Nashoba Valley Technical School District and Groton Dunstable Regional School District – BSEA # 08-3193



<br /> Nashoba Valley Technical School District and Groton-Dunstable Regional School District – BSEA # 08-3193<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Nashoba Valley Technical School District and Groton Dunstable Regional School District

BSEA # 08-3193

RULING ON NASHOBA’S MOTION TO DISMISS

A. INTRODUCTION

This Ruling addresses Nashoba Valley Technical School District’s (Nashoba) Motion to Dismiss . The underlying issue is whether Section 504 of the Rehabilitation Act was violated when Nashoba denied admission to Student in 2005, 2007, and 2008. Nashoba seeks dismissal of all claims relevant to its admission decisions.1

On July 22, 2008, a telephonic hearing was held on the Motion to Dismiss .

The Bureau of Special Education Appeals (BSEA) Hearing Rules and the Standard Adjudicatory Rules of Practice and Procedure governing BSEA proceedings both 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.2 The federal rules provide guidance, and in that forum, 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/her claim which would entitle him to relief.”3

Therefore, dismissal is inappropriate unless Student can prove no set of facts in support of his claims. I will consider Student’s claims based upon any theory of law and will consider the allegations in the Amended Hearing Request to be true, as well as all reasonable inferences in Student’s favor.4

This ruling is issued pursuant to Section 504 of the Rehabilitation Act (29 USC 794), the state Administrative Procedure Act (MGL c. 30A), the regulations promulgated under these statutes, and the Massachusetts special education regulations granting jurisdiction to a Bureau of Special Education Appeals (BSEA) hearing officer to hear Section 504 disputes (603 CMR 28.08).

B. PROCEDURAL HISTORY

On November 30, 2007, Student filed a Hearing Request with the BSEA, naming as parties Nashoba, Groton Dunstable Regional School District (Groton Dunstable), and the Massachusetts Department of Elementary and Secondary Education (ESE). On February 15, 2008, Student filed an Amended Hearing Request .

This matter was re-assigned to the present Hearing Officer on June 25, 2008.

The BSEA allowed ESE’s Motion to Dismiss by Ruling of July 2, 2008 because Student did not allege that ESE had committed any wrongdoing, Student did not request any particular relief from ESE, and there was no reason to believe that ESE’s participation in the hearing would provide needed expertise or factual information.

Groton Dunstable has filed a Motion to Dismiss , but on July 2, 2008 Groton Dunstable requested that its motion be held in abeyance. Groton Dunstable has chosen not to participate with respect to Nashoba’s Motion to Dismiss .

C. FACTS

The following facts are taken from the Amended Hearing Request . They are not findings of fact by the Hearing Officer, but rather are assumed to be true for purposes of deciding the instant motion and are construed in a light most favorable to Student, as the party opposing the motion.

1. Student is a nineteen-year-old young man who lives with his grandparents who have been his legal guardians. Student recently completed the 11 th grade at Groton Dunstable.

2. Student is diagnosed with an intellectual disability, an emotional disability, and attention deficit hyperactivity disorder. He has not passed the 10 th grade MCAS. Student has expressed that he does not desire to go to college but wants to learn a trade.

3. Upon the advice of his Groton Dunstable guidance counselor and while under an IEP, Student applied in 2005 to Nashoba for admission for the 9 th grade (the 2005-2006 school year). His application was denied by Nashoba without explanation. Nashoba did not provide Student’s family with a complete copy of its admission criteria and appeal procedure within 10 days of its denial letter. At that time, Nashoba had actual knowledge that Student had a disability within the meaning of Section 504 of the Rehabilitation Act.

4. Upon the advice of his Groton Dunstable guidance counselor and while under an IEP, Student again applied to Nashoba for admission while in the 10 th grade. His application was made in May 2007 and was again denied by Nashoba without explanation of the reasons for denial. (Nashoba’s letter to Student dated July 16, 2007, simply stated that Nashoba had carefully reviewed Student’s application and that Student had not been accepted. The letter advised that if Student had any questions or concerns, he may call the Nashoba admissions coordinator, and a telephone number was given.) Nashoba did not provide Student’s family with a complete copy of its admission criteria and appeal procedure within 10 days of its denial letter. At that time, Nashoba had actual knowledge that Student had a disability within the meaning of Section 504 of the Rehabilitation Act.

5. In response to Nashoba’s letter of July 16, 2007 denying admission, Student’s attorney sent a letter to Nashoba, dated August 10, 2007, appealing Nashoba’s decision to deny admission. The letter also requested that Nashoba provide each reason for denying admission and requested a copy of the admission and review/appeal procedure.

6. By letter of August 14, 2007, Nashoba responded to Student’s attorney, stating that Nashoba considered Student’s attorney’s letter to be the first level of appeal to the Nashoba principal and that the principal would be “in touch with you within thirty days of receipt of your letter.” Nashoba enclosed in its letter its admission and review/appeal procedure.

7. The Nashoba principal did not respond to Student’s attorney. When Student’s attorney did not receive a timely response from the Nashoba principal, his attorney sent a letter, dated September 24, 2007, to the Nashoba superintendent. The letter noted the previous correspondence (above) and the lack of response from the Nashoba principal, and stated that Student was now invoking the second level of appeal to the Nashoba superintendent. Student’s attorney also requested a copy of Student’s entire application package and all documents used in determining that he was not eligible for admission to Nashoba.

8. Nashoba’s superintendent responded by letter of September 25, 2007, stating that he was enclosing a complete copy of Student’s application as well as a copy of the documentation used in determining that he was not eligible. The superintendent’s letter advised Student’s attorney of the name of Nashoba’s attorney and stated that all further communication would be through its attorney.

9. Nashoba did not conduct an appeal process through the Nashoba principal or through the Nashoba superintendent.

10. Student’s May 2007 application was signed by Student, his grandparent, and the Groton Dunstable guidance counselor. Immediately following their signatures is a statement entitled “Voluntary Information Section” which includes, in relevant part, the following sentences:

The information requested in this section is not required for admission. Submission of the information is entirely voluntary. … In addition, note that applicants with disabilities may voluntarily self-identify for the purpose of requesting reasonable accommodations during the entire application and admission process.

Following this statement, the application states: “Persons with a disability: No Yes,” and the word “Yes” is circled on Student’s application. Then, the application states: “If yes, do you need accommodations during the application for admission process? No Yes,” and the word “No” is circled on Student’s application.

11. Student’s May 2007 application indicates that Student received an overall score (through Nashoba’s admission process) of 44.9 out of a total possible score of 100. Nashoba set the minimum score for admission at 50, with the result that no student with an overall score of less than 50 was admitted to Nashoba for the 2007-2008 school year.

12. Student’s score of 44.9 was comprised of the following subscores:

· Academic rating of 4.9 out of a possible score of 16.

· Attendance rating of 15 out of a possible score of 20.

· Conduct rating of 5 out of a possible score of 20.

· Profile rating of 4 out of a possible score of 4.

· Interview rating of 16 out of a possible score of 40.

13. The interview rating of 16 (above) is based on Student’s answers to seven standard questions, with the answers scored on the basis of following criteria: Student’s interest and understanding of Nashoba, Student’s interview and self-presentation skills, Student’s articulation of future goals and plans, and Student’s community service and extracurricular activities.

14. During the last week of January 2008, Student applied for admission to Nashoba for a third time. As of the filing of the Amended Hearing Request on February 15, 2008, Nashoba had not responded with a decision regarding Student’s admission. Subsequent letters received from the parties indicate that Nashoba has denied Student admission because it believes, based upon the transcript it received from Groton Dunstable, that Student did not pass English during the 2007-2008 school year.

D. STUDENT’S CLAIMS AND REQUEST FOR RELIEF

Student’s Amended Hearing Request makes the following claims against Nashoba:

· Nashoba violated Student’s state and federal civil and due process rights when it denied Student admission in 2005 for the 9 th grade and again in 2007 for the 11 th grade without explanation in violation of 603 CMR 4.03(6)(a)4.5

· Nashoba violated Student’s state and federal civil and due process rights when, in 2005 and again in 2007, it failed to provide a complete copy of its admission criteria and appeals procedure within 10 days of its denial letter in violation of 603 CMR 4.03(6)(a)4.

· With respect to the 2007 application for admission, Nashoba violated Student’s state and federal civil and due process rights and also discriminated against him when it took no action after receiving notice that Student was invoking his first and then his second level of appeal.

· Nashoba discriminated against Student by denying him admission for the 2005-2006 school year and the 2007-2008 school year based upon his disabilities.

· Nashoba’s admission policy and Nashoba’s failure to provide copies of its admission and review/appeal procedure is a pretext to discriminate against students with disabilities, including but not limited to Student.

· Nashoba’s failure to follow its own, as well as legally-mandated, procedures was the result of gross misjudgment, bad faith, and intentional discrimination.

· Student and his grandparents suffered emotional distress as a result of the above violations.

The only relief requested by Student’s Amended Hearing Request is that Nashoba immediately admit Student for a vocational course of study.

E. JURISDICTION OF THE BSEA TO CONSIDER STUDENT’S CLAIMS

A BSEA Hearing Officer’s jurisdiction is found within both the state and the federal special education laws and their implementing regulations. When these authorities are read together, the BSEA jurisdiction may be understood as limited to (1) identification, eligibility, evaluation, placement, IEP, and provision of special education in accordance with state and federal law, (2) procedural protections of state and federal law for students with disabilities, (3) a school district’s claim that ESE has not made a proper determination of school district responsibility for a student’s education, and (4) a parent’s claims regarding any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973, as set forth in 34 CFR §§104.31-104.39.6

During oral argument regarding Nashoba’s Motion to Dismiss , Student made clear that his Amended Hearing Request was premised, in part, upon federal statutory and constitutional claims pursuant to 42 USC § 1983. However, the above-described jurisdiction of the BSEA provides no basis for me to consider Student’s constitutional due process claims or to consider other federal claims pursuant to 42 USC § 1983.

Similarly, Student presses allegations of violations of ESE regulations (603 CMR 4.00) governing vocational educational programs, such as Nashoba. I do not find any jurisdictional basis for resolving claims under vocational educational regulations which are not special education regulations.

During oral argument, Student also made clear that he was not seeking relief against Nashoba pursuant to state or federal special education law. It is not disputed that Student has never been enrolled at Nashoba, Nashoba has never been Student’s local education agency, and Nashoba has never been responsible for providing Student with special education or related services. Accordingly, special education law and regulations do not apply.

The only remaining question to be considered is whether Nashoba’s actions violated Section 504 of the Rehabilitation Act of 1973 (Section 504). It is not disputed that the BSEA has jurisdiction to consider whether Student has alleged any Section 504 claims that may entitle him to relief .

F. STUDENT’S SECTION 504 CLAIMS

Section 504 provides, in relevant part, as follows:

No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .7

In order to establish a claim under Section 504, Student must demonstrate the following:
(1) Nashoba receives federal financial assistance,

(2) Student has a “disability” within the meaning of the statute,

(3) Student is a “qualified” individual, and

(4) Student is subject to unlawful discrimination.8

Nashoba does not dispute that it receives federal financial assistance and therefore is subject to Section 504, nor does it dispute that Student has a disability within the meaning of the statute. Accordingly, these two prongs of the Section 504 standard are satisfied.

What is in dispute is whether Student is “qualified” under Section 504 and whether Student has been subject to unlawful discrimination . Nashoba takes the position that Student is not now and has not in the past been “qualified” in that he has not met its admission standards and further takes the position that Nashoba has not discriminated against Student in the admission process.

Nashoba points out that its admission policy has been approved by ESE, it’s policy is in conformance with relevant Massachusetts regulations (603 CMR 4.03(6)), and the policy is not, on its face, discriminatory. Student does not disagree. In his opposition to Nashoba’s Motion to Dismiss (at page 7), Student makes clear that he is not challenging the policy itself, but instead basis his claims on its alleged discriminatory effect as applied to Student.

Section 504 is intended to address discriminatory effect—for example, Nashoba may be required to comply with Section 504 by providing a reasonable accommodation so that notwithstanding Student’s disabilities, he will have an equal opportunity to be considered for admission for the 2008-2009 school year.9 Where Student seeks to rectify alleged past discrimination—for example, to require Nashoba to admit Student for the 2008-2009 school year because of alleged violations in 2005 and 2007—a showing of “deliberate indifference” may be required.10

There are three separate admission denials that are the subject of the instant dispute. I consider each in light of the above legal standards.

2008 Application for Admission . With respect to Student’s January 2008 application, letters filed with the Hearing Officer make clear that Nashoba has denied Student admission regarding this application. Nashoba determined that Student’s transcript from the 2007-2008 school year does not indicate that Student passed English for that school year. Nashoba takes the position that passing English is an essential component of its admission standards and has denied Student admission on this basis. Student has taken the position that Student passed English for the 2007-2008 school year and that, in any event, Nashoba should be applying different admission standards applicable to Student as a transfer student.

Student’s Amended Hearing Request does not address this aspect of the dispute, except to state that application was made by Student in January 2008 and that no response had been provided by Nashoba at the time of the filing of the Amended Hearing Request in February 2008. No additional facts or claims are alleged in the Amended Hearing Request with respect to the January 2008 application.

It was made clear to the Hearing Officer immediately following oral argument on the Motion to Dismiss that Student’s attorney intends to file a second amended hearing request in order to provide further allegations and claims regarding the 2008 application since Nashoba has now denied this admission request.

Because Nashoba seeks to dismiss Student’s Amended Hearing Request with respect to the January 2008 application, because the Amended Hearing Request does not set forth a claim that Nashoba denied Student admission regarding the 2008 application, and because Student intends to file a second amended hearing request to provide substantive allegations and claims regarding this issue, I conclude that it would be premature to address the 2008 admissions claim pursuant to the instant Ruling. Accordingly, Nashoba’s Motion to Dismiss will be denied without prejudice with respect to the 2008 application.

2007 Application for Admission . The principal focus of Student’s Amended Hearing Request is his May 2007 application, which was denied by Nashoba pursuant to its current admission policy. During oral argument regarding Nashoba’s Motion to Dismiss , Student’s attorney explained that Student does not disagree that Nashoba’s admission policy was applied in an even-handed manner, but Student takes the position that the effect of its application was discriminatory with respect to Student. For example, the admission policy’s academic standards are facially neutral but their application to Student disadvantaged Student because he is on an IEP that results in utilization of pass-fail grades. Similarly, the admission policy’s conduct portion of the ratings were applied in an even-handed way but resulted in a disadvantage to Student because his record of conduct reflects, at least in part, disciplinary incidents that may be attributable to his being teased because of his disability. For similar reasons, the interview portion of the admission ratings had the effect of placing Student at a disadvantage because of his disability.

To the extent that Student’s arguments have merit with respect to the May 2007 application, they would require that an accommodation be made as to how Nashoba’s admission criteria were applied to Student on account of his disability. In other words, in order for Student to be given an equal opportunity to gain admission to Nashoba, its admission criteria would need to be individually adjusted or applied differently by Nashoba to account for Student’s particular disability. The argument is that Student required such a reasonable accommodation under Section 504 and with this accommodation, Student would have met Nashoba’s admission criteria.

It is undisputed that without such accommodation to his disabilities, Student could not meet Nashoba’s admission criteria. And, unless Student was able to meet the admission criteria with or without an accommodation, Student was not “qualified” and therefore not entitled to the protections of Section 504.11

Nashoba correctly points out that with respect to Student’s application for admission in May 2007, the application form signed by Student, his grandparent, and the Groton Dunstable guidance counselor specifically stated that although Student has a disability, he did not need an accommodation with respect to the application for admission process. See Facts section of this Ruling, par. 10. Because Student explicitly instructed Nashoba not to make any accommodation to his disabilities with respect to the admission process, Student cannot now claim that Nashoba discriminated against Student by failing to provide such an accommodation and that such failure was the result of deliberate indifference. Student’s Section 504 claim relevant to the May 2007 application fails on this basis.12

Student makes procedural claims that Nashoba did not provide sufficient reasons for the admission decision, did not provide sufficient information regarding Student’s appeal rights, and did not follow through with the appeals process provided within its policies. These alleged procedural violations might possibly present viable claims under other state or federal statutory or constitutional protections, but they not implicate rights under Section 504.

Student’s attorney has also pressed the argument that there are facts reflecting systemic discrimination against applicants who have a disability. Student’s claims of systemic discriminatory violations are not probative unless they can be specifically related to the question of whether Nashoba actually discriminated against Student. Student’s factual allegations do not make this connection. As Student recognizes, the BSEA does not have jurisdiction to order systemic relief.13

For these reasons, Student has not stated a claim of discrimination under Section 504 upon which relief can be granted relevant to the 2007 application for admission.

2005 Application for Admission . With respect to Student’s 2005 application to Nashoba, the Amended Hearing Request provides no alleged facts that would support a claim of discrimination. The most that is stated is that Student applied and was denied admission. Student makes other procedural claims that Nashoba did not provide sufficient reasons for this decision and did not provide sufficient information regarding Student’s appeal rights, but these alleged procedural violations to not implicate rights under Section 504. For these reasons, Student has not stated a claim of discrimination under Section 504 upon which relief can be granted relevant to the 2005 application for admission.

G. ORDER

Nashoba’s Motion to Dismiss is DENIED without prejudice with respect to Student’s 2008 application for admission to Nashoba.

Nashoba’s Motion to Dismiss is ALLOWED with respect to Student’s 2007 and 2005 applications for admission to Nashoba.

An evidentiary Hearing has been scheduled for September 8, 9, and 10, 2008 to address all remaining issues. A conference call is scheduled for 4:00 PM on August 6, 2008 to consider Groton Dunstable’s request to postpone the Hearing dates, as well as to discuss any other issues relevant to the Hearing.

By the Hearing Officer,

__________________

William Crane

Date: July 30, 2008


1

Student is represented by Pamela O’Sullivan. Nashoba is represented by Colby Brunt.


2

BSEA Rule 17B; 801 CMR 1.01(7)(g)3.


3

Judge v. City of Lowell , 160 F.3d 67, 72 (1st Cir. 1998) (quoting Conley v.Gibson , 355 U.S. 41, 45-46 (1957)).


4

See Caleron-Ortiz v. LaBoy-Alvarado , 300 F.3d 60 (1st Cir. 2002) (“accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff’s favor” a motion to dismiss will be denied if recovery can be justified under any applicable legal theory). See also Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).


5

603 CMR 4.03: Program Approval Criteria

Each school district requesting approval of a vocational technical education program shall demonstrate that the program meets the following approval criteria: …
(6) Admission of Students

(a) Each vocational technical school and comprehensive school which is selective in terms of admission to its secondary vocational technical programs shall develop and implement an admission policy that is consistent with the Department’s ” Guidelines for Admission Policies of Vocational Technical Secondary Schools and Comprehensive Secondary Schools ” that are incorporated into 603 CMR 4.00 by reference. The policy must be approved by the Department prior to implementation. The policy shall be published in the Program of Studies and a copy shall be provided to each student applicant and their parent/guardian. The policy must include the following: …

4. Review Process and an Appeal Process. A process at the school district level for students and parents/guardians to review and appeal the decision to deny the student admission to the school or program shall be included.


6

20 USC § 1415(b)(6); 603 CMR 28.08(3); 603 CMR 28.10(9).


7

29 U.S.C.A. § 794(a), as amended by Pub.L. No. 102-569, § 102(p)(32) (1992) (changing “handicap” to “disability”).


8

Calero-Cerezo v. United States Department of Justice , 355 F.3d 6 (1 st Cir. 2004); Wynne v. Tufts Univ. School of Medicine, 932 F.2d 19 (1 st Cir. 1991) (en banc).


9

See Alexander v. Choate , 469 US 287, 296 (1985) (Section 504 intended to “rectify the harms resulting from action that discriminated by effect as well as by design”); In Re: Boston Public Schools , BSEA # 06-6508, 12 MSER 221 (SEA MA 2006) (collecting authorities).


10

See Nieves-Marquez v. Puerto Rico , 353 F.3d 108, 125 n.17 (1st Cir. 2003)(“it may be that § 504 claims require some showing of deliberate indifference not required by IDEA”).


11

A person with a disability is “qualified” and therefore entitled to protection under Section 504 if he or she is able to meet the essential requirements of the program with or without reasonable accommodation. See School Board of Nassau County, Fla. v. Arline , 480 US 273, 288 n.17 (1987); Calero-Cerezo v. United States Department of Justice , 355 F.3d 6 (1 st Cir. 2004); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1 st Cir. 2000) ; Bercovitch v. Baldwin School, Inc., 133 F.3d 141 (1 st Cir. 1998); Wynne v. Tufts Univ. School of Medicine, 932 F.2d 19, 27 (1 st Cir. 1991) .


12

See Lovell v. Chandler , 303 F.3d 1039, 1056 (9 th Cir. 2002) (“ Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood. The first element is satisfied when the public entity has notice that an accommodation is required. The second element is satisfied if the entity’s failure to act is a result of conduct that is more than negligent, and involves an element of deliberateness.”) (internal quotations and citations omitted); Duvall v. County of Kitsap , 260 F.3d 1124, 1139 (9 th Cir. 2001) (“When the plaintiff has alerted the public entity to his need for accommodation (or where the need for accommodation is obvious, or required by statute or regulation), the public entity is on notice that an accommodation is required, and the plaintiff has satisfied the first element of the deliberate indifference test.”)


13

J.S. v. Attica Cent. Sch., 386 F.3d 107, 113-14 (2d Cir. 2004) (citing several cases in which exhaustion was excused as futile where cases included allegations of systemic violations; in each cited case, Second Circuit “concluded it would be futile to complete the administrative review process because the hearing officer had no power to correct the violation”); Scaggs v. New York Dept. of Educ. , 2007 WL 1456221 ( E.D.N.Y. 2007) (“allegations of systemic violations that, if true, cannot be remedied by individual administrative hearings”).


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