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 DISMISS

This Ruling addresses Boston Public Schools’ (Boston) Motion to Dismiss .

Student has been suspended from school. Parent filed a Hearing Request , seeking to overturn the expulsion. Parent did not appeal her son’s suspension to the Superintendent. Boston takes the position that because Parent failed to exhaust Boston’s administrative appeals process, the Bureau of Special Education Appeals (BSEA) may not consider Student’s suspension, and Parent’s appeal must be dismissed.

For the reasons explained below, I disagree with Boston and deny its Motion to Dismiss .

Standard of Review

The BSEA Hearing Rules and the Standard Adjudicatory Rules of Practice and Procedure governing BSEA proceedings both provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted.1 The federal court rules provide guidance, and in that forum, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be allowed if the court finds “beyond doubt that the plaintiff can prove no set of facts in support of his/her claim which would entitle him to relief.”2

Therefore, dismissal is inappropriate unless Parent can prove no set of facts in support of her claims. I will consider any theory of law relevant to Parent’s claims and will consider the allegations in the Request for Hearing to be true, as well as all reasonable inferences in the Parent’s favor.3

Background

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 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.”

On May 2, 2007, Boston filed its Motion to Dismiss , seeking dismissal of this matter because Parent did not appeal Student’s suspension to the Superintendent and therefore did not exhaust the administrative remedies that Boston had made available to her.

Discussion

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)4 and the state special education statute.5 Neither Student’s eligibility status nor his entitlement to special education and related services is in dispute.

First Circuit case law makes clear that any requirement to exhaust other processes must be premised on a statutory or regulatory mandate to do so.6 The IDEA and its regulations are silent regarding any requirement that a parent exhaust or otherwise participate in a school district’s disciplinary proceedings prior to seeking relief in an IDEA due process appeal.

All of the decisions relied upon by Boston address the requirement of exhaustion of administrative proceedings prior to seeking judicial relief. I am aware of no judicial or administrative decisions requiring exhaustion of a school district’s disciplinary proceedings as a prerequisite to seeking relief in an IDEA due process appeal such as provided by the BSEA.

In contrast to their silence regarding exhaustion of school district disciplinary proceedings, the IDEA and its regulations set forth requirements in other areas that must be satisfied prior to obtaining a hearing before the BSEA. For example, when a parent files a hearing request, the school district must conduct an informal resolution session unless the parties jointly waive it or utilize mediation in lieu of the resolution meeting. A parent may be required to participate in the informal resolution session as a prerequisite to a due process hearing before the BSEA.7

The IDEA also requires exhaustion of the administrative due process proceedings prior to court review, but it is evident from the relevant statutory language that this exhaustion requirement applies only to judicial review and is not intended to prescribe what must occur prior to utilization of the administrative due process procedures .8

The specificity with which the IDEA has addressed these exhaustion requirements and the lack of any reference to exhaustion of school district disciplinary procedures make clear Congress’ intent in this regard.

It is also instructive to note that although the expulsion hearing before the Boston superintendent and a BSEA hearing address the same ultimate issue – that is, the question of whether Student was properly expelled – there are significant differences with respect to the legal standard and relevant evidence. The central question before the BSEA will be whether Student’s conduct in question was a manifestation of his disability, which in turn will likely depend on whether Student’s conduct was the direct result of Boston’s alleged failure to implement the IEP.9 Boston’s expulsion appeal would not consider any of these legal questions. This further clarifies that Boston’s disciplinary appeals process is separate and distinct from, and parallel to, the administrative due process proceedings before the BSEA.

I find that there is no basis upon which one may conclude that Parent and Student must utilize or exhaust Boston’s appeal process prior to initiating a BSEA due process appeal.

Order

The Motion to Dismiss , filed by Boston in the above-captioned cases, is DENIED .

By the Hearing Officer,

_________________

William Crane

Date: May 10, 2007


1

BSEA Rule XVIIB; 801 CMR 1.01(7)(g)3.


2

Judge v. City of Lowell , 160 F.3d 67, 72 (1st Cir. 1998) (quoting Conley v.Gibson , 355 U.S. 41, 45-46 (1957)).


3

See Caleron-Ortiz v. LaBoy-Alvarado , 300 F.3d 60 (1st Cir. 2002) (“accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff’s favor” a motion to dismiss will be denied if recovery can be justified under any applicable legal theory). See also Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).


4

20 USC 1400 et seq .


5

MGL c. 71B.


6

E.g., Weber ex rel. Weber v. Cranston School Committee , 212 F.3d 41, 60-62 (1 st Cir. 2000).


7

20 USC § 1415(f)(1)(B)(i) provides as follows:
prior to the opportunity for an impartial due process hearing . . . the local educational agency shall convene a [resolution] meeting with the parents and the relevant member or members of the IEP Team.

See also Spencer v. District of Columbia , 416 F. Supp. 2d 5 (DDC 2006) (“IDEA contravenes the plaintiff’s belief that the defendants may schedule a due process hearing without first scheduling the preliminary resolution meeting”).


8

20 USC § 1415(l) provides as follows:

Rule of construction. Nothing in this title shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this part, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part.


9

20 USC § 1415(k)(1)(E)(i); 34 CFR §300.530(e). Student does not rely upon the second prong of the manifestation determination standard, which is whether his conduct was caused by, or had a direct and substantial relationship to, his disability.


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