Student v. Blue Hills Regional Technical School – BSEA # 07-4082



<br /> Student v. Blue Hills Regional Technical School – BSEA # 07-4082<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Student v. Blue Hills Regional Technical Schools

BSEA # 07-4082

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 (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under these statutes.

Parent/Student filed a Request for Hearing on January 19, 2007. The matter was given expedited status by the Assistant Director on January 22, 2007 and the hearing was scheduled to proceed on February 5, 2007. An order was entered on January 24, 2007, addressing a number of preliminary matters and requiring the Parties to “…either submit a list of proposed stipulations of fact (and list of facts that may be in dispute) or submit a list of proposed documents and witnesses” during a conference call scheduled for January 31 st . Additionally, the order required the Parties to “be prepared at the conference call to discuss any evidentiary or scheduling issues and be prepared to develop joint documents for submission at hearing.”1 The Parties’ Stipulated Statement of Facts was received on January 30, 2007.

The matter was administratively reassigned to Hearing Officer Rosa I. Figueroa on January 29, 2007. On January 31, the Parents filed a Motion to Proceed Without Evidentiary Hearing, requesting that the case be decided on submission of jointly submitted documents, the stipulated facts and written closing arguments. Blue Hills Regional Technical School (Blue Hills) did not object to Student/Parent’s Motion and the request was granted via order issued on January 31, 2007.2

The official record of the hearing consists of the Stipulated Facts submitted on January 31, 2007, joint documents submitted by the Parties marked as exhibits E-1 through E-7; one document submitted by Blue Hills and marked as exhibits SE-A; Student’s Closing Memorandum and Blue Hills Motion for Summary Judgment received on February 5, 2007.

ISSUES

1. Was Blue Hills authorized to remove Student from school for more than 10 days without Student/Parental consent?

2. Should Student be returned to her last agreed –upon placement, as described in exhibit E-1?

POSITION OF THE PARTIES

Jointly, the Parties state and stipulate that they do not seek a review of the appropriateness of the program to which Student was removed and they also do not request a review of the substance of Blue Hills’ manifestation determination. Neither of these is at issue.

Parent’s/Student’s Position:

Parent/Student state that the IDEA does not permit school officials to remove disabled students from their IEP placements indefinitely based on a principal’s finding that the student’s continued presence in school would have a detrimental effect on the general welfare of the school, without seeking consent or without engaging in a state due process hearing. Parent/Student state that a student’s right to stay-put gives rise to an analysis of unilateral changes of educational placement. Stay-put protections afforded students under the IDEA cannot be set aside even when they may not be in harmony with state or local rules or policies. Parent/Student state that the protections under the IDEA should be broadly applied while any exception should be narrowly construed.

Parent/Student assert that the reasons given by Blue Hills to exclude Student from her IEP placement fall outside those recognized by the IDEA and therefore, Student should be returned to her IEP placement forthwith.

School’s Position:

Blue Hills moves for summary judgment in its favor, asserting that there are no material facts in dispute given the stipulated facts and Blue Hills is entitled to judgment as a matter of law. It asserts that the IDEA specifically authorizes a school district to remove an eligible student from his/her school placement under certain circumstances when the behavior for which the student is disciplined is not a manifestation of the student’s disabilities. In those instances, eligible students may be disciplined in the same manner as regular education students. Blue Hills states that the conduct for which Student was disciplined was a violation of the school code.

Lastly, it asserts that since neither the manifestation determination, nor the educational services are at issue, the BSEA lacks jurisdiction to order Student’s return to Blue Hills.

STIPULATED FINDINGS OF FACT

· Student is an eighteen-year-old senior at Blue Hills. She has been a student in the auto body repair shop. She passed MCAS, and her expected date of graduation is June 2007.

· Student is also a student with a disability who, at all relevant times, has been entitled to the benefits and protections of the Individuals with Disabilities Education Act and to the protections of §504 of the Rehabilitation Act of 1973. Her current IEP, E-1, describes her learning profile and program.

· Earlier allegations of drug-related conduct resulted in a suspension during the 2004-2005 school year. (See E-2)

· Blue Hills has been the responsible school district at all relevant times and for all relevant purposes.

· On July 7, 2006, an article appeared in the Holbrook Sun newspaper, stating that Student “had been arrested and charged with possession with intent to distribute a Class B drug and possession of a Class D drug” on Saturday, July 1, 2006. The alleged incident did not occur on school grounds.

· Her educational program at Blue Hills was not in session on July 1, 2006.

· By letter dated August 24, 2006, Assistant Superintendent /Principal James Quaglia informed Student’s mother that he would conduct a hearing on August 30 to determine whether to exclude Student from Blue Hills. The letter is attached as E-3.

· Also, by letter dated August 24, 2006, Assistant Principal Thomas Cavanaugh informed Mother about the scheduled hearing. A copy of this letter is E-4.

· At the scheduled hearing, Mother admitted that Student had been charged with drug-related crimes, but gave no further information. No person present had any knowledge about the specific allegations in the district court complaint beyond the newspaper article.

· By notice dated September 11, 2006, Principal Quaglia informed Student/Parent of his decision. His letter is attached as E-5.

· By letter dated September 20, 2006, Student appealed Principal Quaglia’s decision to the Superintendent, Joseph Ciccolo.

· On September 28, 2006, Student attended an appeal hearing convened by Superintendent Ciccolo. Superintendent Ciccolo’s decision was deferred by agreement of the parties. It is attached as E-6.

· After the Superintendent’s hearing, Blue Hills convened a manifestation determination meeting. On October 3, 2006, Blue Hills sent Student a Notice of Proposed School District Action (N-1). This document is attached as E-7.

· Blue Hills has continued to provide educational services to Student, but not at Blue Hills Regional Technical School, after her exclusion.

ADDITIONAL FINDINGS OF FACT

· On February 1, 2005, Student was suspended for forty-five days as a result of engaging in the sale or distribution of illegal drugs on school grounds. (E-2) The two incidents for which she was suspended occurred on November 12, 2004 and December 15, 2004. (SE-A)

· Student’s IEP covering the period from February 2006 through February 2007 offered Student services through a full inclusion program at Blue Hills. (E-1) The Service Delivery grid calls for ongoing consultation for vocational resources as well as the following direct services in other settings: study skills five times per cycle for forty-five minutes each; school adjustment counseling once per cycle for forty-five minutes; and specialized reading three times per cycle for 45 minutes each. (E-1) This IEP identifies social/emotional and behavior as Student’s areas of need. It also states that she possesses average skills in numerous areas but presents weaknesses in broad reading skills (e.g., fluency, letter-word identification) which compromise her ability to acquire and utilize new information effectively. (E-1)

· Student’s age of majority certification states that Student wished to share decision- making regarding IEP issues, with Parent. (E-1) The IEP was forwarded to Student/Parent on March 1, 2006 and fully accepted by Parent on June 21, 2006. ( Id. )

· James Quaglia’s and Thomas Cavanaugh’s letters of August 24, 2006 state that Blue Hills relied on The Massachusetts Ed Reform Law, Chapter 71, Section 37H ½ in deciding to take disciplinary action against Student for the felony charges brought against her during the 2006 summer. (E-3; E-4) Chapter 71 Section 37H ½ provides that:

Upon the issuance of a criminal complaint charging a student with a felony or upon the issuance of a felony delinquency complaint against a student, the principal or headmaster of a school in which the student is enrolled may suspend such student for a period of time determined appropriate by said principal or headmaster if said principal or headmaster determines that the student’s continued presence in school would have a substantial detrimental effect on the general welfare of the school.

James Quaglia stated that he was concerned about the effect the charges brought against Student, namely, possession of drugs with intent to sell, could have on the school community. (E-3) Both of the aforementioned letters notified Student that a meeting and a hearing had been set for August 31, 2006 at 9:00 AM, and advised Student of her right to be represented by counsel. (E-3; E-4)

· On September 11, 2006, but effective September 6, 2006, Student was excluded from Blue Hills and advised to contact the school to arrange for tutoring. (E-5) Student’s Team met following the disciplinary hearing, concluding that Student’s conduct giving rise to the disciplinary hearing was not a manifestation of Student’s disability. (E-6)

· On October 3, 2006, Blue Hills forwarded an IEP amendment to Student offering seven hours of educational support in English, history, math and science, one hour of reading services, and two hours of vocational support in the area of auto body- vocational support. (E-7) Student would also have to complete a senior research project to assess her competency in the vocational area selected by her, auto body. ( Id. ) Counseling was offered but rejected by Student and Parent. (E-7)

· On January 19, 2007, Joseph Ciccolo entered his decision following the disciplinary hearing held by Blue Hills on September 28, 2006. (E-6) The decision was prompted by Student’s notice of her intention to return to school. While Mr. Ciccolo maintained the decision to exclude Student, she was offered the opportunity to complete the course requirements to be eligible to receive a regular high school diploma by the end of the 2006-2007 school year. Student was also offered counseling services, which she declined. (E-6)

CONCLUSIONS OF LAW

There is no dispute that Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act3 and the state special education statute.4 As such, Student is entitled to a free appropriate public education (FAPE).5 Her eligibility status, her entitlement to FAPE, and the areas of disability that impact her education are not in dispute. The only issues before me are whether Blue Hills was authorized to remove Student from school for more than 10 days without consent and if not, whether she should be returned to her last agreed-upon placement which Student/ Parent states is described within exhibit E-1, the IEP dated February 14, 2006. The Parties stipulated that the substance of the manifestation determination and the appropriateness of the interim alternative placement, two issues over which the BSEA clearly has jurisdiction6 , are not contested. In issuing this decision, I first examine the arguments presented by Student and then address the motion for summary judgment submitted by Blue Hills. As the moving party, Student/ Parent carry the burden of persuasion regarding the issues presented in the case at bar. Shaeffer v. Weast , 525 U.S. 983 (2005). Blue Hills carries the burden of persuasion regarding its motion for summary judgment.

1. Removals For Violations Of The Code Of Conduct:

In their brief, Student/ Parent state that eligible students can be removed from their educational placement for violations of the code of student conduct when the conduct is determined to be unrelated to the disability. Student/Parent go on to define code of conduct but assert that Student was not removed for alleged misconduct but rather because of her status as a person charged with a crime, and because of the detrimental effect her presence would have in school. In their decision to exclude Student, both Mr. Quaglia on September 11, 2006 and Mr. Ciccolo on January 19, 2007, considered Student’s past history, namely the two previous incidents in November and December 2004 involving the sale and distribution of illegal drugs in school grounds, as well as the summer 2006 drug related felony charge. (E-2; E-3; E-4; E-5; E-6; SE-A) Mr. Quaglia and Mr. Ciccolo concluded that it was substantially likely that Student would engage in future misconduct, by attempting to sell or distribute illegal drugs in school, and excluded her under MGL c 71 §37H ½. (E-5; E-6) Student/ Parent argue that these are not valid reasons to justify her continued exclusion and state that the school’s conduct in excluding Student for more than 10 days is inconsistent with the IDEA.

Student/ Parent is correct that the IDEA provides a series of procedural protections to eligible students who are sought to be disciplined by school districts. 20 USC §1415(j) and (k). In areas regarding the discipline of students with special needs Massachusetts defers to federal law. Since Massachusetts defers to the IDEA in cases involving disciplining of special education students, the procedural due process protections afforded eligible students under the IDEA trump any other state statutes addressing discipline. This means that any time a school district entertains disciplining of a special education student, it must follow the procedures set out in 20 USC §1415 (j) and (k). The student’s Team must be convened to ascertain if the conduct for which the student is being disciplined is a manifestation of the student’s disabilities. Only after the manifestation determination has been conducted, and only if no manifestation is found, may districts proceed to discipline a special education student as they would a child in regular education. If challenges for violations of eligible students’ rights are to be avoided, school districts must comport their actions to the procedural requirements found under IDEA and cannot discipline students in manners inconsistent with federal law. Only after a district has complied with the requirements of the IDEA, and the conduct of an eligible student has been found not to be a manifestation of the student’s disabilities, do state statutes addressing discipline come into play.

In the case at bar, it is clear that Blue Hills acted inappropriately in disciplining Student under §37H ½ before convening the Team to conduct a manifestation determination. Furthermore, more than 10 days had lapsed by the time Blue Hills convened Student’s Team to conduct the manifestation determination, which took place on or about October 3, 2006. (E-7) By then, over 22 days had lapsed since Student had been excluded from Blue Hills by Mr. Quaglia. (E-5; E-7) Student/ Parent does not dispute the manifestation determination but rather simply asserts that Student was excluded for more than 10 days without her consent in contravention with federal law.

The facts of this case show that Student was excluded under MGL c 71§37H ½, a statute that allows school principals and superintendents plenary powers in determining how to discipline regular education students. MGL c. 71, §37H ½, also applies to special education students when the conduct is not a manifestation of their disability.

Student/ Parent chose not to challenge the manifestation determination or the appropriateness of the interim placement. Rather, they challenge Student’s exclusion under MGL c. 71, §37H ½ and the Superintendent’s decision issued on January 19, 2007, to maintain Student’s status as that of an excluded student, through the end of her senior year. This decision was the result of Student’s appeal on September 28, 2006 of Principal Quaglia’s decision to exclude her. By the time Superintendent Ciccolo issued the January 19, 2007 decision, Blue Hills had performed the manifestation determination, found no nexus, which Student is not challenging, thereby curing its previous procedural violation and rendering the question of the manifestation determination moot. The effect of this is that Student was left without the procedural protections afforded to students for whom a nexus is found in the manifestation determination, and Blue Hills could then discipline her as it would any other regular education student.

Student/Parent also argue that there was no violation of a school code of conduct as required by federal law prior to removing a disabled student from his/her educational placement. Furthermore, they assert that Blue Hills did not allege that Student violated the code of conduct and that since Student has been in an interim alternative placement for more than 10 days, she must be returned to school and allowed to participate in shop.

20 USC §1415(k) addresses placement of special education students in alternative educational settings when the conduct is not a manifestation of a student’s disability. It provides that,

1. Authority of school personnel.

A. Case-by-case determination. School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct.

B. Authority. School personnel under this sub-section may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities).

C. Additional authority. If school personnel seek to order a change in placement that would exceed 10 school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability pursuant to subparagraph (E), the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities except as provided in section 612(a)(1) [20 USC §1412(a)(1)]7 although it may be provided in an interim alternative educational setting . (emphasis added)

As stated earlier, Student was not excluded for a violation of the code of conduct but rather under the provisions of MGL c. 71, §37H½, and pursuant to 20 USC §1415(k)(1)(C) above, this was permissible. Under the IDEA, an eligible student who is removed from his/her educational placement, pursuant to disciplinary action that is not a manifestation of the student’s disability, must continue to receive educational services that enable the student to continue to participate in the general education curriculum. The services must also allow the student to progress towards meeting the goals delineated in the student’s IEP, albeit in a different setting. 20 USC §1415(k)(1)(D)(i).

Student/Parent assert that Student did not consent to the removal but presented no information regarding this issue. The only information offered is the Parties’ stipulation indicating that since her exclusion Student has availed herself of the tutorials offered in an alternative setting through the amended IEP of October 3, 2006. (Fact #16; E-7) Blue Hills continues to offer the services offered except for the counseling services, which Student rejected. (E-6; E-7) Since no information was presented, whether or not she consented, she has received services pursuant to the amended IEP consistent with 20 USC §1415(k)(1)(C) and (D). Student is not challenging the appropriateness of the services in the alternative setting.

In justifying Student’s exclusion, Blue Hills relies on 20 USC §1415(k)(1)(C) and 34 CFR 300.530(c) authorizing school personnel to impose disciplinary changes in placement exceeding 10 consecutive school days for behaviors that would warrant a change in placement and are not related to a student’s disability. The sanctions to disabled students under those circumstances can be the same, and for the same duration as the procedures that apply to students without disabilities, except that disabled students must continue to receive services consistent with 20 USC §1415(k)(1)(D). Since neither the manifestation determination nor the alternative placement are at issue, Blue Hills argues that it can apply the relevant disciplinary procedures, in the same manner and for the same duration applied to students without disabilities for violations of the school code.

Blue Hills states that 20 USC §1415(k)(1)(C) does not define the term “violation of the school code” and the IDEA does not provide any reference to any substantive rule of conduct governing only special education students. The IDEA offers procedural safeguards to students with disabilities facing disciplinary action. When the statutes are clear and unambiguous, the language must be given its ordinary meaning. Petitioning Creditors of Malden Produce v. Braunstein , 112 F 2d 1232 (1 st Cir. 1997). According to Blue Hills, the rules of conduct which apply to students can be found in “school policy, student handbooks, state law and general rules of common sense.”

Over the years, the Courts in Massachusetts have upheld the right of school personnel to discipline students for improper conduct even when the conduct was not specifically prohibited in student handbooks. Nicholas B. v. School Committee of Worcester , 412 Mass. 20, 587 N.E. 2d 211 (1992), citing Leonard v. School Committee of Attleboro , 349 Mass. 468 (1965). Blue Hills also asserts that certain Massachusetts statutes define and limit the scope of student discipline in certain circumstances. For instance, MGL c. 71 §84 restricts school disciplinary jurisdiction to conduct “connected with school sponsored activities.” MGL c. 71, §37H ½ states that:

Notwithstanding the provisions of section eighty four and section sixteen and seventeen of chapter seventy six,
(1) Upon the issuance of a criminal complaint charging a student with a felony or upon the issuance of a felony delinquency complaint against a student, the principal or headmaster of a school in which the student is enrolled may suspend such student for a period of time determined appropriate by said principal of headmaster, if said principal or headmaster determines that the student’s continued presence in school would have a substantial detrimental effect on the general welfare of the school…

According to Blue Hills, under §37H ½, school administrators may remove a student from school where the fact of a criminal charge or conviction for conduct which might have occurred off school premises comes into the school building and creates a substantial detrimental effect on the school community. The removal is permissible
because of the substantial detrimental effect of the charge or conviction on the school community, not because of having been charged with a crime. Doe v. Superintendent of Schools of Stoughton , et al., 437 Mass 1 (2002). In the instant case Student’s removal was the result of concerns over the welfare of the school community in light of the felony charges for possession and intent to sell drugs, together with the prior school discipline for selling illegal drugs in school. (E-2; E-3; E-4; E-5; E-6; E-7; Stipulations 5, 6, 7, 8, 9)

Student did not challenge either the manifestation determination or the appropriateness of the alternative educational placement. As stated above, I find that by doing so, Student left the door open for Blue Hills to cure the procedural violation relating to the sequence of events regarding the manifestation determination and Student’s exclusion, allowing Blue Hills to discipline her as a regular education student under MGL c. 71, §37H ½.

2. Special Circumstances Under 20 USC 1415(k)(1)(G):

In their brief, Student/ Parent also examine the special circumstances enumerated under 20 USC 1415(k)(1)(G) asserting that under this section of the statute, students cannot be excluded for more than 45 days. Said section of the law provides that:

School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, in cases where a child—

I. carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of a State or local educational agency;

II. knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency; or

III. has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a State or local educational agency.

This section of the law does not apply to the facts as stipulated by the Parties and argued by Blue Hills in the case at bar. The alleged incident for which Student was excluded involved felony charges brought against Student during the summer 2006. The charges involved possession of illegal drugs with intent to distribute. At the time, school was not in session and the incident did not occur at a school function or on school grounds. Therefore, this section is inapplicable to Student’s removal and Blue Hills did not rely on it to exclude Student.

3. Removals Pursuant To a Hearing Officer’s Order:

Student/Parent argue that the only other instance where a student can be removed from his/her educational placement is pursuant to a Hearing Officer’s order if the local educational agency can demonstrate that “maintaining the current placement of the child is substantially likely to result in injury to the child or to others,” pursuant to Section 1415(k)(3)(A) and (B)8 . Removals by Hearing Officers under this section can be ordered for no more than 45 school days. 1415(k)(3)(B)(ii)(II). A Hearing under this section can also be requested by a Parent who disagrees with the manifestation determination, or the alternative placement in the disciplinary context. In the instant case however, Parent is not contesting either of these, and Blue Hills did not rely on this section to exclude Student.

Summary:

Thus, while Student/Parent is correct that Student’s exclusion cannot be justified under the sections of the federal statute discussed in sections 2 and 3 above. Student’s/Parent’s argument fails regarding section 1 for two reasons: first, they stipulated that neither the manifestation determination or the appropriateness of the IEP are at issue; and, second, Blue Hills relied on MGL c. 71, 37H ½ to justify continuation of Student’s exclusion. Therefore, Student’s/Parent’s position that Student cannot continue to be excluded is incorrect.

The only relief Student/Parent seeks in this proceeding is to return Student to the educational placement she was in at Blue Hills prior to disciplinary action. While I have already analyzed, albeit in dicta, Blue Hills’ significant procedural violation, I conclude that the Student has no stay-put rights at the placement described in E-1 at Blue Hills. Any procedural misconduct on Blue Hills’ part in the sequence of events regarding the exclusion hearing and the manifestation determination is deemed moot as Student/ Parent did not challenge either one. Blue Hills’ IEP of October 2006, describing the services in the alternative setting, is determinative of Student’s stay-put rights9 at this time. Student/ Parent has no other remedies in this forum for the issues raised in this case.

4. Blue Hills’ Request For Summary Judgment:

Blue Hills requests that summary judgment be entered in its favor. Since there are no material facts in dispute it is entitled to judgment as a matter of law. As discussed by Hearing Officer Crane in In Re: Boston Public Schools and Albert , 12 MSER 221 (8/11/06):

The Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure, which are applicable to BSEA hearings, allow for summary decision when there is no genuine issue of fact relating to all or part of a claim or defense, and the moving party is entitled to prevail as a matter of law.10

Further guidance is found by turning to judicial rules regarding a motion for summary judgment, which rules set forth a standard substantially similar to the above-referenced adjudicatory rules.

The Federal Rules of Civil Procedure, Rule 56(c), provide that summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law.”

When, as here, the moving party has asserted that no genuine issue of material fact exists, the burden is on the opposing party to point to specific facts demonstrating that there is a trial-worthy issue.11 The First Circuit has further explained as follows:

This burden is discharged only if the cited disagreement relates to a genuine issue of material fact. In this context, “genuine” means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party and “material” means that the fact is one that might affect the outcome of the suit under the governing law. This requirement has sharp teeth: the [non-moving party] must present definite, competent evidence to rebut the motion. Such evidence cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a fact finder must resolve at an ensuing trial. As the [United States Supreme] Court has cautioned, evidence that is merely colorable or is not significantly probative cannot deter summary judgment.12

Blue Hills asserts that the present case is perfectly positioned for the entry of summary judgment since there are no material facts in dispute, entitling Blue Hills to judgment as a matter of law. 801 CMR 1.01(7)(h). In making this argument, Blue Hills relies on the stipulated facts including facts number 2, 3, 5, 6, 7, 8, 9, 10, 11, and 12. (See E-3; E-4; E-5; E-6; E-7; E-A) The Parties further stipulated to the issues before this forum. As a result, Blue Hills argues that the BSEA must conclude that Blue Hills had authority to discipline Student under the IDEA, including removing her from school. Furthermore, since the Parties stipulated that the issues do not include a review of the manifestation determination or the appropriateness of the interim services, Blue Hills argues that the BSEA has no jurisdiction to alter the penalty imposed by Blue Hills.

Lastly, Blue Hills asserts that MGL c. 71, §37H ½ applies to all students and none of the stipulated facts suggest that Student was disciplined on the basis of her disability. Similarly, she was not treated differently from her regular education counterparts who engage in similar behavior. I find that Blue Hills is correct that students with special needs can be disciplined in the same manner and for the same length of time as a regular education student is disciplined for a similar offense, once there has been an appropriate determination of no manifestation of the student’s disability, and as long as FAPE is provided during the period of discipline imposed. Here, since Student/Parent is not challenging the manifestation determination, the finding that Student’s behavior was not a manifestation of her disability stands, thereby allowing Blue Hills to treat her as any other student under MGL c. 71, §37H ½. However, no evidence was presented by either party to ascertain whether Student was disciplined in the same manner and for the same duration as a regular education student would have been disciplined for a similar offense consistent with 20 USC §1415(k)(1)(C). For this reason, the stipulated facts and arguments proffered by Blue Hills are insufficient to warrant granting its request for summary judgment in its favor.

Blue Hills must continue to offer Student services consistent with 20 USC §1415(k)(1)(D), including opportunities for the practical portions of her curriculum so as to enable her to participate in the general education curriculum and progress towards the goals and objectives in her IEP although in a different setting. It is suggested that Student reconsider her decision to participate in counseling.

ORDER:

1. At this time, Student’s does not have a right to return to her placement as described in E-1.

2. Blue Hills motion for summary judgment is DENIED.

So Ordered by the Hearing Officer,

_____________________________________

Rosa I. Figueroa

Dated: 2/14/2007


1

Order issued by Joan Beron, Hearing Officer, dated January 24, 2007.


2

The Parties also requested to submit exhibits by February 1 and additional exhibits later, as well to file briefs by February 16 and reply to briefs by February 20, 2007. When the Parties learned that this would be allowed, but that it would take the case off the expedited docket, the Parties notified the BSEA via letter received on February 1, 2007, that they wished to keep the matter on the expedited track and would submit additional exhibits and arguments by February 5, 2007, the original date of Hearing.


3

20 USC 1400 et seq .


4

MGL c. 71B.


5

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.


6

“Appeal. (A) In general. The parent of a child with a disability who disagrees with any decision regarding placement, or the manifestation determination under this subsection, or a local educational agency that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others, may request a hearing….”. 20 USC §1415(k)(3)(A).


7

20 USC §1412 (a)(1) relates to the provision of a FAPE.


8

See also 603 CMR 28.8(7)(c).


9

I note that no signature page for this IEP was submitted.


10

801 CMR 1.01(7)(h). These rules govern BSEA proceedings pursuant to 603 CMR 28.08(5)(b).


11

Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1 st Cir. 1995).


12

Wynne v. Tufts University School of Medicine, 976 F.2d 791, 794 (1 st Cir. 1992) ( Wynne II ) (internal citations and quotations omitted). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) .


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