Nedham Public Schools – BSEA #02-2722



<br /> Nedham Public Schools – BSEA #02-2722<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

RULING ON NEEDHAM PUBLIC SCHOOL’S MOTION TO DISMISS REQUEST FOR ORDER ISSUING REGULAR DIPLOMA OR PARTICIPATION IN GRADUATION CEREMONY

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

Student is an eighteen year old twefth grader at the Needham High School, who is diagnosed with depression and an attention deficit disorder (ADD), impacting his ability to learn. He is a regular education student. In December of his senior year, Needham Public Schools (Needham) and Parents/Student agreed that he is a student in need of special education, but disagreed on the services.

Parents/Student requested a hearing before the Bureau of Special Education Appeals (BSEA), seeking that Needham Public Schools (Needham) be ordered to issue Student’s high school diploma.1 Needham takes the position that Student is ineligible for graduation, for he lacks eleven necessary credits. (The earned academic credits had been taken away pursuant to Needham’s Policies and Practices regarding student attendance). Parents/Student take the position that Student required Section 504 modifications to his attendance requirements, and that Needham denied him such.

At the May 28, 2002 pre-hearing conference, Parents/Student further requested that, if Student is deemed ineligible for a diploma, Needham be ordered to allow Student to attend the graduation ceremony and that he be issued a “blank” diploma.

Needham filed its Motion to Dismiss Parents’/Student’s hearing request, stating that the Bureau lacks jurisdiction over this graduation case, for the Hearing Officer has no authority to order issuance of a regular high school diploma. It asserts that the establishment of criteria for granting a diploma lies with the local schools and state officials, not with the courts, hearing officers, or TEAMS, and that therefore, the Bureau lacks the authority to order the granting of Student’s diploma. Further, it asserts that, given Student’s lack of sufficient credits for earning a diploma, the Bureau lacks the authority to require Needham to permit his attendance at the graduation ceremony; “the principles of equal opportunity for participation and access for disabled students envisioned in Section 504 of the Rehabilitation Act provides no legal support for such required participation in this case”.2

RULING

Needham’s Motion to Dismiss is DENIED IN PART AND GRANTED IN PART. The underlying consideration in Parents’/Student’s request for an order to issue a diploma, is 1) whether Student’s handicapping condition entitles him to waivers of attendance requirements as accommodations, and 2) whether such accommodations are reasonable, under the Section 504 mandate. Clearly, the BSEA has jurisdiction over disputes regarding requested Section 504 accommodations for handicapped students. Therefore, Needham’s Motion to Dismiss must be DENIED. I am mindful of the fact that it is local school districts that determine graduation requirements. However, that authority cannot be absolute3 . Certainly, graduation criteria that allegedly discriminate against handicapped students (or other protected classes of students) must be subject to review, and the Bureau is the appropriate forum for such.

As to Parents’/Student’s second request for an order allowing Student’s attendance at the graduation ceremony even if Student is ineligible for a diploma, they have provided no legal support for such request. Needham High School’s policy requires eligibility for a diploma in order to qualify for participation in the graduation exercises. Although Needham clearly could not discriminate against a handicapped student who is eligible for a diploma, there is nothing in Section 504 (or in the IDEA) that would mandate an ineligible student’s participation. Therefore, Needham’s Motion to Dismiss this request is hereby GRANTED. A hearing on Student’s legal entitlement to reasonable accommodations shall be held on June 3 rd , 2002 at 9 a.m. at the Bureau of Special Education Appeals.

By the Hearing Officer,

Sandra W. Sherwood

Date: June 3, 2002


1

The graduation ceremony is scheduled for June 4, 2002.


2

See Needham’s Memorandum in support of its Motion to Dismiss.


3

Needham cites Stock v. Massachusetts Hospital School , 392 Mass. 205 (1984) in support of its position that the establishment of graduation criteria rests with the local school districts, not the BSEA. However, it must be noted that the Court’s reference to this was in the context of the Education of All Handicapped Children Act (the IDEA’s predecessor), not Section 504. Further, it was in the context of Stock’s urging the court to set standards for the attainment of a high school diploma. The Court declined to do so, recognizing that “academic standards are matters peculiarly within the expertise of the department and of local educational authorities”. The current request is different, in that it is not seeking that the Bureau set graduation criteria, but rather, that the Bureau assure that such criteria do not deny a student his legally entitled reasonable accommodations under Section 504 of the Rehabilitation Act.


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