Albert and Boston Public Schools – BSEA # 06-6508 2



<br /> Albert and Boston Public Schools – BSEA # 06-6508R<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Albert1 and Boston Public Schools

BSEA # 06-6508

RULINGS ON MOTION FOR RECONSIDERATION AND MOTION TO STRIKE AFFIDAVIT

A. Introduction

This Ruling addresses Boston Public Schools’ (Boston) Motion for Reconsideration of the Hearing Officer’s Ruling on the Student’s Motion for Partial Summary Judgment ( Motion for Reconsideration ). Through this Motion , Boston seeks a reconsideration of my previous Ruling in which I allowed Parents’/Student’s Motion for Partial Summary Judgment .

Parents/Student have also filed a Motion to Strike Affidavit , which is in response to the affidavit that accompanies Boston’s Motion to Reconsider . The Motion to Strike will also be addressed in this Ruling.

The underlying substantive issue, addressed within my previous Ruling, is whether Section 504 of the Rehabilitation Act requires that Student, who is diagnosed with Crohn’s disease and depression, be exempt from a Boston Latin School (Boston Latin) policy that precludes any student from being enrolled after failing the same grade twice.

B. Procedural history

On June 20, 2006, Parents and Student filed with the Bureau of Special Education Appeals (BSEA) a due process complaint requesting a hearing. On July 3, 2006, Boston filed its response.

On July 19, 2006, Parents/Student filed with the BSEA a Motion for Partial Summary Judgment and a Memorandum in support of the Motion . As agreed by the parties, Parents/Student filed a supplement to their Memorandum on July 26, 2006. Boston filed its response on August 1, 2006. A motion Hearing was held on August 8, 2006, at which the attorneys presented oral argument. On August 11, 2006, I issued a Ruling allowing Parents’/Student’s Motion for Partial Summary Judgment .

On August 21, 2006, Boston filed with the BSEA its Motion to Reconsider , together with an August 18, 2006 affidavit of Cornelia Kelley who is the Boston Latin Head Master. On August 23, 2006, Parents/Student filed a Motion to Strike Affidavit and a memorandum in opposition to Boston’s Motion for Reconsideration .

Neither party has requested a motion Hearing, and I conclude that such a Hearing would not advance my understanding of the issues. Accordingly, pursuant to BSEA Hearing Rule VIID, I issue this ruling on the Motion for Reconsideration and the Motion to Strike Affidavit without holding a Hearing.

C. Boston’s Motion for Reconsideration and accompanying affidavit

In its Motion for Reconsideration , Boston correctly noted that in my previous Ruling of August 11, 2006, allowing Parents’/Student’s Motion for Partial Summary Judgment , I found that Boston had “offered no factual basis” in support of the Boston Latin Head Master’s conclusion that to provide Student with the requested accommodation would compromise academic standards and the integrity of a Boston Latin diploma. I had determined that the original affidavit of the Boston Head Master (filed with Boston’s opposition to Parents’/Student’s Motion for Partial Summary Judgment ) provided only a conclusory opinion without explanation of how, when, or on what bases this decision was reached. See text following footnotes 9 and 46, and text accompanying footnote 39 in my previous Ruling.

Boston’s Motion for Reconsideration then explained that its revised Head Master affidavit of August 18, 2006 “now provide[s] the Hearing Officer with a factual record replete with details of the research and consultation process, including a list of factors, particular to [Student], that [Boston Latin] administration considered with it determined that the requested waiver was not reasonable.” Boston’s Motion for Reconsideration , page 2 (footnote omitted).

The “factual . . . details” provided by Boston (within the Head Master’s August 18 th affidavit) describe when the decision was made not to provide Student with the requested accommodation, the administrators involved in the decision, and what was considered when the decision was made – in particular, Student’s medical condition, his past inability to pass 9 th grade, his intellectual qualifications, and his emotional and social well-being. The Head Master’s affidavit further states that she and the other administrators agreed (1) that it would be “detrimental” to Student were he to return to the 9 th grade at the age of 16 years old when others in his class would be, generally, 14 years old, (2) that Student’s return “would have a negative impact given the rigorous academic program” at Boston Latin, and (3) that there would be “detrimental effects”.

The Head Master’s August 18 th affidavit further identifies a new justification for Boston’s argument that an accommodation would provide an undue hardship. The Head Master explains that a seat in the 9 th grade has not been reserved for Student, and that to create an additional seat for Student at this time could violate the class size provisions of a collective bargaining agreement between Boston and the Boston Teachers Union.

D. Standard for a motion for reconsideration

The Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure allow reconsideration of a Hearing Officer’s decision only in the event that there is a “clerical or mechanical error in the decision or a significant factor the [Hearing Officer] may have overlooked in deciding the case.”2 It is unclear whether this standard applies to interlocutory rulings (such as a ruling on a motion for partial summary judgment) or only to final decisions; and for this reason, I do not apply it to the instant dispute.3 Similarly, BSEA Hearing Rules preclude reconsideration, but the rules appear to apply only to decisions made after an evidentiary Hearing.4

Because I am unable to find relevant rules explicitly applicable to BSEA proceedings, I turn for guidance to federal court practices. A federal district court has discretion to reconsider an interlocutory order and “revise or amend [it] at any time prior to final judgment”.5 But, “courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.”6

Within the context of a motion for reconsideration of an interlocutory order, Judge Young explained the relevant inquiry as follows:

When faced with a motion for reconsideration, a district court must balance the need for finality against the duty to render just decisions. In order to accommodate these competing interests, a court should grant a motion for reconsideration of an interlocutory order only when the movant demonstrates (1) an intervening change in the law; (2) the discovery of new evidence not previously available ; or (3) a clear error of law in the first order.7

In addition, I note that the First Circuit has consistently upheld a trial court’s denial of a motion for reconsideration where a party sought to introduce new evidence or advance new arguments that could have and should have been presented in the first instance.8

With this guidance from the federal courts, I apply a two-part standard – first, whether Boston, through its Motion to Reconsider , seeks to introduce new evidence that could have and should have been presented in the first instance; and second, whether my initial Ruling, in light of Boston’s Motion to Reconsider , was “clearly erroneous and would work a manifest injustice.”

E. Analysis

Neither Boston’s Motion for Reconsideration nor the Head Master’s August 18 th affidavit explains why the factual allegations contained within the August 18 th affidavit were not included within her original affidavit filed with Boston’s opposition to the Parents’/Student’s Motion for Partial Summary Judgment . And, there is nothing in the record from which I might conclude that information contained within the August 18 th affidavit was not available to Boston when it filed its opposition.

It seems apparent from the face of Boston’s Motion for Reconsideration that what has occurred is that once my Ruling clarified for Boston the importance of its administrators making an individualized, factual inquiry and once I determined that Boston had not demonstrated that it had made this inquiry, Boston sought to provide what it believes to be the missing factual representations.9

The most logical conclusion, based upon a review of the August 18 th affidavit together with the Motion for Reconsideration , is that all of the information in the August 18 th affidavit was known or available to the Head Master at the time that she signed her original affidavit on August 9, 2006.

I find that Boston simply neglected to provide, in the first instance, factual allegations that it would now like me to consider for the purpose of persuading me that an appropriate, individual decision was made by Boston Latin to deny Student the requested accommodation. I conclude that the additional information within the Head Master’s August 18, 2006 affidavit could have and should have been introduced in the first instance.

I now turn to the question of whether my initial Ruling, in light of Boston’s Motion to Reconsider , was “clearly erroneous and would work a manifest injustice.” For this purpose, I consider the additional information provided in the Head Master’s August 18 th affidavit.

The Head Master’s affidavit explains the process utilized to determine that the requested accommodation should not be provided, and then provides three reasons for this decision, each of which will be addressed separately below.

First , with respect to the principal point in contention in this dispute (that is, whether enrollment of Student would, in fact, compromise the academic standards and integrity of a Boston Latin diploma), the Head Master’s revised affidavit (in paragraph 14) provides only the following new information:
such a return [to the 9 th grade at Boston Latin] would have a negative impact given the rigorous academic program consisting of 6 major courses and an average of 3-4 hours of homework each night in an overwhelming environment of 2400 students would have detrimental effects. [sic]10

The Head Master appears to take the position that Student may have difficulty with the academic program at Boston Latin, and that this difficulty may negatively impact Boston Latin. With all due respect to the Head Master, I fail to understand how this position helps one understand how re-enrollment of Student would result in a substantial or fundamental alteration in the Boston Latin educational program or would otherwise result in a “negative” or “detrimental effect” on the school. The Head Master’s statement speaks more to the question of whether Student is qualified to attend Boston Latin with reasonable accommodation. In this regard, however, the statement is so vague as to have little, if any, probative value.

I also note that the exhibits originally filed by Boston in this dispute made clear the academic rigor of Boston Latin, and Parents/Student have not disputed this contention. See the Facts section (paragraphs C2 through C4) of my previous Ruling. Within the context of Boston Latin’s rigorous academic program, I have already carefully considered Student’s academic abilities and qualifications to return to Boston Latin. See the text in the paragraph accompanying footnote 14 and the text following footnote 38 (page 15) of my previous Ruling. I find nothing within the above-quoted language from the Head Master’s revised affidavit that adds to or otherwise changes my previous analysis in this regard.

Second , in several places in the affidavit, the Head Master expresses concern that Student’s returning to Boston Latin would not be in his best interests. In paragraph 14 of the affidavit, the Head Master explains:
it would be detrimental to [Student] who, at age 16, would return after being out of school for 2 years to repeat the 9 th grade for a third time with students who are generally 14 years of age.

The Head Master’s concerns regarding Student’s best interests are irrelevant to a reasonable accommodation/undue hardship/substantial alteration analysis under Section 504. See the Discussion section of my previous Ruling.11 In addition, the Head Master’s statement appears to ignore the obvious fact that Student has no choice but to return to the 9 th grade whether it be at Boston Latin or another school. She seems to assume, without explanation, that any detriment to Student’s enrolling in the 9 th grade as a 16 year-old should occur at a school other than Boston Latin.

Third , in paragraphs 16-18 of the affidavit, the Head Master explains that a seat in the 9 th grade has not been reserved for Student, and that to create an additional seat for Student at this time could violate the class size provisions of a collective bargaining agreement between Boston and the Boston Teachers Union. There are several difficulties with this position. The Head Master’s affidavit states only that admitting Student to the 9 th grade at Boston Latin at this late date “could” violate the collective bargaining agreement. Also, the Head Master provides no explanation of the implications of a violation of the collective bargaining unit, stating only that it would cause “administrative difficulties.” The reader is left to speculate as to the likelihood and nature of the actual hardship to Boston Latin.

Any hardship to Boston Latin in this regard would have been caused by its decision not to provide Student with the requested accommodation. Boston should not be allowed to first refuse to provide Student with a reasonable accommodation, and then claim that the consequent “administrative difficulties” of rectifying its decision now justify his continued exclusion.

I also note that this new information from the Head Master is at odds with the oral argument of Boston’s attorney at the motion Hearing when, in response to a question from me, she made clear that Boston’s only claim of undue burden was that enrollment of Student at Boston Latin would cause a fundamental or substantial alteration in its educational program by compromising its academic standards and the integrity of a Boston Latin diploma. See the text following footnote 29 in my previous Ruling.

In summary, I find that none of the three above-discussed reasons put forth by the Head Master to justify Boston’s decision (to deny the requested accommodation) is persuasive . Boston is left only with a conclusion, without substantive explanation or support, that the requested accommodation would compromise academic standards and the integrity of a Boston Latin diploma or would otherwise cause undue hardship. The failure of Boston, upon a second attempt, to provide a probative basis for its decision to exclude Student argues in support of, rather than the need for reconsideration of, the findings and conclusions in my previous Ruling.

The Head Master’s revised affidavit does include an explanation, for the first time, of the process utilized to make this decision – that is, when the decision was made, the administrators involved in the decision and what was considered when the decision was made . However, this new information, by itself, would not have changed the outcome of my previous Ruling, and it does not come close to demonstrating that the previous Ruling was “clearly erroneous and would work a manifest injustice.”

Boston has offered no additional basis for reconsideration.

I conclude that Boston has provided insufficient basis to warrant reconsideration of my previous Ruling.

F. Motion to Strike Affidavit

Together with their opposition to Boston’s Motion to Reconsider , Parents/Student filed a Motion to Strike Affidavit .

For reasons explained in the above analysis of Boston’s Motion to Reconsider , I have considered the Head Master’s August 18 th affidavit for the limited purpose of determining whether to grant or deny Boston’s Motion . Because the affidavit may be used for that purpose, I decline to strike it.

Order

Boston Public Schools’ Motion for Reconsideration of the Hearing Officer’s Ruling on the Student’s Motion for Partial Summary Judgment is denied .

Parents’/Student’s Motion to Strike Affidavit is denied .

Within thirty days, Parents/Student shall file a status report regarding the remaining issues in dispute.

By the Hearing Officer,

_________________

William Crane

Date: September 1, 2006


1

“Albert” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.


2

801 CMR 1.01(7)(l). These Rules are made applicable to BSEA proceedings by 603 CMR 28.08(5)(b).


3

It is not disputed that were I to apply this standard, Boston would not meet it.


4

BSEA Hearing Rule XIIIB.


5

Davis v. Lehane , 89 F.Supp.2d 142, 147 ( D.Mass. 2000) and cases cited therein.


6

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (internal quotations omitted), quoted in Davis v. Lehane , 89 F.Supp.2d at 147.


7

Davis v. Lehane , 89 F.Supp.2d at 147 (citations omitted) (emphasis supplied).


8

E.g., Rivera-Garcia v. Sistema Universitario Ana G. Mendez , 442 F.3d 3, 6 n.3 (1 st Cir.2006) ; Emmanuel v. International Broth. of Teamsters, Local Union No. 25 , 426 F.3d 416, 422 (1 st Cir.2005); Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1 st Cir.1997) ; Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 91 n. 1 (1 st Cir.1993).


9

Boston should not have been taken off guard by the need for an individualized, factual inquiry into the reasonableness of the requested accommodation. As explained in my Ruling on the Motion for Partial Summary Judgement (footnote 42 and accompanying text), both the United States Supreme Court and the First Circuit have repeatedly emphasized the importance of this inquiry in Section 504 cases. Also, in their supplemental memorandum in support of the Motion for Partial Summary Judgment (pages 3-5), which was filed prior to Boston’s opposition to the Motion , Parents/Student cited to numerous court decisions in support of this proposition, and quoted language from a United States Supreme Court decision explaining the “essential” nature of this inquiry.


10

I have difficulty understanding this sentence because of its grammatical construction. I attempt to understand it based upon the Head Master’s presumed purpose of seeking to justify the Boston Latin decision to deny the requested accommodation.


11

In Section 504 cases, courts have occasionally found relevant a recipient’s concern regarding risk of injury to the person with a disability, but have not otherwise considered a recipient’s opinion of the best interests of the person with a disability. See, e.g., Doe v. Woodford County Bd. of Educ. , 213 F.3d 921 (6 th Cir.2000).


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