Norfolk County Agricultural School – BSEA # 06-0390



<br /> Norfolk County Agricultural School – BSEA # 06-0390<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Norfolk County Agricultural School

BSEA No. 06-0390

RULING ON MOTION TO DISMISS OF NORFOLK COUNTY REGIONAL AGRICULTURAL SCHOOL AND PARENTS’ MOTION FOR SUMMARY JUDGMENT

The major issue in this appeal is whether the Norfolk County Agricultural School (School or “Norfolk Aggie”) unlawfully discriminated against Student or otherwise violated his rights when it did not admit him outright for the 2004-05 school year, but, rather, placed him on a waiting list for that year. No space became available for Student at Norfolk Aggie so he did not attend. Parent has alleged violations of numerous statutory provisions. Now pending are Norfolk Aggie’s Motion to Dismiss and Parents’ Motion for Summary Judgment .

PROCEDURAL HISTORY

On July 18, 2005, Parents filed a hearing request with the Bureau of Special Education Appeals (BSEA) seeking an order compelling the Norfolk County Agricultural School (Norfolk Aggie) to admit Student as a tenth grader for the 2005-06 school year. Parents also sought other relief including money damages, changes in the admissions policies and practices of vocational schools in Massachusetts, and fees and costs.1

On July 25 and 27, 2005, respectively Norfolk Aggie filed a Motion to Dismiss and Supplemental Motion to Dismiss . Parents filed an opposition to the Motion to Dismiss on July 26, 2005. On August 1, 2005, Parents filed an opposition to the Supplemental Motion to Dismiss as well as an amended hearing request.

Pursuant to a telephone conference held on August 16, 2005, Parents filed a Motion for Summary Judgment on August 20, 2005, and Norfolk Aggie filed its opposition on August 24, 2005.

On September 1, 2005, an in-person motion session was held for oral argument on both the Motion and Supplemental Motion to Dismiss and the Motion for Summary Judgment . All parties2 attended and were heard through counsel.

ISSUES PRESENTED

Motion to Dismiss:

1. Whether the BSEA has jurisdiction over Norfolk Aggie in this matter since Student is not currently enrolled there.

2. Whether the BSEA has jurisdiction and authority to grant Parents’ requested relief based on their claim that Norfolk Aggies’ admissions policies and practices discriminated against Student on the basis of disability .

Motion for Summary Judgment :

1. Whether undisputed material facts support a finding that Norfolk Aggie discriminated against Student on the basis of disability and committed other violations such that as a matter of law, he is entitled to an order that he be admitted for the 2005-2006 school year, as well as to other relief requested in Parents’ hearing request.

POSITIONS OF THE PARTIES

Motion to Dismiss:

Position of School

The BSEA has no jurisdiction over this matter because Student neither was nor is enrolled in Norfolk Aggie; therefore, Norfolk Aggie has no responsibility to him. Specifically, the BSEA has no jurisdiction or authority to order Norfolk Aggie to admit Student for the current (2005-2006) school year because Student has not applied for admission for the current year. The record establishes that Norfolk Aggie informed Parents that they had to reapply if Student were to be considered for 2005-2006, and could not rely on the application and supporting documents submitted for 2004-2005.

Moreover, Norfolk Aggie did not discriminate against Student when it placed him on a waiting list for 2004-2005. The School applied the same, neutral admissions criteria to Student as to all other applicants, and had no obligation to treat his application differently because of his disability.

Finally, the BSEA has no jurisdiction over the legality of the policies and practices of Norfolk Aggie, which are approved by the Massachusetts DOE. If parents believe that such policies and practices violate applicable laws, they should raise this issue with the DOE itself, rather than in the context of a due process hearing at the BSEA, which has no authority to determine the validity of such policies.

Position of Parents

Student’s claim with respect to 2004-2005 falls within the IDEA’s two-year statute of limitations and, therefore, is viable. Moreover, Parents allege that Norfolk Aggie specifically advised them that Student did not need to reapply in order to be considered for 2005-2006 because his application for 2004-2005 was still active.

What the School told the Parents about the requirements for Student to be considered for the 2005-2006 school year is a disputed issue of fact for hearing. Parents are entitled to present evidence on this issue, and, therefore, dismissal is inappropriate.

Finally, Student has a viable claim because he is a child with a disability who meets the admission requirements for Norfolk Aggie, and Norfolk Aggie has not shown that it would be burdened by admitting him.

Motion for Summary Judgment

Position of Parents

Student is a child with a disability who is qualified to attend Norfolk Aggie. Norfolk Aggie’s admissions policies and practices, while facially neutral, have the effect of screening out qualified students with disabilities in violation of the IDEA, §504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act and relevant state law. Additionally, Norfolk Aggie has deprived Student of due process rights and has engaged in sex discrimination as well as other violations of the law. Therefore, as a matter of law, Student is entitled to admission for 2005-2006.

Position of School

Summary judgment cannot be granted because there are substantial disputes as to material facts in this matter.

FACTS

For purposes of the Motions, the following factual assertions are deemed to be true, and are considered in the light most favorable to the Parents. In order to ensure that all facts submitted by Parents are considered in ruling on the Motion to Dismiss , I consider also facts alleged in the Motion for Summary Judgment and attachments thereto.

1. Student is fifteen years old and lives with his parents in Walpole. Student is currently a sophomore at Walpole High School. Student transferred to the Walpole Public Schools from parochial school at the start of his seventh grade year, in the fall of 2002, and has attended the Walpole Public Schools from that time to date. There is no dispute that Student is a personable, motivated young man who has generally average-range cognitive ability and academic skills, although he has relative weaknesses in math. There also is no dispute that Student also has a significant language-based learning disability with a specific impairment in central auditory processing (CAP). Student’s disabilities impair his ability to process oral information rapidly, organize assignments, and complete written work. He also has had some minor social and behavioral issues at least partially related to his disability. (IEP for May – December 2004, Motion for Summary Judgment , Ex. 6)3

2. Student has had a longstanding desire to enroll in Norfolk Aggie, as its curriculum reflects his interests in animal care and welfare. (SJ, Ex. 8 )

3. Norfolk Aggie is a public regional agricultural school created pursuant to G.L. c. 71 §14B. The school serves students in grades 9 through 12, and offers courses designed to lead to further education or to careers in such fields as diesel and mechanical technology, animal and marine science, or plant and environmental science. Norfolk Aggie serves approximately 434 students drawn from approximately 71 districts, including 28 member communities. Walpole is a member community. (SJ, Ex. 15, 16 )

4. Norfolk Aggie is a selective school, in that potential students must apply and be selected in order to enroll. Its admissions policy is set forth in a document that is approved by the Massachusetts DOE and governed by various pertinent state and federal statutes and regulations. In brief, a student wishing to enroll must apply during the preceding school year by submitting an application form, academic and disciplinary records, a recommendation form from his/her particular school, and by being interviewed. Students are given numerical ratings in each category, and these subtotals are added to obtain a total score. (SJ, Ex. 9, 10, 12) The record does not indicate whether there is a cutoff score, i.e., whether applicants must score a certain minimum number of points in order to be considered for acceptance.

5. Because more students apply to Norfolk Aggie than the school has the capacity to enroll, students for whom no space is available are placed on a waiting list. (SJ, Ex. 12) The record does not indicate how the decision is made to wait-list a particular student, or the methods or criteria by which students are ranked on the waiting list. The Parents have asserted that Norfolk Aggie does not reject applicants outright but, rather, either admits students for the next school year or places them on a waiting list.

6. A student who is on the waiting list for a particular year, theoretically, will be admitted during the course of that year if a space in the class becomes available and there is no one on the waiting list ahead of the student. (SJ Ex. 12)

7. The Norfolk Aggie handbook contains a nondiscrimination statement stipulating that the school will not discriminate on the basis of any protected category under federal or state law, including disability. (SJ, Ex. 17 )

8. Based on the record, there are students with disabilities enrolled in Norfolk Aggie. (SJ Ex. 15)

9. In or about December 2003, Student applied to Norfolk Aggie for his ninth grade year, 2004-05. On or about April 23, 2004, Student and Parents received a letter stating the following (the relevant portions are quoted verbatim):

Our Admissions Committee has reviewed and ranked your application. The following criteria were considered:

· Your scholastic record (grades this year and last year);

· Your school attendance this year and last year;

· Your interview;

· Your conduct and discipline this year and last year; and

· Your sending school recommendation.

Your name has been placed on our waiting list. In limited cases as space becomes available, acceptance will be offered to those on the waiting list based on the total score in the above areas. We…encourage you to apply again next year should your interest…continue. (SJ Ex. 12)

10. The ranking referred to in the April 23 letter is used for all applications and is done by assigning points to each of the categories listed above. Norfolk Aggie did not send Parents or Student information about how many points he had been given in each category, and did not inform him at that time how many students were ahead of him on the waiting list. At the Hearing on the instant Motions, Norfolk Aggie provided Parents with an undated document entitled “NCAHS Applicant Scoring Profile” which is the score sheet that Norfolk Aggie used when processing Student’s evaluation. Student ‘s total score was 73 out of a possible 100, broken down as follows:

· Scholastic record: 21/24

· Interview: 16/24 (“very strong”)

· Attendance:17/20

· Conduct/discipline: 16/20

11. In a letter to Norfolk Aggie’s principal dated April 28, 2005, Student’s mother stated that Student would be interested in reapplying to Norfolk Aggie for 2005-2006: “[Student] is very interested in filing another application with you in the fall. What I would like to know is in what areas did he lose points this time around? [Student] would like to improve himself over the next year and hopefully have a better chance of attending NCAHS in September of 2005.” (SJ Ex. 13)

12. In the same letter Mother also requested a copy of the information sent by Student’s middle school in Walpole to Norfolk Aggie. In response, Norfolk Aggie sent Mother copies of recommendations and discipline forms from Student’s middle school. At some point Mother spoke to the admissions secretary at Norfolk Aggie who instructed her to address issues contained in these forms. SJ, Ex. 1, 14)

13. In a second letter to Norfolk Aggie’s principal dated May 1, 2004 Mother requested reconsideration of Student’s application. Mother’s letter referred to Student’s disabilities, stating that the recommendation and discipline forms submitted by Walpole “did not take into consideration [Student’s] auditory processing issues,” and that “[Student’s] IEP did not provide for any special treatment due to auditory processing…” The letter further states, in reference to the teacher recommendations, that “many of the items that [Student] is marked down on are ones that should be listed in his IEP, but are not…[Student] has auditory processing; he needs to have an explanation presented to him by more than a simple auditory instruction…Student] has been tested for impulsivity and ADD and was found not to have these traits…[Student] has auditory processing. Many people do not understand this disability and interpret it as ADD. [Student] does not have ADD but the symptoms may be similar…[Student] tends to focus better in a quiet environment for test taking…” (SJ, Ex. 15)

14. The school recommendation form consists of a grid calling for Student to be ranked as “advanced,” “proficient”, “needs improvement” or “limited ability” in each of the following ten areas: visual motor, independent work, problem solving/cognitive, reading, and mathematics skills and the ability to think clearly and use sound judgment without acting impulsively; understand and follow instructions, work as a member of a team, focus, and adhere to safety rules. (SJ, Ex. 9)

15. The completed form, dated February 4, 2004 and signed by a counselor from Student’s middle school, rates Student as “proficient” in seven of the ten items: problem-solving/cognitive, reading, and math skills, ability to work as a team member, to focus, and to adhere to safety rules. The form also bears the handwritten comments “improving,” “with prompts” and “with adult in view,” respectively, to each of the last three categories, but does not indicate who made these entries or when they were made. (SJ, Ex. 9)

16. Student received “needs improvement” in three categories: visual motor and independent work skills as well as “ability to understand and follow instructions.” This last category also contains the handwritten comment “central auditory processing, ” again with no indication of who wrote the comment or when he/she wrote it. (SJ, Ex. 9)

17. On or about May 1 2004, in response to Mother’s request for reconsideration, Parents received a letter from the Norfolk Aggie principal, Gail Murphy, stating that Norfolk Aggie had reviewed Student’s application and recalculated his scores, but found that the additional information from Parents did not change Student’s status. The letter also states that “[w]e encourage you to have your student reapply next year.” Finally, the letter informs Parents that they may appeal the findings of the review in a letter to the Superintendent of Norfolk Aggie. The letter contains no statement relating to Student’s disability. (SJ, Ex. 16)

18. Student attended ninth grade at Walpole High School, under an accepted IEP, during the 2004-2005 school year.

19. Student’s 2004-2005 IEP from Walpole designated his placement as Walpole High School. This IEP does not mention Norfolk Aggie or any vocational school placement. (SJ, Ex. 6) Based Parents’ counsel’s representations at the Motion Session, Student’s current IEP (for 2005-2006) has been partially rejected.

20. Mother asserts that in the spring of 2005 she telephoned Norfolk Aggie’s admissions secretary and asked what Student needed to do to “activate” Student’s application so that he could be considered for admission for 2005-2006, and that the secretary told her that Student did not need to take further action. Norfolk Aggie disputes Mother’s version and states that Mother said they would reapply for 2005-2006. In any event, Student has not reapplied for admission for 2005-2006. (SJ, Ex. 1)

21. The parties do not dispute that Student meets the minimum requirements for admission to Norfolk Aggie.

FINDINGS AND CONCLUSIONS

Standards for Motion to Dismiss

Under the Standard Adjudicatory Rules of Practice and Procedure , 801 CMR 1.01(7)(g)(3) and Rule 17B of the BSEA Hearing Rules for Special Education Appeals , a BSEA hearing officer may allow a motion to dismiss if the party requesting the appeal fails to state a claim on which relief can be granted. Since this rule is analogous to Rule 12(b)(6) of the Federal and Massachusetts Rules of Civil Procedure, BSEA hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim.4 Specifically, a motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. That is, a hearing officer may dismiss a case if he or she cannot grant relief under either the federal or state special education statutes or the relevant portions of Section 504 of the Rehabilitation Act, after considering as true all allegations made by the party opposing dismissal and drawing all reasonable inferences in his/her favor. See Caleron-Ortiz v . LaBoy-Alverado , 300 F.3d 60 (1 st Cir. 2002);5 Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).

Generally, courts consider only the initial complaint and answer in deciding motions to dismiss, treating the motion as one for summary judgment if they consider materials in additional to these pleadings. Other information submitted by the parties may be considered, however, without formally converting the motion to dismiss to a motion for summary judgment. White v. Peabody Construction Co., 386 Mass. 121 (1982); In Re Inessa R. v. Groton Dunstable , supra. Here, therefore, in reviewing Norfolk Aggie’s Motion to Dismiss , I am considering as true all facts asserted by Parents in their Amended Hearing Request , their Opposition to Norfolk Aggie’s Motion to Dismiss , and their Motion for Summary Judgment , as well as the documents attached thereto. I also have considered the documents attached to the School’s Motion to Dismiss and Opposition to Parents’ Motion for Summary Judgment .

I conclude that the Motion to Dismiss should be DENIED with respect to the Student’s claims under §504 of the Rehabilitation Act, and parents may proceed to hearing on these claims. The Motion to Dismiss should be ALLOWED as to all other statutory and constitutional claims asserted by the Parents My analysis follows:

Norfolk Aggie’s Motion to Dismiss

The BSEA’s sole jurisdiction and authority is to decide individual disputes between parents/guardians, school districts, and, sometimes, other entities such as state agencies, arising under the IDEA and G.L. c. 71B, as well as under §504 of the Rehabilitation Act as it applies to school-aged children with disabilities.6

The Parents have alleged violations of many other provisions, including the Due Process clause of the U.S. Constitution, Title IX of the Education Amendments of 1972, and Title II of the Americans with Disabilities Act (ADA). These claims must be dismissed with prejudice as the BSEA lacks jurisdiction to consider them.

Additionally, the School’s Motion to Dismiss should be granted with respect to the Parents’ claims under the IDEA and G.L. c. 71B. In support of its Motion, Norfolk Aggie argues that Student’s complaint fails to allege that Norfolk Aggie has assumed responsibility to educate Student. The School notes, and Parents do not dispute, that Student had merely applied for admission for 2004-2005, never enrolled in Norfolk Aggie, and did not reapply for the 2005-2006 school year. Therefore, the School argues, there is no BSEA jurisdiction over Norfolk Aggie and no viable claim against it.

The School’s argument is correct with respect to the Parents’ claims under the IDEA and Chapter 766. The Parents have presented no authority for the proposition that Norfolk Aggie has obligations under the IDEA and Chapter 766 to students who are not enrolled and never have been enrolled in Norfolk Aggie (as opposed to its obligations to eligible students who are enrolled there). Parents and Student claim that by failing to admit Student, Norfolk Aggie has denied him FAPE. However, they have failed to articulate why Norfolk Aggie constitutes FAPE for Student or why Norfolk Aggie has an obligation to provide Student with FAPE (as opposed to a non-discriminatory admissions process.) The record contains no IEP designating Norfolk County Aggie as Student’s placement and no evaluation report or similar document suggesting that Norfolk Aggie is an appropriate placement for Student. Therefore, the Parents’ claim under the IDEA should also be dismissed.

On the other hand, the School’s argument lacks merit with respect to Parents’ §504 claims.7 Student alleges that he did not attend Norfolk Aggie for 2004-2005 precisely because Norfolk Aggie had discriminated him on the basis of disability when it wait-listed him instead of admitting him for that year. (See Amended Complaint at Para. 41) The BSEA clearly has authority to consider a claim, brought under §504, that Norfolk Aggie discriminated against this individual special needs student on the basis of disability when it did not admit him outright. If the Parents are able to prove their claims, then the BSEA could grant appropriate relief (for example, an order that the School reconsider Student’s application using a non-discriminatory process). A school may not discriminate against a student during the admissions process and then avoid liability because the student is not admitted or enrolled in the school.

Norfolk Aggie further argues that Student’s complaint fails to allege any deviation from its standard admissions criteria that have been mandated by DOE, and that Student’s non-acceptance was based on neutral application of these criteria. Moreover, the School argues, Student’s allegation that these neutral criteria have a discriminatory impact suggests an “affirmative action” requirement as to students with disabilities, but Norfolk Aggie has no such obligation. Any challenge to the criteria, Norfolk Aggie asserts, must be taken up with the DOE, and is not within the jurisdiction of the BSEA.

The School correctly describes the scope of the BSEA’s authority. The BSEA’s jurisdiction extends to disputes over the “identification, evaluation, and placement” of individual school-aged children who have or assert that they have disabilities. In any given case the BSEA’s mandate is to determine whether an individual child’s rights under the IDEA, Chapter 766, and/or §504 of the Rehabilitation Act have been violated, such that the child has been denied FAPE and/or equal educational opportunity. The BSEA does not have authority to hear challenges to school districts’ policies, practices or criteria as they relate to students with disabilities in general. This is the province of the Massachusetts and/or U.S. Departments of Education. If Student’s complaint alleged solely that the admissions criteria were unlawful on their face, or that facially neutral criteria impermissibly “screened out” qualified students with disabilities, but did not allege a specific impact on Student, then the complaint would be subject to dismissal.

Here, however, the Student’s Amended Complaint and Motion for Summary Judgment both allege that Student himself suffered from unlawful disability-based discrimination as a result of Norfolk Aggie’s application of its facially neutral admissions criteria: “the admissions policy as a matter of law is discriminatory and does violate the civil rights of disabled children, and in this case, [Student.] ” Amended Complaint, Par. 41. (emphasis added) See also, Amended Complaint at Pars. 46-50) . Because the Complaint alleges a wrong that the BSEA has the authority to remedy, the case should not be dismissed; rather, the Parents are entitled to the opportunity to prove their claims, with respect to §504 only, at an evidentiary hearing.

To prevail at a hearing, Parents must establish that Student has a disability, that he is “otherwise qualified” to enroll at Norfolk Aggie,8 and that Norfolk Aggie failed to admit him because of his disability. Wynne v. Tufts Univ., School of Medicine (Wynne II ), 976 F.2d 791, 795 (1 st Cir. 1992), cert. den. 507 US 1030 (1993). In other words, Parents must demonstrate a specific nexus between Student’s disability and the decision of Norfolk Aggie to place him on a waiting list. It would not be sufficient for Parents to present evidence in support of their claim that Norfolk Aggie’s facially neutral admissions criteria tend to “screen out” qualified disabled applicants. Such evidence would neither prove nor disprove Parents’ claims about how Norfolk Aggie handled Student’s application.9 Rather, the Parents must show that Norfolk Aggie impermissibly “screened out” Student specifically , because of his disability, either by operation of the admissions criteria or by some other action.

Parents’ Motion for Summary Judgment :

Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). On a motion for summary judgment, all evidence and inferences are to be viewed n a light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 252. (1986).

Here, many of the material facts in the case—such as, for example, whether and how Student’s disability was addressed during the admissions process—are either unknown or in dispute. The Parents have not met the threshold requirement for summary judgment, and their Motion is DENIED.

CONCLUSION AND ORDER

For the reasons stated above, the School’s Motion to Dismiss is DENIED as to Parents’ claim under §504 of the Rehabilitation Act, and ALLOWED as to all other claims. The BSEA will arrange for a telephone conference call for the purpose of scheduling a hearing on the §504 claim.

The Parents’ Motion for Summary Judgment is DENIED.

____________________ _____________________________

Sara Berman, Hearing Officer


1

The original hearing request also named both Walpole Public Schools (Walpole) and the Massachusetts Department of Education (DOE) as parties. By agreement, DOE was dismissed as a party on or about August 16, 2005. Parents orally agreed to withdraw their hearing request as to Walpole on September 1, 2005.


2

Walpole participated in argument, but at the end of the session, as stated in Note 1, above, Parents agreed to withdraw their complaint against Walpole, with the understanding that such withdrawal is without prejudice.


3

Hereafter, exhibits attached to the Parents’ Motion for Summary Judgment will be designated as SJ, Ex. _”


4

See, for example, In Re: Inessa R. v. Groton Dunstable School District , BSEA No. 95-3104 (Byrne, November 1995)


5

A motion to dismiss will be denied if “accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff’s favor, if recovery can be justified under any applicable legal theory. Id


6

See 34 CFR 104.31-104.39; 603 CMR 28.08(3)(a); In Re Mystic Valley Regional Charter School , BSEA No. 03-3629 (Figueroa, March 2004)


7

Section 504 of the Rehabilitation Act of 1973, 29 USC Sec. 794, prohibits discrimination on the basis of disability in programs or activities that receive federal funding, including public elementary and secondary educational programs. In pertinent part, the statute states:

[N]o otherwise qualified individual with a disability… shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance….

29 USC Sec. 794(a); 34 CFR Sec. 104.4(a)


8

The parties agree that Student has a disability. At the Motion Session, a Norfolk Aggie representative stated that Student was “otherwise qualified” at the time he applied to the School. There is no dispute that Norfolk Aggie receives federal funding. Based on the posture of the case at the Motion Session as well as on the pleadings and attachments, it appears that the only major issue in dispute is causation, i.e., whether Student was not admitted outright but only wait-listed at Norfolk Aggie because of his disability.


9

Theoretically, a school could have fully neutral admissions criteria that do not have a “screen out” effect in general, and yet the school could discriminate against a particular disabled student. Conversely, a school could have admissions criteria that generally tend to discriminate against applicants with disabilities, but treat an individual disabled applicant in a non-discriminatory manner.


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