Mashpee Public Schools – BSEA #08-0990, 08-1317, 08-1316



<br /> Mashpee Public Schools – BSEA #08-0990, 08-1317, 08-1316<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Mashpee Public Schools

BSEA # 08-0998, BSEA # 08-1317, BSEA # 08-1316

RULINGS ON

MOTION TO CONSOLIDATE,

MOTION TO DETERMINE SCOPE OF FINDINGS, AND

MOTION TO CONTINUE HEARING

Introduction

This Ruling pertains to three separate cases before the Bureau of Special Education Appeals (BSEA), each involving a different special education Student. Reduced to its essence, each case involves allegations of abuse by the same classroom teacher who was employed by Mashpee Public Schools (Mashpee). Parents seek only monetary damages.1

The allegations regarding one Student, who is ten years old and is diagnosed with Pervasive Developmental Disorder, include repeated physical assault and verbally abusive behavior, with the alleged result that he now exhibits extremely aggressive behavior. The allegations regarding the other two Students, who are eleven and twelve years old and diagnosed with Autism Spectrum Disorder and Asperger Syndrome respectively, are that these two Students witnessed the abuse of the first Student, with the alleged result that the two Students have each been diagnosed with post traumatic stress disorder and have demonstrated self-injurious (and other aberrant) behavior.

Parents’ damages claims are brought under Section 504 of the Rehabilitation Act of 1973 (Section 504), the Americans with Disabilities Act (ADA), 42 USC 1983 (Section 1983), Article CXIV of the Massachusetts Constitution, the Massachusetts Civil Rights Act, Title IX of the Education Act Amendments of 1972 (20 USC 1681) (Title IX), assault and battery, intentional infliction of emotional distress, and negligence.

There is agreement among the parties that the BSEA does not have the authority to award monetary damages, and there is ample support for this conclusion.2 Instead, the Parents ask that certain findings be made for the purpose of assisting a court to determine in a subsequent judicial proceeding what, if any, monetary damages are to be awarded.

On May 13, 2008, Parents filed with the Bureau of Special Education Appeals (BSEA) a Motion to Consolidate Hearings ( Motion to Consolidate ) for the purpose of having the three disputes consolidated as a single case for purposes of the BSEA evidentiary hearing.

Also on May 13, 2008, Parents filed a Motion Requesting the Hearing Officer to Conduct a Full Evidentiary Hearing, Develop a Record, Make a Determination of any and all Violations of Law, and a Determination Regarding the Amount of the Students’ Damages ( Motion to Determine Scope of Findings ). Through this Motion, Parents ask the BSEA to conduct a “full evidentiary hearing concerning all of their claims.” More specifically, Parents and Students request that the BSEA Hearing Officer

· make findings of fact;

· make a determination of any and all violations of law; and

· make a determination of what damages were suffered by the Students and Parents as a result.

On May 27, 2008, Mashpee Public Schools (Mashpee) filed a partial opposition to each Motion. On June 3, 2008, there was a telephonic hearing on Parents’ two Motions and by agreement of the parties, the motion hearing was continued until June 10, 2008 to hear supplemental arguments in response to a question from the Hearing Officer.

On June 6, 2008, Mashpee filed a Motion to Continue Scheduled Hearing Dates ( Motion to Continue Hearing ), seeking a continuance of some or all of the hearing dates now scheduled for July 2008. On June 10, 2008, Parents filed an opposition to Mashpee’s Motion to Continue Hearing and there was a telephonic hearing on the Motion.

The instant Ruling addresses Parents’ Motion to Consolidate and Motion to Determine Scope of Findings and Mashpee’s Motion to Continue Hearing .

Positions of the Parties

With respect to Parents’ Motion to Consolidate , Mashpee does not object to the consolidation of the three cases for hearing for the purpose of determining liability issues relative to monetary damages – for example, the teacher’s training and supervision, and Mashpee’s response and knowledge. However, Mashpee requests that the Hearing Officer bifurcate this liability portion of the hearing from any determination of any violation of a Student’s rights and from any determination of entitlement to compensatory services or other non-monetary relief. Mashpee asks that these bifurcated portions be tried separately for each Student. Parents seek consolidation of the three cases for all purposes, taking the position that the efficiency of the process will be improved, with little risk of prejudice to Mashpee.

With respect to the Motion to Determine Scope of Findings , Mashpee does not dispute that the BSEA has the authority to hear and consider evidence for the purpose of making findings of fact relevant to the Section 504 and the ADA damages claims. However, Mashpee takes the position that the BSEA must decline to exercise jurisdiction over (or make any findings of fact or conclusions of law relative to) the Parents’ remaining claims. Parents disagree, taking the position that the essential facts, which relate to the Students’ education, are common to all their legal claims and that courts rely on the expertise of the BSEA Hearing Officers to consider the evidence and make factual and legal findings.

With respect to Mashpee’s Motion to Continue Hearing , Mashpee argues that it has not had sufficient time to obtain a forensic psychologist to assist with case preparation and testify with respect to Parents’ claims and that without such an expert, it will be prejudiced. Parents oppose Mashpee’s request, taking the position that Mashpee has had sufficient time to obtain an expert and that Parents will be prejudiced by any further delay in fact finding by the BSEA.

Motion to Consolidate

Each of the Students’ claims arises from the same set of facts. Each Student was in the same special education classroom within the Mashpee Public Schools. The legal claims for each Student arise out of allegations of abuse that occurred as a result of the conduct of the same teacher in this classroom.

Separate hearings would require repetition of much of the testimony. Each case has been assigned to the same BSEA Hearing Officer. Nevertheless, separate hearings would raise the possibility of different testimony from the same witness regarding the same topic.

Mashpee raises a concern regarding prejudice “to the extent that the cumulative nature of any compensatory services testimony may improperly distort the ruling on potential non-monetary damages.” The IDEA precludes Parents from raising issues at hearing that were not raised in their Hearing Request , unless Mashpee agrees otherwise.3 In their Hearing Requests , Parents have raised only the issue of whether they are entitled to monetary damages from Mashpee. Without agreement of the parties, it is highly unlikely that the hearing will address any compensatory or prospective services issues or otherwise go beyond making findings with respect to Parents’ claims for monetary damages.4

Mashpee also raises the concern that consolidation will likely result in unnecessary disclosure of personal and sensitive information concerning each of the three Students to the Parents of the other Students. However, through their Motion to Consolidate , Parents have effectively waived their rights to maintain the confidentiality of this information from each other.

For these reasons, I find that the balance of considerations favors consolidation, at least for purposes of the evidentiary hearing. Therefore, Parents’ Motion to Consolidate will be allowed with the result that there will be a single, consolidated evidentiary hearing with respect to the three Students.

Through their Motion to Consolidate , Parents anticipated that as a result of a consolidated hearing, I would issue a single, final decision. Nevertheless, if it seems prudent to do so, I may issue a separate, final decision for each of the three Students.

Motion to Determine Scope of Findings

It is not disputed that all three Students have special education needs, and each receives services to address those needs pursuant to an individualized education program (IEP). Accordingly, it is also not disputed that each Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)5 and the state special education statute.6

The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”7 State special education law includes parallel requirements.8

The IDEA requires, as a general rule, that exhaustion of administrative remedies occur prior to seeking judicial relief. The statutory language provides, in relevant part, as follows:

Nothing in this title [20 USCS §§ 1400 et seq.] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973 [29 USCS §§ 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this part [20 USC §§ 1411 et seq.], the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part [20 USC §§ 1411 et seq.].9

There are exceptions to the IDEA exhaustion requirement (such as futility), but Mashpee has not argued that they apply in the instant dispute, and I therefore do not consider them.10 In Massachusetts, the IDEA administrative process that must be exhausted is the due process proceeding before the BSEA.

Although the exhaustion requirement under the IDEA is at issue, Parents do not make any substantive claims under the IDEA. On several occasions, the First Circuit has explained that the IDEA exhaustion requirement is not limited to claims based directly upon violations of the IDEA but rather “applies even when the suit is brought pursuant to a different statute so long as the party is seeking relief that is available under subchapter II of IDEA.”11

More specifically, in Frazier v. Fairhaven School Committee , the First Circuit addressed for the first time the question of whether a plaintiff who seeks only money damages is required to exhaust administrative remedies prior to instituting a Section 1983 claim predicated on a violation of the IDEA. The Court recognized that the BSEA does not have authority to order the requested relief of monetary damages but nevertheless held that plaintiffs may not proceed with their Section 1983 claim without first having exhausted the BSEA’s administrative process.12

Two federal district courts in Massachusetts have interpreted and extended somewhat the Frazier decision. In the first of these cases, Bowden ex rel. Bowden , Judge Woodlock required exhaustion of the administrative process regarding Section 504 and ADA claims where the sole requested relief was money damages. Applying the standard developed by Frazier , Judge Woodlock concluded as follows:

[A]ny aspect of the school’s treatment that interferes with the provision of a free, appropriate public education is within the scope of the IDEA’s administrative procedures. Since the ADA and Rehabilitation Act claims allege that defendants’ physical and psychological abuse interfered with their children’s right to an equal education, they are charges for which the IDEA procedures could have provided relief.13

More recently, Judge Zobel further extended the analysis in City of Boston v. Bureau of Special Educ. Appeals to require exhaustion regarding a Section 504 damages claim by a student not determined eligible to receive services under the IDEA and not seeking any relief under the IDEA. Without referencing Judge Woodlock’s decision but utilizing a similar standard, Judge Zobel reasoned as follows:

Therefore, the issue in the instant case is not, as Parents advocate, whether the Student had been found to be eligible under the IDEA and had been receiving special education services, but rather whether their claim is sufficiently related to the public education of a disabled child under the IDEA to require adherence to its exhaustion provisions.14

Other Federal courts have utilized somewhat different standards.15

The above First Circuit and federal District Court (for Massachusetts) decisions are persuasive that within the context of the instant dispute, Parents’ claims of abuse implicate Students’ right to an appropriate public education, thereby bringing their Section 504 and ADA damages claims under the BSEA’s jurisdiction for purposes of the IDEA requirement that the BSEA’s administrative proceedings must be exhausted. Mashpee does not disagree.

What is in dispute, however, is whether these exhaustion principles (and BSEA’s fact-finding role) extend to Students’ remaining claims, which are as follows: Section 1983, Article CXIV of the Massachusetts Constitution, the Massachusetts Civil Rights Act, Title IX, assault and battery, intentional infliction of emotional distress, and negligence.

I begin the analysis with the statutory language itself, quoted above, that requires exhaustion under the IDEA. This language explicitly references when the exhaustion requirement applies, that is “ before the filing of a civil action under such laws ” (emphasis supplied). The phrase “such laws” refers back to the following language within the same sentence: “the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities.” In other words, the IDEA exhaustion requirement applies only to the filing of a civil action under the United States Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, and other federal laws protecting the rights of children with disabilities .16

This understanding of the IDEA exhaustion requirements makes it unnecessary for Parents to exhaust administrative remedies for purposes of their state law claims.17 Also, the above-quoted IDEA statutory language requiring exhaustion applies only when a party is “ seeking relief that is also available under this part” of the IDEA, and t he IDEA does not include a remedy in tort.18 This provides an additional reason for concluding that the IDEA exhaustion requirements do not apply to Parents’ tort claims for this additional reason.19

Only two of Parents’ remaining claims pertain to a federal law. The first, which is Section 1983, is not, itself, a law “protecting the rights of children with disabilities” but instead is being utilized by Parents to enforce other federal laws. Therefore, Section 1983 need not be considered by itself, but rather only as it is utilized in conjunction with Parents’ other federal claims. I also note that Parents are unlikely to be able to utilize Section 1983 as a vehicle for their claims under Section 504 or the ADA.20

The second federal law relied on by Parents, which is Title IX, provides that no person shall, on the basis of sex, be subjected to discrimination under any education program or activity receiving federal financial assistance.21 Title IX pertains to Parents’ claims that Mashpee created a hostile educational environment within which Students were placed.22 This statute is not intended to protect the rights of children with disabilities to any greater or lesser extent than it is intended to protect the rights of children without disabilities, and therefore Title IX falls outside of the IDEA exhaustion statute’s reference to a federal law “protecting the rights of children with disabilities.” Accordingly, I find that Parents’ Title IX claim does not require exhaustion of BSEA proceedings.23

Accordingly, I find that Parents’ Section 504 claims and ADA claims (but none of Parents’ other claims) trigger the IDEA exhaustion requirements for purposes of fact finding through the BSEA’s administrative proceedings.

Parents ask that this fact finding extend beyond the Section 504 and ADA claims to all of their legal claims. I therefore consider whether my jurisdiction as a BSEA Hearing Officer is sufficiently broad to extend fact finding to Parents’ claims that do not require exhaustion; and if so, whether to do so would be appropriate in the instant disputes.

With respect to all three Students, each of Parents’ legal claims pertains to a common set of facts regarding the alleged abuse of Students within the same Mashpee special education classroom. The alleged facts also include the alleged consequences of any abuse, including alleged post traumatic stress and aggressive and other aberrant behaviors that impact the Students’ current and future learning. Fact finding with respect to those legal claims that are not subject to IDEA exhaustion is unlikely to be significantly broader in scope than the fact finding regarding Parents’ Section 504 and ADA claims.24 Within this context, principles of judicial and administrative efficiency and economy argue strongly in favor of developing a complete factual record regarding all of Parents’ claims through a single evidentiary hearing.

Because the fact finding regarding each of Parents’ claims is likely to pertain to the current and prospective educational needs of the three special education Students, Frazier advises that the fact finding regarding all claims would be assisted by the expertise of a BSEA Hearing Officer and is therefore best done through the BSEA administrative proceedings.

Exhaustion is beneficial regardless of whether the administrative process offers the specific form of remediation sought by a particular plaintiff. After all, the administrative process facilitates the compilation of a fully developed record by a factfinder versed in the educational needs of disabled children – and that record is an invaluable resource for a state or federal court required to adjudicate a subsequent civil action covering the same terrain. Fidelity to the IDEA’s exhaustion requirement ensures such an outcome.25

Finally, I note that even after Frazier and several District Court decisions interpreting Frazier , the extent of the IDEA exhaustion requirements remains somewhat unclear.26 It seems more prudent to err on the side of an expanded scope of fact finding (which can be disregarded by a court to the extent that fact finding has extended too far) rather than risk the development of an incomplete factual record and the need for a second fact-finding hearing before the BSEA.

Because a Hearing Officer’s jurisdiction under Massachusetts special education regulations is sufficiently broad to engage in fact-finding regarding all of Parents’ legal claims,27 because of the breadth of a BSEA Hearing Officer’s jurisdiction under the IDEA,28 because the BSEA’s fact-finding role may be utilized even when no claims are made under the IDEA,29 and because all of Parents’ claims pertain to Students’ opportunity to have an appropriate public education (including special education services), I conclude that I may extend my fact-finding role beyond Parents’ Section 504 and ADA claims (and related Section 1983 claims) to include all of Parents’ claims. For the reasons explained above, I further conclude that it is appropriate to do so in the instant disputes.

For all of these reasons, I conclude that the BSEA fact-finding hearing should address all of Parents’ legal claims. The fact finding may include a determination of what harm, if any, occurred to Students as a result of any abuse.

Parents argue that the BSEA administrative process should include not only fact finding but also a determination of liability with respect to each of Parents’ legal claims for monetary damages, without determining the actual amount of any monetary damages. I can find no support for this position. A determination of liability regarding monetary damages under the Massachusetts civil rights statute or under tort law, for example, would quickly outstrip the expertise of a BSEA Hearing Officer, whose sole responsibilities are to adjudicate IDEA disputes and related Section 504 disputes. Even within his or her responsibilities regarding Section 504 and the IDEA, the BSEA Hearing Officer is not called upon to determine liability for monetary damages.

In addition, as illustrated in the above quote from the Frazier decision, the role of the BSEA Hearing Officer in these kinds of proceedings is characterized by courts as a “factfinder.” It is apparent that the responsibility of the BSEA Hearing Officer is the development of an evidentiary record and findings of fact based upon that record, rather than the adjudication of liability regarding claims for monetary damages.30

For these reasons, Parents’ Motion to Determine Scope of Findings will be allowed with respect to the BSEA Hearing Officer’s making all findings of fact with respect to all of Parents’ legal claims (including a determination of what harm, if any, occurred to Students as a result of any abuse) but will be denied with respect to findings regarding Mashpee’s liability for monetary damages. As has been discussed with the parties, the parties will be directed, through a supplemental order, to provide the Hearing Officer with proposed findings of fact prior to the evidentiary hearing, and the parties will be allowed to provide amended proposed findings of fact after the conclusion of the evidentiary hearing.

Motion to Continue Hearing

Mashpee has filed a Motion to Continue Hearing for the purpose of postponing some or all of the already-scheduled hearing dates. Consideration of Mashpee’s Motion requires a review of the procedural history of these three cases. All three cases were filed with the BSEA on August 24, 2007, and all three were assigned to the present Hearing Officer. Pursuant to BSEA Hearing Rule IV and by agreement of both parties, all three cases were taken “off calendar” for three months, effective September 17, 2007. Again pursuant to BSEA Hearing Rule IV, the BSEA issued a show cause order in each case on December 12, 2007, and again by agreement of the parties, all three cases were taken “off calendar” for another three months.

BSEA Hearing Rule IVB provides that after a case has been “off calendar” for six months, the “BSEA will schedule a hearing date and the parties shall proceed to hearing or the matter may be dismissed with prejudice.” Accordingly, pursuant to an Order dated March 21, 2008, I directed that in each case, the parties provide me with a status report by March 27, 2008 to advise me whether either party wishes to proceed to hearing.

By letter of March 26, 2008, Parents’ attorney advised the BSEA that a mediation session was scheduled for April 15, 2008 and requested that the matter remain off calendar until after the April 15 th mediation. Pursuant to an Order dated March 28, 2008, I directed that in each case, the parties provide me with a status report by April 18, 2008 to advise me whether either party wishes to proceed to hearing.

By letter of April 17, 2008, Parents’ attorney advised the BSEA that the mediation was unsuccessful and requested a conference call to establish hearing dates. A conference call with the parties occurred on April 25, 2008, during which the three cases were scheduled for hearing on the following dates with consent of both parties: July 7, 8, 9, 10, 14, 15, 17, and 18, 2008.

On June 3, 2008, Mashpee’s attorney advised the Hearing Officer for the first time during a conference call that Mashpee had not yet identified a forensic psychologist for purposes of assisting in the preparation of these cases for hearing and to testify at hearing, and that Mashpee would like to postpone the Hearing dates to allow sufficient time to obtain such an expert. Parents objected to any postponement, and Mashpee was given until June 6, 2008 to file a postponement request. Mashpee filed its Motion to Continue Hearing on that date, and a telephonic motion hearing was held on June 10, 2008 to consider the arguments of the parties.

As of June 10 th (during the motion hearing), Mashpee has made “many inquiries” yet had not been able to retain a forensic psychologist to serve as an expert in these three cases. Mashpee takes the position that it does not have such an expert within its school system; and that without the benefit of such an expert, Mashpee will be unable to present fully its case before the BSEA and would therefore be significantly prejudiced, particularly with respect to the question of what harm to Students, if any, may have been caused by the alleged abuse. Mashpee states that if this testimony is not provided in the BSEA proceedings, Mashpee would be required to seek the introduction of this testimony in any subsequent judicial proceeding. Mashpee further argues that Parents would not be prejudiced by a delay in the hearing dates.

Although I understand and am sympathetic to Mashpee’s predicament, I am not persuaded by Mashpee’s arguments for the following reasons.

First, since August 24, 2007 when these cases were filed with the BSEA, Mashpee knew of should have known of the possibility that these cases would proceed to hearing and could have then begun to prepare for that possibility by seeking to identify an expert. More specifically, Mashpee has been aware since at least April 15, 2008 (when the mediation was unsuccessful) that this matter would likely proceed to hearing before the BSEA. Mashpee began looking for its expert in the latter half of May 2008.31 I find that Mashpee has had a significant period of time to identify and engage an expert.

Second, as noted above, pursuant to BSEA Hearing Rule IVB, these cases are to proceed to hearing or be dismissed at the end of the six months “off calendar” period which was March 21, 2008. This Rule is intended to result in the cases proceeding to hearing without any further significant delay.

Third, as Parents’ attorney first explained during the April 25, 2008 conference call, Parents seek to have fact finding completed (including a decision from the BSEA Hearing Officer rendered) prior to filing their judicial claims for damages. As first explained by Parents’ attorney during the April 25 th conference call, Parents believe that they are faced with a three-year statute of limitations relevant to their claims commencing at the beginning of the 2005-2006 school year. For these reasons, hearing dates were set, with Mashpee’s consent, for mid-July 2008 so that a BSEA decision could be issued in August 2008.

Mashpee counters that Parents need not be concerned with filing in court prior to September 2008 because the three-year statute of limitations applicable to all of Parents’ claims would be tolled until these minor students reach majority, citing to federal and state case law and MGL c. 260, s. 7.32 Parents disagree with this reading of the law, pointing to a series of BSEA decisions that have consistently concluded that the statute of limitations is not tolled until a minor student reaches the age of majority.33 I am not prepared to resolve this part of the disagreement; rather, it is sufficient to note that I am unaware of any authoritative judicial decisions (for example, from the United States Supreme Court or the First Circuit) on this issue, and Parents are therefore appropriately concerned about relying on a tolling argument rather than filing within the three year statute of limitations. If Parents have not exhausted administrative remedies prior to filing in court, they run the risk of dismissal of their claims.34 I therefore find that Parents have a strong interest in having a decision (that makes the requisite findings of fact) issued by the BSEA no later than August 2008.

Finally, I note that Mashpee has not requested postponement of the scheduled hearing dates for a particular length of time; rather Mashpee has asked only for an indefinite postponement. This is because Mashpee does not yet know the identity (and therefore the schedule) of its expert.

I understand Mashpee’s predicament; but in light of the above analysis, its request for an indefinite postponement is particularly unreasonable. In the event that Mashpee identifies an expert and can then request a continuance of the hearing for a particular amount of time, Mashpee may re-file its request to continue the hearing, and I would then re-consider its Motion in light of the above-discussed considerations.

For these reasons, Mashpee’s Motion will be denied without prejudice.

ORDER

Parents’ Motion to Consolidate is ALLOWED for the purpose of having a consolidated evidentiary hearing for BSEA # 08-0998, # 08-1316, and # 08-1317.

Parents’ Motion to Determine Scope of Findings is ALLOWED with respect to the BSEA Hearing Officer’s making all findings of fact with respect to all of Parents’ legal claims. Parents’ Motion to Determine Scope of Findings is DENIED with respect to the Hearing Officer’s making findings regarding Mashpee’s liability for monetary damages.

Mashpee’s Motion to Continue Hearing is DENIED without prejudice. This matter continues to be scheduled for Hearing on July 7, 8, 9, 10, 14, 15, 17, 18, 2008 from 10:00 AM to approximately 5:00 PM or later as necessary to complete the Hearing within the allotted number of eight Hearing days.35

By the Hearing Officer,

_________________

William Crane

Date: June 16, 2008


1

All of the Parents and Students are represented by Daniel Heffernan and Michelle Moor. Mashpee is represented by Mary Joann Reedy and Paige Tobin


2

In Re: Boston Pub. Schs., 13 Mass. Spec. Educ. Rep. 51 (BSEA 06-6508) (2007); In Re: Natick Pub. Schs., 6 Mass. Spec. Educ. Rep. 48 (BSEA 99-3852) (2000). See also Frazier v. Fairhaven School Committee, 276 F.3d 52, 63 (1 st Cir. 2002) (noting that the BSEA does not offer monetary damages as a form of relief under the IDEA).


3

20 USC § 1415(f)(3)(B).


4

Although no claims are made under the IDEA, the exhaustion rules governing this case (discussed in the text below) require utilization of IDEA procedural rules, which allow for amendment of the Hearing Request with permission by agreement of the parties or with permission from the Hearing Officer. 20 USC § 1415(c)(2)(E). In the event that the Hearing Request is amended to include non-monetary claims, I may reconsider my ruling regarding Parents’ Motion to Consolidate .


5

20 USC § 1400 et seq .


6

MGL c. 71B.


7

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


8

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


9

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


10

Rose v. Yeaw, 214 F.3d 206, 210-211 (1 st Cir. 2000)


11

Frazier v. Fairhaven School Committee, 276 F.3d 52, 59 (1 st Cir. 2002) , quoting Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000). See also Cave v. East Meadow Union Free School Dist. , 2008 WL 183632 at *6 (2 nd Cir. 2008) (parents’ discrimination claim under 42 U.S.C. 1983 is subject to IDEA exhaustion requirements because the relief sought is available under the IDEA).


12

Frazier , 276 F.3d at 69-70 (1 st Cir. 2002) .


13

Bowden ex rel. Bowden , 2002 WL 472293 at *4 (D.Mass. 2002) (footnote omitted). Noting that the ADA and the Rehabilitation Act provide largely the same protections and use the same standards, Judge Woodlock did not distinguish between claims under these statutes. Id . at n. 6.


14

City of Boston v. Bureau of Special Educ. Appeals , 2008 WL 2066989, *4 ( D.Mass. 2008) (citations and internal quotation marks omitted)


15

E.g., McCormick v. Waukegan School Dist. No. 60 , 374 F.3d 564, 569 (7 th Cir. 2004 ( exhaustion not necessary because IDEA does not provide a remedy for his alleged injuries, which are non-educational in nature) ; Padilla ex rel. Padilla v. Sch. Dist. No. 1 in City and County of Denver, Colo., 233 F.3d 1268, 1274 (10th Cir. 2000) (“dispositive question generally is whether the plaintiff has alleged injuries that could be redressed to any degree by the IDEA’s administrative procedures and remedies”); Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1275-76 (9th Cir.1999) (holding exhaustion to be unnecessary because of the lack of possible remedies under IDEA’s administrative processes that could address the plaintiff’s damages as a result of physical abuse and injuries); Campbell v. Nye County Sch. Dist., No. 94-15747, 1995 WL 597706, at *2 (9 th Cir. 1995) (finding that § 1983 claim for compensatory damages based upon beatings of children by school personnel could not have been brought under the IDEA where plaintiffs did not claim beatings were disciplinary in nature and beatings could not have been discipline under Nevada law prohibiting corporal punishment in schools); S.S. v. E. Ky. Univ., 307 F.Supp.2d 853, 858 (D.Ky. 2004), vacated on other grounds, 125 Fed. Appx. 644 (6th Cir. 2005) ( “physical assault or sexual abuse of a student by a school staff member or administrator would fall outside of the scope of the IDEA since they are not related to the way that a school provides education ”).


16

See M.T.V. v. DeKalb County School Dist. , 446 F.3d 1153, 1157-58 (11 th Cir . 2006):

The IDEA allows plaintiffs to seek “remedies available under the Constitution, [the ADA, Section 504], or other Federal laws protecting the rights of children with disabilities.” 20 U.S.C. § 1415( l ). Nonetheless, it also subjects these claims to an exhaustion requirement: “[B]efore the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter.” Id. Thus, whether claims asserting the rights of disabled children are brought pursuant to the IDEA, the ADA, Section 504, or the Constitution, they must first be exhausted in state administrative proceedings.


17

See R.K., ex rel. T.K. v. Hayward Unified School Dist. , 2007 WL 2778702, n. 4 ( N.D.Cal. 2007) (“The District argues that the exhaustion requirement applies to Plaintiff’s state -law claims as well. Although Plaintiff does not object on this ground, the Court notes that the language of the IDEA restricts the exhaustion to requirement to claims arising under federal law.”); M.J. ex rel. G.J. v. Clovis Unif. Sch. Dist., 2007 WL 1033444, *12 (E.D.Cal. April 3, 2007) (“This provision [of the IDEA requiring exhaustion] specifically concerns ‘rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the rights of children with disabilities….’ It does not address state laws that might protect children with disabilities. CUSD points to no other authority that requires exhaustion of administrative remedies prior to the filing of Plaintiff’s [state law] claim.”)


18

Nieves-Marquez v. Commonwealth of Puerto Rico , 353 F.3d 108 (1 st Cir. 2003) (“tort-like money damages, as opposed to compensatory equitable relief, are not available under IDEA”); Sellers v. School Board, 141 F.3d 524, 527 (4 th Cir. 1998) (“Tort-like damages are simply inconsistent with IDEA’s statutory scheme”).


19

Bowden , 2002 WL 472293 at *5 (“IDEA exhaustion provision does not apply because the tort … claims are not claims for which relief is available in any sense under the IDEA”); In Re: Milton Pub. Schs., 14 Mass. Spec. Educ. Rep. 18 (BSEA 08-2284) (2008) (IDEA’s requirement of exhaustion of the BSEA’s administrative remedies does not apply to a tort claim under MGL c. 76, s. 16, which provides a tort remedy for improper exclusion from school).


20

It is clear from Frazier that Section 1983 may be utilized to implicate Parents’ rights under the IDEA. Frazier, 276 F.3d at 69-70 (1 st Cir. 2002) . However, Section 1983 cannot be used as a vehicle for ADA or other statutory claims that provide their own framework for damages. M.M.R.-Z. v. Commonwealth of Puerto Rico , 2008 WL 2285185 , n. 3 (1 st Cir. 2008)(collecting cases).


21

Education Amendments of 1972, § 901; 20 USC § 1681.


22

Frazier , 276 F.3d at 67 ( conduct creating a sex-based hostile educational environment may be actionable under Title IX).


23

See Bowden , 2002 WL 472293 at *3 (explaining that in the First Circuit’s Frazier decision, the alleged violations of Title IX, based on sexual harassment and retaliation, were not related to a free, appropriate public education and therefore the First Circuit did not subject the Title IX claims to IDEA exhaustion requirements); In Re: Bourne Pub. Schs., 8 Mass. Spec. Educ. Rep. 297 (BSEA 02-3804) (2002) (finding that exhaustion not required relative to a Title IX claim). But see M.M.R.-Z. v. Commonwealth of Puerto Rico , 2008 WL 2285185, *4 (1 st Cir. 2008) where the Court stated in dicta without analysis or amplification: “(arguably) Title IX as applied to a disabled child” falls within the phrase “other Federal laws protecting the rights of children with disabilities” as found within 20 USC § 1415 (l).


24

In the event that I later determine that the scope of fact finding regarding Parents’ legal claims which are not subject to IDEA exhaustion is significantly broader in scope than the fact finding regarding Parents’ Section 504 and ADA claims, I may reconsider my decision to hear all of the facts regarding all of Parents’ claims.


25

Frazier , 276 F.3d at 61.


26

See Bowden , 2002 WL 472293 at *3 (noting that the exact dimensions of the universe of claims subject to IDEA exhaustion “remains somewhat ambiguous even after Frazier ”). See also conflicting authority cited in footnote 23 above.


27

603 CMR 28.08(3)(a)(“parent or a school district … may request mediation and/or a hearing at any time on any matter concerning the … provision of special education in accordance with state and federal law”).


28

See Rose v. Yeaw, 214 F.3d 206, 210 (1 st Cir. 2000) (noting the “broad, encompassing” scope of the IDEA due process hearing).


29

Frazier, 276 F.3d at 64 (1 st Cir. 2002) ( IDEA administrative due process must be utilized even where plaintiffs seek money damages not available under the IDEA); City of Boston v. Bureau of Special Educ. Appeals , 2008 WL 2066989 ( D.Mass. 2008) (IDEA administrative due process must be utilized even though Parents are not seeking relief under the IDEA).


30

See Frazier , 276 F.3d at 61; Bowden , 2002 WL 472293 at *3.


31

In its Motion to Continue Hearing , Mashpee stated that school counsel was out of the country for two and one-half weeks of vacation in May and that upon her return, she and Mashpee administrators began to search for a forensic psychologist. Motion to Continue Hearing , pars. 2, 4. However, Mashpee has been represented by two attorneys acting as co-counsel, each of whom has been actively involved in these three cases at various times.


32

See, e.g., Armstrong v. Lamy , 938 F.Supp. 1018 ( D.Mass. 1996).


33

See, e.g., In Re: Fall River Public Schools , 5 Mass. Spec. Educ. Rep. 183, 187 (BSEA 00-0771)(1999) and cases cited therein.


34

Frazier , 276 F.3d at 64 (holding that “plaintiffs who bring an IDEA-based claim under 42 U.S.C. § 1983, in which they seek only money damages, must exhaust the administrative process available under the IDEA as a condition precedent to entering a state or federal court”).


35

As discussed with the parties, Parents and Mashpee shall each complete the presentation of their case, including a reasonable amount of cross-examination by the opposing party, within four Hearing days so that this matter may be completed on July18, 2008; and the parties shall be prepared to stay late, if necessary, for this purpose.


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