Geraldo and Springfield Public Schools – BSEA #06-4908 and 06-5863



<br /> Geraldo and Springfield Public Schools – BSEA #06-4908 and 06-5863<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Geraldo1 and the Springfield Public Schools

BSEA# 06-5863

DECISION

This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. §1401 et seq ., 29 U.S.C. 794, and the regulations promulgated under those statutes. A hearing was held in the above-entitled matter on March 22, 2007, at the Office of Catuogno Reporting Services in Springfield, MA. Present for all or part of the proceedings were:

Geraldo Student

Gilberto Student

Tammy Grimes Teacher, Springfield Public Schools

Sheila Blair Supervisor, Special Education, Springfield Public Schools

Martha Von Dering Compliance Officer, Springfield Public Schools

Timothy Duquette Supervisor of Attendance, Springfield Public Schools

Mary Birks Former Supervisor, Special Education, Springfield Public Schools

Denice Messina Supervisor, Parent Information Center, Springfield Public Schools

Mary Ann Morris Director, Special Education, Springfield Public Schools

Alisia St. Florian Attorney for Springfield Public Schools

Kristen Serwecki Educational Advocate

Bryan Clausen Attorney for Students

Brenda Ginisi Court Reporter

Lindsay Byrne Hearing Officer

The official record of the hearing consists of documents submitted on behalf of the Students marked: Geraldo P (1) 1-37 and Gilberto P (2) 1-30; documents submitted on behalf of Springfield Public Schools marked: Geraldo S (1) 1-24 and Gilberto S (2) 1-22; and approximately 5 hours of recorded oral testimony and argument. The parties submitted written closing arguments on April 6, 2007, and the record closed on that day.

I. Procedural History

The Students are twins and at all time relevant to this dispute have been residents of Springfield under the age of sixteen. Both were identified as students with disabilities entitling them to special education services under federal and state special education laws in preschool and throughout elementary school. They have a significant history of poor school attendance. In January 2006, Bryan Clausen was appointed the Students’ Guardian Ad Litem by the Springfield Juvenile Court. Subsequently he was also retained as the Students’ lawyer, by their mother. On April 13, 2006 he filed a request for hearing before the Bureau of Special Education Appeals on behalf of Geraldo. (P (1) 5, 13). On May 26, 2006, he filed a request for hearing on behalf of Gilberto. (P (2) 2,3) Both hearing requests asserted that Springfield Public Schools had unilaterally terminated the Student’s enrollment thereby denying the Student the free, appropriate public education to which the Student was entitled. The Students sought immediate reinstatement in the Springfield Public Schools, compensatory educational services for time during which they were “unenrolled”, an IEP that appropriately addressed attendance issues, and a declaration that the Springfield policy of “unenrolling” students without adherence to the procedural protections afforded to eligible students under the IDEA and M.G.L. c. 71B, denied those students a free, appropriate public education.

After the hearing requests had been filed the parties met regularly, with and without Hearing Officer assistance, in an attempt to resolve issues without a formal hearing. On August 9, 2006, a Motion for Summary Judgment was filed on behalf of the Student in the matter of Geraldo. The School opposed the Motion. Hearing Officer Lindsay Byrne denied the Motion on October 14, 2006. (P (1) 15-20) A Motion for Summary Judgment was filed on behalf of Student in the matter of Gilberto on October 10, 2006. It was opposed by the School and denied by Hearing Officer Raymond Oliver on February 22, 2007. (P (2) 15, 17) Thereafter the parties agreed to consolidate the appeals for all purposes as the pertinent factual background is substantially similar and the legal issues requiring resolution are identical. The consolidated matter was assigned to Hearing Officer Byrne.

II. Issues:

1. Whether Geraldo was denied a free, appropriate public education when he was unilaterally unenrolled by the Springfield Public Schools based on his attendance record during the 2005-2006 school year?

2. Whether Gilberto was denied a free, appropriate public education when he was unilaterally unenrolled by the Springfield Public Schools based on his attendance record during the 2005-2006 school year?

III. Summary of the Evidence

The documentary evidence in this matter is voluminous. The pertinent documentary evidence, supplemented by the sworn testimony at hearing, may be briefly summarized:

A. SPRINGFIELD PUBLIC SCHOOLS’ ATTENDANCE POLICY

1. During the 2005-2006 school year Springfield Public Schools had an attendance policy which was applied to all students without regard to age or special education status. After a student had been marked absent at his/her assigned school for more than ten days, a letter would be sent to the student’s address of record, requesting that the parent come to the school for a meeting. If the School did not receive a response from the Parent within five days of the date of the initial attendance notice the student would be unilaterally “inactivated”.2 The student’s assigned school was responsible for recording attendance, sending notification letters, and unenrolling students under this policy. The task was typically assigned to a clerk in the school building. There was no uniformity in the district on the job title or role of the person making the decision to unenroll a student. Nor were there any consistent criteria supporting decisions to unenroll students on the basis of poor attendance. There was no coordination with the Central Office of Special Education, the Parent Information Center, any other school or office in the Springfield Public Schools, or any human service agency. During calendar year 2005, 553 regular education students and 212 special education students were unilaterally removed from the Springfield Public Schools under this attendance policy. It is not known how many of the unenrolled students were under age 16 at the time. (P (1) 6, S (1) 20; P (2) 22, Messina; Birks; Morris)

2. Denise Messina has been the Supervisor of the Parent Information Center for three years. The Parent Information Center is the central enrollment site for all of the Springfield Public Schools. Ms. Messina is directly responsible for assignments to Springfield’s Middle and High schools, as well as for out-of-district placements. She testified that all new and returning students were required to enroll through the Parent Information Center. To enroll or re-enroll in Springfield a student, and the student’s parent if the student is under age 16, must be physically present at the Parent Information Center to provide proof of residence, medical records, a birth certificate and an IEP, if applicable. The same documentation is required for each re-enrollment. The enrollment/re-enrollment process requires a minimum of two business days, and up to two weeks in some cases, to complete. Once the student’s enrollment is completed, the student receives a school assignment. The assigned school must then “activate” the student in that school building’s computer system and attendance records. The “activation” process can take additional time. Ms. Messina noted that there was “chronic resistance” to re-enrolling or activating students with a history of poor progress or disciplinary concerns due to each school’s need to maintain “AYP numbers”3 for MCAS reporting. (Messina) Ms. Messina testified that she was aware of Springfield’s policy of unenrolling students with poor attendance records. She also testified that she believed application of the attendance policy to students under age 16 or with special education needs was inappropriate. Ms. Messina communicated her concerns directly to staff in the school buildings when she was sent their lists of “unenrolled” students. She also conveyed her concerns to her own supervisors. Ms. Messina did not, however, speak directly to any special education staff about her concerns with Springfield’s attendance policy. She noted that it was a common practice in Springfield to inactivate a student due to chronic absences because maintaining a student on active attendance rolls affected statistical reporting for state and federal testing programs. She also noted that Springfield’s physical presence requirement for the enrollment process created time, geographic, architectural, logistical, and relational barriers to enrollment for some students. (Messina)

3. Mary Ann Morris has been the Executive Officer for Special Education in the Springfield Public Schools since May 2006. She testified that the attendance policy in force during the 2005-2006 school year treated special education students identically to regular education students. The special education department was not notified when a special education student was administratively “unenrolled”. The act of “unenrollment” was clerical, not thoughtful or discretionary. Dr. Morris noted that individual schools were under significant pressure to have accurate student counts due to “AYP” demands under the federal “No Child Left Behind Act”. Attendance information was closely monitored by the Massachusetts Department of Education to ensure that it reflected students who were actually in the buildings. (Morris; see also: P (1) 6, S (1) 20; P (1) 33; S (2) 18; P (2) 22.)

Dr. Morris acknowledged that the unenrollment of Geraldo and Gilberto during the 2005-2006 school year pursuant to the then current attendance policy was improper. During the summer 2006, Springfield offered each Student 20 hours of individual home tutoring to address his claims for compensatory education for Springfield’s failure to provide special education services during the school year. Dr. Morris also developed a new attendance policy for Springfield, effective in January 2007. The new policy requires the school to provide active, documented notification to parents on at least three different occasions when a student is absent without a valid excuse for 10 days or more. For special education students, a notice of procedural safeguards, including a reminder that the student is eligible for special education services until the age of 22, is included in the absentee notice. In addition, the Educational Team Liaison for any enrolled special education student must be notified before the student is “unenrolled”. (S (2) 15; S (2) 16; Morris)

Dr. Morris also acknowledged that when attendance is an issue for a special education student, the student’s team should determine whether poor attendance is an indication or manifestation of the student’s disability, and whether that poor attendance is an environmental barrier to effective progress. Dr. Morris noted that no team meetings were held to discuss the attendance record of either Geraldo or Gilberto prior to any of the administrative unenrollments. Nor were Teams re-convened to consider attendance when the Students were re-enrolled. (Morris; see also Blair; Birks).

4. Mary Birks, currently the Director of Special Education in Ware, was a Special Education Supervisor in Springfield during the 2005-2006 school year. She testified that Springfield’s unenrollment policy was applied without regard to a student’s special education status. The elements of the unenrollment policy: counting absences, computer input, letters and notifications, were clerical, non-discretionary tasks. The type and amount of data collection, the wording and timing of the notices, as well as the role of the staff person responsible for enforcement of the attendance policy varied from building to building. The Special Education Department was not consulted in advance of the administrative unenrollment of an IDEA eligible student, was not notified when the unenrollment was completed, and was not notified if the Student re-enrolled. Ms. Birks testified that the Special Education Department usually found out about a student’s unenrollment when the student’s administrative file was pulled for an annual review and the computer listed the student as unenrolled. When the Special Education Department did learn of the administrative unenrollment, it did not perform a follow-up check on the student or make any inquires about the student’s status.

Ms. Birks stated that she did not agree with the unenrollment process and relayed her concerns to the Director of Pupil Personnel Services, Sandra Hill, the Supervisor of Attendance, Timothy Duquette, and the other Special Education Supervisor, Dan Warwick. She stated that it was her understanding that unilaterally unenrolling minor students is not consistent with state law. Furthermore, she believed that unilaterally unenrolling special education students violated IDEA requirements for Team meetings prior to discharge from special education and prior to discharge from school. According to Ms. Birks if a special education student presents with attendance issues, the Team needs to determine whether attendance is related to a disability or to the appropriateness of the student’s special education services. Prior to universal enforcement of Springfield’s attendance policy during the 2005-2006 school year, special education teams routinely worked collaboratively to address attendance issues, to discuss the causes of non-attendance, and to design prevention strategies and services. (Birks)

5. Timothy Duquette is the Supervisor of Attendance for Springfield Public Schools. He testified that the attendance policy in force during the 2005-2006 school year was drafted by the Springfield School Committee in the 2002-2003 school year. He and 11 other attendance officers were responsible for carrying out that policy. According to Mr. Duquette, the attendance officers worked closely with counseling staff to design individualized strategies to improve attendance for 26,000 students in Springfield. These strategies include home visits and incentives for attendance. Mr. Duquette testified that attendance officers did not make any decision concerning unenrollment of students. Attendance clerks or counselors at each school building handled the unenrollment paperwork. He further noted that attendance officers were not notified of the special education status of any student, and did not routinely contact other agencies that might be involved with any student. There was no set protocol for follow-up after a student’s unenrollment. There is no evidence in the record that Springfield attendance officers had any direct contact with Geraldo or Gilberto, or with their mother, during the 2005-2006 school year to encourage compliance with school attendance laws.

Mr. Duquette explained that some cases of chronic truancy prompt Springfield to file a “Child in Need of Services” (“CHINS”) petition on behalf of the student in Springfield Juvenile Court. In order not to overwhelm the court though, the school and the court had an informal agreement that no more than 7 CHINS petitions would be filed each week. (Duquette) Springfield filed a CHINS petition on the basis of truancy for Gilberto on January 14, 2005. It was dismissed on May 16, 2006. (P (2) 4; P (2) 22) Springfield filed a CHINS Petition on the basis of truancy for Geraldo on April 2, 2004. It was dismissed on May 16, 2006. (P (1) 37) There was no exchange of information between the court and the Springfield attendance office concerning the Students’ unenrollment status during the pendency of the CHINS petitions. Mr. Duquette acknowledged that an “unenrolled” student cannot be treated as truant by the Court because the school attendance rolls do not include the student’s name. (Duquette).

Mr. Duquette testified that the attendance policy in effect for the 2006-2007 school year differs from that in force during the 2005-2006 school year. The new policy bars automatic unenrollment for special education students. The names of truant special education students are “red-flagged” and referred to the special education department. In addition, the policy has clarified the role of attendance officers in notifying parents and securing parental assistance with attendance compliance. Springfield is also beginning a pilot program to improve attendance in the Middle School by targeting students with DSS involvement and providing more intensive coordinated services. (Duquette)

During the 2006-2007 school year, Geraldo and Gilberto continued to have significant attendance issues. Mr. Duquette worked with the attendance officer at Commerce High School, and Tammy Grimes, the Students’ special education teacher, to improve the brothers’ attendance, without significant results. (Duquette)

6. Tammy Grimes has been a special education teacher in the Springfield Public Schools for 18 years. Currently she teaches in the social/emotional/behavioral support classroom (“SEBS”) at Commerce High School, to which Geraldo and Gilberto are assigned. During the summer 2006, Ms. Grimes was authorized by Springfield to provide two hours per day four days per week of tutoring to the brothers. Ms. Grimes understood that the goal of the summer tutoring was to increase the Students’ familiarity with Ms. Grimes as a teacher in preparation for their placement in the SEBS class in September 2006. The brothers attended tutoring inconsistently and often not at all. Ms. Grimes sometimes went to their house when they didn’t show up, but no one answered the door. Ms. Grimes was available to provide tutoring from the last week of June until the first week of August. (Grimes)

During the 2006-2007 school year attendance continued to be an issue for the Students. According to Ms. Grimes the curriculum, support and services available in the SEBS classroom are appropriate for Geraldo and Gilberto. They appear to enjoy school when they attend, and are well-behaved and respectful. Geraldo did not attend school until November 15, 2006 and since then his attendance been inconsistent. Gilberto started on the second day of the school year and frequently attended three to four days a week. His last day of attendance, however, was January 31, 2007. Ms. Grimes has worked with the Attendance Officer, Ms. Rivera, to encourage the brothers’ attendance. They have made phone calls, home visits and sent letters with no discernable results. (Grimes)

7. During the 2005-2006 school year Geralado and Gilberto were 15 years old and eligible for special education services. During the 2006-2007 school year Geraldo and Gilberto were 16 years old and eligible for special education services. The primary language of the home is Spanish. The preferred instructional language for both Students is English.

B. Geraldo

8. At least by November 1996, when Geraldo was 6 years old, Springfield had identified him as a student with special learning needs. A psychological evaluation conducted in English by Springfield in 1996 found Geraldo to be functioning below 70 on a standardized intelligence test. (S (1) 19). Geraldo was re-assessed by Springfield in March 2001 when he was ten years old. Tested in Spanish by the school psychologist he again achieved a score below 70 on a standardized intelligence test. The psychologist noted that the 5 th grader’s academic skills fell primarily within the 1 st grade range of expectations. (S (1) 18). The earliest IEP in the record for Geraldo covers the1998-1999 school year when he was in the 4 th grade. (P (1) 32) The only other IEP in the record covers the time period May 2004 to May 2005, Geraldo’s 8 th grade year. (P (1) 32; S (1) 3) There are no contemporaneous assessments to support these IEPs. There are no progress reports in the record discussing Geraldo’s progress during the implementation of the most recent IEP, or evaluating the effectiveness of that IEP at the end of the IEP period. There is no indication in the record that a Team meeting was held to develop an IEP for the 2005-2006 school year, nor indeed, that an IEP was ever developed for that school year. There is no indication in this record that Geraldo has ever been found by Springfield to be ineligible for special education.

9. During the 2005-2006 school year Geraldo was assigned to Springfield’s High School of Science and Technology (“Sci-Tech”). Attendance records show that Geraldo was listed as “not enrolled” for the first six days of the school year. The record then shows a significant pattern of absences beginning on September 20, 2005. Geraldo was absent all or part of every school day until October 28, 2005. (S (1) 11, P (1) 2) On October 14, 2005, Sci-Tech sent a standard form notice in English to Geraldo’s home explaining the excused/unexcused absence policy. There is no indication that this notice was received. On October 27, 2005, Sci-Tech sent a notice in English stating that “no student shall be considered to have permanently left the school unless an administrator of the school has sent notice to the parent…” and offering to meet with the parent. The notice warned that unless the parent responded within 5 school days of the date of the letter the student would be “inactivated” from school. (S (1) 8) There is no indication in the record of parental receipt or response to this notice. No other notices from Sci-Tech concerning “unenrollment” were sent. No notices or meeting invitations were sent by the special education department as a result of Geraldo’s poor attendance or impending “inactivation”. Springfield unilaterally unenrolled Geraldo effective November 11, 2005. He was re-enrolled, though marked truant, on November 29, 2005. From that date until February 1, 2006, Geraldo attended only parts of five school days. Springfield sent another standard impending inactivation notice (identical to the one sent previously in October, 2005) to the parent on January 17, 2006 (P (1) 2, S (1) 4). On February 1, 2006, Springfield unilaterally administratively unenrolled Geraldo. Springfield attendance records show that he returned to school on April 26, 2006, had a period of significant truancy between May 8 th and May 31 st , 2006, and returned to finish the school year. (P (1) 2, S (1) 11)

10. During the 2005-2006 school year there was an open CHINS for truancy pending at the Springfield Juvenile Court. There is no evidence that there was any communication among the juvenile court, the probation office, Springfield Public Schools attendance office, and Springfield’s special education department concerning Geraldo.

11. There is no evidence in this record that during the 2005-2006 school year Springfield’s Special Education Department communicated with the parent, notified the parent of her procedural rights under the IDEA and M.G.L.c.71B, conducted any assessments of Geraldo, convened any team meetings, issued any progress reports, provided any special education services, or in any way responded to Geraldo’s documented special education needs and entitlements or to his chronic absenteeism.

C. Gilberto

12. Springfield identified Gilberto as a student with special learning needs when he was three years old. He received special education services in preschool and early elementary school. (S (2) 22) The only special education assessment in the record, a psychological evaluation conducted when Gilberto was a 9 year old third grade student, found that he had severe verbal processing and memory deficits and that he achieved academically one to two years below his grade placement level. (P (2) 9, S (2) 20)

The only Individualized Education Plan in the record was developed in April 2004 to cover the 2004-2005 school year when Gilberto was in the 8 th grade. The IEP noted that Gilberto was functioning at a late third grade academic level. It offered one period per day of special education instruction in English, reading and math. It is not evident in the record that this IEP was ever implemented. No progress reports were produced under this IEP. (P (2) 9, S (2) 4)

13. Springfield Public Schools filed an initial truancy CHINS petition in Juvenile Court seeking assistance for Gilberto on January 14, 2005. (P (2) 4; P (2) 22; P (2) 15;). The petition was dismissed on May 16, 2006. There is no indication in this record that there was any communication about Gilberto between the court, the probation officers and Springfield’s attendance officers on the one hand, and Springfield’s special education department on the other hand.

14. For the 2005-2006 school year Gilberto was assigned to the 9 th grade at Sci-Tech High School. There is no IEP for that year in the record. On October 14, 2005, Springfield sent the parent a notice in English that Gilberto had missed twelve or more days of school and explaining the excused/unexcused absence policy. (S (2) 8) No other school notices or correspondence concerning Gilberto, Springfield’s attendance policy, or Gilberto’s educational or special educational program, appear in the record. There are no progress reports. There are no assessments or evaluations. There were no team meetings held to discuss Gilberto’s special education needs, his chronic absenteeism, or the services available to him in the Springfield Public Schools.

15. On March 3, 2006, Springfield unilaterally, and without notice, unenrolled Gilberto. By then he had been absent 84 of 112 school days. (P (2) 15). No notice of the de-activation was sent to the parent, the student, or the GAL appointed by the Juvenile Court in Springfield’s then active CHINS action. No notices were issued by the Special Education Department. Gilberto did not return to school for the remainder of the 2005-2006 school year.

FINDINGS AND CONCLUSIONS

There is no dispute that Geraldo and Gilberto are, and were during all relevant time periods, students with special learning needs entitling them to a free, appropriate public education pursuant to M.G.L. C. 71B and 20 U.S.C. 1401 et seq . Nor is there any dispute that Geraldo and Gilberto have lived continuously in Springfield with their mother who is a less than effective advocate for them. Indeed there is very little substantive disagreement on the pertinent facts of this matter. The essential question is a legal one: Whether the unilateral, administrative “unenrollment” of a special education student is a “change of placement” triggering the substantive and procedural protections afforded to students with disabilities covered by the IDEA 2004 and M.G.L.c. 71B? After careful consideration of the entire evidentiary record and the able arguments of counsel for both parties, it is my determination that “unenrollment” is a change of placement under the IDEA. My reasoning, and the consequences of this conclusion are explained below:

Once identified as eligible for special education,4 students with disabilities are entitled to the full panoply of IDEA procedural protections. Among these are the guarantee that a carefully tailored instructional program designed by a Team of knowledgeable evaluators and teachers to address the student’s individual learning needs will be provided in the least restrictive setting. Federal and state special education law contemplate that the IEP developed in a collaborative planning process will result in a “placement” that is appropriate for the student. Neither the IEP nor the placement, once accepted by the parent, may be changed without parental consent or an order from the BSEA or a court. (603 CMR 28.08 (7).) The term “placement” has a specific meaning in the context of special education. It is an extension of ordinary English usage. “Placement” for special education purposes is the entire package of special education services and regular education modifications bundled with the type of classroom, the amount of the mainstream contact and content, the length of the school day and year, the student: teacher ratio as well as the physical location. Since any one of these factors may be critical to the delivery of appropriate special educational services to a student, none may be changed unilaterally by the school.5 In this matter the parties agree, though the evidence is scant, that Geraldo and Gilberto were in a special education “placement” at Sci-Tech High School during the 2005-2006 school year. The question is whether, when Springfield unilaterally “unenrolled” these students, their special education placement was “changed”.

Springfield argues that the Students’ placement was not really “changed” because the placement itself continued to exist at Sci-Tech. According to Springfield the students could have benefited from the program at Sci-Tech had they just attended it. Their failure to attend reflected inadequate parental supervision and poor agency involvement rather than any deliberate obstruction by the Springfield Public Schools. Since appropriate special education services were always available to the students whenever they chose to attend Sci-Tech, and the unenrollment was a mere clerical procedure Springfield argues, there was no denial of a free, appropriate public education. This argument might have been more persuasive had Springfield demonstrated an ongoing commitment to meeting the educational needs of these Students. Similarly a showing that Springfield zealously protected the procedural rights of the Parent and Students to appropriate communication and participation in the design and implementation of the Students’ special education program would have lent some weight to this argument. Here, however, there was no such showing. Indeed it is difficult to imagine a more stark “change” in a student’s placement than termination.6 Courts have generally considered a potential alteration in a student’s special education program to be a “change in placement” if it has a significant effect, particularly a detrimental substantive effect, on the student’s overall special education program. See eg: AW v. Fairfax County School Board , 372 F3d. 674 (4 th Cir. 2004).

Not surprisingly there are no reported judicial decisions considering a public school district’s practice of unilateral unenrollment of minor special education students for truancy. Administrative elimination of a special education student’s access to school is apparently not a common practice. The closest analogous decisions address the IDEA responsibilities of public school districts seeking to terminate a student’s IDEA eligibility by awarding a high school diploma. Courts have consistently found that graduation is a change of placement triggering the IDEA’s substantive and procedural protections. Terminating a student’s IDEA eligibility through graduation requires, at a minimum, parental notification of special education rights and the informed consent of the parents and/or adult student or permission of the BSEA or a reviewing court. Note that because high school graduation eliminates a student’s eligibility for special education, and drops the student from active attendance rolls in the district, it is considered a “change in placement” for the student even when the special education program the student had attended continues to exist.

A similarly imperfect analogy can be made to circumstances in which a school district attempts to escape its IDEA obligations to an eligible student through expulsion. Since Honig v. Doe , 484 U.S. 305 (1987) courts have consistently ruled that the disciplinary removal of a student with disabilities from an existing special education program is considered to be a “change of placement” requiring the school to evaluate the student, conduct a team meeting, propose an alternate special education plan, and provide special education services pending an agreed upon placement. It is clear from the reasoning supporting these decisions that the statutory phrase “change of placement” attaches to the student, and to the student’s access to a proferred program, and not to the physical location or continued existence of the special education program within the school.

Springfield argues that “unenrollment” under its 2005-2006 attendance policy was a mere clerical procedure that did not have any substantive effect on the special education program available to Geraldo and Gilberto. The evidence shows otherwise. Once unenrolled the Students could not attend school. They could not just walk into the building the next day, sit in their assigned classes, and ignore their administrative status. Springfield’s unenrollment and re-enrollment process posed significant logistical and administrative barriers to implementation of their special education plans. (See pp 2) Geraldo and Gilberto were both 15 year old students with compromised intellectual capacity. There is no evidence in the record that Springfield ever discussed the re-enrollment process with the Students or with their mother. There is no evidence that it ever provided written information concerning the process to the Students, or to their mother in her primary language, Spanish. Nevertheless the Students were expected to know how to appear at the Parent Information Center with their mother, known to Springfield as an absent or ineffective school parent, with all necessary documents. It is no wonder that weeks would elapse before an advocate for the Students would step in to ensure that Springfield re-established their eligibility to participate in their assigned special education program. During those weeks, sometimes months, of “unenrollment” the Students received no educational services from Springfield, despite their undisputed special education eligibility and despite being of compulsory school attendance age.

The extent of procedural noncompliance in this matter is startling. During the 2005-2006 school year neither Student had a current IEP, despite placement in a new program in a new school as a result of the age appropriate progression to High School. Neither Student had had an educational, psychological, or academic evaluation within the previous three years. There are no progress reports in the record which might indicate the Students’ participation in any special education service during the 2005-2006 school year. There is no indication that any Team meetings were held to plan for the 2005-2006 school year or to address the delivery of appropriate services to the Students at any time during that school year. There is no indication in the record that any special education service provider or administrator had any contact with the Students or with their mother during the 2005-2006 school year. There is nothing in the record from which I could conclude that the Students received any special education services at all during the 2005-2006 school year. This occurred despite on-going “supervision” by the Juvenile Court probation office as a result of a school filed CHINS petition. It occurred despite the appointment of a Guardian Ad Litem for the Students. It is difficult to imagine what other steps should have been taken to focus Springfield’s attention on these two Students. The issue before me, however, is limited. Based on the compelling evidence of the Students’ lack of access to special education services during periods of unenrollment, and administrative and judicial treatment of similar barriers to service delivery posed by graduation and expulsion, I find that administrative unenrollment for truancy is functionally equivalent to termination of a special education program and placement for a special education student. Unenrollment bars a student from further participation in his/her agreed upon special education placement until certain other administrative steps unrelated to special education are completed. Contrary to the requirements of the IDEA and M.G.L.c. 71B, the decisions to terminate or to re-establish the special education programs for Geraldo and Gilberto were not made by the Student’s Team. The evidentiary record in this matter more than amply supports the conclusion that the actions of the Springfield Public Schools in enforcing its attendance policy with respect to Geraldo and Gilberto directly resulted in their unenrollment and the consequent termination of their special education program on multiple occasions and for extended periods of time.7 As there is no evidence that the Students derived any educational benefit from their imposed absence from school, I find that the multiple unilateral unenrollments of these Students had a “detrimental” substantive effect on the Students by depriving them of a free, appropriate public education throughout the 2005-2006 school year.

The BSEA may order compensatory education to remedy past deprivations of special education rights. Pihl v. Massachusetts Department of Education , 9 F. 3d 184 (1 st Cir. 1993). A school district which violates a student’s procedural rights under federal or state law may be liable for compensatory education where “procedural inadequacies [have] compromised the pupil’s right to an appropriate education….or caused a deprivation of educational benefits.” Roland M. v. Concord School Comm ., 910 F. 2d 983, 994 (1 st Cir. 1990) (citations omitted), cert. den . 499 U.S. 912 (1991). See also: Board of Education of Hendrick Hudson Central School District v. Rowley , 458 U.S. 176, 205 (1982); Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d. 1186 (1 st . Cir. 1994).

In this matter, by unilaterally terminating the Students’ special education placements, Springfield disregarded its procedural obligations as set out in IDEA 2004 and M.G.L.c. 71B. In particular, Springfield violated several interrelated statutory provisions designed to ensure a disabled student’s right to a free appropriate public education. Springfield failed to give the parent notice of its intent to “change the….educational placement” of the Students as required by 34 CFR 300. 503 (a)(1); failed to re-evaluate the Students before determining they were no longer entitled to receive FAPE, 34 CFR 300.305 (e); failed to advise the parent of her procedural rights, including the Students’ right to remain in their special education placement, pursuant to 34 CFR 300. 504;8 failed to ensure parent participation in the team planning process as required by 34 CFR 300. 345; and indeed failed to engage in the team process at all in violation of 34 CFR 300. 346.9

The procedural rights of parents and students to advance notice of any proposed change in placement, to an opportunity to discuss the School’s proposal with the student’s team, to consent to or to challenge the School’s proposed change, and to continue to receive special educational services in the last agreed upon placement while that challenge is being resolved, are fundamental and critical components of both federal and state special education law. The administrative unenrollments of Geraldo and Gilberto flouted these procedural guarantees and resulted in immeasurable deprivation of substantive educational benefit. Therefore I find that they are entitled to compensatory educational services.

I acknowledge and applaud the candor of the Springfield Schools’ staff whose testimony at the hearing showed genuine concern and compassion for Geraldo and Gilberto. I also acknowledge that the advocacy of the special education teachers and administrative staff has resulted in a positive change for students with disabilities under Springfield’s current attendance policy. Nevertheless, the harm caused by the improper application of Springfield’s 2005-2006 attendance policy and the inaction of the special education department at that time is profound and Springfield’s response to these Students’ requests for compensatory services falls far short of reasonable under the circumstances.

Due to the extent of the substantive harm experienced by Geraldo and Gilberto as a result of Springfield’s procedural violations of the IDEA, I find that a co-extensive remedy is appropriate. Springfield must provide each Student with a minimum of one full school year of compensatory special education services designed to address all their identified special education needs: academic, emotional (including school avoidance), vocational, organizational and transitional. The team must meet to develop creative, age appropriate evaluations and programming, and to decide the appropriate timing and location for delivery of the compensatory services. The students’ age eligibility may be extended beyond age 22 should the Team determine it is necessary for receipt of appropriate compensatory services.

ORDER

The administrative “unenrollments” of Geraldo and Gilberto, minor students with disabilities entitled to attend Springfield Public Schools during the 2005-2006 school year, constituted changes of educational placement as that term is used in the IDEA, M.G.L.c. 71B and their implementing regulations. Springfield failed to comply with any of the procedural requirements which attach to changes of educational placement for students with special education needs. The unilateral unenrollment of these Students violated both their substantive and procedural special education rights. Geraldo and Gilberto are entitled to, and Springfield shall provide, one full school year of comprehensive, compensatory special education programming.

The Hearing Officer will retain jurisdiction of this matter for compliance purposes only. The parties will submit a plan to address the compensatory program ordered in this decision no later than September 30, 2007.

So Ordered by the Hearing Officer,

________________________

Lindsay Byrne

Dated: June 18, 2007


1

Geraldo and Gilberto are pseudonyms chosen by the Hearing Officer to protect the privacy of the Students
in all documents available to the public.


2

The terms “unenrolled”, “inactivated”, “deactivated” are used interchangeably in the documents and by most witnesses to mean the act of removing a student’s name from official attendance rolls.


3

Annual Yearly Progress


4

and in some limited cases not relevant here, before.


5

For a thoughtful and comprehensive discussion of the meaning of the term “educational placement” under the previous incarnation of the IDEA please see: Boston Public Schools and George , 10 MSER 311 (Crane, 2004). I am not aware of any change in statutory language or any significant judicial reinterpretations of the term “placement” since that BSEA ruling.


6

A variety of proposed alterations in a student’s special education programming have been evaluated by courts to determine whether a change in placement has occurred. One interesting discussion appears at Casey K. v. St. Anne Community High School , 400 F. 3d 508 (7th Cir. 2005).


7

Although the counts vary by a few days depending on the nature of the document the evidence shows Geraldo was “unenrolled” for approximately 72 days and Gilberto was “unenrolled” for approximately 43 days of the 180 day 2005-2006 school year.


8

Citations are to federal regulations promulgated in 1999 which remained in effect during the 2005-2006 school year despite the intervening passage of the superceding statute IDEA 2004. These cited provisions retain the same reference numbers and substantially the same content in the regulations issued pursuant to IDEA 2004 but not effective until October 2006.


9

In the regulations issued pursuant to IDEA 2004, effective October, 2006, 34 CFR 300. 345 was renumbered 34 CFR 300. 322 and 34 CFR 300.346 was renumbered 34 CFR 300. 324. The pertinent regulatory language remained the same as did the statutory basis for the regulation at 20 U.S.C. § 1415.


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