Re: Salem Public Schools – BSEA #04-5591



<br /> Re: Salem Public Schools – BSEA #04-5591<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Salem Public Schools BSEA # 04-5591

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (M.G.L. ch. 71B), the state Administrative Procedure Act (M.G.L. ch. 30A) and the regulations promulgated under said statutes.

By agreement of the parties, this matter is decided on the documents without an evidentiary Hearing pursuant to BSEA Hearing Rule 11A.

The official record consists of a joint stipulation of facts dated August 4, 2004 and signed by attorneys for both parties (stipulation), and documents submitted by the Salem Public Schools (Salem) and marked as exhibits S-1 through S-8. The stipulation and documents from Salem were filed with the Bureau of Special Education Appeals (BSEA) on August 4, 2004 and the record closed on that date. Neither party submitted a written argument.

Student’s amended Hearing Request , filed by his attorney, describes the disputed issues and requested relief as follows: “[Student] was expelled from Salem High School in violation of State and Federal Special Education Laws – That a determination be made by the BSEA as to the validity of [Student’s] expulsion.”

ISSUE

The issue to be decided in this case is whether Student was lawfully expelled from his special education program at the Salem High School.

FACTS

The facts are not in dispute.

At all times relevant to this dispute, Student was a special education student with an individualized education program (IEP). Student attended the Diversion and Maintenance Program at Salem High School. This program is designed to assist special education students with emotional and behavioral disabilities. Stipulation, pars. 5, 6.

At all times relevant to this dispute, Student was in the temporary custody of the Massachusetts Department of Social Services (DSS). He was residing at the Plummer Home, which is a DSS placement site, until shortly after January 7, 2004. Stipulation, pars. 4, 7, 14.

On December 3, 2003, Student “repeatedly struck” a special education teacher at Salem High School. An Assistant Principal called the Salem police to come to the Salem High School. Stipulation, pars. 1, 2.

Salem suspended Student from Salem High School for a period of nine school days, from December 4, 2003 to December 16, 2003. The Salem Assistant Principal notified Allison Campbell (of the Plummer Home) of Student’s suspension. Stipulation, par. 3.

On December 10, 2003, Salem sent a certified letter to Ms. Campbell indicating that a pre-expulsion hearing would be held for Student on December 15, 2003 in the Principal’s office in accordance with M.G.L. chapter 71, section 37H. On December 15, 2004, a pre-expulsion hearing for Student was held in accordance with M.G.L. chapter 71, section 37H. Representatives of the Plummer Home and Salem High School administrators attended the pre-expulsion hearing. Neither Student’s mother, Student’s attorney nor any DSS representative was present at the pre-expulsion hearing. Stipulation, pars. 4, 8, 9; exhibit S-3 (letter to Ms. Campbell).

On December 16, 2004, Salem sent to Ms. Campbell (at the Plummer Home) an expulsion letter regarding Student, with a copy of the letter sent to DSS. The expulsion letter stated that “[b]ased on the evidence presented at [the December 15 th hearing], and in accordance with M.G.L. Chapter 71, Section 37H, I have determined that [Student] will be expelled immediately from attending Salem High School.” The letter was signed by the Salem High School Principal. Stipulation, par. 11; exhibit S-4 (expulsion letter).

On December 17, 2003, a manifestation determination meeting was held at Salem High School. At the beginning of the meeting, the Team received a letter by facsimile from Student’s attorney, stating that she was unable to attend and requesting a postponement of the meeting. The Team re-scheduled the meeting for January 7, 2004. “It was determined that until [January 7, 2004] Salem would provide school work for Student to complete at the Plummer Home”. Stipulation, par. 12.

On January 7, 2004, the Team re-convened to conduct a manifestation determination. Student’s attorney was present and indicated that the meeting could not “move forward” until an Educational Surrogate Parent was assigned. The Team concluded that a 45-day alternative placement was needed while a “Functional Behavioral Analysis” was being conducted. Shortly after the January 7 th meeting, Student was removed from the Plummer Home. Stipulation, pars. 13, 14.

DISCUSSION

It is not disputed that Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)1 and the state special education statute.2

The relevant facts may be summarized as follows. As a result of an alleged assault of a teacher on December 3, 2003, Student was removed from his special education placement for nine school days (December 4 to December 16, 2003). On December 15, 2003, Student was expelled by the High School Principal pursuant to M.G.L. chapter 71, section 37.3 As a result, Student was indefinitely precluded from attending his special education program at the Salem High School. Other than “provid[ing] school work for [Student] to complete at the Plummer Home”, there is no indication in the record of any educational services being provided to Student during this time period.

The record explains what occurred only through (and shortly after) January 7, 2004. As of this date, Student continued to be expelled from his special education program and no manifestation determination had been done. There is no indication in the record that a functional behavioral assessment was completed.

1. Manifestation Determination .

Once a student is removed from his special education program for more than ten consecutive school days, a change of placement occurs.4

When a school district contemplates the removal of a special education student and the removal would constitute a change of placement, the school district must conduct a manifestation determination.5 The goal of the manifestation determination is to decide whether the conduct for which a student is being disciplined was a result of or affected by the student’s disability.6

If the school district determines that the behavior was a manifestation of the student’s disability, then the discipline imposed must comply with the IDEA rules and regulations regarding changes to a student’s special education services or placement.7 Only if a school district conducts a manifestation determination which concludes that the student’s behavior was not a manifestation of his or her disability may the school district then employ disciplinary procedures applicable to students without disabilities.8

Without first conducting a manifestation determination, Salem disciplined Student as a regular education student pursuant to M.G.L. chapter 71, section 37 by expelling him from his special education program at the Salem High School on December 16, 2003. By the end of the day on December 16 th , Student had already been excluded from his special education program for nine consecutive school days. From December 16, 2003 through (at least) January 7, 2004, Salem continued Student’s expulsion without completing a manifestation determination.

I also note that had Salem appropriately determined that Student’s behavior was not a manifestation of his disability so that it would be allowed to discipline him as a regular education student, Salem would nevertheless be required to provide Student with a free appropriate public education,9 including services necessary to enable Student to progress in the general curriculum and appropriately advance toward achieving the goals set out in his IEP.10 Although not entirely clear from the record, it seems unlikely that Salem provided these educational services.11

I find that Salem violated the IDEA’s procedural protections when Salem disciplined Student as a regular education student without conducting a manifestation determination, with the result that Student was excluded from his special education program for more than ten consecutive school days.

2. Stay Put .

The IDEA protects a student’s right to continue in his/her current educational placement pursuant to the student’s “stay put” rights:
during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child . . . .12

Courts have generally concluded that a unilateral change in location of a student’s special education services for disciplinary reasons for a period of more than ten consecutive school days violates the IDEA’s protections regarding “stay put”.13

I find that Salem changed Student’s placement by unilaterally removing him from his special education program at Salem High School for more than ten consecutive school days and thereby violated his “stay put” procedural protections.

3. Interim Change in Placement .

Salem was not without the ability to legally place Student in an interim educational setting if Salem considered Student to pose a danger to himself or others. Salem could have requested an expedited due process hearing before the BSEA under these circumstances.14 Expedited due process hearings ensure that an independent BSEA Hearing Officer (not the school district) determines whether “maintaining the current placement of [the] child is substantially likely to result in injury to the child or to others” before he or she is removed from school.15

An interim educational setting, if ordered, must ensure that the student is able to continue to receive the services and modifications (including those described in the IEP) that will enable him or her to meet the goals of the IEP. The educational setting must also address the behavior which led to the placement.16

4. Additional Procedural Protections .

Salem may have violated other procedural protections – for example, the requirement that a functional behavioral assessment be completed.17

I need not address these additional issues in order to resolve the instant dispute.

ORDER

Salem violated procedural protections contained with the federal special education statute (IDEA) when Salem unilaterally removed Student from the Diversion and Maintenance Program (Student’s special education program at Salem High School) for more than ten consecutive school days. I conclude that Salem unlawfully expelled Student from his special education program.18

By the Hearing Officer,

William Crane

Dated: August 12, 2004

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.

The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).

Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

20 U.S.C. 1400 et seq .


2

M.G.L. c. 71B.


3

M.G.L. chapter 71, section 37 provides in relevant part:
(b) Any student who assaults a principal, assistant principal, teacher, teacher’s aide or other educational staff on school premises or at school-sponsored or school-related events, including athletic games, may be subject to expulsion from the school or school district by the principal. …

(e) When a student is expelled under the provisions of this section, no school or school district within the commonwealth shall be required to admit such student or to provide educational services to said student. …


4

34 C.F.R. § 300.519(a).


5

20 U.S.C. § 1415(k)(4)(A); 34 C.F.R. § 300.523(a).


6

20 U.S.C. § 1415(k)(4)(C); 34 C.F.R. § 300.523(c). A student’s behavior is considered to be a manifestation of his or her disability if any one of three standards (described within § 300.523(c)(2)) is met. See 34 C.F.R. § 300.523(d).


7

20 U.S.C. § 1415(k)(1); 34 C.F.R. § 300.520.


8

20 U.S.C. § 1415(k)(5); 34 C.F.R. § 300.524(a); S.W. v. Holbrook Public Schools , 221 F. Supp.2d 222 , 225 (D.Mass. 2002); Community Consolidated School District # 93 v. John F. , 33 IDELR 210 (D.Ill. 2000).


9

20 U.S.C. § 1415(k)(5)(A); 20 U.S.C. § 1412(a)(1).


10

34 C.F.R. § 300.121(d)(2)(i).


11

The factual record indicates only that Salem was “provid[ing] school work for [Student] to complete at the Plummer Home”.


12

20 U.S.C. § 1415(j).


13

Hale v. Poplar Bluff R-1 School District , 280 F.3d 831, 834 (8th Cir. 2002) (“expulsion from school or some other change in location made on account of the disabled child or his behavior has usually been deemed a change in educational placement that violates the stay-put provision if made unilaterally”) . See also S.W. v. Holbrook Public Schools , 221 F. Supp.2d 222 , 225-226 (D.Mass. 2002).


14

The IDEA provides that a school district may request an expedited hearing if school personnel maintain that it is dangerous for the student to be in the current placement. 20 U.S.C. § 1415(k)(7)(C)(i).


15

20 U.S.C. § 1415(k)(2)(A). See also 34 C.F.R. § 300.521. Salem could have made an interim change in placement for more than ten school days without a Hearing Officer-ordered interim educational placement if Student’s offences involved weapons or drugs. 20 U.S.C. § 1415(k)(1)(A); 34 C.F.R. § 300.520(a)(2)(i) and (ii). However, there are no such allegations in the instant dispute.


16

20 U.S.C. § 1415(k)(3)(B); 34 C.F.R. § 300.522(b).


17

In a recent BSEA decision involving another student ( In Re: Salem Public Schools , BSEA # 04-4364 (July 30, 2004)), BSEA Hearing Officer Catherine Putney-Yaceshyn explained to Salem the various procedural protections regarding discipline. For a useful discussion of the IDEA’s requirements regarding disciplinary procedures, see also Community Consolidated School District # 93 v. John F. , 33 IDELR 210 (D.Ill. 2000).


18

Through Student’s Hearing Request , the only relief sought by Student is a determination as to the lawfulness of Salem’s expulsion of Student.


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