Section

1009.531(5) cannot be had.

35. The undersigned is not inclined to fashion a remedy

that the policymakers have not seen fit to enact. Finding no

statutory (or rule based) authorization for waiving, or granting

a variance from, the applicable requirements for an award, the

undersigned concludes that such relief is unavailable, and that

Gopman is not entitled to special treatment.

RECO MMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED Daniel B. Gopman's application for a

Bright Futures scholarship be denied because he failed to meet

the foreign language requirement , and that the Department enter

a final order consistent herewith .

DONE AND ENTERED this 25th day of January, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 96 75 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of January, 2008.

ENDNOTES

1 / Gopman was found ineligible, based on the absence of foreign

language credits, for both the Florida Academic Scholars Award

and the Florida Merit Scholars Award, which latter, being less

selective, provides a lower level of funding. The Department

also determined that Gopman was not eligible to receive a

Florida Gold Seal Vocational Scholars Award because he was

missing, not foreign language credits (which are not required

for this level of award), but other required credits (not needed

for either the Academic Scholars Award or the Merit Scho lars

Award). Gopman has challenged here the "foreign language

requirement" as it relates to the Academic Scholars Award, but

his arguments would apply with equal force to the eligibility

criteria for the Merit Scholars Award, which criteria include

the sa me foreign language requirement. If, however, it were

concluded that Gopman is eligible to receive a Bright Futures

scholarship despite his failure to take a foreign language in

high school, then he would qualify for the Academic Scholars

Award —— the highe st level of award available. That being the

case, the undersigned will concentrate, as the parties have

focused, on the requirements for an Academic Scholars Award,

without further mentioning or examining the parallel

requirements for a Merit Scholars Awa rd. Moreover, because

Gopman has not raised any issues concerning the Department's

decision that he was ineligible for the Gold Seal Vocational

Scholars Award, the undersigned will not discuss the

requirements for that particular level of award, just as t he

parties have not discussed them either.

2 / Mr. Nunez's letter of May 30, 2003, is some evidence contrary

to this finding, to be sure, but it is not, in the undersigned's

judgment as the fact - finder, persuasive evidence on the matter;

to the extent inc onsistent with the findings herein, Mr. Nunez's

letter is rejected as being against the weight of the evidence.

3 / Neither party took a firm position concerning which version

of the statutes governs the instant dispute. As it happens, the

governing law is the same today, in relevant part, as it was

during the 2002 - 03 school year, which means that the same

conclusions will be reached in this case whichever statute - year

is chosen as controlling. The undersigned ha s determined that,

because a student must apply for a Bright Futures scholarship no

later than high school graduation and have met all the academic

requirements for an initial award by that time (or shortly

thereafter), the applicable law is that which was in effect at

the time Gopman graduated f rom high school in June 2003.

4 / Because the statute specifies that the minimum GPA of 3.5

must be based on grades earned in "high school courses"

(plural), and because it would not make sense to refer to a

grade point "average" if only one grade were su fficient, the

undersigned assumes Gopman would agree (although he did not

actually take this position) that more than one C - PAC must be

taken to meet the GPA requirement.

5 / The maximum number of credits was later reduced to 18. This

change would not ha ve affected Gopman's eligibility.

COPIES FURNISHED :

Miles J. Gopman, Esquire

200 Towerside Terrace

Unit 1208, Quayside Tower II

Miami, Florida 33138

Daniel B. Gopman

C/O Miles J. Gopman, Esquire

200 Towerside Terrace

Unit 1208, Quayside Tower II

Miami, Florida 33138

Margaret O'Sullivan Parker, Esquire

Department of Education

Office of the General Counsel

1244 Florida Education Center

Tallahassee, Florida 32399 - 0400

Luis M. Garcia, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Su ite 400

Miami, Florida 33132

Honorable Eric J. Smith

Commissioner of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lynn Abbott, Agency Clerk

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.