Fairhaven and Bristol County – BSEA #05-5469



<br /> Fairhaven and Bristol County – BSEA #05-5469<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Alex1 and Fairhaven and Bristol County

BSEA# 05-5469

RULING ON MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY DECISION

These rulings are rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1401 et seq ;2 29 U.S.C. §794; and the regulations promulgated under each of these statutes.

HISTORY OF THE CASE

On May 26, 2005 Parents filed a Hearing Request with the Bureau of Special Education Appeals (BSEA) against the Fairhaven Public Schools (FPS); the Bristol County Agricultural School (BCAS); and the Massachusetts Department of Education (MDOE). An initial hearing date was scheduled for June 16, 2005. There were multiple requests for postponement, a conference call, a pre-hearing conference and multiple motions/oppositions were filed. A pre-hearing conference call was held on June 23, 2005. A pre-hearing conference and motion session was then scheduled for July 26, 2005. An amended parental complaint was filed along with more motions, objections and oppositions thereto. On July 26, 2005 a pre-hearing conference took place during which settlement was explored but was not possible. A formal motions session then took place on the record. The motions were taken under advisement and the parties were given leave to file supplemental documentation, affidavits, motions and responses thereto to clarify the issues and develop the record. Numerous additional motions, oppositions thereto, answers, exhibits, affidavits and written argument were filed by the parties. A final conference call was held on September 27, 2005 in which the parties waived further oral argument. The final written argument arrived at BSEA on October 18, 2005.

STATEMENT OF FACTS3

Alex is a 17 year old student who resides with his parents in Fairhaven, MA. He is a special education student and functions under an individual education plan (IEP). On January 9, 2003 during his eighth grade year (2002-2003) Alex applied to BCAS for admission to the ninth grade class for the 2003-2004 school year. Alex desired to study landscaping.

BCAS is an independent county governmental entity composed of twenty towns and cities in Southeastern MA. BCAS is funded by Bristol County; regional school district/chapter 70 state aid; and by direct payments from member towns/municipalities in accordance with a ratio derived from student population. BCAS receives federal funds. BCAS currently educates approximately 420 students in grades nine through twelve. BCAS provides a regular academic curriculum and a rigorous agricultural curriculum involving flora culture, landscaping, small and large animal husbandry, arbor culture, and agricultural mechanics/diesel technology. BCAS typically receives about 400 applications for approximately 110-120 openings in each ninth grade.

Under the admissions policy in effect in 2003 (established in November 2000) the BCAS admissions committee considered six areas: grades; attendance; conduct; effort; interests/activities; and recommendations. A maximum score was 55 points. Students who met minimum requiments were placed on a ranked list. Students with the highest scores were given first consideration by the admissions board for final acceptance. Students not accepted were notified in writing that they had been placed on a waiting list. Placement on the waiting list was based upon their score with waiting list students filling vacancies as they occurred. On April 10, 2003 Alex was notified that BCAS had placed him on the waiting list for possible opening which might occur in September 2003. Under this 11/2000 admissions policy there was no provision for an appeal of BCAS’ admission decisions.

Alex continued at FPS under accepted IEPs for his ninth grade year (2003-2004) and tenth grade year (2004-2005). Parents filed this BSEA appeal in May 2005. On July 19, 2005 Parents rejected FPS’ proposed IEP and placement for Alex for his eleventh grade year (2005-2006) but accepted all of the services provided under the IEP. In rejecting the IEP, Father noted:

I accept all services as they are all Fairhaven can provide even though the team recommends Bristol Aggie as the proper placement they cannot provide.

In rejecting the placement decision, Father noted:

Team recommendations have always been Bristol Aggie.

In Parents’ original and amended complaints, Parents allege that BCAS is discriminating against Alex on the basis of his disability in violation of Section 504 as well as federal and state special education law. Parents seek an order from the BSEA ordering BCAS to accept Alex; damages against BCAS for denying Alex admission to BCAS; and damages against MDOE for contributing to Alex’s denial of admission at BCAS.

Based upon the multiple pleadings, answers, motions, oppositions, affidavits, exhibits, oral argument presented during the motions session, and written arguments submitted, I synopsize the positions of the parties as follows:

SUMMARY OF PARENTS’ POSITION

Parents contend that Alex requires placement at BCAS in order to receive a free appropriate public education (FAPE) which he is not receiving under his FPS IEPs/placements. Parents contend that FPS cannot provide Alex with the agricultural/landscaping programs which he requires/desires in order to receive FAPE. Parents contend that Alex’s FPS teams have recommended that Alex go to BCAS as an appropriate placement. Parents contend that BCAS is a public agricultural/vocational high school composed of member cities and towns that include Alex’s town/residence/local education authority (FPS); that BCAS is Alex’s public agricultural school; therefore, Alex has a legitimate basis and right to attend BCAS. Parents contend that BCAS violated Section 504 and discriminated against Alex by its failure to admit him to BCAS and, thereby, BCAS also denied Alex FAPE.

SUMMARY OF FAIRHAVEN PUBLIC SCHOOL’S POSITION

FPS’ position is that it has provided and continues to provide FAPE to Alex under its prior accepted IEPs covering the two prior school years as well as FPS’ currently proposed IEP where IEP services have been accepted but the IEP/placement rejected. FPS contends that it cannot provide agricultural programs like BCAS pursuant to state statute. FPS believes that BCAS would be an appropriate placement for Alex; that FPS supported Alex’s application to BCAS; and that FPS wrote recommendations to BCAS supporting Alex as an appropriate candidate for BCAS as it would for all FPS students who expressed an interest/wished to attend/filed an application to BCAS.

SUMMARY OF BRISTOL COUNTY AGRICULTURAL SCHOOL’S POSITION

BCAS contends that, pursuant to the six criteria in its 11/2000 admissions policy then in force (see STATEMENT OF FACTS , above), Alex scored a total of 32 points out of a maximum of 55 points. BCAS contends that Alex was not admitted due to his lower point score vis-à-vis other applicants. Therefore, Alex was placed on the waiting list in accordance with its 11/2000 admissions policy. BCAS contends that sixteen special education students were admitted to BCAS in September 2003 with higher admission scores than Alex. BCAS further contends that at least twenty-five other applicants receiving services on IEPs, all with higher admission scores than Alex, were also not admitted and assigned to the waiting list for the 2003-2004 school year. Finally, BCAS contends that at least twenty-five regular education students, all with scores higher than Alex, were also not admitted and placed on the waiting list for the 2003-2004 school year.

BCAS contends that Parents offer no evidence of any procedural defect that would give rise to a basis for setting aside Alex’s accepted IEPs or imputing to BCAS liability for educational services in past or future years. BCAS contends that only if a student is admitted does BCAS become responsible for providing that student vocational education and for providing FAPE to a special education student. Given that Alex has never been admitted to BCAS, BCAS has no obligation to provide him FAPE. Therefore, BCAS has not denied Alex FAPE.

BCAS contends that Parents’ complaints acknowledge that BCAS’ admissions policy is neutral on its face. Regarding Parents’ Section 504 claim BCAS contends that Alex is not an “otherwise qualified individual with a disability” within the meaning of the statute because he has not met the admissions criteria established by the 11/2000 BCAS admissions policy. BCAS contends that like any other admissions-based school it is not required under Section 504 to lower its admissions standards/alter its admissions criteria to accommodate any student with a disability. BCAS contends that to be otherwise qualified Alex must meet BCAS’ admissions requirements and, in this situation other applicants, including other special education students, received higher point totals than Alex. Therefore, BCAS contends that Alex is not an otherwise qualified individual vis-a-vis the relevant applicant pool, and that Parents have failed to make a prima facie case that Alex has been denied access to BCAS due to his disability.

SUMMARY OF POSITION OF MASSACHUSETTS DEPARTMENT OF EDUCATION

MDOE contends that the admissions policy in effect at the time Alex applied for admission to BCAS was not an admissions policy which DOE had approved. The 2004 BCAS admissions policy currently in effect has been approved by MDOE. MDOE also contends that Parents have failed to allege or demonstrate that the BCAS admissions policy in effect at the time Alex applied for admission to BCAS was, either on its face or as applied to Alex, discriminatory.

OUTSTANDING MOTIONS

1) MDOE’s Motion To Dismiss Complaint Against MDOE;

2) FPS’ Motion To Dismiss Complaint Against FPS;

3) BCAS’s Motion To Dismiss Complaint Against BCAS/Motion For Summary Decision

In Favor of BCAS;

4) Parents’ Motion For Summary Decision Against BCAS.

RULING ON MDOE’S MOTION TO DISMISS

MDOE moves to dismiss based upon the reasons stated in SUMMARY OF MDOE’S POSITION , above. Parents initially opposed MDOE’s Motion To Dismiss but later changed their position and filed a motion with BSEA moving to permit MDOE to withdraw and agreeing to MDOE’S Motion to Dismiss. Therefore, MDOE is hereby DISMISSED WITHOUT PREJUDICE as a party to this appeal.

RULING ON FPS’ MOTION TO DISMISS

FPS moves to dismiss because Parents have failed to articulate any theory of liability against FPS. FPS states that no causes of action under the original or first amended complaint are directed against FPS, nor is any requested relief.

Parents, BCAS and MDOE all oppose FPS’ Motion To Dismiss.

While neither the original nor first amended complaint states any theory of liability or requested relief against FPS, Parents filed a second amended complaint. Under Count V of this second amended complaint Parents do allege a cause of action/theory of liability/request for relief against FPS. Parents allege that Alex is functioning under an unaccepted IEP; that FPS cannot provide Alex with the vocational program he desires and that FPS recommended for him; that FPS has failed to provide Alex FAPE; and that if Alex cannot have access to BCAS that FPS be ordered to provide comparable services as available to him at BCAS.

Alex resides with his Parents in Fairhaven. Alex is a special education student receiving services under a FPS IEP. FPS is Alex’s Local Education Authority (LEA) and, as Alex’s LEA, FPS has the responsibility to provide Alex FAPE. See 603 CMR 28.03(1)(a); 603 CMR 28.10(2). Currently Alex is functioning under a rejected IEP and Parents contend that FPS is not providing Alex FAPE. Clearly, FPS is an indispensable party to this BSEA appeal. Therefore, FPS’ Motion To Dismiss regarding the currently rejected IEP for the 2005-2006 school year is hereby DENIED .

However, Parents’ complaints go back to Alex’s non-admittance to BCAS two school years ago. Since that time FPS has provided special education and related services to Alex under two FPS IEPs that were fully accepted by Parents and have now expired. Both the courts and the BSEA have repeatedly held that Hearing Officers are precluded from revisiting/re-opening accepted IEPs that have expired where parents have participated in the development of the IEP; parents have received notice of their options for rejection of an IEP and proceeding to a due process hearing; parents have chosen to accept the IEP; and parents have never rejected the IEP during its term. See Chris A. v. Stow Public Schools 16 EHLR 1304 at 1310 (MA 1990), affirmed on appeal, Amann v. Stow School System 982 F. 2d 644 at 651 (1992). See also Burlington v. Department of Education 736 F. 2d 773 at 796 (1984); Burlington v. Department of Education 471 U.S. 359 at 373 (1985); Amherst-Pelham Regional School District v. Department of Education 376 Mass. 480 at 483 (1978). Manchester School District v. Christopher B. 19 IDELR 143 at 147 (DNH 1992); In re: Marblehead Public Schools 7 MSER 176 at 180 (SEA Mass 2002). In re: Arlington Public Schools 8 MSER 133 at 135 (SEA Mass 2002). Therefore, any potential/putative claims against FPS for either the 2003-2004 school year or the 2004-2005 school year will not be entertained and are DISMISSED WITH PREJUDICE .

RULING ON BCAS’ MOTION TO DISMISS

Denial of FAPE Claim

As stated above, FPS is Alex’s LEA and as such has the responsibility to provide Alex FAPE. Parents cite no statute, regulation or court case that imposes upon a school or placement which is not a student’s LEA or which has not accepted a student the duty or responsibility for providing that student FAPE pursuant to M.G.L. c.71B or 20 U.S.C. §1400 et seq. Alex has not been accepted by BCAS. Therefore, BCAS has no past or current responsibility for providing FAPE to Alex. Accordingly, Parents’ FAPE related claim against BCAS is hereby DISMISSED WITH PREJUDICE .

504 Discrimination Claim

Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. §794 provides, in pertinent part:

No otherwise qualified individual with a disability… shall, solely by reason of his or her disability be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance… Emphasis added.

Parents’ first and second amended complaints both allege, in pertinent part, as follows:

20. The basis of the admissions policy appears neutral on its face, but has the discriminatory effect of eliminating disabled students for admittance and therefore limiting their access to equal education opportunities, services and programs.

21. The admissions policy scores each applicant and then accepts applicants based on the highest to lowest score without consideration of their disability or the effect of their disability on school performance.

23. Bristol County Agricultural School has more applicants than available placements.

32. The Bristol County Agricultural School admissions policy is discriminatory, illegal and does violate the civil rights of students on IEPs and 504 plans to a free and appropriate education – defacto discrimination.

38. The admissions policy as a matter of law is discriminatory and does violate the civil rights of disabled children and in this case [Alex].

39. The admissions policy prevents disabled children from having access to the same types of services, programs, and opportunities as non-disabled children.

60. The Defendant, Bristol County Agricultural School, by applying eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities and by failing to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability is acting in violation of 29 U.S.C. Section 794 and 28 C.F.R. Section 41.51(d).

I find that Parents’ complaints have failed to show how BCAS’ admissions
policy, which Parents admit is neutral in its face, has discriminated against Alex or has screened out Alex solely by reason of his disability pursuant to Section 504. Under the 11/2000 BCAS admission policy Alex scored 32 out of a possible 55 points. Under that same admissions policy sixteen special education students with higher scores than Alex were accepted at BCAS. At least twenty-five special education students with scores higher than Alex were also placed on the waiting list. Finally at least twenty-five regular education students with scores higher than Alex were also placed on the waiting list. (See June 23, 2005 affidavit of Russell James). Therefore, to grant Parents the relief which they seek – Alex’s immediate acceptance into BCAS – Alex would have to be “leapfrogged” over at least twenty-five special education students and at least twenty five regular education students who all achieved admissions scores higher than Alex but were not accepted at BCAS because other regular education and other special education students achieved higher scores.

I further find that Alex does not meet the Section 504 standard of “no otherwise qualified individual with a disability”. Other special education applicants, including at least forty-one other special education students (the sixteen who were admitted and the at least twenty-five who were put on the waiting list ahead of Alex) received higher point totals than Alex.4 I conclude that Alex is not an otherwise qualified individual with a disability vis-à-vis the relevant applicant pool. In Southeastern Community College v. Davis 442 U.S. 397 at 406 (1979) the United States Supreme Court held that an otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap . Emphasis added. See also Bercovitch v. Baldwin 133 F. 3d 141 at 154 (1 st Cir. 1998). The Supreme Court in Southeastern Community College v. Davis 442 U.S. 397 at 410-411 (1979) also held that Section 504 does not require a school to compromise its integral criteria to accommodate a disabled individual. See also Wynne v. Tufts University School of Medicine 976 F. 2d 791 at 795 (1 st Cir. 1992); Bercovitch v. Baldwin 133 F.3d 141 at 154 (1 st Cir. 1998).

Based upon the above, I conclude that Parents have failed to make a prima facie case that Alex was an otherwise qualified person with a disability or that he was deprived of access to BCAS solely by reason of his disability. Therefore, Parents’ Section 504 claim against BCAS is hereby DISMISSED WITH PREJUDICE .5

RULING ON PARENTS’ MOTION FOR SUMMARY DECISION

Given my above RULING ON BCAS’ MOTION TO DISMISS both Parents’ FAPE related claim and Section 504 discrimination claim, PARENTS’ MOTION FOR SUMMARY DECISION is hereby DENIED .

FINAL CONSIDERATIONS

BSEA’s sole jurisdiction and authority is to decide individual disputes between parents/guardians, school districts and sometimes other entities such as state agencies, arising under M.G.L. c.71B; 20 U.S.C.§1400 et seq.; 29 U.S.C. §794 (Section 504); and the regulations promulgated under each of these statutes as they apply to school age children with disabilities/special education students. (See 603 CMR 28.08(3)(a); 34 CFR 104.31 – 104.39)

Parents have alleged violation of other laws including the ADA, RICO, and constitutional due process as well as requests for monetary damages. Such claims must be dismissed with prejudice as the BSEA lacks the jurisdiction to consider them.

Similarly, Parents contend that Alex, as a student from a member town, has the right to attend BCAS, as do all students who reside in member towns/cities and wish to attend BCAS. Parents contend that M.G.L. c.71 s.14B prohibits cities and towns which are members of vocational school districts from establishing their own vocational programs. Parents contend that BCAS should expand, if necessary, in order to accommodate more students. Conversely BCAS and MDOE contend that vocational and agricultural schools are admissions-based programs with selective processes; that many more students apply than can be admitted; that there is no statutory or constitutional right or entitlement to be accepted by a vocational or agricultural school in Massachusetts; that an agricultural/vocational school is not obligated to accept every student who applies whether a regular education or special education student; and that Alex has the right to apply and be considered but not the right to attend.

The above arguments involve the interplay and interpretation of various state statutes and statutory provisions such as M.G.L. c.71 s.14 – Regional School Districts and M.G.L. c. 74 – Vocational Education, including the regulations promulgated under these statutes involving vocational education, regular education and other areas of education. Such arguments and the interpretation of these statutes go far beyond the jurisdiction and authority of the BSEA. Such issues are the province of the state legislature and/or a court of general jurisdiction.

ORDER

Pursuant to the Rulings set out above the following Orders are entered:

I. MDOE’s Motion to Dismiss is GRANTED .

II. FPS’ Motion to Dismiss is DENIED .

III. BCAS’ Motion to Dismiss is GRANTED .

IV. Parents’ Motion For Summary Decision is DENIED .

V. The BSEA will arrange for a telephone conference call with Parents’ Attorney and FPS’ attorney to determine further proceedings on the outstanding issue between Parents and FPS.

By the Hearing Officer

___________________

Dated: March 10, 2006

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

Alex is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.


2

This case was filed on May 26, 2005. Therefore IDEA 1997 rather than IDEA 2004, which took effect July 1, 2005, is the controlling federal statute


3

STATEMENT OF FACTS is extrapolated from the extensive documentation filed by the parties, often reiterated in numerous documents and/or represented at the July 26, 2005 motions session that are not disputed by the parties.


4

Parents argue that the BCAS admissions committee should have awarded Alex higher point totals in several areas such as recommendations and interests. However, courts have consistently held that deference should be given to public officials as to whether a plaintiff is otherwise qualified, and should appropriately credit the judgment of education officials and take care before a court substitutes its judgment for that of the school. E.E.O.C. v. Amego, Inc. 110 F.3d 135 at 145 (1 st Cir. 1997); School Board v. Arline 480 U.S. 273 at 288 (1987); Bercovitch v. Baldwin 133 F. 3d 141 at 153 (1 st Cir. 1998); Wynne v. Tufts University School of Medicine 976 F. 2d 791 at 795 (1 st Cir. 1992).


5

This case is clearly distinguishable from two recent BSEA cases in which Parents survived an agricultural school’s motion to dismiss a Section 504 claim. In In re: Norfolk County Agricultural School 11 MSER 233 (2005) Norfolk conceded that Student was otherwise qualified and met the requirements for admission when he applied to the school. Similarly, in In re: Zelda BSEA# 06-0256 (2006) Zelda was never notified of the result of her application process; further, Zelda was not awarded any points for seventh grade due to her absences even though the agricultural school was aware that her absences were directly linked to her disabilities of depression, anxiety, and school phobia. The Hearing Officer found that Zelda had articulated a prima facie case of invidious discrimination. In Alex’s case no nexus between his disabilities and BCAS’ decision to put him on the waiting list has been demonstrated or alleged.


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