CBDE Public Schools – BSEA # 10-6854



<br /> CBDE Public Schools – BSEA # 10-6854<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: CBDE Public Schools

BSEA # 10-6854

RULING ON CBDE PUBLIC SCHOOLS’ SECOND MOTION TO DISMISS

Introduction

This Ruling addresses CBDE Public Schools’ (CBDE)1 Second Motion to Dismiss, which was filed with the Bureau of Special Education Appeals (BSEA) on April 5, 2011, together with a memorandum in support of the motion. On April 15 and 21, 2011, CBDE filed supplemental memoranda in support of its motion. On April 25, 2011, Parents filed their opposition. Having determined that a hearing would not advance my understanding of the issues, this matter is being addressed solely on the basis of written arguments.

Motion to Dismiss Standard

BSEA Hearing Rules and the Massachusetts Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure 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.2

Similarly, the federal courts have concluded that a motion to dismiss under Federal Rules 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 claim which would entitle him to relief.”3

Accordingly, a motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. That is, a hearing officer may dismiss a case if he or she cannot grant relief under either the federal or state special education statutes or the relevant portions of Section 504 of the Rehabilitation Act, after considering as true all allegations made by the party opposing dismissal (here, the Parents), and drawing all reasonable inferences in their favor. Conversely, a hearing officer must deny a motion to dismiss if after “accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the [Parents’] favor…, recovery [can be justified] under any applicable legal theory ….”4

Background

On April 23, 2010, Parents filed a hearing request seeking a prospective residential placement, reimbursement of any past payments for residential services, and monetary damages. In support of this requested relief, Parents’ hearing request makes the following allegations:

1. The hearing request alleges that in the fall of 2008, a CBDE employee raped Student, causing severe emotional distress and trauma. The hearing request further states that the CBDE employee subsequently pleaded guilty to criminal charges of statutory rape and related offenses. At the time of the alleged incident, Student was 14 years old and had not been determined eligible under special education or Section 504.

2. The hearing request alleges that, as a result of this incident and Student’s continuing “daily contact” with the alleged perpetrator (the alleged perpetrator continued working at the school until he was suspended by CBDE in March 2009), Student had “serious needs” including an “escalating patter [sic] of behavior and emotional outbursts” during the fall and winter of the 2008-2009 school year, and that Parents “begged for help” for their daughter. The hearing request takes the position that, on the basis of Student’s demonstrated emotional and behavioral needs at this time and Parents’ plea for help, CBDE should have identified Student as having a disability and needing special education or related services pursuant to its so-called “child find” responsibilities under federal special education law, but instead only referred Student to an anger management program with a male counselor, did not refer Student for evaluation (the first step in determining special education eligibility), and did not provide any additional support or services.

3. The hearing request alleges that if CBDE had provided a timely evaluation when Student demonstrated substantial emotional and behavioral difficulties during the fall and winter of the 2008-2009 school year, “such an evaluation would have revealed the rape and abuse [Student] suffered” and Student “likely would not have suffered the emotional breakdowns that … required the two hospitalizations.”

4. The hearing request alleges that Parents gave “actual notice” of the alleged rape incident to CBDE in March 2009 when Parents met with several CBDE staff and discussed what another student had told Parents, as well as their opinion that there was something “seriously wrong” with their daughter. CBDE promptly notified the police and suspended the CBDE employee who was the alleged perpetrator. Student continued to attend her CBDE educational program as a regular education student during this time period. The hearing request states that due to publicity in newspapers and the relatively small number of possible victims, it soon became apparent to staff and students in Student’s school that Student was the alleged rape victim.

5. The hearing request alleges that after the alleged rape became known within the school community, Student suffered “taunts and criticism” from other students who blamed her for the rape and arrest of the CBDE employee and that Student displayed the “obvious emotional outbursts and behavior [that] one would expect to see in a person raped by a person of trust, yet [who had been] forced to be in contact with that person daily in school.”

6. The hearing request alleges that CBDE evidenced “deliberate indifference” to Student’s “very serious needs” and “bad faith and gross misjudgment” by not evaluating Student or providing services or support. The hearing request takes the position that, consequently, Student’s emotional and behavioral outbursts “continued unabated”, with the result that she was referred to a Community Based Acute Treatment (CBAT) facility in January 2010. The hearing request states that the CBAT treating psychiatrist diagnosed Student as having post-traumatic stress disorder and a mood disorder, not otherwise specified, that Parents shared these findings with CBDE and again asked for assistance. Finally, the hearing request states that subsequently, Student was adjudicated a child in need of services and admitted to a psychiatric hospital in March 2010.

On March 23, 2010, CBDE sent Parents a Notice of Proposed School District Action (N1 form) indicating that it proposed to conduct an initial evaluation of Student for purposes of determining whether Student was eligible for special education and related services. CBDE received back the signed consent form from Parents on March 30, 2010.

Parents then filed with the BSEA their request for hearing. The hearing request seeks three kinds of relief. First, the hearing request asks that CBDE be required to fund a therapeutic residential school for Student, “of the parent’s choosing, at the end of the CBAT Assessment so that there will be a seamless transition.” Second, the hearing request seeks payment by CBDE of “any outstanding costs the parents were obligated to pay by Germaine Lawrence or other facility.”

Third, the hearing request seeks monetary damages for Parents, as well as for Student’s brothers and sisters for the alleged “rape, hostile educational environment, deliberate indifference, indecent assault and battery, intentional infliction of emotional distress, loss of consortium, and negligence” by individual, named defendants and the Town of CBDE. With respect to their damages claim, Parents seek findings of fact, determination of violations of law, determination of what damages were suffered by Student, and, as a result of damages suffered by Student, what additional damages were suffered by Student’s parents and siblings.

By agreement of both parties, the BSEA kept this case open to conduct conference calls to discuss Student’s continuing special education needs and how they should be met, and to determine how the BSEA would address Parents’ damages claims. With the involvement of the Hearing Officer, the parties agreed to bifurcate the dispute so that the parties could focus first on resolving the more pressing educational claims, while postponing consideration of the damages claim.

At the time that Parents filed their hearing request, Student was receiving temporary residential services for purposes of evaluation at a second CBAT unit, through funding by the Massachusetts Department of Children and Families. In their hearing request, Parents sought a determination of special education eligibility and need for a residential, educational placement. Parents urged that CBDE provide a residential educational placement immediately so that Student would have continuous residential services.

On May 13, 2010, CBDE determined, for the first time, that Student was eligible to receive special education and related services, and in July 2010, CBDE proposed an IEP calling for Student to be provided with a residential educational placement. Parents fully accepted this IEP and placement on July 14, 2010.

On January 20, 2011, CBDE filed its first motion to dismiss, seeking to dismiss all claims. My February 24, 2011 ruling on this motion noted that in July 2010, Parents fully accepted CBDE’s proposed IEP calling for Student to be provided with a residential educational placement, thereby resolving Parents’ prospective special education claims, and that Parents had no outstanding compensatory or reimbursement claims. As a result, my February 24, 2011 ruling found that all of the past and prospective special education claims appearing in Parents’ hearing request have been resolved, and these claims were dismissed as no longer in dispute.

However, my February 24, 2011 ruling denied CBDE’s request to dismiss Parents’ monetary damages claims. I found that that fact finding is required for purposes of exhaustion of Parents’ IDEA and Section 504 claims for monetary damages. Through its second motion to dismiss, CBDE seeks again to dismiss Parents’ claims for monetary damages.

Discussion

It is not disputed that Student currently is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)5 and the state special education statute.6 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”7 State special education law includes parallel requirements.8

In my February 24, 2011 ruling on CBDE’s first motion to dismiss (discussed above), I noted that the IDEA requires, as a general rule, that exhaustion of administrative remedies occur prior to seeking judicial relief.9 I also pointed out that there are exceptions to the IDEA exhaustion requirement (such as futility), “but CBDE has not argued that they apply in the instant dispute, and I therefore do not consider them. ” Ruling, p.8.

Through its second motion to dismiss and first memorandum in support of this motion, CBDE now argues, for the first time, that there are relevant exceptions to the IDEA-mandated exhaustion requirement and that these exceptions require dismissal. CBDE further argues that any exhaustion requirements that apply have been satisfied by the BSEA proceedings to date in this dispute. Finally, CBDE takes the position that Parents do not seek damages for any violation of the IDEA (including child find), that all requests for educational relief under the IDEA have been resolved and dismissed, and that accordingly, no findings of fact may be issued relevant to IDEA claims.

I begin with CBDE’s argument that Parents do not assert a damages claim under the IDEA and therefore Parents must be precluded from obtaining any findings of fact relevant to alleged IDEA violations. CBDE appears to acknowledge that Parents’ hearing request alleges violations of the IDEA, but correctly notes that where the hearing request specifically identifies the statutory bases of Parents’ monetary damages claim, the IDEA is not referenced.10

In Frazier v. Fairhaven School Committee , plaintiffs, who in that case were the party seeking monetary damages and wanted to avoid the IDEA exhaustion requirement with respect to their damages claims, made a similar argument. The Frazier court explained: “ Their argument for an exemption from the exhaustion requirement [was that the] amended complaint does not rely upon the IDEA, but, rather, upon 42 U.S.C. § 1983-and it seeks relief exclusively in the form of money damages.” Plaintiffs in Frazier argued “that the array of remedies available under the IDEA does not include money damages, [and] that pursuing their claim through the IDEA’s administrative process would be a waste of time.”11

The First Circuit was not persuaded by this argument, holding “that plaintiffs who bring an IDEA-based claim under 42 U.S.C. § 1983, in which they seek only money damages, must exhaust the administrative process available under the IDEA as a condition precedent to entering a state or federal court.”12 To understand the First Circuit’s holding, it may be useful to review the relationship between the IDEA and a damages claim under 42 U.S.C. § 1983.

The IDEA does not include the remedy of monetary damages.13 Presumably for this reason, Parents in the instant dispute (as apparently was the case in Frazier ) have not specifically identified the IDEA as a basis for their requested relief of monetary damages. Instead, Parents in the instant dispute (as in Frazier ) referenced and relied upon 42 U.S.C. § 1983. To state a claim under § 1983, a party must allege an act or omission which deprived them of a “ federally -protected right.”14

As is clear from the Background section of the instant Ruling (above), Parents have alleged facts throughout their hearing request that may support a finding that CBDE violated the IDEA. And, as stated at page 5 of my February 24, 2011 ruling on CBDE’s first motion to dismiss, Parents’ monetary damages claim “is based, in part, upon alleged violations of so-called ‘child find’ requirements under the IDEA and alleged violations of Section 504.” Frazier stands for the proposition that exhaustion of the BSEA process for purposes of fact finding is necessary where the “section 1983 claim [is] predicated on a violation of the IDEA”,15 which is the case in the instant dispute.

CBDE’s next argument is that I should make an exception to the IDEA-mandated exhaustion principles because the exhaustion “doctrine will not advance its purposes” in the context of the instant dispute and because the BSEA administrative procedures and remedies are “inadequate” in this case. See CBDE’s first memorandum in support of its second motion to dismiss, pages 3, 6-7.

Again, the First Circuit in Frazier considered and found unpersuasive these arguments. The First Circuit explained that “ the administrative process, at the very least, should facilitate the development of a useful record (and, thus, assist in the informed disposition of any subsequent litigation). Seen in that light, exhaustion of the enumerated administrative procedures is useful even though the procedures cannot yield the particular redress that the claimant prefers. It follows inexorably that, in such circumstances, exhaustion should not be excused on the ground of futility.”16

CBDE filed its first supplemental memoranda making the additional argument that Frazier (and the Massachusetts federal district court decisions interpreting Frazier ) may be distinguished because in none of those cases had the parents come before the BSEA for purposes of resolution of their substantive educational claims. CBDE points out, correctly, that all of Parents’ substantive educational claims in the instant case have now been dismissed through the BSEA process, in contrast to Frazier and its progeny where this had not occurred. From this, CBDE argues that Parents have now exhausted their administrative remedies.

Frazier held that even though the parents sought no relief other than monetary damages, they may not proceed with their Section 1983 claim without first having exhausted the BSEA’s administrative process for purposes of fact finding.17 Similarly, in Bowden ex rel. Bowden , the parents had no current complaints about the school district’s educational services and the sole requested relief was money damages, but Judge Woodlock required exhaustion of the administrative process.18 And, in City of Boston v. Bureau of Special Educ. Appeals , the court required exhaustion regarding a Section 504 damages claim even though the student sought no relief under the IDEA.19

Thus, these three decisions hold that exhaustion of administrative procedures (including administrative fact finding) is necessary prior to a court considering the damages claims regardless of the existence of any substantive educational claims. The decisions make clear that it is the need for administrative fact finding prior to a court’s consideration of the damages claims, not the existence or resolution of the substantive educational claims themselves, that is relevant to and requires compliance with the IDEA’s exhaustion mandate. The informal resolution of Parents’ substantive education claims (and my dismissal of them through CBDE’s first motion to dismiss) in the instant dispute is therefore immaterial to exhaustion requirements relative to Parents’ damages claims.

Additionally, I note that with the involvement of the Hearing Officer, the parties previously agreed to bifurcate the monetary damages issues and the substantive educational claims, so that the damages claims would be considered and addressed after the parties had an opportunity to seek to resolve the more pressing educational claims. As discussed above, the parties were successful in resolving the education claims, thereby allowing the parties and the Hearing Officer to turn their attention to the damages claims and any necessary fact finding by the BSEA. In light of this procedural history (together with the court decisions discussed above), it seems self-evident that administrative processes have not yet been exhausted regarding Parents’ damages claims.

In its second supplemental memoranda, CBDE relies upon a Massachusetts federal district court decision  in Doe v. Town of Bourne to support its proposition that my resolution of Parents’ substantive educational claims obviates the need for a fact finding hearing. However, the court did not address a claim for damages within the context of an IDEA dispute. Parents’ claims in Bourne were dismissed by the federal court, in part, because they “fail[ed] to specify any federal right to undergird the [§ 1983] claims”.20

Finally, in a separate document CBDE has objected to my proposed statement of the issues to be considered at hearing and within that objection, CBDE further argues that Parents have already exhausted all available administrative proceedings. I find that CBDE has essentially repeated its above-referenced arguments and that nothing within its objection merits further response.

In sum, notwithstanding CBDE’s strenuous and exhaustive arguments to the contrary, I am satisfied that were I to allow CBDE’s Second Motion to Dismiss and if Parents were then to proceed to federal court on their monetary damages claims, the dispute would likely be returned to the BSEA for failure to exhaust administrative remedies and, specifically, for the BSEA to conduct fact finding . This follows from the fact that Parents have set forth viable monetary damages claims that are predicated on alleged violations of rights protected under the IDEA.

For these reasons, I am constrained to deny CBDE’s Second Motion to Dismiss.

ORDER

CBDE’s Second Motion to Dismiss is DENIED .

By the Hearing Officer,

_________________

William Crane

Dated: April 28, 2011


1

CBDE is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student.


2

BSEA Rule 17B; 801 CMR 1.01(7)(g)3.


3

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


4

Caleron-Ortiz v. LaBoy-Alvarado , 300 F.3d 60, 63 (1 st Cir. 2002). See also Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).


5

20 USC § 1400 et seq .


6

MGL c. 71B.


7

20 USC § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).


8

MGL c. 71B, ss. 2, 3.


9

20 USC § 1415 (l). See also the similar language found within the implementing regulations. 34 CFR §300.516(e).


10

As set forth within their hearing request, Parents’ claims for monetary damages are made pursuant to Section 504 of the Rehabilitation Act of 1973 (Section 504), the Americans with Disabilities Act (ADA), 42 USC 1983 (Section 1983), Article CXIV of the Massachusetts Constitution, the Massachusetts Civil Rights Act, and Title IX of the Education Act Amendments of 1972 (20 USC 1681) (Title IX). Parents’ damages claim also asserts that CBDE “intentionally, and or negligently inflict[ed] emotional distress upon [Student] and her family and caused loss of consortium.”


11

Frazier v. Fairhaven School Committee , 276 F.3d 52, 59 -60 (1 st Cir. 2002) (internal citations omitted).


12

Id . at 64.


13

See Diaz-Fonseca v. Puerto Rico , 451 F.3d 13, 37 (1 st Cir. 2006) (Congress did not intend “to authorize tort-like monetary damages or punitive damages in cases under the IDEA, Congress made a balanced judgment that such damages”).


14

Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001).


15

Frazier, 276 F.3d at 60.


16

Frazier, 276 F.3d at 62-63.


17

Id. at 69-70.


18

Bowden ex rel. Bowden , 2002 WL 472293 at *4 (D.Mass. 2002) (footnote omitted) .


19

City of Boston v. Bureau of Special Educ. Appeals, 2008 WL 2066989, *4 ( D.Mass. 2008).


20

Doe v. Town of Bourne , 2004 WL 1212075, *3-4 (D.Mass. 2004).


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