Student v. Bourne Public Schools – BSEA #02-3804



<br /> Student v. Bourne Public Schools – BSEA #02-3804<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

Student v. Bourne Public Schools

BSEA # 02-3804

RULING ON BOURNE’S MOTION FOR SUMMARY JUDGMENT

This ruling is issued pursuant to the Bourne’s Motion for Summary Judgment, received by the BSEA on May 22, 2002. The Parents filed an Opposition to Summary Judgment on June 5, 2002. The Hearing Officer held a Motion Hearing via conference call on June 6, 2002.

After careful consideration of Bourne’s Motion and Parents’/Student’s (hereafter, Parents’) Opposition, I hereby ALLOW Bourne’s Motion for Summary Judgment as to all claims over which the BSEA has jurisdiction.

PROCEDURAL HISTORY/FACTS

The Parents filed a Request for Hearing on April 17, 2002. The Request for Hearing alleged that the Student, a regular education student who graduated from Bourne High School in 1999, had been assaulted by a fellow Student in the fall of 1995. (Parents’ Hearing Request) The Parents allege that the Student’s behavior and appearance changed so drastically after the assault that Bourne knew or should have known that Student was in need of special education services. (Affidavit of Father; Parents’ Hearing Request) The Student reported the incident for the first time to the school psychologist in the fall of 1998. (Parents’ Hearing Request) The School referred the Student for rape counseling and offered her assistance from the school crisis intervention counselor and other personnel. (Affidavit of Sweeney, paragraph 8) The Student had been on an IEP for some period of time while she was in elementary school. (Affidavit of Sweeney, paragraph 4) The Parents first learned of the assault on March 11, 1999. (Affidavit of Father) In March 1999 the Parents requested that Bourne provide the Student with home tutoring to assist her with her classwork and to ensure that she would pass her exams and satisfy her graduation requirements. Bourne provided the requested tutoring. (Affidavit of Sweeney; Affidavit of Father) The Student satisfied all graduation requirements and graduated with her class in 1999. (Affidavit of Sweeney)

The Hearing Requests includes eleven “counts” against the school district, the town of Bourne, and two individuals. The counts include a Title IX claim, §1983 claims, IDEA claims, § 504 claims and a FERPA claim. The relief requested includes “general and compensatory damages” and monetary damages in excess of one hundred thousand dollars for the Student and the Parents and punitive damages.

BOURNE’S POSITION

Bourne argues that summary judgment should enter because the BSEA has no authority to award the monetary damages that Parents seek. It argues that because the BSEA can not provide the relief Parents requested, the Hearing Request should be summarily dismissed. Bourne also argues that the sole purpose of Parents’ Hearing Request is to exhaust administrative remedies. It argues that the Petitioners have no interest in the BSEA administrative process, but have “their sights set upon filing a civil action in a court of competent jurisdiction.” With regard to their statute of limitations argument, Bourne argues that the case should be dismissed because the hearing request was filed after the applicable statute of limitations. Bourne argues that the applicable statute of limitations is that of the Massachusetts Tort Claims Act, three years.

PARENTS’ POSITION

Parents argue that although they seek only monetary damages, they must bring their action to the BSEA to exhaust their administrative remedies. They argue that although the BSEA cannot award monetary damages it can determine whether Bourne violated the Student’s rights by failing to provide her with information and or services pursuant to the IDEA and § 504. They state that “compensatory services at this point in the process is irrelevant1 ” and seek only monetary damages.

With respect to the statute of limitations, the Parents argue that the IDEA does not reference a statute of limitations. They argue that the case is “solely an action for monetary damages” and is “clearly framed as a Tort and Civil Rights Action. The essence of the claim is the failure of Bourne to provide the parents and [Student] with their Procedural Rights as to 504 and the IDEA and to perform such evaluations as reasonable in all areas of suspected disability and to provide such educational services to allow [Student] to have been provided FAPE.” (See Parents’ Motion and Argument in Opposition to Respondent’s Motion for Summary Judgment pgs. 4-5.) They argue that the statute of limitations standard previously articulated by the BSEA does not apply to this matter. (See In Re: Fall River Public Schools, 5 MSER 183 (1999).) They argue that due to the continuing violations of Parents’ and Student’s rights and the lack of notice provided to the Parents of their rights, the statute of limitations should be tolled.

ISSUE

Whether Bourne is entitled to summary judgment based upon its contention that the BSEA does not have jurisdiction over the Parents’/Student’s claims and the statute of limitations had run at the time the Hearing was requested.

LEGAL STANDARD

Summary Judgment

Under the Adjudicatory Rules of Practice and Procedure, a Motion for Summary Decision is made “[W]hen a Party is of the opinion there is no genuine issue of fact relating to all or part of a claim or defense and he is entitled to prevail as a matter of law.” The regulation indicates that a party’s motion may be filed with our without supporting affidavits. If the Motion is granted as to part of the claim which is not dispositive of the entire case, proceedings will be held on the remaining issues. See 801 C.M.R. 1.01(7)(h).

Jurisdiction/Exhaustion

The first issue raised by Bourne is the BSEA’s jurisdiction over this case in which the only relief requested is monetary damages. The First Circuit has held that a “party must exhaust all available avenues of administrative review regardless of whether the administrative process offers the particular type of relief that is being sought.” Frazier v. Fairhaven Sch. Comm. , 276 F.3d 52. (1 st Cir. Jan. 9, 2002). The court found that “a plaintiff who alleges that local educational officials have flouted her right to a free, appropriate public education may not bring suit for money damages under 42 U.S.C. § 1983 without first exhausting the administrative process established by the Individuals with Disabilities Education Act (IDEA).” Id.at 56 . The United States District Court for the District of Massachusetts explained that Frazier holds a “plaintiff must exhaust administrative procedures with respect to any claim that asserts a violation of the right to a FAPE. In addition, the District Court stated that Frazier suggests that a claim asserted under non-IDEA law may still be subject to the exhaustion requirement if the IDEA procedures either can provide some meaningful relief or a superior record on which the court could make its determination.” Bowden v. Dever, et al. ,Civil Action No. 00-12308-DPW (March 20, 2002). The court noted that even after Frazier there was some ambiguity regarding the “exact dimensions of the universe of claims not asserting a right to a free, appropriate public education that are still subject to IDEA exhaustion as claims ‘for which relief under [the IDEA] is available.’” Id .

In Bowden , the court reviewed a complaint in which the plaintiffs alleged unlawful discrimination in violation of their rights to an equal education under the ADA and the Rehabilitation Act. The court noted that the plaintiffs’ pleadings raised claims under the ADA and § 504 of the Rehabilitation Act and were based on their “position that they were denied the benefits of an education because their teachers battered and otherwise abused them…[d]efendants denied the children their right to the educational benefits of the public school program and to an equal educational opportunity.” Id . The court found that the right to an equal education was precisely the right that IDEA protects. The court rejected plaintiff’s argument that the claims are not subject to the exhaustion requirement because the underlying allegations involve physical abuse, which is non-educational. It held that “any aspect of the school’s treatment that interferes with the provision of a free, appropriate public education is within the scope of the IDEA’s administrative procedures. Because the ADA and Rehabilitation Act claims allege that defendants’ physical and psychological abuse interfered with their children’s right to an equal education, they are claims for which the IDEA procedures could have provided relief.

Both Frazier and Bowden advise looking at the nature of the claim instead of the underlying allegations. It is irrelevant that the Parents seek only monetary damages. “Where the ultimate question is whether a disabled child was denied his/her right to an equal education—as opposed to whether a tort occurred or whether the constitutional right to bodily integrity was violated—the experience and expertise of the educational professionals participating in the IDEA process are particularly beneficial to the courts.” Frazier , 276 F. 3d at 60-61, Bowden pg. 11. Therefore, “when a disabled plaintiff claims that his right to an equal (or free, appropriate public) education has been violated by the actions or policies of school personnel and administrators, it is subject to the exhaustion requirements of the IDEA.” Id . The Bowden court found that IDEA’s exhaustion requirement does not extend to § 1983 claims for violation of bodily integrity or for state tort claims. Although the aforementioned claims were based upon the same underlying facts, they do not allege a FAPE violation. Id . at 11. The tort and constitutional claims are not claims for which relief is available under the IDEA. Id .

FINDINGS

I find that the BSEA has jurisdiction over two of the eleven claims raised by Parents in their Request for Hearing. Therefore, the Plaintiffs are required to exhaust their administrative remedies by bringing those two claims before the BSEA before proceeding to Federal District Court. However, as discussed below, the statute of limitations has run on those claims and they do not state claims upon which relief can be granted.

Count One “Title IX- School Districts Town of Bourne” is not a claim for which relief is available under the IDEA, and as such is not subject to the exhaustion requirement of the IDEA and not subject to the jurisdiction of the BSEA.

Count Two , “1983-School District Town of Bourne” raises a constitutional issue of whether school district personnel showed deliberate indifference toward the constitutional rights of female students. (See Hearing Request, paragraph 36.) This count does not involve the issue of whether the Student was denied equal opportunity to her education and is not a claim for which relief is available under the IDEA.

Count Three , “Section 1983-[school principal]” alleges that the principal obstructed justice by failing to notify the Department of Social Services (DSS) or the Bourne Police Department that a felony was committed upon a child on school property. This not a claim for which relief is available under the IDEA.

Count Four , “[school psychologist]” The basis of the count is that the school psychologist, acting under color of state law, obstructed justice by failing to report to DSS or the Bourne Police Department that a felony was committed upon a child on school property. This is a claim upon which there is no relief available under the IDEA.

Count Five , “1983 Town of Bourne” alleges that various school district personnel had knowledge of the assault upon the Student and ignored their duties pursuant to the Child Find Section of the IDEA. This count alleges that Bourne failed to refer the Student for a special education evaluation and inform her parents of their rights under the IDEA. Although this count is entitled “§ 1983”, Frazier and Bowden instruct reviewers to look at the nature of the claim instead of the underlying allegations. “Where the ultimate question is whether a disabled child was denied his/her right to an equal education—as opposed to whether a tort occurred or whether the constitutional right to bodily integrity was violated—the experience and expertise of the educational professionals participating in the IDEA process are particularly beneficial to the courts.” Frazier , 276 F. 3d at 60-61, Bowden pg. 11. Therefore, “when a disabled plaintiff claims that his right to an equal (or free, appropriate public) education has been violated by the actions or policies of school personnel and administrators, it is subject to the exhaustion requirements of the IDEA.” Id. This count alleges school district personnel violated Student’s right to a free appropriate education, and therefore is subject to the exhaustion provision of the IDEA.

Count Six , “1983-IDEA-[school principal]-20 U.S.C. 1400 et seq.” alleges that the principal violated the IDEA when he knew or should have known the Student might be in need of services when her behavior, dress and appearance radically changed and when he was informed that she had been sexually assaulted by a student in the school. At first glance, it appears as though this is a claim for which relief is available under the IDEA. However, this claim is against the principal of the school as opposed to the school district. “When individual administrators are sued in their official capacities, they are considered officers of the board of education.” Godby v. Montgomery County Board of Education , 996 F. Supp. 1390, 1403 (M.D. Ala. 1998) Section 1983 claims against officers in their official capacities are “functionally equivalent to claims against the entity that they represent”. Id . Therefore, the plaintiffs’ claims under 1983 are functionally equivalent to the claims that they assert against the Town of Bourne in Count five and it would be redundant to reallege said claims against the Town of Bourne in Count six. Additionally, neither the IDEA nor § 504 provides for a remedy against an individual when a Student’s rights are violated. The regulations promulgated under the IDEA state that the regulations apply to states, public agencies within the state, and private schools and facilities. See 34 C.F.R. 300.2. Nowhere do the regulations state that the IDEA requirements pertain to individual employees of the above entities. Similarly, under the §504 regulations, §104.2, the requirements of §504 apply to the recipient of Federal financial assistance from the Department of Education. Recipient is defined in §104.3(f) as follows.

[A]ny state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organizsation, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipeint, but excluding the ultimate beneficiary of the asssistance.

There is no mention of individual employees of any instrumentality of the above entities.

Finally, the Massachusetts regulations pertaining to the jurisdiction of the BSEA do not provide jurisdiction over claims brought by parents against an individual. 603 C.M.R. 28.08(3) states in relevant part

In order to provide for the resolution of differences of opinion among local school districts, private schools, parents, and state agencies, the Bureau of Special Education Appeals, located with the Department, shall conduct mediations and hearings to resolve such disputes. 603 C.M.R. 28.08(3)

There is no mention of jurisdiction over a dispute between a Parent and a school employee.

Based upon the foregoing, this claim must be dismissed as it must be framed as an action against the School District as opposed to the individual employee and that claim has been alleged in Count Five.

Count Seven , “1983-[school psychologist]-IDEA 20 USC 1400 et seq.” makes the same allegation against the school psychologist as is made against the principal in Count VI. For the reasons stated above, this count is redundant and must be dismissed.

Count Eight , “504 Bourne Public Schools 29 U.S.C. 794” alleges that Bourne failed to fulfill its obligation to seek out and find children with disabilities and refer them for evaluation and advise their parents of their rights. This count raises the issue of whether a disabled child was denied his/her right to an equal education and as such is subject to BSEA jurisdiction.

Counts Nine and Ten raise the same allegations raised in Count Eight against the school principal and the school psychologist. For the reasons asserted above in the analysis of Counts Five and Six, these counts must be dismissed.

Count Eleven , “1983, FERPA-BOURNE” alleges that Bourne violated requirements of FERPA which violated Student’s civil rights and obstructed justice. This is not a claim for which there is available relief under the IDEA or § 504 and the BSEA does not have jurisdiction over this count. There is no necessity to exhaust administrative remedies with respect to Count Eleven.

Counts 5 and 8 remain. Although Counts 5 and 8 appear to be properly before the BSEA at first glance, Bourne has raised the issue of the statute of limitations having run on these claims. There is no dispute that the assault upon the Student which precipitated Parents’ claims occurred in the fall of 1995. (Hearing request, paragraph 5) There is also no dispute that the incident was first reported to the school psychologist in the fall of 1998. (Hearing request, paragraph 6; affidavit of Father, paragraph 5) The Parents’ Hearing Request alleges that the Student’s behavior and appearance changed so dramatically after the incident in the fall of 1995 that the school knew or should have known that she was a child in need of services. (See Hearing Request.)

Statute of Limitations

The BSEA has previously held that the applicable statute of limitations for IDEA and

§ 504 claims is borrowed from the civil rights action statute and is three years. See In Re: Fall River Public Schools , 5 MSER 183 (1999) The same case held that the Massachusetts tolling statute should not apply to an IDEA or 504 claim. Id. IDEA claims accrue when the parents know or have reason to know of the injury or event that is the basis for their claim. See Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1194 (1 st Cir. 1994)

The question then is when does the statute of limitations begin to run on the IDEA and 504-based claims. Bourne argues that the statue of limitations began to run at one of two times – either immediately after the incident in the fall of 1995 when the Parents allege the Student’s behavior changed and the school knew or should have known that she was a child in need of services or in the fall of 1998 when the student disclosed the assault to the school. (See Bourne’s Supplemental Memorandum on the Issue of Statue of Limitations in Support of its Motion for Summary Judgment.) The Parents argue that the acts alleged in their Request for Hearing constitute ongoing tortious civil rights violations and continue from the date of the incident through June 1999 when the Student graduated. Parents also argue that the school fraudulently concealed the parents’ rights and as such the statute did not begin to run until the parents learned of their rights. Additionally, Parents argue that the statute did not begin running with respect to the Student’s claims until she turned eighteen years old.

The BSEA has previously determined that there is a three-year statute of limitations for claims under both the IDEA and § 504. See In Re: Fall River Public Schools , 5 MSER 183 (1999) The Fall River case recited the reasons for requiring a three-year statute of limitations for education-related claims. Although there are many important policies underlying the IDEA, prompt resolution of educational disputes is among the most frequently cited. See Strawn v. Missouri State Board of Education , 210 F.3d 954 (8 th Cir. 2000); Livingston School District No. 4 v. Keenan , 82 F.3d 912 (1996 ); In Re: Fall River Public Schools , 5 MSER 183 (1999). “[Children protected by the IDEA benefit greatly from quick resolution of disputes because lost education is a substantial harm, and that harm is exactly what the IDEA was meant to prevent.” Strawn v. Missouri Board of Education , 210 F.3d 954 (8 th Cir. 2000).

The Parents filed their request for Hearing on April 17, 2002, nearly three years after the Student graduated as a regular education student from Bourne High School. The Hearing Request is based upon Parents’ claim that Bourne failed to recognize the Student’s need for special education. They allege that Student’s need for special education services was evident as early as shortly after the attack in 1995, or not later than the fall of 1998 when they allege the school knew or should have known the Student had emotional problems. (See Hearing Request, paragraph 21.) By the time the Student disclosed the attack to the school in 1998, Parents argue that the School should have previously realized that the Student’s behavior and appearance had substantially changed. That was three years after the attack. The Parents then waited an additional three and a half years to file their Request for Hearing. By April 17, 2002, more than six years had passed since the Student was attacked and almost three years had passed since the Student had graduated from high school. The Parents did not seek special education services from the school during any of the years that the Student attended Bourne High School nor did they seek such services after she graduated. The Parents do not even allege that the Student was ever determined to be eligible to receive special education services. Parents state that Bourne provided the Student with tutoring and Bourne states that it provided her with counseling as well. Although Parents argue that they were not informed of their rights under the IDEA or § 504, it appears that they were aware that the Student’s behavior and appearance had changed as they argue that the school should have been aware of the same. “IDEA claims accrue when the parents know or have reason to know of the injury or event that is the basis for their claim.” Murphy v. Timberlane Regional School District , 22 F.3d 1186, 1194 (1 st Cir. 1994) It would be inconsistent for Parents to claim that the School knew or should have known that the Student had emotional problems as early as 1995, and argue that they, as parents, did not have reason to know until “recently.”

If the statute of limitations were to be tolled as Parents argue it should be, the resolution of the claim would be delayed which is contrary to the purpose of the IDEA or § 504.

Congress’ desire to obtain timely and appropriate education for handicapped children by conferring substantial substantive and procedural rights on parents and guardians on behalf of their children clearly indicates that it did not intend to authorize filing of claims on behalf of or by the children many years after the alleged wrongdoing occurred. It is reasonable to assume that Congress expected and intended the child’s representative to file actions and apply for hearings on his behalf near the time the contested event occurred. The child may not later come before court and invoke the tolling provisions of state statutes.

In Re: Fall River Public Schools , 5 MSER 183 (1999) citing Alexopulos v. San Francisco Unified School District , 817 F.2d 551, 556 (9 th Cir. 1987).

Additionally, the tolling statute should not apply to a minor’s IDEA or 504 claim because the parents’ and student’s rights with respect to educational services are congruent.

Therefore, under the IDEA, a child’s parents are the protectors of the child’s right to a free appropriate public education. The child has no claim for educational services separate from the claim that the parents have to assert on behalf of the child. To adopt plaintiff’s tolling argument would be inconsistent with the IDEA’s requirement of yearly educational plans with a right to seek due process review in a timely manner.

Strawn v. Missouri State Board of Education , 30 IDELR 244 (D.W.D. Mo.1999) Therefore, the tolling statute should not apply to this case. I find that the statute of limitations ran long before this matter was filed at the BSEA.

Even if the statute of limitations had not run with respect to counts 5 and 8, the Parents have not asserted a claim upon which relief can be granted. Although they argue that they should have been provided with information about their rights under the IDEA and § 504, they do not allege that the Student was actually eligible to receive such services. Failure to provide information to Parents of a student who is not eligible for special education or § 504 services is not violative of the IDEA or § 504 and therefore would not entitle the Parents to any relief at the BSEA. Although the Parents continuously allege that the Student was a child in need of services, they do not allege that the services she required were special education services or § 504 accommodations. The facts show that Bourne provided the Student with services including tutoring, access to the crisis intervention counselor and other school personnel, and a referral to a rape counselor. (See Hearing Request, paragraph 10; Affidavit of Father, paragraph 8; Affidavit of Sweeney, paragraphs 8 and 9.) The facts show that the Student was a regular education student when she graduated, and there is no allegation that she was ever found eligible to receive services under the IDEA or § 504.

Since there are no issues of material fact in dispute, the BSEA does not have jurisdiction over counts 1-7 or 9-11, and the statute of limitations has run on claims 5 and 8, which, even if timely filed, do not assert claims for which relief is available, Summary Judgment is appropriate in this case. Counts 5-10 are hereby DISMISSED. Counts 1-4 and 11 need not be exhausted at the BSEA.

ORDER

Bourne’s Motion for Summary Judgment is hereby ALLOWED with respect to Counts 5-10 and Counts 1-4 and 11 do not require exhaustion at the BSEA.

By the Hearing Officer,

________________________

Catherine M. Putney-Yaceshyn

Dated: September 18, 2002


1

See Parents Motion and Argument in Opposition to Respondent’s Motion for Summary Judgment, pg. 3.


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