COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
BSEA #03-5677
MILES1 v WACHUSETT PUBLIC SCHOOL DISTRICT
RULING
This ruling is issued pursuant to Wachusett’s July 7, 2003 Motion to Dismiss parent’s hearing request. Parent filed an opposition on July 15, 2003. After consideration of both the motion and opposition, Waschusett’s motion for dismissal is denied.
Both BSEA Rules and the Standard Adjudicatory Rules of Practice and Procedure governing BSEA proceedings provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted; see BSEA Rule 16B3, 801 CMR 1.01(7)(g)(3). Similarly, the federal courts have concluded that a motion to dismiss under Federal Rule of Civil Procedure 12 (b)(6) may be allowed if the court finds “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v Gibson, 355 US 41, 45-46 (1957); Roeder v Alpha Indus. , 814 F. 2d 22, 25 (1 st Cir. 1987).
Here Wachusett has asserted that the decision whether to promote or retain a student is a regular education decision and as such the Hearing Officer has no jurisdiction to address this issue; see School Brief at 1-2.
A parent or school district may request a due process hearing on matters relating to the identification, evaluation or educational placement of a child with a disability or provision of a free appropriate public education for a child. Issues solely concerning a decision to promote or retain a student is a regular education decision which would not be subject to a due process proceeding before the BSEA; see Greater Fall River Regional Vocational School District, 7 MSER 275 (2001). The United States 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; Letter to Anonymous , 35 IDELR 35 (OSEP 2000).
However, OSEP has also stated:
“ 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…”, Letter to Anonymous, see also Laura v Boston Public Schools, 39 IDELR 20 (2003) .
Mother has indicated in her opposition that “[Miles] needs retention in kindergarten specifically because of his disabilities-developmental delay and speech impairment.” … “It would be a disservice to [Miles] to place him in first grade, where his disabilities will prevent him from progressing effectively.”
Mother has thus stated a FAPE issue that may have a direct impact upon the retention and promotion decisions. She is entitled to present this claim at hearing.
Wachusett’s Motion to Dismiss is DENIED. The BSEA will contact the Parties to set up further proceedings in this matter.
By the Hearing Officer,
_______________________________
Joan D. Beron
Dated: July 18, 2003
1
Miles is a psuedonym used for confidentiality and classification purposes.