Boston Public Schools – BSEA #07-6134



<br /> Boston Public Schools – BSEA #07-6134<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Boston Public Schools

BSEA # 07-6134

RULING ON MOTION TO REMOVE FROM EXPEDITED STATUS

This ruling addresses Boston Public Schools’ (Boston) motion to remove the above-referenced case from the expedited hearing track.

The following facts are not in dispute.

Student is a fifteen-year-old 10 th grader who entered Boston’s Madison Park Technical Vocational High School (Madison Park) in September 2005. Student resides with his Mother in Boston, Massachusetts and has been a Boston student since kindergarten.

Student qualified for special education services in the 3 rd grade and has been receiving special education services from that time to the present. Student has been diagnosed with an unspecified learning disability.

On June 16, 2006, after an investigation by the Madison Park administration, Boston determined that Student was responsible for ongoing graffiti on and near Madison Park. Boston held a suspension meeting on June 20, 2006 and suspended Student for five days .

On September 26, 2006, Boston held a manifestation determination meeting, at which Boston found that Student’s conduct was not a manifestation of his disability. On October 5, 2006, Boston held an expulsion hearing. The Boston Hearing Officer determined that there was sufficient evidence that Student had violated Boston’s Code of Discipline and expelled Student from October 10, 2007 through June 30, 2007. Student was assigned to Community Academy, an alternative school.

In its expulsion letter dated October 10, 2007, Boston advised Parent that she had the right to appeal the expulsion decision to the Superintendent within ten days of receipt of the letter. Parent received the expulsion letter on October 18, 2006. Parent has not appealed the expulsion decision to the Superintendent.

On April 23, 2007, Parent, through her attorney, filed a Hearing Request with the Bureau of Special Education Appeals (BSEA), taking the position that Student’s conduct was a manifestation of his disability and, accordingly, his suspension should be “immediately overturned and expunged from his record.” The BSEA assigned expedited status to the dispute.

The federal special education statute provides, in relevant part, as follows:
(3) Appeal.       (A) In general. The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination under this subsection, or a local educational agency that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others, may request a hearing. . . .

(4) Placement during appeals. When an appeal under paragraph (3) has been requested by either the parent or the local educational agency– . . .

(B) the State or local educational agency shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within 10 school days after the hearing.1

The statutory language, on its face, requires that an expedited hearing be held where, as in the present dispute, the Parent contests the manifestation determination.

Boston argues to the contrary. Boston correctly points out that the Hearing Request challenges a disciplinary proceeding that occurred more than six months ago, that Parent did not exhaust the Boston disciplinary appeals process, that Student has been placed at another program, and that there are only seven weeks remaining in the current school year. Boston further notes that it has recently found Student ineligible for special education on the basis of a psychological re-evaluation in April 2007.2

I am not persuaded. It is a fundamental tenet of statutory construction that a court (or hearing officer) may go beyond the relevant statutory text only if the text is ambiguous or if the statutory scheme is inconsistent or incoherent. Otherwise, the inquiry is limited to the statutory language itself.3

The above-quoted statute is clear and unambiguous. It allows for no exception to the rule that a hearing is to have expedited status if a parent challenges a manifestation determination. I have no choice but to implement the statute according to its terms.

For these reasons, Boston’s motion to remove this dispute from the expedited hearing track is DENIED .

By the Hearing Officer,

_________________

William Crane

Date: May 10, 2007


1

20 USC § 1415(f)(3). See also the implementing regulations (34 CFR § 300.532(c)) which track the statutory language.


2

Parent contests Boston’s determination of ineligibility.


3

The Supreme Court explained in Arlington Cent. School Dist. Bd. of Educ. v. Murphy , 126 S.Ct. 2455, 2459 (2006):

We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the statutory language is plain, the sole function of the courts – at least where the disposition required by the text is not absurd – is to enforce it according to its terms. [Internal citations and quotation marks omitted.]

See also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“our inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent”) (internal quotation marks omitted); United States v. Ron Pair Enters. Inc., 489 U.S. 235, 240 (1989) (“when the statute’s language is plain, the sole function of the courts is to enforce it according to its terms”).


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