Chicopee Public Schools and Valery – BSEA # 09-0036



<br /> Chicopee Public Schools and Valery – BSEA # 09-0036<br />

MASSACHUSETTS DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION

Bureau of Special Education Appeals

In Re: Chicopee Public Schools and Valery1

BSEA #09-0036

RULING ON PARENT’S MOTION TO DISMISS

This matter comes before the Bureau on the Parent’s Motion to Dismiss the Hearing Request filed by the School on July 1, 2008. In that Hearing Request the School asks the Bureau of Special Education Appeals to determine whether it has met its obligations under 20 U.S.C. §1401 et seq to provide a free, appropriate public education to Valery and under 20 U.S.C. 794 to provide Valery with meaningful, non-discriminatory access to its educational programs. Essentially this dispute involves whether this Student with disabilities requires the presence of a service animal in his classroom at all times in order to make effective educational progress consistent with his potential. The Parent contends that the continual use of a service animal is necessary for Valery to access, consolidate and extend his learning in his current educational program. The School asserts that the Student is receiving, and will receive, the free, appropriate public education to which he is entitled without the presence of a service animal.

Instead of proceeding directly to Hearing, the parties engaged in settlement negotiations. On October 16, 2008, the Hearing officer assigned a Hearing date of December 9, 2008. The Parent filed the instant Motion to Dismiss on November 5, 2008, contending that the BSEA lacks jurisdiction to hear the School’s special education appeal due to the existence of a prior disability discrimination claim she filed at the Massachusetts Commission Against Discrimination. That claim, filed on June 19, 2008, alleges that Chicopee violated M.G.L. ch 151C.2 The Parent’s discrimination claim arises out of the same facts and circumstances, and concerns the same parties, as Chicopee’s special education appeal. The Parent included as an exhibit to her Motion to Dismiss an October 20, 2008 Order by the Investigating Commissioner of the Massachusetts Commission Against Discrimination (hereafter “MCAD”), Martin Ebel. The order states, in part:

Based on the totality of the circumstances, the unambiguous, direct and immediate threat of severe, permanent, and irreparable harm to the complainant if separated from the service animal, and the relatively minimal risk of harm to the respondent and its personnel as a result of this ruling, I hereby Order the Respondent (Chicopee Public Schools) to:

Cease and desist from any and all actions, proceedings, and efforts that could result in the Bureau of Special Education Appeals making determinations regarding reasonable accommodations for students in general and this Complainant in particular under M.G.L. ch. 151C.

The School filed an Opposition to the Parent’s Motion to Dismiss on November 13, 2008, asserting that the Bureau of Special Education Appeals has independent jurisdiction over claims of disability discrimination in public educational settings pursuant to 29 U.S.C. 794 and exclusive jurisdiction to determine whether an individual student is receiving a free, appropriate public education pursuant to 20 U.S.C. 1401 et seq and M.G.L. ch 71B. Chicopee argues that to dismiss its Hearing Request would deny Chicopee the due process rights accorded to it under both the federal and state special education statutes.

After careful consideration of the arguments of the parties, and of the relevant statutes and regulations, it is my determination that the Parent’s Motion to Dismiss should be DENIED.

First, the Massachusetts Bureau of Special Education Appeals has exclusive, original jurisdiction to consider claims under both the federal and the state special education statutes. 20 U.S.C. § 1415; M.G.L. c 71B. There is no reference in either the IDEA 2004, the Massachusetts Special Education statute, or any of the implementing regulations, to any other state or federal agency assigned concurrent jurisdiction to implement the due process dispute resolution systems required by those statutory schemes. While both the federal and state grants of jurisdiction to the Bureau of Special Education Appeals include the power to consider claims concerning discrimination on the basis of disability in publicly funded educational programs, the focus of both statutes is ensuring a free, appropriate public education to an individual student. Here, in its request for Hearing at the Bureau of Special Education Appeals, Chicopee has plainly asserted its right to a determination as to whether it is providing a free, appropriate public education to Valery. 20 U.S.C. §1415 (7); 603 CMR 28.08 (3) (a). Thus, the School’s request is committed only to the Bureau of Special Education appeals, not to any other state agency.

I find, since the MCAD does not have jurisdiction to determine either the Student’s or Chicopee’s rights and obligations under 20 U.S.C. 1400 and M.G.L. c 71B, and the BSEA does, there is no jurisdictional conflict that might require Chicopee to delay proceedings at the BSEA pending an MCAD ruling on a related parental claim. The Parent’s argument that the BSEA should refrain from considering Chicopee’s FAPE claim while an MCAD action is pending, is not consistent with the statutory grants of mission to either agency.

I also note that though there are some discrete references to application of state law when construing special education rights under IDEA 2004, these lie primarily in areas traditionally reserved to state determination, i.e. designation of curriculum; definitions of family status allocation of fiscal responsibility among state agencies, etc. See eg 20 U.S.C.§ 1412; 34 CFR 300.13; 34 CFR 300.45; 34 CFR 300.102. Nowhere in either the state or the federal special education statute is there language requiring the state due process system to defer application of federal special education law to a state anti-discrimination agency.

Next, the Parent did not point to any other statute or judicial decision that would permit the MCAD, when considering a claim under the state anti-discrimination statute, to enjoin a school district from asserting its rights under the federal special education law to procedural and substantive due process. Without a specific authority to the contrary, I find that Chicopee’s federal due process right to a timely determination of its obligations under IDEA 2004 does not yield to a claim of pre-emption by the MCAD3 .

Finally, apart from the different statutory missions, the facts to be developed at special education hearings differ distinctly from those relevant to any related MCAD proceeding. Determination of “FAPE” for a student involves an analysis of individual and institutional educational methods, strategies, and curricula, testing and assessment results, professional credentials and expertise, parental expectations, student needs and preferences, procedural compliance and the “gestat” that makes up a student’s wholistic educational experience. The inquiry is, by design, far deeper and broader than that contemplated in an action pursuant solely to 20 U.S.C. 794.4 Its focus is on the individual student, rather than on the actions or capacities of the institution. Here, the facts underpinning Chicopee’s claim that it is providing a free, appropriate public education to Valery are in dispute. The development and presentation of these facts at the classroom, school district and BSEA level is guided by the comprehensive procedures set out in IDEA 2004. The legal analysis of those facts is governed by standards set out in IDEA 2004, M.G.L. c 71B, and relevant judicial opinions construing those statutes. Issues of allocation of burden of proof, decision trees, federal-state conflicts, and remedies, among others, are unique to the field of special education law. The legal analysis of FAPE claims does not involve consideration or application of M.G.L. c 151.

Therefore, I am persuaded that Chicopee is entitled to a timely resolution of the issues it advanced in its hearing request to the BSEA, and that there is no statutory or factual basis for deferring consideration of those claims while the Parent’s M.G.L. c151C claim is pending at the MCAD. The Parent’s Motion to Dismiss is DENIED . This matter will proceed to Hearing on January 6, 7 & 9, 2009.

By the Hearing Officer,

________________________

Dated: December 11, 2008


1

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


2

The Commission Against Discrimination matter has been assigned Docket No. 08SPA01919.


3

Furthermore, I am not convinced by the Parent’s corollary argument that the MCAD has original and exclusive jurisdiction of all disability discrimination claims arising out of public elementary schools. In particular, my reading of M.G.L. c 151C, Section 1 (b) and 2 (c) does not necessarily lead me to conclude that the facts asserted by Chicopee in its request for a FAPE determination fit within the statutory jurisdiction of the MCAD.


4

The federal statute prohibiting discrimination on the basis of disability in publicly funded educational program is similar, though not identical, to M.G.L. c. 751C.


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