Laura and Boston Public Schools – BSEA #03-1154



<br /> Laura and Boston Public Schools – BSEA #03-1154<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Laura1 & Boston Public Schools

BSEA # 03-1154

DECISION

This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act or IDEA), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.

A hearing was held on June 12, 16 and 26, 2003 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Nancy Rosoff Director, Learning Prep School

Mary Nash Principal, Mary Lyon School, Boston Public Schools (BPS)

Herve Anoh Director, Academy at the Mary Lyon School, BPS

Dolores Martinez Teacher, Mary Lyon School, BPS

Janice Hanrahan Teacher, Mary Lyon School, BPS

Elinda Scherr Speech and Language Therapist, BPS

Maureen Harris Assist. Director of Curriculum and Instructional Practice, BPS

Carrie-Ann Kerwin Assist. Program Director for Teaching and Learning, BPS

Robert Crabtree Attorney for Parents and Student

Alissa Ocasio Attorney for BPS

Elizabeth Kurlan Litigation Director, BPS

Andrea dos Santos Law Clerk, BPS

Sonya Medeiros Court Reporter

Thomas Houton Court Reporter

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 through P-74 (with the exception of documents marked as P-5, P-13, P-14, P-15, P-21, P-30, P-31, P-32, and P-37 which were not admitted); documents submitted by the Boston Public Schools (hereafter, BPS) and marked as exhibits S-1 through S-17; and three days of recorded oral testimony and argument. Written closing arguments were submitted on July 29, 2003, and the record closed on that date.

INTRODUCTION

The essential issue in dispute is whether Student was appropriately retained in the 8 th grade at her elementary school, rather than be promoted into the 9 th grade and placed at another school. This presents a complicated question for which there is little precedent, either judicial or administrative.

On March 4, 2002, Parents unilaterally withdrew their daughter (Student) from BPS’s Mary Lyon Elementary School (hereafter, Mary Lyon) and placed her at a private school called the Learning Prep School (hereafter, LPS) which she attended for the remainder of the 2001-2002 school year as an 8 th grader and all of the 2002-2003 school year as a 9 th grader. In June 2002, BPS proposed an IEP for the 2002-2003 school year (9/02 to 6/03) which would retain Student in the 8 th grade at the Mary Lyon. Exhibit P-1.

Parents rejected this IEP, and on October 23, 2002, they filed with the Bureau of Special Education Appeals (hereafter, BSEA) a Request for Hearing . Parents requested an Order from the BSEA that (1) BPS provide Student with an IEP placing her at LPS, (2) BPS provide her with transportation to and from LPS, and (3) BPS reimburse Parents for all transportation and other expenses incurred by reason of their enrollment of Student at LPS beginning in September 2002. Parents also sought from the BSEA a finding that Parents are the “prevailing party” within the meaning of 20 USC 1415(i)(3)(B).2

On November 25, 2002, the BSEA re-assigned this matter to the present Hearing Officer, and on December 9, 2002, a Pre-Hearing Conference was conducted at the BSEA’s offices. At that time, Hearing dates were scheduled for February 2003. On January 31, 2002, Parents filed a Motion to postpone the Hearing dates and to consolidate this matter with any dispute regarding the yet-to-be-completed IEP for the 2003-2004 school year. BPS did not object to the postponement, and Parents eventually withdrew their request for consolidation. The Hearing Officer allowed postponement of the matter, and the case was scheduled for Hearing in June 2003.

On April 10, 2003, Parents’ filed a Motion for Partial Summary Decision and for Stay Put Placement (hereafter, Motion for Partial Summary Decision ) taking the position that to so retain Student denied her a free appropriate public education (hereafter, FAPE), violated BPS’s Promotion Policy and discriminated against her in violation of Section 504 of the federal Rehabilitation Act.

In a Ruling dated April 30, 2003, the Hearing Officer dismissed Parents’ Motion for Partial Summary Decision on the basis that Parents had not submitted sufficient facts to indicate that harm actually occurred as a result of BPS’s not precisely following the procedures set forth within its Promotion Policy and because there was a genuine dispute regarding important factual issues relevant to Parents’ other claims. A copy of the Ruling regarding Parents’ Motion for Partial Summary Decision is attached to this Decision as Appendix A, and is incorporated herein.

On May 5, 2003, Parents filed a Motion for Bifurcated Hearing . BPS did not oppose the Motion, and it was allowed by the Hearing Officer.

In accordance with the Hearing Officer’s Order allowing the Motion for Bifurcated Hearing , this Decision is limited to the following issues:

ISSUES PRESENTED

Issue 1 : Whether Student sufficiently completed the requirements of 8 th grade English language arts to entitle her to be promoted to the 9 th grade.

Issue 2 : Whether BPS complied with the procedural requirements of its Promotion Policy ; if BPS did not so comply, whether its violations of such Policy caused substantive harm to Student; and if substantive harm occurred, what relief, if any, should be provided Student.

FACTS

Student is a fifteen-year-old girl (date of birth 6/16/88) who resides with her parents in Boston. Both of Student’s parents are attorneys. Student’s diagnoses include non-verbal learning disability, Asperger’s Syndrome, attention deficit hyperactivity disorder and anxiety. Testimony of Parent3 ; Exhibit P-1.

Student attended BPS’s Mary Lyon School for nearly seven years, beginning in kindergarten until she left the school on March 4, 2002 during the spring of her 8 th grade year. Testimony of Parent

1. 7 th grade at the Mary Lyon .

During her 7 th grade (2000-2001 school year) at the Mary Lyon, Student’s IEP Team met on January 30, 2001 to discuss her progress and consider what services and placement would be appropriate for Student for the next IEP cycle, which was 01/2001 to 01/2002. The IEP developed as a result of the January 30, 2001 meeting reflected that Student was working below grade level in reading. Under the heading “Student Strengths and Key Evaluation Results Summary” the following comments were made regarding Student and her language skills:

[Student] is a 12.7 year old student currently attending an integrated 7 th grade classroom as the Mary Lyon School. [Student] is working at 6 th grade level in reading. She can decode words and read fluently but has difficulty with comprehension. In terms of written communications, [Student] has difficulty with the physical task of writing. On the Brigance, [Student] ranked at the 6 th grade level in reading . . . .

Exhibit P-34 (page 1 of 11). Parent testified that she had no reason to disagree that Student was reading at the 6 th grade level when this IEP was written.

In June of Student’s 7 th grade year (2000-2001), Parents were notified that Student had not passed a math standardized test, and that Student must pass this test in order to be promoted to the next grade. BPS offered a summer remedial program but this conflicted with a special needs summer program which had previously been arranged by Parents. Therefore, Parents privately arranged for tutoring during the summer, Student then re-took and passed the math test, and Student was promoted to the 8 th grade. Testimony of Parent, Martinez.

Student’s grade report for the 7 th grade (the 2000-2001 academic year) indicates final marks of B + in English/Language Arts, B + in Foundations of Writing, B + in Social Studies, A in French, B- in Math, B + in Science and B + (for half the year) in Art. This report further indicates that Student passed the standardized test (SRI) used by BPS to determine that a student has reached her appropriate reading comprehension level. The English/Language Arts course taken by Student was ELA 102 which teaches 7 th grade curriculum. Testimony of Parent, Martinez; Exhibit P-23.

Student’s progress reports for the 2000-2001 school year were positive, indicating satisfactory work in all subject areas. The progress reports for English Language Arts were particularly positive toward the middle and end of the year with no indicated weaknesses and with positive comments such as “What great strengths [Student] has in language.” These progress reports also indicated that Student was having difficulties with certain skills with respect to math. None of the progress reports or grade report for this year indicated any concern regarding Student’s promotion to the next grade. Testimony of Martinez, Nash, Anoh; Exhibits S-8, P-22, P-27, P-28, P-35, P-39.

During the 7 th grade year (2000-2001), Parents had many meetings and communications with Mary Lyon teachers and staff. Through these meetings, Parents were kept well informed of Student’s progress at school. Of central concern to Parents during that time period was that Student was having an extremely difficult time socially. Student was being ostracized (for example, through teasing, harassment and bullying) by some of her classmates, and Student was very anxious at school. It was also noted that Student’s disability results in behaviors that can lead to these kinds of responses from other children. Testimony of Parent, Nash, Hanrahan, Anoh.

Parent testified to the intensity and the continuity of the teasing and bullying, how it left Student alone among her peers, and the resulting emotional impact upon Student as observed by Parent at home. Parent described the school experience as a “horrible environment for [Student] socially and emotionally”, resulting in her having “severe anxiety”, causing her to retreat into a fantasy world and significantly impacting upon her emotional stability. Testimony of Parent; transcript of third day of Hearing, pages 219-224.

2. 8 th grade at the Mary Lyon .

Parents privately enrolled Student in a special needs summer program where she was a “different person” socially and emotionally. When the 8 th grade year (2001-2002) at the Mary Lyon began, Parents were hopeful that this year would be different than the year before with respect to social issues. Soon after starting 8 th grade, however, the social difficulties from 7 th grade began again. Parent met with all of her daughter’s teachers and the Mary Lyon principal (Dr. Nash) on September 14, 2001 to discuss these concerns. Because the most difficult times were during unstructured periods, it was agreed that Student would have lunch with 6 th graders (this lunch group was supervised by Ms. Hanrahan who has had a close and supportive relationship with Student). Notwithstanding what Parent believes to have been very significant efforts on the part of Mary Lyon teachers and staff, the social difficulties continued unabated for Student. Testimony of Parent, Hanrahan, Nash.

At the end of August 2001, Student’s service team (made up of Student’s teachers and other professionals providing services to her) at the Mary Lyon met to consider Student’s placement for her 8 th grade year (2001-2002 school year). The service team determined that it would be in Student’s interests for her to repeat ELA 102 (ELA 102 teaches the 7 th grade language arts curriculum; ELA 103 teaches the 8 th grade curriculum). Typically repeating a course is recommended because a student has not completed the curriculum taught in that course. In Student’s case, there were concerns about her language arts skills and repeating ELA 102 was seen by the service team as a way of consolidating her skills in this area. There was also concern that if placed under too much academic stress, Student may regress emotionally. Testimony of Martinez, Nash, Hanrahan.

Parents concurred with Student’s placement into ELA 102. Parent testified that she preferred that Student be in ELA 102, rather than ELA 103, because the teacher for ELA 102 (Martinez) demonstrated a sensitivity to Student’s social issues and sought to help Student in this area, as compared to the teacher of ELA 103. With respect to this placement, Parent testified that she was not informed that there would be a risk of being retained at the end of the school year because of not completing the 8 th grade language arts curriculum, and that had she been so informed, she would have taken whatever steps would be necessary to ensure promotion. Testimony of Parent.

Student continued in the ELA 102 placement for the entire 8 th grade year, except for the month of January 2002 when Student was placed in ELA 103 in order to work on her persuasive writing skills. Testimony of Martinez.

An IEP was prepared as a result of the February 27, 2002 Team meeting (the new IEP was for the time period 2/02 to 6/02) and again reflected that Student was working below her 8 th grade level in reading. Under the heading “Student Strengths and Key Evaluation Results Summary” the IEP reads that “[Student] is currently reading at a 7 th grade level.” Exhibit P-17 (page 1 of 11).

Parent testified that she spoke frequently with her daughter’s ELA teacher (Martinez) and that she had no reason to disagree that, during 8 th grade, Student was reading at the 7 th grade level. Parent further agreed that throughout Student’s tenure at Mary Lyon, Student experienced difficulty with reading comprehension, although gains have been noted during the past twelve months. Testimony of Parent.

Student’s report card for the first two marking periods of 8 th grade at Mary Lyon indicates that she received passing grades in all subjects, including a grade of B + in 8 th grade English Language Arts for both marking periods. The teachers’ progress reports were generally positive although in mathematics, Student was observed to seem “confused” regarding math concepts during class work and tests and needs “a lot of support when she is completing her work”. There is no indication within these reports that Student was at risk of retention. Exhibits S-6, S-7, S-12, P-8.

3. Student’s transfer to the Learning Prep School during 8 th grade .

On March 4, 2002, Parents removed Student from Mary Lyon and unilaterally placed her at the Learning Prep School (LPS), with no break in school days. LPS is a 766-approved private special education school located in West Newton, Massachusetts. Student began at LPS on a two-week trial period, a procedure common to children being considered for placement at LPS. After the two-week trial, the LPS director (Rosoff) concluded that Student was appropriate academically for placement at LPS, but believed that a longer trial period was necessary to assess Student’s social and emotional compatibility with the school. The initial two-week placement was therefore extended for six to seven weeks. At the end of the trial period, the LPS director was satisfied that Student was appropriately placed at LPS. Student continued to attend LPS for the remainder of the 2001-2002 school year. Testimony of Parent, Rosoff.

Parent and the LPS director (Rosoff) testified that from the beginning of her placement at LPS on March 4, 2002, Student did well academically as well as socially even though Student typically has emotional difficulty with transitions. Ms. Rosoff reported that when Student arrived at LPS in the beginning of March, Student was extraordinarily anxious, but by the end of the first two weeks, presentation of her social and emotional issues had diminished approximately 20%. Ms. Rosoff explained that by the end of March, after working with an LPS counselor on a daily basis, Student was much less anxious. Ms. Rosoff testified that Student continued to make progress emotionally, as well as in her course work, handling the curriculum well and placing in the mid to upper range of her class academically. Ms. Rosoff also explained in some detail that the 8 th grade curriculum taught to Student at LPS is aligned with the Massachusetts Curriculum Frameworks.

Student completed her 8 th grade at LPS where she received passing grades in all subjects, including a grade of B in language arts and a grade of B in literature. On June 7, 2003, Student graduated from the 8 th grade at LPS. Testimony of Parent, Rosoff; Exhibit P-10.

Ms. Rosoff testified that during the 9 th grade year (2002-2003) Student has continued to work with a counselor and has made further gains regarding her social/emotional issues. She also explained that Student has done well academically, having recently been promoted to the 10 th grade. Testimony of Parent, Nash.

4. The decision to retain Student at the Mary Lyon for the 2002-2003 school year .

During Student’s 8 th grade (2001-2002 school year), there were three meetings of Student’s IEP Team. The first of these three meetings occurred on February 27, 2002 . Principal purposes of this meeting were to review Student’s progress, consider future placement and prepare an IEP for the remainder of the school year at Mary Lyon (the cycle of the current IEP was 01/2001 to 01/2002). Parent’s recollection of the meeting was that there was no mention made that Student was at risk of not completing necessary course requirements for promotion or that Student was otherwise at risk of retention for academic reasons. However, the Mary Lyon principal (Nash) testified that at this meeting, for the first time, it was mentioned as a possibility that Student might be retained because of language arts. Student’s math and ELA teacher (Martinez) also recalled discussion of the possibility of retention at the Mary Lyon but did not recall any mention of Student being retained for academic reasons. Testimony of Parent, Martinez, Nash, Anoh.

Prior and subsequent to the February Team meeting, Parents and Mary Lyon staff were considering possible placements for Student for the next school year. Student was in the 8 th grade and Mary Lyon is an elementary school that ends with 8 th grade. Parents visited the Fenway School on February 6, 2002. Dr. Nash (the Mary Lyon principal) and another staff person (Ms. Scherr) from Mary Lyon visited a Newton North program in December 2001 and January 2002 in order to consider it for Student. Dr. Nash also suggested consideration of the Boston Arts Academy. The Fenway, another Boston high school program, was also considered. All these programs (the Fenway, Newton North and the Boston Arts Academy) were considered for purposes of a placement of Student into 9 th grade – that is, a promotion of Student to the next grade. Testimony of Parent, Nash.

The second of the three Team meetings during Student’s 8 th grade (the 2001-2002 school year) occurred on April 30, 2002 . A principal purpose of the meeting was to consider placement options for Student for the next school year. Dr. Nash (the Mary Lyon principal) put forward three possible choices for the Team to discuss. The Fenway School was considered, but the Team members expressed concern as to whether Student would be successful in a school where there are relatively large class sizes. Parents agreed that this would not be an appropriate placement. Parent testified that she recalled no mention at the meeting that Student was unprepared to enter the 9 th grade, and recalled no indication that Student’s academic abilities would in any way preclude her from going to the Fenway. Testimony of Parent, Nash.

A second possible placement discussed at the April 2002 Team meeting was LPS, where Student had been placed since March 4, 2002. Parents spoke of their understanding of Student’s progress at LPS; but at this point in time, no written progress reports had been prepared by LPS, and Parents’ verbal report of Student’s progress gave the Team insufficient information by which this potential 9 th grade placement could be evaluated by the Team. BPS Team members requested that additional information be provided regarding LPS so that the placement could be considered by the Team. Testimony of Parent, Nash, Kerwin.

The third possible placement discussed at the April 2002 Team meeting was for Student to remain at the Mary Lyon for the next school year. Because the Mary Lyon is an elementary school which does not go beyond the 8 th grade, this placement would mean that Student would be retained in 8 th grade. Parents understood this to be the first time that BPS staff or teachers had raised with them the possibility that their daughter would be retained. The Parents understood the Team to be concerned about Student’s social issues, that retention was being considered in response to these concerns, but that there was no discussion of any academic difficulties relative to the possible retention of their daughter. Parent also believed that retention was being considered because no other appropriate placement had been identified. Testimony of Parent, Nash, Anoh, Kerwin.

The testimony of Student’s ELA and math teacher (Martinez) was that at this Team meeting there was discussion of the possibility of retention for academic reasons (math and language arts) in order for Student to be successful in the next academic year placement. The testimony of the BPS assistant program director for teaching and learning (Kerwin) was that the Team discussed Student’s being in ELA 102 (learning the 7 th grade curriculum) this year, that Student had not completed the 8 th grade ELA curriculum, that for emotional reasons, Student would have difficulty making a transition; and that for all of these reasons, the Team was considering retention of Student. The principal (Nash) testified that there was discussion at the Team meeting that Student was at risk of retention because of her difficulties regarding English language arts and pragmatic language skills, and her anxiety regarding transitions. Testimony of Martinez, Kerwin, Nash.

BPS staff then sought to observe at LPS and to obtain information from teachers and staff at LPS in order to consider further this placement for the 9 th grade. The accounts of the witnesses differed as to what then occurred. BPS staff testified that several BPS staff called the LPS director (Rosoff) leaving messages, but Ms. Rosoff did not respond. Ms. Rosoff testified that she responded to the first telephone call on May 30, 2002, explaining to the BPS staff person that classes were ending on the next day and that it therefore would not be possible for BPS staff to observe a class at LPS during this academic year. Testimony of Kerwin, Rosoff.

On or about June 4 or 5, 2002, PBS staff contacted Parent about these difficulties in obtaining additional information from LPS. Parent indicated to BPS that they (the Parents) were in favor of BPS staff gaining access to and learning about Student’s services and progress at LPS, with the hope that BPS would be persuaded that LPS was an appropriate placement for their daughter. Parent agreed to contact Ms. Rosoff. Testimony of Parent, Kerwin, Rosoff.

It is not disputed that the LPS director (Rosoff) responded to BPS staff in June 2002, indicating that there would be no opportunity for BPS staff to observe. The LPS director (Rosoff) offered BPS the opportunity to speak with an LPS staff person by calling a LPS vice principal. BPS staff testified that this person did not return BPS staff’s phone calls; Ms. Rosoff testified that LPS telephone logs indicate that no telephone calls or messages were received from BPS regarding Student. Testimony of Rosoff, Kerwin.

Notwithstanding the efforts of BPS staff and the cooperation of Parents, BPS staff were not able to observe at LPS and did not have any substantive discussions with LPS staff regarding the educational program for Student at LPS or Student’s progress there during the 2001-2002 school year. An observation of LPS by BPS staff was eventually arranged, through the assistance of counsel for both parties, taking place during the 2002-2003 school year. This visit and observation included four staff from Mary Lyon spending part or all of four days at LPS. Testimony of Kerwin, Rosoff, Nash.

The third of the three Team meetings during Student’s 8 th grade (the 2001-2002 school year) occurred on June 12, 2003 . The purpose of the meeting was to review additional information regarding possible placements for Student. However, there was no new information because BPS had not been successful in visiting or talking with staff from LPS, and the LPS written progress reports regarding Student were not yet available. Parents again reported verbally on their understanding of their daughter’s progress at LPS, but without written progress reports, the opportunity to observe at LPS and/or other information directly from teachers and staff at LPS upon which the LPS proposed placement could be evaluated, the Team was not able to consider an LPS placement for Student. Testimony of Parent, Kerwin.

At this June meeting, the Team further discussed the possible retention of Student at the Mary Lyon. Parents understood the reasons in support of retention to be that Student would likely have a better experience socially at the Mary Lyon during the next year because of the graduation of certain 8 th grade boys, because Student got along well with some 7 th grade students, and that another year at Mary Lyon would offer Student a chance to “re-group” and consolidate gains that she may have made. Testimony of Parent.

Parents believed that no retention or placement decision was made during the meeting and that the next step would be for BPS to receive and review the written reports regarding Student’s progress at LPS. However, two BPS staff persons in attendance concluded that a decision was made during the meeting to retain Student at the Mary Lyon. The testimony of the BPS assistant program director for teaching and learning (Kerwin) was that the Team believed that Student did not have adequate literacy skills, math skills and social/emotional skills in order to move comfortably to the 9 th grade, and that it was for these reasons that the BPS Team members concluded that Student should be retained, and that the Team further concluded that Student would benefit from the opportunity to consolidate her academic skills (through courses teaching the 8 th grade curriculum) as well as her social and emotional skills. BPS staff apparently believed that they needed to make a placement decision prior to the end of the school year and that a decision should therefore be made, based on whatever information that was available to the Team at this time. Testimony of Parent, Kerwin, Martinez, Nash.

Based on information presented and the discussions that occurred at the April 30, 2003 and June 12, 2003 Team meetings, BPS prepared a proposed IEP for the 2002-2003 school year, retaining Student in the 8 th grade at the Mary Lyon. Dr. Nash signed the IEP on or before June 24, 2002 (the date that BPS entered the IEP with her signature into its computer). The IEP was then sent to Parents, who rejected the proposed IEP and placement at Mary Lyon on July 23, 2003. Testimony of Parent, Kerwin; Exhibit P-1.

Under the heading “Student Strengths and Key Evaluation Results Summary” on the IEP for the 2002-2003 school year, the following comments were made relevant to Student’s social/emotional issues, her academic skills and the reasons for retention:

[Student’s] social/emotional needs continue to be an area of concern. She gets easily anxious and overwhelmed. She has made a lot of gains both academically and socially at the Lyon School. Academically, [Student] has passed the reading benchmark. She received a 54 on the math benchmark (needs a 60 by the end of the year. . . .

The Team is recommending that [Student] continue in the inclusion program at the Mary Lyon School. Although she has made progress, [Student] continues to have significant maturity issues and thus retention is recommended in order to consoladate [sic] the gains she has made.

Exhibit P-1 (page 1 of 11).

This IEP also stated:

[Student] presents with difficulty in the areas of attending and focusing. Comprehension, oral and written language skills will compromise all academic areas. In addition poor social skills effects peer relationships.

Exhibit P-1 (page 3 of 11).

A standard-form notice was sent to Parents, dated June 27, 2002, that Student was “not promoted in grade for 2001-2002.” Exhibit S-13, P-6.

Towards the end of June 2002, Parent received from LPS the written reports regarding Student’s progress (LPS did not forward the reports to BPS, believing that it would be Parents’ choice and responsibility to do so). Parents then called their BPS contact person (Kerwin) and within one or two days, forwarded the reports to her. However, Ms. Kerwin was on vacation out of state during the first week of July 2002 and first saw the LPS reports in mid-July 2002 after her return to the office. Ms. Kerwin forwarded a copy of the written reports to Dr. Nash (the principal) and the BPS legal office. Although Ms. Kerwin did not have Student’s school records and was not intimately familiar with Student’s file, Ms. Kerwin concluded that the reports did not include any new information of significance and that it was not necessary to re-convene the Team to consider the reports or Student’s placement for the next academic year. Ms. Kerwin spoke with Dr. Nash, who concurred with this conclusion. Student’s IEP Team was not re-convened. Testimony of Parent, Rosoff, Kerwin, Nash.

Dr. Nash testified that when she received the LPS progress reports regarding Student (Exhibit P-10), she reviewed them carefully, determined that Student was being taught curriculum at too low a level (from the 2 nd or 3 rd grade level to the 8 th grade level) at LPS, was concerned about what she perceived to be a lack of academic rigor at LPS and concluded that retention at the Mary Lyon (rather than placement at LPS) was appropriate. Testimony of Nash.

The BPS witnesses explained that they believed that the promotion/retention decision regarding Student was made after considering a variety of objective criteria (such as grade level of reading, score on a particular test, or level of course work). In her testimony, Dr. Nash further stated that Student met the specific standards described in the fourth page of the BPS Promotion Policy relative to the specific course work and standardized test requirements for promotion to the 9 th grade.

However, Dr. Nash and other BPS staff testified that the IEP Team may go beyond the objective criteria specific to promotion to 9 th grade, as set forth in the BPS Promotion Policy . They explained that the overarching standard for promotion/retention is whether a student would likely be successful in the next grade. Student’s likelihood of success is evaluated within the context of a particular school or program and therefore the evaluation of likely success is dependent upon consideration of the particular placement which Student would attend the following year. The practice of going beyond the objective criteria set forth within the Promotion Policy is followed generally within BPS. Testimony of Nash, Martinez, Kerwin, Harris.

The BPS witnesses further explained that the fact that during Student’s 8 th grade year, she was in ELA 102 (7 th grade curriculum) rather than ELA 103 (8 th grade curriculum) was not dispositive regarding the retention/promotion decision. Similarly, in the event Student had successfully completed ELA 103, she would not necessarily have been promoted to the 9 th grade. Testimony of Nash, Martinez.

Dr. Nash testified that although she did not attend the June 12, 2002 Team meeting, it was her understanding that the decision to retain Student was made at that meeting. She explained that it was the Team’s responsibility to make the decision to retain Student, but that she reviewed that decision, determined that retention was appropriate and then generated the June 27, 2002 notice to Parents that their daughter had been retained. She also noted that where there is a dispute between the parents and the school district regarding promotion, she makes the final decision as principal. Testimony of Nash; Exhibit S-13, P-6.

Dr. Nash and the BPS members of Student’s IEP Team considered both Student’s academic skills and performance and her social/emotional issues that impacted upon her academic performance. Ultimately, they concluded that she would not likely be successful as a 9 th grader, and therefore retained her in the 8 th grade at the Mary Lyon. Testimony of Nash, Kerwin, Martinez.

In her testimony, Dr. Nash clarified the basis of this decision by explaining that if the Mary Lyon had a 9 th grade, Student would have been promoted into it; or had the Team determined that Student would likely have been successful in the Newton North program being considered by Dr. Nash and the Team as a 9 th grade placement, Student would have been promoted; or had any other appropriate 9 th grade placement been identified, Student would have been promoted. In subsequent testimony, Dr. Nash somewhat qualified her previous statement, by explaining that in the event that Mary Lyon had a high school, she would have had concerns about promoting Student into it because of Student’s maturity issues combined with her deficits regarding academics. Testimony of Nash.

5. The BPS Promotion Policy .

Decisions regarding promotion and retention within BPS are governed by the BPS Promotion Policy which is a Deputy Superintendent’s Memorandum for School Year 2001-2002. This policy was approved by the Boston School Committee on June 24, 1998 and is currently in effect. Testimony of Harris.

Within the Promotion Policy are certain objective criteria for promotion from grade 8 to grade 9 (bottom of 4 th page of policy). According to the policy, to be promoted to grade 9, students must pass ten courses from the following subject areas in grades 6, 7, 8: ELA/ESL, Math, Science, History. The courses must include at least five ELA/ESL + Math courses, two Science courses, and two History courses.

In addition to these objective criteria, the policy includes more general, prefatory language. For example, the policy in the first page states:

We will ensure that every graduate…

· Is a proficient reader, communicator, problem-solver, and critical thinker;

· Demonstrates the habits of mind and work required for success in school and the world of work; . . .

· Has mastered key skills and understands important concepts from English Language Arts, Mathematics, . . . .

Similarly, the Promotion Policy provides in the second page:

This promotion policy has been developed to implement the expectations and responsibilities we have set forth in the City wide Learning Standards and above. The policy:

· Further defines the expectations we hold for all students and the support strategies we need to employ to ensure their success;

· Ensures promotions are earned and based on academic achievement;

· Diminishes grade retentions to the greatest extent possible;

· Ensures students will enter classrooms with the skill and knowledge necessary to do grade-level work, and graduates will possess the academic competencies necessary for higher education, adult life and employment; . . . .

The Promotion Policy also includes a process to be followed for students at risk of being retained. This part of the policy, entitled “Early Identification and Intervention – Students At-Risk of Being Retained” provides in part:

1. Parents must be notified by the end of September of the school staff member (in addition to the student’s teacher) they should call about concerns related to their child’s academic progress. Parents are to be informed that if, at any time, they have a concern about their child’s academic progress, they should notify the appropriate teacher and the principal/headmaster or designated liaison.

2. If by mid-October , a teacher considers a student at risk of not meeting subject or grade level standards, the teacher is to notify the parent immediately in writing and refer the student to the appropriate school staff person.

3. When a student has been identified as at risk of not meeting subject or grade level standards, the principal/headmaster, teacher(s) and other designated staff are to work with parents and the student to resolve any problems. They may consider a variety of options including [options listed in the policy]: . . . .

4. If, by the close of the first marking term , the problem persists, additional options will be considered, including [options listed in the policy]: . . . . Parents will be engaged in the consideration of additional intervention strategies and will be informed, in writing, of any decisions that result. . . .

5. Only when all other interventions have been unsuccessful and the student has not made sufficient academic progress during the course of a school year, will the student be considered for retention. All potential retentions are to be reviewed by a Promotion Review Team including the principal/headmaster (or designee), a guidance counselor or student support team member, at least one of the student’s teachers, and his/her parents. The review team will include the liaison teacher for a student on an IEP . . . .

6. By the end of January , formal, written notices must be sent to parents of students who remain at-risk of being retained. Copies of these notices must be sent to the Cluster Leader. The Promotion Review Team will meet in February and before the end of the year to review and make decisions on students who are at-risk of being retained. Principals and headmasters have the final authority for all promotion/retention decisions.

7. During the period from February through June , schools must maintain written bimonthly contact with parents who were sent formal, written notices, to apprise them of their child’s progress. Copies of these notifications must be kept on file.

8. Any student who is retained, or remains at-risk even though they were promoted, will be provided with additional safety-net supports, including tutoring during the subsequent school year. . . .

Exhibit S-1, P-61 (emphasis in original).

A May 1, 2000 Memorandum from Pia Durkin (BPS Team Leader for Unified Student Services) to headmaster and principals, is entitled “Guidelines for Decision-Making: Promotional Policy/Student with Disabilities Spring 2000”. The guideline provides in relevant part:

The following guidelines and key questions were developed to assist Headmasters, Principals, Evaluation Team Facilitators, IEP Teams and Section 504 Teams in making decisions in applying the Boston Public Schools Promotional Policy to students with disabilities.

The following overarching guidelines must be applied for all students with disabilities:

· Each promotional decision must be made on an individual basis by a Team who are knowledgeable abut the student, his/her disability, its impact on the student’s performance, and the rate in which students with disabilities make progress toward reaching the standards through their IEP goals. Under no circumstances should a decision concerning promotional policy be based solely on the student’s disability label or the prototype in which s/he is receiving services. . . .

Exhibit S-17. Although several years old, this guideline continues in effect. Testimony of Nash.

FINDINGS AND CONCLUSIONS

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (hereafter, IDEA)4 and the state special education statute.5 As such, Student is entitled to a free appropriate public education (hereafter, FAPE).6 Neither her eligibility status nor her entitlement to FAPE is in dispute.

I. Preliminary issues

1. Applicability of the BPS Promotion Policy to Student .

The issue of promotion and retention is not addressed explicitly within state or federal special education law and regulations. Rather, the applicable standards and procedures are contained within a school district’s policies and guidelines. With respect to the BPS, there is a detailed written Promotion Policy (Exhibit S-1), a less formal BPS document which includes excerpts from and summarizes parts of the Promotion Policy (Exhibit S-2) and a May 1, 2000 Memorandum from Pia Durkin which is intended to assist BPS Teams and staff when applying the Promotion Policy to students who have a disability (Exhibit S-17). Testimony of Nash, Harris.

I find that the BPS Promotion Policy applies to the instant dispute for the following reasons.

First, in their opening oral arguments and in their closing written arguments, counsel for Student/Parents and counsel for BPS each have taken the position that the Promotion Policy applies to the instant dispute, and they each have relied on this policy to advance their respective arguments.

Second, the Promotion Policy , on its face, applies to students who have a disability. At various places within the document, such students are explicitly referenced. In addition, the May 1, 2000 Pia Durkin Memorandum was written explicitly for the purpose of guiding BPS Teams and staff in applying the Promotion Policy to students with disabilities. Testimony of Nash; Exhibits S-1, S-17.

Third, the IEPs relevant to the instant dispute make explicit reference to the BPS Promotion Policy . The most recently proposed IEPs state: “The Student will adhere to the BPS Promotion Policy.” Exhibits P-1, P-34 (see page 8.01 of 11 of both IEPs).

2. How the Promotion/Retention Decision is Made .

The May 1, 2000 Memorandum from Pia Durkin, advising principals regarding implementation of the Promotion Policy for students with disabilities, states that any retention/promotion decision regarding a student with a disability is to be made by a Team knowledgeable about that student. Exhibit S-17 (1 st page, stating “Each promotional decision must be made on an individual basis by a Team who are knowledgeable about the student, his/her disability, its impact on the student’s performance, and the rate in which students with disabilities make progress toward reaching the standards through their IEP goals”). This Memorandum is generally used to guide promotion/retention decisions regarding students with disabilities. Testimony of Harris.

The Mary Lyon principal (Nash) testified that she implemented the Promotion Policy and the Pia Durkin Memorandum by having Student’s IEP Team make the retention/promotion decision and that she was part of Student’s Team. Dr. Nash testified that the IEP Team essentially took the place of the Promotion Review Team, described at the 10 th page of the Promotion Policy ; that she believed it was the Team’s responsibility to make the decision, that she “can’t imagine” overruling the Team’s decision with respect to Student; and that she did not know whether she even would have the authority to overrule the Team. Testimony of Nash; transcript of third Hearing day, pages 87-88.7 I find that BPS appropriately implemented its Promotion Policy , as guided by the Pia Durkin memorandum, by having the IEP Team take responsibility for making the retention/promotion decision regarding Student.8

3. Authority of the Hearing Officer to Address the Retention/Promotion Issue .

It is not self-evident that a BSEA Hearing Officer has the authority to review a particular retention/promotion decision. Federal and state special education laws and regulations do not address the issue of retention. Pursuant to the policies and actions of a particular school district, the decision may fall within the responsibility of regular education rather than be considered part of a special education dispute under the jurisdiction of the BSEA. However, in the instant dispute, I find it appropriate, for the following reasons, to review the retention/promotion decision within the context of the BPS Promotion Policy .

Student’s proposed IEP called for her to be placed at the Mary Lyon for the 2002-2003 school year. Exhibit P-1. Since the Mary Lyon does not go past the 8 th grade, Student could not be placed at the Mary Lyon for the 2002-2003 school year unless she were retained in the 8 th grade. In other words in the instant dispute, the retention/promotion decision is intertwined with, and cannot be separated from, Student’s special education placement decision by the IEP Team. The state special education regulations make clear that a dispute about “any matter concerning [a student’s] . . . placement” falls within the jurisdiction of a BSEA Hearing Officer.9

Also, as noted above, Pia Durkin’s Memorandum and Dr. Nash’s practice in the instant case placed the promotion/retention decision squarely within the responsibly of Student’s IEP Team. I will therefore be reviewing the appropriateness of a Team decision regarding retention/placement.

Finally, I note that neither party took the position that I do not have the authority (or that it would otherwise be inappropriate for me) to review whether BPS has complied with the substantive standards as well as the procedural protections contained within the BPS Promotion Policy .10

II. Whether Student sufficiently completed the requirements of 8 th grade English language arts to entitle her to be promoted to the 9 th grade

The first of the two issues to be decided by me requires that I consider whether Student met the BPS requirements relative to 8 th grade English language arts, and if so, whether this would entitle her to be promoted to the 9 th grade. This question requires consideration of the applicable standards for promotion.

Review of relative documents and the testimony from BPS witnesses make clear that the promotion standard, as understood and implemented by BPS personnel, combines objective criteria with discretion to consider additional, more subjective standards. The objective criteria and the more subjective considerations will be discussed separately below.

The objective criteria for promotion to the 9 th grade, as described in the BPS Promotion Policy , require that
to be promoted to grade 9, students must pass ten courses from the following subject areas in grades 6, 7, 8: ELA/ESL, Math, Science, History. The courses must include at least five ELA/ESL + Math courses, two Science courses, and two History courses.

Exhibit P-S-1 (4 th page near the bottom).

It is not disputed that, except for approximately one month or less (when she was working on her persuasive writing skills), Student was in English language arts (“ELA”) 102 during her 8 th grade at the Mary Lyon. There was testimony that there are significant differences between ELA 102 (which teaches a 7 th grade curriculum) and ELA 103 (which teaches a 8 th grade curriculum) at the Mary Lyon. English language arts was Student’s only course that was taught at a 7 th grade (rather than an 8 th grade) curriculum. Testimony of Martinez. However, it is also clear that the Promotion Policy standards quoted above do not require that Student pass ELA 103 or any other particular course – rather the standards are framed in terms of numbers of courses within particular areas. It is not disputed that Student passed all of her course work during her 7 th and 8 th grades.

The position taken by Parents (through their attorney) in this dispute is that, notwithstanding her taking ELA 102 (as compared to ELA 103), Student met all of the objective criteria within the BPS Promotion Policy for purposes of promotion to the 9 th grade. Exhibits P-8, P-10, P-16.

Dr. Nash, the Mary Lyon principal, testified that she is in agreement with Parents’ position regarding Student’s meeting these objective criteria. She explained that the minimum criteria for promotion to the 9 th grade, as set forth in the BPS Promotion Policy , are a grade level below the BPS proficiency standards. That is, the objective criteria for promotion to 9 th grade requires only that Student have met the proficiency standards for completion of the 7 th grade. Dr. Nash made clear in her testimony that by the end of her 8 th grade year, Student had met the objective criteria, as set forth in the BPS Promotion Policy , for promotion to the 9 th grade. Dr. Nash’s views regarding this issue was not rebutted by any other witness.

For these reasons, I find that Student met the minimum, objective criteria, as set forth within the BPS Promotion Policy , for her promotion to the 9 th grade. Exhibit S-1 (the objective criteria are found near the bottom of the 4 th page).

BPS witnesses testified that these minimum, objective criteria are not necessarily dispositive regarding a decision to promote or retain a student. They explained, for example, that Student could have taken and passed ELA 103, as well as any other course normally taken by an 8 th grader, and still be retained in the 8 th grade at the end of the year. Their understanding is that other, more subjective criteria may be considered, with the overarching standard being whether the student is likely to be successful in the next grade. Testimony of Nash, Martinez, Harris.

Parents note correctly that no amendments to the BPS Promotion Policy have been approved and therefore one may not look outside the policy for purposes of identifying any promotion/retention standards. Parents argue from this position that the Promotion Policy itself allows only for the promotion/retention decision to be made on the basis of the objective criteria described above, and that any more general standards or criteria outside of the objective criteria of the BPS Promotion Policy must be ignored. Consequently, Parents assert that, pursuant to the Promotion Policy , Student earned the right to be promoted to the 9 th grade, and neither the IEP Team nor the principal has the authority to make a different decision.

I disagree with this line of argument for the following reasons.

As described in the Fact section of this Decision, the BPS Promotion Policy includes language indicating the general purposes of the policy. For example, this language includes a statement that BPS, through its Promotion Policy , will ensure that every “graduate” “is a proficient reader, communicator, problem-solver, and critical thinker”, demonstrates the “habits of mind and work required for success in school and the world of work” and “has mastered key skills and understands important concepts from English Language Arts, Mathematics, . . . .” The policy also seeks to ensure that “students will enter classrooms with the skill and knowledge necessary to do grade-level work, and graduates will possess the academic competencies necessary for higher education, adult life and employment . . . .” Exhibit S-1 (1 st and 2 nd pages). Dr. Nash testified that she believes that the IEP Team (through the Pia Durkin Memorandum) has the discretion to apply these general standards in a manner that will ensure that a student who is promoted is likely to be successful at the next grade level.11

Parents have not argued, nor do I find, that the BPS Promotion Policy , as understood and implemented by BPS, conflicts with any law or regulation. I conclude that BPS’s understanding of its own policy is entitled to deference if reasonable, particularly where it has been implemented consistently.

I do not find it unreasonable to read the Promotion Policy as allowing the IEP Team to apply a standard of being successful at the next grade level, in addition to the more specific and objective promotion requirements established for each grade. I reach this conclusion for the following reasons.

First, the language relied on by Parents to support their argument that promotion is required in the event that a student meets the objective criteria within the Promotion Policy uses the following words: “To be promoted to grade 9, students must . . . .” Exhibit S-1 (near the bottom of 4 th page). Clearly, this language could be read as Parents suggest, but it does not have to be. Another reasonable interpretation of this language is that it sets minimum requirements which are necessary but not sufficient to entitle a student to promotion. Had the drafters of the policy intended to convey unequivocally the meaning argued by Parents, the drafters might well have chosen different words, for example: “In the event a student satisfies the following requirements, the student shall be promoted to the 9 th grade.”

Second, as discussed above, the BPS Promotion Policy includes general standards. To simply ignore these general standards would be to assume that they have no purpose. When the BPS Promotion Policy is read as a whole, including the more general language from the policy, it seems reasonable to conclude that the policy has adopted an over-arching standard of likelihood of success in the next grade, and that this standard may be applied by BPS teachers and staff as an additional criteria for promotion.

Finally, I note that the Promotion Policy , as interpreted by BPS in the instant dispute, has been applied by BPS in a similar manner to other students. Testimony of Nash, Martinez, Harris.

For these reasons, I find it appropriate for BPS to apply an over-arching standard of likely success in the next grade, in addition to the more specific, objective standards enumerated for each grade.

Because I conclude that BPS may apply an overarching standard of likely success in the 9 th grade, the successful completion of a particular course (such as English language arts) or courses does not necessarily entitle a student to be promoted pursuant to the BPS Promotion Polic y.

For these reasons, I answer the disputed question as follows: Although Student completed the requirements of English language arts (as well as other course work) necessary to allow her to be promoted to the 9 th grade, this did not entitle her to be promoted pursuant to the BPS Promotion Policy . I therefore rule against Student on this issue.12

III. Whether BPS complied with the procedural requirements of its
promotion policy; if BPS did not so comply, whether its violations of

such policy caused substantive harm to Student; and if substantive

harm occurred, what relief, if any, should be provided Student

I turn now to the second issue to be decided – that is, whether BPS complied with the procedural requirements of its Promotion Policy . As described in the Facts portion of this Decision, the BPS Promotion Policy includes a section setting forth specific procedures that are to be followed by BPS when a student is at risk of retention.

1. Importance of the promotion/retention decision .

Before addressing the merits of this issue, I explore briefly the importance to Student of the promotion/retention decision and therefore the importance of complying with the procedures set forth within the BPS Promotion Policy .

Parent as well as BPS witnesses testified as to the teasing and bullying of Student that occurred in the 7 th grade and continued (perhaps even increasing) in the 8 th grade. Much of this occurred because of Student’s disabilities – she had behaviors that were provocative and she did not understand how to respond appropriately in social situations. There is no disagreement that these difficulties occurred during 7 th and 8 th grades, notwithstanding the fact that several Mary Lyon staff (including the principal) were very concerned about these difficulties and made significant efforts to protect Student. Testimony of Parent, Nash, Hanrahan, Anoh.

Parent testified persuasively, however, that these social difficulties had a much greater impact upon Student than reported by the BPS witnesses. Parent explained the intensity and the continuity of the teasing and bullying, how it left Student completely alone among her peers (with the possible exception of one friend in 8 th grade), and the resulting emotional impact upon Student as observed by Parent at home. Parent described the school experience as a “horrible environment for [Student] socially and emotionally”, resulting in her having “severe anxiety”, causing her to retreat into a fantasy world and significantly impacting upon her emotional stability. Parent explained that this situation continued essentially unabated through her 7 th and 8 th grade years at the Mary Lyon. Testimony of Parent; transcript of third day of Hearing, pages 219-224.

Although BPS assumed that the situation would likely improve during the 2002-2003 school year, particularly with the graduation of a child who had been especially difficult with Student, there was no persuasive evidence that Student’s overall social experience at the Mary Lyon would be significantly different were she to be retained at the Mary Lyon for an additional year, rather than to be promoted and attend a different school.

As a result, from the Parents’ perspective, there was a great deal at stake for their daughter regarding the observance, by BPS, of the procedural protections contained within its Promotion Policy .13

2. Notice to parents regarding risk of retention .

The Promotion Policy describes a process to be followed for students at risk of being retained. Reduced to its essential ingredients, the policy requires a series of notices to parents of students who are at risk of retention.

The Mary Lyon principal (Nash) testified that she believed that as early as the summer immediately prior to Student’s 8 th grade year (and continuing thereafter), Student was at risk of retention not only because she did not pass a standardized math test, but more generally because of her academic and social/emotional deficits. I credit this testimony because, in retrospect, it seems clear that academic and social/emotional deficits, upon which BPS relied when it retained Student, have been evident to teachers and staff alike at least since the beginning of her 8 th grade year.

The BPS Promotion Policy provides that if by mid-October , a teacher considers a student at risk of not meeting subject or grade level standards, the teacher is to notify the parent immediately in writing and refer the student to the appropriate school staff person.

The BPS Promotion Policy also provides that by the end of January , “formal, written notices must be sent to parents of students who remain at-risk of being retained.” For students determined to be at risk of retention, the policy further requires bi-monthly contact with parents during the period from February through June “to apprise them of their child’s progress.” Exhibit S-1 (10 th page).

In short, the BPS Promotion Policy requires frequent written notification, first to apprise parents of the risk of retention and then to keep them informed as to whether or not progress is being made in those areas that place Student at risk of retention. For the reasons explained below, I conclude that BPS provided none of these required notifications.

BPS points out correctly that Parents received written progress reports and IEPs which advised Parents that Student was reading one year below grade level and apprised Parents of Student’s progress. However, there is not a single progress report, IEP or other document in the record that either explicitly references risk of retention or gave Parents any basis from which they could conclude that Student was at risk of retention for any reason up until the date when BPS made the decision to retain Student.

BPS argues that because Student was performing below grade level and because Parents were aware of this fact, they had constructive notice of her risk of retention. I disagree for the following reasons. Student had struggled for many years with certain English language arts skills and for at least several years (including 7 th and 8 th grades) was reading approximately one year below grade level. Student had always been promoted from grade to grade in the past. Under these circumstances, Parents would logically assume that if Student continued to make substantial progress, as reflected in her grades and progress reports, she would continue to be promoted even though she was continuing to perform one year below grade level in language arts. Moreover, the written progress and grade reports submitted into evidence by BPS in support of its claim that Parents received adequate written notice indicate a successful student, with several specific concerns expressed by teachers but no significant deficits, and passing grades in all subjects. Exhibits S-6, S-7, S-9, S-12. Under these circumstances, Parents could only be apprised of the risk of retention by an explicit notice to that effect.

After reviewing the record, I find that the only written notices to Parents, which make any explicit reference to retention, were notices sent to Parents after the retention decision had been made by the IEP Team on June 12, 2002: (1) the proposed IEP for the 2002-2003 school year which retained Student by placing her at the Mary Lyon for the 8 th grade, sent to Parents on or after June 24, 2002 , and (2) the formal notice that Student had been retained, dated June 27, 2002 . Exhibits S-13, P-1, P-6.14 It is self-evident that this fails to provide the kind of advance notice anticipated by the BPS Promotion Policy .

BPS argues that even if no written notice were provided, Parents received adequate verbal notice that their daughter was at risk of retention, and that therefore there was no material violation of the policy and no harm to Parents. BPS cites to on-going discussions between Parents and Student’s teachers (particularly Ms. Martinez who taught Student math and English language arts during 8 th grade) as well as the discussions during several Team meetings during the 2001-2002 school year. Although it is apparent that there were frequent discussions between Parent and Ms. Martinez regarding Student’s progress, there was no testimony from Parent or Ms. Martinez to indicate that Ms. Martinez advised either Parent at any time that Student was at risk of retention. The only evidence indicating that conversations took place regarding retention relate to the three Team meetings during the 2001-2002 school year.

Three Team meetings occurred during the 2001-2002 school year, and BPS staff who attended these meetings testified that during the course of one or more of these meetings, there was discussion of Student’s progress, possible placements for the next year, and the possibility of retention at the Mary Lyon as one such placement. Parent understood that at the second of these three meetings (April 30, 2003), the possibility of retention at the Mary Lyon was “put on the table” for discussion. This was the first time that Parents understood that the BPS staff were considering retention of their daughter.

Parents believed that retention at Mary Lyon was being considered not because Student should not be promoted for academic reasons but rather as an option which might benefit Student for social and emotional reasons. Parents’ understanding is supported by the fact that all of the other placements being considered for their daughter were 9 th grade placements, clearly indicating that BPS anticipated that Student would be able to be promoted to the next grade. The other placements were eventually eliminated from consideration as possible placements but not because Student was considered unable to meet the 9 th grade academic standards. Parents did not understand that BPS staff intended to retain Student for academic reasons until they received the BPS’s attorney’s written opposition to Parents’ Motion for Summary Decision which were filed on April 18, 2003. Testimony of Parent.

Parents’ understanding of what was being discussed during the three Team meetings is further supported by the proposed IEP that was generated by BPS after the final Team meeting. The only reason given for retention in the IEP is as follows:

The Team is recommending that [Student] continue in the inclusion program at the Mary Lyon School. Although she has made progress, [Student] continues to have significant maturity issues and thus retention is recommended in order to consoladate [sic] the gains she has made.

Exhibit P-1 (page 1 of 11).

It is not possible to know with any certainty what was actually stated during the three IEP Team meetings or during other meetings or discussions with Parents. However, Parent was a credible and intelligent witness. Her testimony was persuasive that during the time period in question, she and her husband were aware of the option of retention for social/emotional reasons but never understood that their daughter was at risk of retention for academic reasons. For reasons that will be explained below, it is extremely likely that had Parents understood that their daughter was at risk for academic retention, they would immediately have taken whatever steps were possible to provide additional academic support or assistance for the purpose of avoiding retention. Once BPS abandoned the requirements under its own policy to provide written notice, it may not rely on conversations which a parent credibly testified did not actually forewarn her of the risk of retention for academic reasons. I find that whatever was said by BPS staff during the various meetings and discussions was insufficient to put Parents on notice that their daughter was at risk of retention for academic reasons.

I therefore conclude that as of April 30, 2002, Parents had verbal notification that retention was being considered as an option to help Student because of her social and emotional deficits, but this knowledge does not accurately or fully reflect the BPS justification for retention based on academic deficits. Most importantly, notice of possible retention for social/emotional reasons does not allow Parents the opportunity to understand, and therefore respond to, the actual risk of retention. Notice of risk of retention based on social/emotional reasons therefore cannot be considered adequate notice pursuant to the BPS Promotion Policy .15

I therefore find that BPS violated the notice provision requirements within its Promotion Policy intended to inform Parents that their daughter was at risk of being retained and further to inform Parents of Student’s progress with respect to that risk.

3. Consequence of failing to provide notice to Parents .

The Promotion Policy makes clear the importance of timely and appropriate notice to parents that their son or daughter is at risk of retention. It is only after the parents have been informed of the risk of retention that there begins a process central to the amelioration of that risk — the parents’ working closely with BPS personnel to take such steps as may be necessary and appropriate to address the difficulty prior to the end of the school year.

The Promotion Policy explains that, once the parents are notified, the BPS staff and parents consider a variety of options — for example, alteration of instructional strategies, tutoring, a change in schedule, and other support services. Exhibit S-1 (10 th page, par. # 3). If the risk of retention continues, additional options are further considered by parents and BPS staff, including referral to alternative programs for more intensive services, and access to additional instructional time. The policy makes clear that parents are to be engaged in the consideration of additional intervention strategies as necessary. Exhibit S-1 (10 th page, par. # 4). This process may take a number of months, as initial options are considered and tried, and then additional interventions considered and tried as necessary. Exhibit S-1 (10 th page). The Promotion Policy thus sets forth a process of early and repeated notification of parents as to the risk of retention (and the student’s progress with respect to the risk of retention) and then the engagement of parents by BPS staff to consider jointly a series of remedial strategies over the course of several months.

Parents were highly motivated to avoid retention and another year at the Mary Lyon. As explained in more detail above (see subsection C1 of this Decision), Parent believed that from the perspective of Student’s social and emotional well-being, the Mary Nash was a “horrible environment” for her daughter. Parent concluded that her daughter’s difficult experiences during her 7 th and 8 th grade years (teasing, bullying, being ostracized) placed her emotional well-being in jeopardy. Testimony of Parent; transcript of third day of Hearing, pages 219-224.

It is not disputed that Parents have been highly involved with their daughter’s education and are devoted to her well-being. In June 2001 when Parents were advised that Student may be retained in the 7 th grade because she had failed a math test, Parents arranged for tutoring so that Student could pass the test and be promoted. Had Parents been provided timely and appropriate notice that their daughter was at risk of retention in 8 th grade for academic reasons, I have no doubt that they would have immediately again taken steps to try to do whatever was possible to ameliorate this issue (for example, by providing her with different or additional instruction) so that she would more likely be promoted at the end of her 8 th grade year and graduate from the Mary Lyon.

An important, underlying principle of the Promotion Policy is that grade retentions are to be “diminishe[d] to the greatest extent possible”. Exhibit S-1 (2 nd page). This principle was significantly undercut by BPS’s failure to notify Parents appropriately.

For these reasons, I find that BPS’s failure to provide Parents with timely and appropriate notice of the risk of retention (and then notice of Student’s progress regarding the risk of retention) harmed Student by precluding her Parents from taking steps (which they would have likely taken) to seek to avoid retention. An underlying principle of the Promotion Policy (to diminish retentions to the greatest extent possible) was substantially undercut by BPS’s failures in this regard.16

4. Decision to retain Student .

The BPS Promotion Policy provides for review of all potential retentions by a Promotion Review Team. The May 1, 2000 Memorandum from Pia Durkin makes clear that for students in special education, the decision is to be made by a “Team” knowledgeable about the Student. Dr. Nash, as principal of the Mary Lyon, appropriately implemented the Pia Durkin Memorandum by having Student’s IEP Team make the promotion/retention decision. Implemented in this way, the Memorandum does not change the substantive standards set forth in the Promotion Policy but rather identifies a way to implement the policy to the advantage of all concerned, including the special education student.

There are two procedural defects with the IEP Team’s decision to retain Student, which I will address separately.

First, the BPS Promotion Policy , as clarified by the Pia Durkin Memorandum, requires that there be a decision-making process within which parents can participate – the Promotion Review Team for regular education students and the IEP Team for special education students. I also note that a fundamental tenet of an IEP Team, as set forth in federal regulations, is the participation of parents as Team members.17

BPS witnesses explained that they believed that the June 12, 2002 IEP Team meeting was the meeting at which the retention decision as well as the placement decision were made at that time, with the result that Student would be placed at the Mary Lyon for another year. The Parents, who actively participated in the meeting, did not understand that the retention/placement decision was being made at this meeting. Testimony of Parent. I fault BPS for not making this sufficiently clear to Parents, either through written notice or verbally.

For these reasons, I find that BPS violated its Promotion Policy by making its promotion/retention decision at a meeting when Parents had no knowledge that the decision was actually being made at this time. It is self-evident that Parents cannot participate in decision-making if they have no knowledge or understanding that the decision-making is actually occurring during a particular meeting.18

Second, central to the ability of the IEP Team to make a decision regarding promotion/retention is the availability to the Team of sufficient information regarding Student’s progress. This normally occurs, as it did with Student, through attendance at the Team meeting of teachers and service providers who can speak to Student’s progress, as well as review of written reports from her BPS teachers and other service providers. For example, Ms. Martinez (Student’s math and English language arts teacher) attended Team meetings during Student’s 8 th grade year in order to report and discuss Student’s progress.

However, Parents removed Student from Mary Lyon and enrolled Student at the Learning Prep School (LPS) on March 4, 2002. Student continued at LPS for the remainder of the academic year, graduating from the 8 th grade at LPS. During the April 30, 2002 and June 12, 2002 Team meetings, Parents orally reported on Student’s progress at LPS. However, neither the Parents nor any BPS personnel saw any written reports from LPS regarding her progress there. BPS personnel had been unsuccessful in their efforts to visit LPS or talk with staff there about Student and her academic program from the time that Student left the Mary Lyon on March 4 th .

It is clear from the testimony of the BPS witnesses that, as of June 12 th when the IEP Team made its decision to retain Student, the BPS staff did not have complete or useful information regarding Student’s time at LPS, with the result that BPS staff could not assess Student’s progress or academic program from March 4 th forward. Therefore, the BPS Team members made their decision to retain Student without any substantive information regarding Student’s progress or academic skill level for the final three months of her 8 th grade year.

The BPS Promotion Policy , as clarified by the Pia Durkin Memorandum, presumes that before making a decision to retain a student, the IEP Team will be provided sufficient information from which it can properly assess his or her progress and skill level. The IEP Team simply did not have the information that it required to make an informed decision. For this reason, I find that the IEP Team’s decision to retain Student was flawed and violated the BPS Promotion Policy .

The BPS rationale for the IEP Team’s making a decision was that BPS staff apparently believed that they needed to decide Student’s placement before the end of the school year and did not anticipate meeting again before then. Testimony of Kerwin. This may explain what happened, but it cannot justify making a decision critical to a child’s future based upon incomplete information, particularly where the applicable regulations require only that a school district have in effect an IEP at the beginning of the school year.19

Approximately two weeks after the June 12 th Team meeting, Parents received the written progress reports regarding Student at LPS, and forwarded those reports to their BPS contact (Kerwin) who reviewed them when she returned from vacation (after the first week of July). Ms. Kerwin then forwarded these reports to Dr. Nash for her review. Testimony of Kerwin.

The LPS progress reports is 23 pages of individualized assessment of Student from March 4, 2002 though the end of the academic year. In detailed comments and paragraphs, the progress reports describe Student’s performance, with inventories of areas and skills that were covered during the term. At the top of each subject page, the reports provide the grade levels and the specific materials used for content. The reports include detailed information from Student’s counselor, her health education course, and her occupational therapist. Reference is made to significant progress regarding Student’s general level of anxiety, which was a BPS area of concern that influenced their retention decision. The reports also provide the results of standardized testing in both reading and math, as well as grades of B in literature and B in language arts, which was a BPS area of concern that influenced their retention decision. Exhibit P-10.

I conclude that the decision-making process to return Student to the Mary Lyon to repeat 8 th grade violated the BPS Promotion Policy as well as state and federal special education regulations. Student’s chances of being promoted were significantly harmed by these procedural violations.20

5. Determination that Student would not be successful at another placement .

Consideration of the LPS progress reports by the IEP Team was important for another, related reason. BPS has argued, and I have accepted (see discussion above in part B), that the overarching standard to be applied in determining retention/promotion is whether there is an appropriate placement for Student where she is likely to be successful in the next grade, and it was pursuant to this overarching standard that the IEP Team found Student lacking.

For a student in the 8 th grade at the Mary Lyon, the likelihood of success in the next grade must be judged in relation to another school, since the Mary Lyon does not extend beyond the 8 th grade. In other words as the BPS witnesses explained in their testimony, the promotion/retention decision cannot be made in the abstract, but only in terms of whether Student would likely be successful in the 9 th grade at a particular school. Testimony of Nash, Martinez.

For example, Dr. Nash testified that had BPS been able to identify any other school (with a 9 th grade) that would have been appropriate for Student and where she would likely be successful in the 9 th grade, Student would have been promoted and placed there rather than be retained at the Mary Lyon. This testimony is consistent with the consideration by Dr. Nash and/or the IEP Team of possible placements at the Boston Arts Academy, Fenway and North Newton – any one of which would have resulted in Student’s being promoted and placed into the 9 th grade. Testimony of Nash, Parent.

If the IEP Team had been able to identify an appropriate 9 th grade placement for Student where she would likely be successful, retention would have been avoided. Understood from this perspective, the process followed by the IEP Team is consistent with and perhaps is required by the BPS Promotion Policy which establishes that grade retentions are to be “diminishe[d] . . . to the greatest extent possible.” Exhibit S-1 (2 nd page).

On June 12, 2002 when the IEP Team made its decision to retain Student and place her at the Mary Lyon for another year, it did so without considering the possibility of a placement at LPS. This occurred because the Team, as of June 12 th , had no information that would allow a decision to be made regarding the appropriateness of a placement there. In other words, even though Student had been attending LPS as an 8 th grader since March 4, 2002, the IEP Team was not able to consider LPS as a potential 9 th grade placement and was not allowed to delay its decision until receipt of written progress reports which were available at the end of June. Had the IEP Team been able to consider LPS and had the Team determined LPS to be an appropriate placement where Student would likely be successful, the IEP Team would not have been forced to propose retention at Mary Lyon – on June 12 th , the retention of Student at the Mary Lyon was the only option available to the Team.

I conclude that for the IEP Team to make its promotion/retention decision without considering whether LPS could be an appropriate 9 th grade placement (where Student had been attending this placement as an 8 th grader) was a violation of the BPS Promotion Policy ’s principle that Student should be promoted if she would likely be successful in the 9 th grade, as well as the principle that retentions are to be minimized to the greatest extent possible, and Student’s chances of being promoted were significantly harmed by this procedural violation.21

6. Relief .

In summary, BPS violated its Promotion Policy in the following ways:

1. Not providing appropriate notice to Parents that Student was at risk of retention;

2. Consequently, not allowing Parents the opportunity to take steps to avoid retention of their daughter;

3. Not advising Parents that the IEP Team on June 12, 2002 was making the retention and placement decisions regarding their daughter;

4. The IEP Team’s deciding to retain Student in 8 th grade without considering Student’s progress or skill level for the period March 4, 2002 through the end of her 8 th grade school year; and

5. The IEP Team’s not considering LPS as a possible 9 th grade placement (which placement would avoid retention at the Mary Lyon) even though Student had been attending LPS as an 8 th grader since March 4, 2002.22

In light of these violations, I find that BPS’s procedures and decision-making process (by which it determined that Student should be retained and by which it then generated its proposed IEP and placement of returning Student to the Mary Lyon for another year) were sufficiently flawed to warrant a finding that BPS failed to offer Student an appropriate IEP and placement for the 2002-2003 school year. Without an appropriate IEP and placement, Parents were left with no choice but to make a unilateral placement to a private school for the 2002-2003 school year.

The principal relief sought by Parents is reimbursement for payment of tuition at LPS and transportation to and from LPS for the 2002-2003 school year.23 In order for Parents to receive reimbursement for a unilateral, private school placement, Parents must further demonstrate that the placement which they chose for their daughter was appropriate.24

The appropriateness of Parents’ unilateral private school placement is assessed on the basis of the federal FAPE standard.25 Although Parents have presented some evidence on this issue (which evidence need not be presented again at the next phase of this Hearing), this issue has not yet been fully addressed.

In the event that the parties are not now able to resolve informally among themselves the issue of reimbursement for tuition and other expenses for the 2002-2003 school year, this matter will proceed to Hearing for final resolution, and I will then hear evidence and argument for the purpose of addressing the following question: did the 9 th grade placement at LPS for the 2002-2003 school year meet the federal FAPE standards relevant to reimbursement for Parents’ unilateral placement?

In their Request for Hearing , Parents also sought an IEP placing their daughter at LPS. The above analysis addresses the question of reimbursement for the 2002-2003 school year but not the question of whether an IEP should have been written for a 9 th grade placement at LPS. I will therefore explain how BPS’s procedural violations relate to this part of the dispute.

As discussed above and as supported by testimony of BPS witnesses, Student should not have been retained in the 8 th grade at Mary Lyon pursuant to the BPS Promotion Policy if there were a 9 th grade appropriate placement where Student would likely be successful. Testimony of Nash, Martinez. An obvious placement to consider was LPS since Student had been placed there for more than three months by the time the IEP Team made its decision to retain Student on June 12, 2002.

As explained above, when the Team made its decision to retain Student at the Mary Lyon on June 12 th , placement at LPS could not be considered because the Team lacked information about LPS and Student’s progress there. It was only after the June 12 th Team meeting that BPS received written progress reports from LPS, and still later when BPS had an opportunity for four of its employees to visit and observe LPS over a period of four days. The central question of the appropriateness of LPS as a 9 th grade placement has therefore not yet been appropriately considered or answered.

In the event this matter proceeds to Hearing for final resolution of the dispute and Parents seek an order that the 2002-2003 IEP should have provided for promotion and placement at LPS, I will hear evidence and argument for the purpose of answering the following question: At the end of Student’s 8 th grade year, was a 9 th grade placement at LPS for the 2002-2003 school year likely to provide Student with an appropriate education ? In answering this question, I will also determine whether it was reasonably likely that Student would be successful at LPS as a 9 th grader.

If this question is answered in the affirmative, I will then conclude, without further evidence or argument, that because there was an appropriate 9 th grade placement for Student at LPS, BPS should have issued an IEP promoting Student to the 9 th grade and placing Student at LPS for this purpose.26

After taking into consideration the evidence and arguments with respect to the part of the bifurcated Hearing already completed, I offer the following guidance to the parties regarding my consideration of the above questions in the event a further Hearing is needed.

First, both of the above underlined questions require a determination of a similar issue – that is, whether the LPS placement would likely provide Student with an appropriate education. I would utilize the federal FAPE standard and would be guided by Florence County School Dist. Four v. Carter , 510 U.S. 7 (1993) for the reimbursement issue (the first underlined question), and would utilize the Massachusetts and federal FAPE standards for the IEP issue (the second underlined question). Under either analysis, the inquiry will likely be whether the 9 th grade LPS placement, including special education and related services, was tailored to address Student’s unique needs in a way reasonably calculated to enable her to make meaningful educational progress.27

Second, in the event that there is a dispute as to whether the LPS placement allows Student access to the general curriculum consistent with the IDEA, it is likely that I will agree with Parents’ closing written argument (page 13) with respect to the distinction between content and skill level.

Third, it is apparent from the testimony of BPS witnesses and Parent in the instant dispute that no BPS public school placement would allow Student to be successfully promoted to the 9 th grade. Testimony of Parent, Kerwin, Nash.28 Because no proposed placement other than LPS would allow Student to be promoted to the 9 th grade, the relative restrictiveness of LPS will not likely be considered when determining whether it was an appropriate placement.

Order

The Parents, as the moving party in this dispute, shall advise the BSEA through a written status report to the Hearing Officer, whether the parties will likely be successful in their efforts to resolve informally the remainder of this dispute, or in the alternative whether the BSEA should schedule Hearing dates to address any remaining issues in dispute. The status report should explain what issues remain to be decided by the Hearing Officer and what relief is being requested.

BPS may, but is not required to, submit its own status report.

In their status reports, either party may request a telephone conference with the Hearing Officer to discuss this matter informally and to clarify how this case will proceed before the BSEA.

Status reports shall be filed with the Hearing Officer no later than September 15, 2003 .

By the Hearing Officer,

William Crane

Dated: August 6, 2003

APPENDIX A

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Laura* & Boston Public Schools

BSEA # 03-1154

RULING ON MOTION FOR PARTIAL SUMMARY DECISION

Introduction.

On April 10, 2003, Parents filed a Motion for Order for Partial Summary Decision and for Stay Put Placement (hereafter, Motion for Partial Summary Decision ). Boston Public Schools (hereafter, Boston) filed an opposition on April 18, 2003. The Motion for Partial Summary Decision was heard on April 23, 2003. The record was held open until April 28, 2003 to allow the parties time to research and report to the Hearing Officer any additional legal authorities.

A. Positions of the Parties .

1. Parents’ position . Boston proposed an IEP for the 2002-2003 school year which would retain Student in the 8 th grade, rather than promote her to the 9 th grade. Parents’ Motion for Partial Summary Decision takes the position that to so retain Student denies her a free appropriate public education (hereafter, FAPE), violates Boston’s Promotion Policy and discriminates against her in violation of Section 504 of the federal Rehabilitation Act.29

2. Boston’s position . In its opposition to the Motion for Partial Summary Decision , Boston takes the position that there are factual disputes requiring dismissal of the motion. Boston argues that Student’s IEP was appropriate because Student had certain social deficits and had not completed the requisite academic requirements necessary for promotion to the 9 th grade, with the result that retention in the 8 th grade was justified. Boston denies that the decision to retain Student was made on the basis of her disability.

B. Standards for Deciding the Motion for Partial Summary Decision .

The Executive Office of Administration and Finance adjudicatory rules of practice and procedure allow for a party to file a motion for summary decision when the party is of the opinion that there is no genuine issue of fact relating to all or part of a claim or defense, and that the party is entitled to prevail as a matter of law.30

Further guidance is found by turning to the motion for summary judgement which sets forth a substantially similar standard. The courts have explained that in order for the moving party to prevail on a motion for summary judgement, the moving party must demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”31 A fact is material only when its resolution affects the outcome of the case.32 A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party.33 All evidence and inferences are to be viewed in a light most favorable to the nonmoving party.34 The nonmoving party “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”35

Facts

The following facts are not in dispute.

Student is a fourteen-year-old girl (date of birth 6/16/88) who resides with her Parents in Boston. Student’s most recently proposed IEP (for the 2002-2003 school year) describes her as having diagnoses of non-verbal learning disability, Asperger’s Syndrome, attention deficit hyperactivity disorder and anxiety.

Student attended Boston’s Mary Lyon Elementary School (hereafter, Mary Lyon) beginning in kindergarten. During the 2001-2002 school year, Student attended the 8 th grade at Mary Lyon. However, on or about March 4, 2002, Parents removed Student from Mary Lyon and unilaterally placed Student at the Learning Prep School (hereafter, LPS), with no break in school days. LPS is a 766-approved private special education school located in West Newton, Massachusetts. Student continued to attend LPS for the remainder of the 2001-2002 school year.

Student’s report card for the first two marking periods of 8 th grade at Mary Lyon indicates that she received passing grades in all subjects, including a grade of B + in 8 th grade English Language Arts for both marking periods. She completed her 8 th grade at LPS where she received passing grades in all subjects, including a grade of B in language arts and a grade of B in literature.

The Mary Lyon is an elementary school which does not go beyond the 8 th grade. In its IEP for the 2002-2003 school year, Boston proposed that Student return to the Mary Lyon where she would repeat the 8 th grade, rather than be placed at a different school and be promoted to the 9 th grade. In July 2002, Parents rejected this IEP. For the 2002-2003 school year, Student has continued to attend LPS, where she is in the 9 th grade.

Discussion

Parents take the position that Student has the right to be educated in the 9 th grade, and therefore the IEP retaining Student in the 8 th grade should be considered inappropriate as a matter of law. Parents advance essentially three arguments in support of this position.

First, Parents argue that Student’s right to FAPE pursuant to special education law includes the opportunity to learn the material that is covered by the academic standards in the Massachusetts curriculum frameworks, that Student has been exposed to and learned this material for the 8 th grade, and that she is now entitled to learn this material for 9 th grade. Second, Parents argue that Student has met all relevant criteria for promotion to the 9 th grade, as set forth in Boston’s Promotion Policy , and Boston therefore may not retain Student in the 8 th grade. Third, Parents argue that Boston sought to retain Student solely on the basis of her social/emotional disabilities in contravention of Section 504 of the federal Rehabilitation Act, which forbids discrimination on the basis of handicap.

After considering the question of subject matter jurisdiction, I will address each of Parents’ claims separately below.

A. Jurisdiction Over Issues of Promotion and Retention .

Neither party has argued that the BSEA lacks jurisdiction to determine the matter before me. Nevertheless, I must consider at the outset whether promotion/retention is an issue which may be addressed by a BSEA Hearing Officer as part of a due process proceeding challenging an IEP proposed by Boston.

As a BSEA Hearing Officer concluded in another dispute, a decision to retain or promote a student may, in an appropriate case, be understood as a regular education decision which would not be subject to a due process proceeding before the BSEA.36 The federal Office of Special Education Programs (hereafter, OSEP) has also concluded in one of its letters that the federal special education statute does not address standards for retention or promotion, essentially leaving it to individual states to determine how this issue should be addressed.37

However, this OSEP letter goes on to include the following statement, addressing the question of hearing officer jurisdiction:

In general, this office does not view retention and promotion decisions that are separate from placement decisions as being the sole basis for a due process hearing request. However, there may be FAPE issues that have a direct impact upon retention and promotion decisions, and these issues can be the basis for a hearing request.38

For reasons that will be explained below, I find that Boston’s decision to retain Student cannot be considered as separate from a placement decision, and that its decision to retain Student has significant implications with respect to Student’s receipt of FAPE. I therefore conclude that I have jurisdiction over the subject of retention/promotion for purposes of deciding Student’s Motion for Partial Summary Decision.

I also note the potential importance of this issue to Student’s education. As one court has observed, even at an early stage of education, retention “may permanently delay the
student’s ultimate academic goals.”39

B. Massachusetts Curriculum Frameworks .

In order to consider Parents’ claim regarding the Massachusetts curriculum frameworks, I must first determine whether Student has a right, pursuant to state or federal special education law, to be instructed in the material that is covered by the academic standards in the Massachusetts curriculum frameworks.

The federal special education law (or IDEA) defines a student’s right to a free appropriate public education (hereafter, FAPE) to mean “special education and related services that . . . meet the standards of the State educational agency . . . .40 Massachusetts’ law further defines FAPE as “special education and related services . . . which meet the education standards established by statute or established by regulations promulgated by the board of education .41 In other words, Massachusetts provides the additional requirement that the state education standards, which are to be met as a part of FAPE, be found within state statute or education regulations; and I therefore now turn to the state statute and regulations.

Curriculum frameworks are the subject of s. 1E of MGL c. 69, which is the Massachusetts Education Reform Act. Section 1E provides, in part, as follows:

The board [of education] shall direct the commissioner [of education] to institute a process for drawing up curriculum frameworks for the core subjects covered by the academic standards provided in section one D. The curriculum frameworks shall present broad pedagogical approaches and strategies for assisting students in the development of the skills, competencies and knowledge called for by these standards.

The Massachusetts special education regulations refer to the curriculum frameworks in several places.42 For purposes of this dispute, perhaps the most relevant reference is within a subsection of the regulations entitled “Contents of the IEP” which states, in part: (b) The Team shall carefully consider the general curriculum, the learning standards of the Massachusetts Curriculum Frameworks, the curriculum of the district, and shall include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.43

I find, on the basis of these statutory and regulatory references, that the curriculum frameworks has been established by state statute and regulation as an education standard applicable to special education students in Massachusetts.

I further note that the Massachusetts Department of Education (hereafter, DOE) has left little doubt that it intends that Massachusetts curriculum frameworks be included within the state standards referenced in FAPE. In its administrative advisory providing guidance on the Massachusetts FAPE standard, DOE explained (in my view, appropriately) the applicability of curriculum frameworks to special education students as follows:

The state standards [which are to be incorporated into FAPE] include not only the requirements of the Special Education Regulations (603 CMR 28.00) but also the learning standards that Massachusetts has established through the state curriculum frameworks. All students in the Commonwealth’s public education system, including students with disabilities, are entitled to the opportunity to learn the material that is covered by the academic standards in the Massachusetts curriculum frameworks.44

During 8 th grade, Student had the opportunity to learn material in the 8 th grade curriculum frameworks. It is not disputed that the 9 th grade curriculum framework includes standards that are not found within the 8 th grade curriculum frameworks. Repeating 8 th grade at the Mary Lyon would result in Student’s not having access to the curriculum frameworks for the 9 th grade. Rosoff Affidavit, par. 10. I therefore find that Boston’s 2002-2003 IEP necessarily denies Student the opportunity during the 2002-2003 school year to learn material that is covered by the academic standards in the curriculum frameworks for the 9 th grade.

The right to be able to learn what is covered by the academic standards in the curriculum frameworks for a particular year is not, however, without limitation. It is self-evident that an over-arching principle within the FAPE standards is that Student’s special education and related services must be provided pursuant to an IEP designed to meet her unique individual needs.45 Student’s opportunity to learn the 9 th grade curriculum frameworks may be limited, as necessary to meet her individual needs.46

Boston argues that denial of the opportunity to learn the 9 th grade curriculum frameworks was appropriate because, at the time Boston developed the 2002-2003 IEP, Student was not yet ready to advance to the 9 th grade. Boston takes the position that she had not gained sufficient mastery of English language arts in order to be promoted. In support of this position, Boston filed an affidavit of Carrie-Ann Kerwin (an Assistant Program Director with Boston’s special education department) who states that she has first hand knowledge of Student’s special education program, services and education at the Mary Lyon School, and was a member of Student’s Team that developed the 2002-2003 IEP.

In her affidavit, Ms. Kerwin states that Student, while in 8 th grade at Mary Lyon, had been enrolled in a 7 th grade class for English language arts and had not yet mastered the 8 th grade curriculum. Kerwin affidavit, pars. 8, 9. Boston further points to its Promotion Policy for the 2001-2002 school year which appears to require that a student pass 8 th grade English language arts in order to be promoted to the 9 th grade. Promotion Policy , 4 th page.47

Parents have filed affidavits and other documents in rebuttal of Boston’s position. Student’s report card of June 2002 indicates passing grades for all courses for the terms which Student completed at Mary Lyon, including a grade of B + in 8 th grade English language arts for the first two marking periods of the 2001-2002 school year. Student left Mary Lyon on March 4, 2002 to attend LPS for the remainder of the school year. An LPS progress report indicates passing final grades in all courses for the remainder of the 2001-2002 school year, including a grade of B in 8 th grade language arts and a B in 8 th grade literature. The affidavit of the LPS Director supports the conclusion that Student successfully completed the 8 th grade at LPS, and was then promoted to the 9 th grade at LPS. The affidavit further explains that the courses Student completed at LPS complied with the curriculum frameworks requirements. Rosoff affidavit, pars. 4, 6, 8.

Parents further point out that in Student’s 2002-2003 IEP, the only explanation for Student’s retention was Student’s maturity deficits.48 During oral argument, Boston agreed that these deficits, by themselves, would be insufficient to justify retention.

I also note that once Student left Mary Lyon on March 4, 2002, it was obviously no longer possible for her to complete any course work at the Mary Lyon . In order for Boston to have appropriately determined that Student should be retained, Boston would have had to assess her work and progress at LPS for the remainder of the 2001-2002 school year. Through its affidavit and other documents, Boston has not explicitly answered the question of whether it made this inquiry, nor has Boston otherwise explained the basis for its conclusion that Student had not mastered the 8 th grade English language arts curriculum by June 2002.

It seems apparent that Parents, through their documents, have presented more complete and more credible factual arguments than Boston. However, at this point in the proceedings, Boston need not persuade me that it would likely prevail on the merits, but only must convince me that there is a genuine issue of material fact, after viewing all evidence and inferences in a light most favorable to Boston as the nonmoving party.49

I find that there is a genuine dispute regarding an important factual issue – that is, whether an IEP for Student’s 2002-2003 school year must necessarily place Student in an 8 th grade class in order to meet her unique individual needs and thereby deny her access to the 9 th grade curriculum frameworks. Boston is entitled to an evidentiary Hearing on this issue.

C. Boston’s Promotion Policy .

Parents separately claim that Boston’s retention of Student through the 2002-2003 IEP violated Boston’s written Promotion Policy which was in place for the 2001-2002 school year. (The Promotion Policy is Exhibit A attached to Parent’s affidavit and is also Boston’s Exhibit A.)

At the outset, I note that Boston’s decision to retain Student, as set forth in the 2002-2003 IEP, was made by Student’s IEP Team rather than the principal of Mary Lyon.50 The Team proposed an IEP that would continue Student at the Mary Lyon, an elementary school which does not go past the 8 th grade. It is apparent that the decision to retain Student in the 8 th grade was not separate from the placement decision that Student would be appropriately served at the Mary Lyon for an additional year. Accordingly, I view the decision to retain Student in the 8 th grade at Mary Lyon as part of a placement decision by the Team.

1. Applicability of the Promotion Policy . On the face of it, the written Promotion Policy applies to students with disabilities. Promotion Policy , 7 th page. And, both the Parents and Boston, through their arguments, appear to agree that the policy applies to the instant dispute.

Parents has relied on the policy in support of their arguments for promotion when they argued that Student met the substantive standards for promotion contained within the policy and that Boston violated Student’s procedural protections contained within it. Boston has sought to use the substantive standards contained within the policy to justify and defend the actions of the IEP Team and its proposed IEP to retain Student. And, neither party has taken the position that part or all of Boston’s Promotion Policy should be disregarded for purposes of determining Student’s right to be promoted to the 9 th grade.

For these reasons, I will assume, for purposes of this Ruling only, that Boston’s written Promotion Policy , including the procedures and standards contained within it, should be applied to the present dispute.

2. Procedural protections within the Promotion Policy . As explained above, the IEP Team made the decision to retain Student. However, the Promotion Policy provides for the retention decision to be reviewed by a Promotion Review Team with the principal apparently having final authority for the decision. Promotion Policy , 10 th and 11 th pages; affidavit of Kerwin, par. 18. The Promotion Policy provides no role for the IEP Team in the retention decision-making process other than to determine appropriate services.

In addition, the Promotion Policy includes procedural requirements regarding written notification to Parents by specific dates. It is not disputed by Boston that these written notification procedures were not followed; however, Boston maintains that there were frequent discussions between Boston staff and Parents regarding the risk of retention.51

Parents correctly argue that the Promotion Policy makes clear that retention is to be a last resort, and that much of the process within the policy is intended to provide the maximum opportunity for a student, parents and school staff to identify early on any potential impediment to promotion and then to consider and implement possible alternative strategies, including additional services, in order to provide the student with the maximum opportunity to be promoted to the next grade. In general, these procedures are of obvious importance to a student and parents seeking promotion to the next grade.

In general, in order for a violation of procedural rights in special education cases to warrant relief, I must conclude that the violations resulted in substantive harm.52 Parents have not submitted sufficient facts, at this juncture in the proceedings, to indicate that harm actually occurred as a result of Boston’s not precisely following the procedures set forth within the Promotion Policy .53

3. Substantive standards contained within the Promotion Policy . Boston’s Promotion Policy for the 2001-2002 school year appears to require that a student pass 8 th grade English language arts in order to be promoted to the 9 th grade. Promotion Policy , 4 th page. The question of whether Student meets this standard has been addressed above in this Ruling (see the section of this Ruling addressing the Massachusetts curriculum frameworks).

For the reasons already explained, I conclude that there is a genuine issue of material fact relevant to the substantive standards contained within the Promotion Policy . Boston is entitled to an evidentiary Hearing on this issue.

4. Issues for further consideration . I have assumed, for purposes of this Ruling only, that Boston’s written Promotion Policy , including the procedures and standards contained within it, should be applied to the present dispute. However, in the event that this matter proceeds to an evidentiary Hearing, it may be appropriate to re-visit this issue, and any additional guidance from the parties regarding the following questions would likely be helpful:

· Was it appropriate for the IEP Team to make a determination regarding retention?

· Does Boston’s Promotion Policy provide procedures and standards which Boston must comply with when the Team makes a decision regarding retention/promotion?

· If so, are the procedures and standards within Boston’s Promotion Policy to be implemented through the IEP Team process or separately?

· May the procedures and standards contained within Boston’s Promotion Policy be enforced through a BSEA due process proceeding?

D. Section 504 of the Federal Rehabilitation Act .

Section 504 of the federal Rehabilitation Act prohibits a program receiving federal financial assistance from discriminating, on the basis of handicap, against an otherwise qualified individual with a handicap.54 It is not disputed that Boston is a program that receives federal financial assistance and that Student is “handicapped” for purposes of this statute. The federal Department of Education regulations pursuant to Section 504 make clear that Student is a “ qualified handicapped person” and therefore entitled to protection under Section 504 by virtue of her eligibility for special education services pursuant to federal special education law.55

Parents take the position that Boston’s decision to retain, rather than promote, Student should have been made on the basis of whether Student met the criteria for promotion to the 9 th grade, but instead this decision was based on her disability – that is, her social and emotional deficits.

Boston, however, disputes these factual assertions. As explained more fully above, Boston takes the position that Student was retained because she had not mastered the 8 th grade English language arts curriculum and therefore could not access the 9 th grade high school curriculum. (Boston also acknowledges that Student’s social/emotional deficits are not sufficient to justify retention.) If Boston can demonstrate that the decision to retain Student was justified on the basis of her individual needs pursuant to state and federal special education laws, Boston will have defeated Parents’ Section 504 claim.56

I conclude that there is a genuine dispute regarding a material fact relevant to Parents’ Section 504 claim – that is, the question of whether there was sufficient basis for Boston’s decision to retain Student. Boston is entitled to an evidentiary Hearing on this issue.

Order

For the above-stated reasons, Parents’ Motion for Partial Summary Decision is DENIED.

By the Hearing Officer,

_________________

William Crane

Dated: April 30, 2003


1

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


2

Parents did not seek reimbursement of expenses for the 2001-2002 school year, nor have Parents sought to include within this dispute any IEP other than the IEP for the 2002-2003 school year.


3

The word “Parent” is used to refer to Student’s mother. Student’s father attended the Hearing but did not testify.


4

20 USC 1400 et seq .


5

MGL c. 71B.


6

33 USC 1401(8) (definition of FAPE), 1412(a)(1)(A); MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.


7

Question : You have the authority to override that team recommendation [that a student should be retained], is that right?

Answer by Dr. Nash : I have never done that. So I can’t imagine making that decision in this case.

Question : You understood the question, right?

Answer by Dr. Nash : I understood.

Question : You had the authority to do it?

Answer by Dr. Nash : I’m not sure. I would have to consult with the attorneys. It has never come up, Mr. Crabtree.


8

Ms. Harris testified that in general it would be a student’s Service Team, rather than the IEP Team, which would take the place of the Promotion Review Team. However, Ms. Harris had no knowledge of what procedures were actually used regarding the decision to retain Student. In addition, Student’s Service Team did not include Parents, and therefore should not be considered an appropriate substitute for the Promotion Review Team (parents are members of the Promotion Review Team). Dr. Nash has significant experience regarding the development and implementation of the BPS Promotion Policy . For these reasons, I credit Dr. Nash’s testimony on this issue, rather than Ms. Harris’ testimony.


9

603 CMR 28.08(3)(a) (parent or school district may request a hearing “on any matter concerning the . . . placement”).


10

See also part A of the Discussion section of the Hearing Officer’s Ruling regarding Parents’ Motion for Partial Summary Judgement (attached as Appendix A and incorporated herein by reference) for further discussion of and citation to authorities regarding the issue of my authority to address the retention/promotion decision.


11

I note Dr. Nash’s significant amount of experience regarding the development and implementation of the BPS Promotion Policy . In addition to her role of implementing the Promotion Policy as a school principal, Dr. Nash helped to draft the policy as a member of a 1997 task force. Testimony of Nash.


12

I do not reach the related issue of whether Student should have been promoted pursuant to the overarching standard of likelihood of success at the next grade level. This issue is beyond the scope of this part of the bifurcated Hearing, but is addressed in part C6 of this Decision.


13

There are, of course, additional interests at stake. As one court observed, even at an early stage of education, retention “may permanently delay the student’s ultimate academic goals.” Gant v. Wallingford Bd. of Educ ., 69 F.3d 669 (2nd Cir. 1995). Also, retention of a student carries with it the potential of limiting the opportunity for that student to learn material covered by the academic standards for the next grade. See discussion of this issue in part B of the Discussion section of the Hearing Officer’s Ruling regarding Parents’ Motion for Partial Summary Judgement (attached as Appendix A and incorporated herein by reference).


14

The only other documents explaining BPS’s understanding of Student’s retention were legal arguments filed in this proceeding on April 18, 2003.


15

The BPS Promotion Policy and the testimony of BPS witnesses make clear that it would not be appropriate to require that Student be retained purely for social/emotional reasons. The Promotion Policy explains that retention may only occur for failure to make sufficient academic progress:

Only when all other interventions have been unsuccessful and the student has not made sufficient academic progress during the course of a school year, will the student be considered for retention. Exhibit S-1 (10 th page, par. # 5) (emphasis supplied).

Similarly, the BPS witnesses explained in their testimony that Student’s retention was based on a combination of academic and social/emotional deficits. Testimony of Nash, Kerwin. The social/emotional deficits cannot be properly understood apart from their impact on Student’s academic abilities since it was ultimately only Student’s academic difficulties that could justify retention. Testimony of Nash. The BPS attorney, in her oral argument in opposition to Student’s Motion for Summary Decision , conceded this point, stating that Student would not have been retained only for social and emotional reasons.


16

BPS has argued, and I accept as true, that BPS staff took steps (such as arranging for Student to eat lunch with 6 th graders and placing Student in a different English language arts class) which they hoped would improve Student’s chances of promotion. As useful as this may be, it is not sufficient. The BPS Promotion Policy makes clear that Parents must be given notice and the opportunity to participate in this process and thereby assist with the development of remedial strategies. Parents may have suggestions as to what additional steps BPS could take in order to allow their daughter to be promoted, and Parents may choose to take steps unilaterally in order to increase the likelihood of promotion. To deny Parents this opportunity makes little sense and violates the BPS policy.


17

34 CFR 300.344(a)(1).


18

By failing to allow Parents the opportunity to participate in what was both a retention/promotion decision and a placement decision, BPS also violated federal and state regulatory requirement that Parents be allowed to participate in a school district’s placement decision. 34 CFR 300.501(c) and 300.552(a)(1); 603 CMR 28.05(6) and 28.06(2); 48 Fed. Reg. 12473 (first column) (March 12, 1999) (“parents of a child with a disability are expected to be equal participants . . . in deciding . . . what services the agency will provide to the child and in what setting”).


19

34 CFR 300.342(a).


20

BPS argues that it was sufficient that Ms. Kerwin and Dr. Nash reviewed these documents, determined that it was not necessary to re-call the IEP Team and confirmed the appropriateness of the retention decision. I do not find this argument to be persuasive for the following reasons. As noted above, Dr. Nash’s testimony and the Pia Durkin Memorandum are clear that the promotion/retention decision is the responsibility of the IEP Team. Similarly, the state and federal special education regulations make clear that the decision regarding Student’s placement is the responsibility of the IEP Team and that Parents must have the opportunity to participate in that decision. 34 CFR 300.501(c) and 300.552(a)(1); 603 CMR 28.05(6) and 28.06(2); 48 Fed. Reg. 12473 (first column) (March 12, 1999) (“parents of a child with a disability are expected to be equal participants . . . in deciding . . . what services the agency will provide to the child and in what setting”).

These requirements are violated when one or two individuals take it upon themselves to substitute their judgment for the IEP Team. I do not suggest that particular BPS staff acted incompetently or in bad faith – I was impressed with both the professional competence and the concern for Student of Dr. Nash and other BPS witnesses. However, their abilities and intentions cannot substitute for a process established by BPS and state regulations to ensure that all appropriate persons, including Parents, have an opportunity to participate meaningfully in the decision-making process. As explained earlier, the IEP Team’s decision-making process needed to include review of the LPS progress reports as these reports were essential to any informed decision as to Student’s progress and skill level during the last three months of her 8 th grade year.


21

For the reasons explained above in footnote 20 above, it was not sufficient that Ms. Kerwin and Dr. Nash determined, after reviewing the progress reports, that Student should be retained in 8 th grade and placed at Mary Lyon.


22

I also note that, as discussed above, BPS violated state and federal special education regulations that the IEP Team (including Parents) determine Student’s placement for the 2002-2003 school year.


23

In their written closing argument, Parents have also sought reimbursement for tuition and other expenses from March 4, 2002 through June 2002 at LPS. As BPS correctly points out in its closing argument, this relief was not sought in Parents’ Request for Hearing, nor has the IEP for this time period been put into dispute by Parents. In their written closing argument, Parents also seek an order regarding stay put for the 2003-2004 IEP as well as a finding of discrimination on the basis of disability. I conclude that I am not able to address these matters as part of the resolution of the two issues which are the subject of this bifurcated Hearing.


24

Federal case law makes clear that to order reimbursement for a unilateral placement, I must find the proposed IEP or placement to be inappropriate, and Parents’ unilateral placement to be appropriate. E.g., Florence County School Dist. Four v. Carter , 510 U.S. 7, 15 (1993) (parents entitled to reimbursement only if the school district fails to propose an appropriate placement and the private school placement was proper under the Act); School Committee of Burlington v. Department of Education , 471 U.S. 359, 369 (1985) (reimbursement is a permissible remedy under the IDEA when parents unilaterally place a child in a private school only “if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act”).


25

Doe v. West Boylston School Committee , 4 MSER 149, 161 (D.Mass. September 14, 1998).


26

I note that if this question is answered in the affirmative, then the first underlined question would also necessarily be answered in the affirmative since both the IEP will have been determined to be inappropriate and the Parents’ placement determined to be appropriate. See footnote 24 and cases cited therein.


27

For further discussion of this standard, see In re: Arlington , 37 IDELR 119, 8 MSER 187, 193-195 (SEA MA 2002) and authorities cited therein.


28

For example, Dr. Nash testified: “Our district high schools I knew were not equipped to accommodate to the level [Student] needed her disabilities accommodated to.” Transcript of third day of Hearing, page 153.


29

* Laura is a pseudonym for the Student in this dispute.

Parents also argued in their Motion for Partial Summary Decision that since Student was entitled to be promoted to the 9 th grade but was not offered such placement by Boston, Student’s stay put placement is the unilateral 9 th grade placement at the Learning Prep School. However, during the Motion Hearing, Parents’ counsel indicated that Parents would not further pursue this claim at this time.


30

801 CMR 1.01(7)(h).


31

Celotex Corp. v. Catrett, 477 US 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). See also Pederson v. Time, Inc . 404 Mass. 14, 16-17 (1989).


32

Anderson v. Liberty Lobby, Inc., 477 US 242, 248 (1986).


33

Id. at 252.


34

Anderson v. Liberty Lobby, Inc., 477 US 242, 255 (1986); Hub Associates v. Good , 357 Mass. 449, 451 (1970).


35

Fed.R.Civ.P. 56(e).


36

In Re: Greater Fall River Regional Vocational School District , 7 MSER 275, 283 (SEA MA 2001).


37

Letter to Anonymous , 35 IDELR 35 (OSEP 2000)


38

Id .


39

Gant v. Wallingford Bd. of Educ ., 69 F.3d 669 (2nd Cir. 1995).


40

The IDEA’s full definition of FAPE is as follows:

The term “free appropriate public education” means special education and related services that —
(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency ;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 614(d).

33 USC 1401(8) (emphasis supplied). The federal regulations adopted pursuant to the IDEA include a similar definition of FAPE. 34 CFR 300.13.


41

Massachusetts’ full definition of FAPE is as follows:

“ Free appropriate public education”, special education and related services as consistent with the provisions set for in the 20 U.S.C. 1400 et seq. [the IDEA], its accompanying regulations, and which meet the education standards established by statute or established by regulations promulgated by the board of education.

MGL c. 71B, s.1 (emphasis supplied).


42

E.g., 603 CMR 28.02(18) (definition of “progress effectively in the general education program”); 603 CMR 28.04(2)(a)2 (discussion of the content of an educational assessment); 603 CMR 28.09(9)(b) (discussion of the educational program requirements for an approved special education school).


43

603 CMR 28.05(4)(b).


44

Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002.


45

E.g., Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (“appropriateness requires that the instructional plan be custom tailored to address the handicapped child’s ‘unique needs’”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (educational instruction must be based on the “unique needs of the disabled child” with sufficient support services so that the child will benefit from that instruction); In re: Arlington , 37 IDELR 119, 8 MSER 187, 195 n.23 (SEA MA 2002) (collecting authorities).


46

Similarly, the federal statutory requirement of full participation of each student with a disability in the general curriculum is not an absolute right. The federal guidelines explain that participation of the child in the general curriculum is to occur “to the maximum extent appropriate to the needs of the child.” 20 USC 1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 n. 11 and 12 and accompanying text (SEA MA 2000).

So too, the right to receive special education in the least restrictive environment may be limited, as necessary, to meet the needs of the particular student. See, e.g., 20 USC 1412(5)(A) (“To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”); Burlington v. Mass. Department of Education , 471 US 359, 369 (1985) (federal statute “contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as nonhandicapped children”).


47

Although Boston has also raised the issue of Student’s social deficits as a rationale for retention, Boston made clear during its oral argument that if Student were found to have completed the 8 th grade requirements regarding English language arts, she should have been promoted to 9 th grade, since her social deficits could be addressed in either 8 th or 9 th grade.


48

The IEP states in relevant part:

The Team is recommending that [Student] continue in the inclusion program at the Mary Lyon School. Although she has made progress, [Student] continues to have significant maturity issues and thus retention is recommended in order to consoladate [sic] the gains she has made.


49

See Anderson v. Liberty Lobby, Inc., 477 US 242, 255 (1986) (“all evidence must be construed in the light most favorable to the party opposing summary judgment”); Hub Associates v. Good , 357 Mass. 449, 451 (1970) (not appropriate at this juncture “to pass upon the credibility of witnesses or the weight of the evidence”).


50

Although the Mary Lyon principal was a member of the Team that met and proposed the 2002-2003 IEP retaining Student, Boston takes the position that the principal participated only as a Team member, and there is no evidentiary support for any other conclusion.


51

Kerwin’s affidavit, at par. 11, makes the general statement that Boston followed the “appropriate steps” in the Promotion Policy , but Boston’s attorney during oral argument conceded that many or all of the written notification procedural requirements had not been met.


52

See NL v. Knox County Schools, 38 IDELR 62 (6 th Cir. 2003) (“school district’s failure to comply with the procedural requirements of the Act will constitute a denial of FAPE only if such violation causes substantive harm to the child or his parents”).


53

See Pederson v. Time, Inc . 404 Mass. 14, 17 (1989) (moving party in summary judgement “assumes the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue”).


54

29 USC 794.


55

34 CFR 104.3(k)(2)(iii).


56

See Smith v. Robinson , 468 US 992 (1984) (comparing the protections under Section 504 with the protections under the federal special education statute).


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