COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Swansea Public Schools
BSEA # 07-3824
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 c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
A hearing was held on March 27, 2007 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
Student
Student’s Mother
Virginia King Consultant to Parent
Debra Pimento Special Education Teacher, Swansea Public Schools
Erin Nientimp School Adjustment Counselor, Swansea Public Schools
Robert Silveira Assistant Principal, Joseph Case High School, Swansea Public Schools
Brian McCann Principal, Joseph Case High School, Swansea Public Schools
John Robidoux Assistant Director of Special Education, Swansea Public Schools
John Connors Attorney for Student
Diane Parent Attorney for Swansea Public Schools
The official record of the hearing consists of documents submitted by Student and marked as exhibits P-1 through P-48 (except exhibit P-7, which was not submitted for admission); documents submitted by the Swansea Public Schools (Swansea) and marked as exhibits S-1 through S-9; and one day of recorded oral testimony and argument. As agreed by the parties, oral closing arguments were made on March 27, 2007, and the record closed on that date.
I. INTRODUCTION
This dispute involves a seventeen-year-old boy who has been attending an alternative program within the Swansea High School. Student was suspended from school as a result of an altercation with an Assistant Principal on December 11, 2006. Student has not returned to school but has been receiving two hours of tutoring per day.
Neither party seeks to have Student return to his educational placement at the high school – Swansea has proposed a substantially separate program (specifically, the South Coast Collaborative) and Student seeks to be educated through a home-based program that would include tutoring, counseling, and assistance with MCAS.
The sole issue for consideration is whether Student’s conduct on December 11, 2006 was a manifestation of his disabilities. For reasons explained below, I have concluded that his conduct was a manifestation of his disabilities.
II. FACTS
Profile
1. Student is seventeen years old (date of birth 1/28/90) and lives with his Parents in Swansea, Massachusetts. At the time of the December 11, 2006 incident, Student was enrolled in the 11 th grade at Swansea’s Alternative Center for Education (discussed below in the discussion of the IEP) which is located within the high school. Exhibit S-6.
2. Student’s strengths and deficits are not in dispute. As reflected within Student’s most recently-accepted IEP, Student has been diagnosed with three disabilities. Student has specific learning disabilities in the areas of reading comprehension, mathematics reasoning, mathematics calculation, and written expression. Student also has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), for which Student takes daily medication. Finally, the IEP states that Student has been diagnosed with Oppositional Defiant Disorder (ODD), which may result in behavioral problems. The parties do not dispute that ODD, by itself, would not qualify Student for special education services, but agree that Student’s ODD should be considered as part of his constellation of disabilities for purposes of determining the services and accommodations to be provided pursuant to his IEP. Student has average intellectual potential. Testimony of Robidoux, King; exhibits S-6, P-34.
3. Both parties noted that Student’s emotional and behavioral deficits were first identified in an October 8, 2002 neuropsychological evaluation. The summary and recommendations section of the evaluation report explained that “once [Student’s] emotions are triggered . . . he has far more difficulty maintaining appropriate levels of self-control.” “We see a rather quick escalation of anger and a tendency to project responsibility for his behaviors. He seems to have little insight into his own motivates [sic], but instead probably reacts very defensively and guardedly in conflictual situations.” Testimony of Robidoux, King; exhibit P-34.
4. Swansea’s ADHD screening assessment on December 16, 2005 further indicated that to a “significant degree,” symptoms of ADHD “continue to be evident.” Testimony of Robidoux, King; exhibits S-9, P-40.
5. The Swansea discipline reports and the testimony of Student’s special education math teacher (Ms. Pimento), the Assistant Principal responsible for discipline (Mr. Silveira), Swansea’s Assistant Director of Special Education (Mr. Robidoux), and Student’s school adjustment counselor (Ms. Nientimp) made clear that although Student’s emotional and behavioral outbursts do not occur frequently, there have been a number of incidents during the first half of the 2006-2007 school year involving Student’s use of profane and abusive language, losing his temper and becoming angry, and refusing to comply with requests of those in authority. Mr. Silveira (who had the most complete knowledge of Student’s behavioral difficulties at school) testified that the incident on December 11, 2006 was not atypical of Student’s behavior at earlier times during the school year, except that the December 11 th incident included, for the first time, a “physical component” – more specifically, Student’s using his body in a way that was threatening and frightening to Ms. Ragland (see discussion below regarding the details of this incident). Swansea witnesses (for example, Mr. Silveira) noted the connection, in general, between Student’s oppositional behavior/emotional outbursts at school during the 2006-2007 school year and his ADHD/ODD disabilities. Testimony of Pimento, Silveira, Robidoux, Nientimp; exhibit P-41.
6. Notwithstanding Student’s deficits, he was reported as making progress at school, often taking on a leadership role, and typically maintaining control of his behavior and emotions within the classroom. Student also easily engaged with Ms. Nientimp in his counseling sessions. Testimony of Pimento, Nientimp, Robidoux; exhibit S-7.
IEP
7. Pursuant to the last-accepted IEP, Student was placed at the Alternative Center for Education (ACE) for the 2006-2007 school year. ACE is an alternative program that is physically located within Swansea’s Case High School. The program is intended to serve students with behavioral, emotional, or learning disabilities. Twelve students currently attend this program. Testimony of Robidoux; exhibit S-6.
8. Pursuant to his IEP, Student received academic instruction in science, social studies, English language arts, and mathematics from special education teachers within the ACE program. The IEP further provided for academic support from a special education teacher for 49 minutes, once per day; counseling services from the adjustment counselor for 30 minutes, once per seven-day cycle; and behavior support from a special education teacher for up to 60 minutes in the seven-day cycle. Exhibit S-6.
Incident on December 11, 2006
9. This dispute centers around a confrontation between Student and Assistant Principal Karen Ragland on December 11, 2006.
10. On December 11, 2006 (prior to the confrontation with Ms. Ragland) during the beginning of math class, Student was eating Poptarts and drinking Gatorade. Student’s math teacher (Ms. Pimento) directed Student to put away the food and drink. In response, Student became angry and rude towards Ms. Pimento. Ms. Pimento then directed Student to go to the back of the classroom where he would be able to de-escalate. Student hesitated and became verbally confrontational. Student said to Ms. Pimento in an angry tone: “I’m going to [or I want to] head-butt you.” Student then went to the back of the classroom. Testimony of Pimento; exhibit P-41.
11. The Assistant Principal responsible for discipline (Mr. Silveira) happened to be present during this incident. Soon after the incident, Mr. Silveira escorted Student to Mr. Silveira’s office. Mr. Silveira told Student that he would be suspended. Mr. Silveira instructed Student to stay in his office while he called Student’s Mother, and that Student would be allowed to leave if his Mother said it would be okay to do so. Mr. Silveira attempted to reach Mother but was unable to do so. Student left Mr. Silveira’s office without permission. Testimony of Silveira; exhibit P-47 (pages 66-67).
12. After he left Mr. Silveira’s office, Student collected some of his things. Around 11:00 AM Student called his Mother on his cell phone in the foyer hallway near the main office of the high school. Student spoke with his Mother in a highly agitated manner. Using expletives and in a loud, shouting, and hysterical voice, Student explained what had happened at school. The Assistant Principal (Karen Ragland) who was nearby at the time, heard Student’s voice. She walked over to the foyer hallway, approached Student, and told him to go into the main office. Student yelled at her that he was talking with his Mother. There were dozens of other students in the hallway as it was the beginning of the lunch period. Ms. Ragland again told Student to go into the main office. Mother testified that while she was talking to her son during this time, she heard (over the phone) Ms. Ragland screaming at her son to get off the phone. Student became highly agitated. Testimony of Mother, Silveira; exhibits S-5, P-6, P-47 (page 26).1
13. Student violently threw his phone to the ground, and it was picked up by another student. Ms. Ragland retrieved the phone from the other student. According to Ms. Ragland’s written report, Student then started to shout at Ms. Ragland: “Gimme my f[]ing phone!” Ms. Ragland again told Student to go into the main office. By that time, according to Ms. Ragland, Student had “lost total control.” Exhibits S-5, P-6, P-47 (page 37).
14. Ms. Ragland’s written report (exhibits S-5, P-6) continued:
He lunged at me and proceeded to prohibit my ability to leave. He continued to scream, “Gimme my f[]ing phone!” I was physically up against the office wall/window and could not leave in either direction because of [Student’s] positioning. I slapped on the window and told the secretary to call the police.
15. Mr. Silveira arrived at the scene. He stated that Student was extremely volatile, was screaming obscenities, and appeared dangerous to Ms. Ragland. Mr. Silveira reported that Student “was acting more and more out of control and it was apparent that he was ready to explode.” He reported that Student “had lost all control of his behavior” and added that Student “was acting so out of control screaming, swearing, kicking the door that I wasn’t sure how this whole incident would end. . . . he was beyond reason and beyond control.” Throughout this time, Student continued to demand his phone back from Ms. Ragland. Testimony of Silveira; exhibits S-5, P-6, P-47 (pages 17, 40, 41, 43, 45).
16. Several teachers intervened, and they with Mr. Silveira moved Student away from Ms. Ragland. Two Swansea police officers came to the scene and took Student away with them. Mother arrived and noticed her son with the two police officers. The police officers transferred Student to Mother, who drove him from the school. Testimony of Mother, Silveira; exhibit P-47 (pages 41, 43).
17. The incident was experienced by Ms. Ragland as frightening and physically threatening. She was visibly shaken. Mr. Silveira experienced the confrontation as a dangerous incident, and an abusive and violent attack on Ms. Ragland although Student had no physical contact with Ms. Ragland, and Student did not threaten to have physical contact with her. Testimony of Silveira; exhibit P-47 (pages 43, 47).
Subsequent History
18. By letter of December 12, 2006, Case High School Principal McCann informed Parents that Student had been suspended for ten days for “threat of assault” on December 11, 2006. Exhibit P-9.
19. On January 3, 2007, Swansea held a manifestation determination meeting, at which it was determined that Student’s conduct on December 11, 2006 was not a manifestation of his disabilities. Counsel for Swansea and Student were present at that meeting. Exhibit S-3.
20. On January 9, 2007, Principal McCann held an expulsion hearing, which was attended by counsel for Swansea and Student. By letter dated January 10, 2007, Mr. McCann advised Parents that he was excluding Student from Case High School for the remainder of the 2006-2007 school year and for the first semester of the 2007-2008 school year. The letter further provided certain conditions (including anger management counseling) that would need to be met in order for Student “to re-apply for admittance in January 2008” to Case High School. Exhibit P-10.
21. On January 16, 2007, Student’s IEP Team met to discuss Student’s current and prospective educational services and placement. The Swansea members of the Team proposed that Student attend the South Coast Collaborative program. Parent considered and later declined this proposed placement, seeking instead a home-based educational program that would include tutoring, assistance with preparation for taking the MCAS, and continuation of Student’s counseling services.
22. Student has not returned to school since the December 11, 2006 incident. Swansea has been providing Student with two hours per day of tutoring, as well as the counseling services described in Student’s IEP.
III. DISCUSSION
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)2 and the state special education statute.3 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.”4 Neither Student’s eligibility status nor his entitlement to FAPE is in dispute. Student is seeking relief and therefore has the burden of persuasion regarding the manifestation issue.5
The federal special education statute and implementing regulations provide that a student’s conduct is a manifestation of his disability if either of the following two requirements is satisfied:
(I) if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or (II) if the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.6
If Student has demonstrated that “the conduct in question . . . had a direct and substantial relationship to . . . [his] disability,” then his conduct is considered to be a manifestation of his disabilities.7
I recount briefly the following undisputed facts.
The December 11 th incident in math class with Ms. Pimento and the encounter with Mr. Silveira immediately thereafter upset and angered Student. After leaving Mr. Silveira’s office, Student intended to collect some of his things at school and leave the building. When he reached his Mother by phone in the foyer of the hallway of the high school, Student had become extremely upset, even hysterical. Student’s response to Ms. Pimento and Mr. Silveira was similar to what had occurred during previous incidents at school during the 2006-2007 academic year. Testimony of Silveira; Facts, pars. 10, 11, 12.
Ms. Ragland then came into the hallway, telling Student to move into a nearby office. This confrontation between Ms. Ragland and Student had the effect of further escalating Student’s conduct, and as a result, Student violently threw his cell phone to the floor. Facts, pars. 12, 13.
When Ms. Ragland retrieved Student’s cell phone and refused to return it to him, Student became extremely upset at Ms. Ragland. Student wanted to leave the building, and before leaving the building, he sought to retrieve his cell phone. Student repeatedly demanded that Ms. Ragland give him the phone. Facts, pars. 13, 14, 15.
At this time and until he was separated from Ms. Ragland, Student’s conduct was threatening and potentially dangerous – conduct that went beyond what had been observed previously within the high school. By this time, Student had lost all control of his behavior. Mr. Silveira described Student as “beyond reason.” Facts, pars. 14, 15, 16, 17.
Student relied on the expert testimony of Virginia King, EdD. Dr. King testified that on December 11, 2006, Student was in an upward spiral of worsening behavior. As Student’s behavior escalated, he was not likely aware of the escalation, his behavior was impulsive, and it was difficult for him to make logical choices or good decisions. Dr. King opined that, within this context, Student was not capable of self-regulating his behavior. Dr. King described Student’s escalation of impulsive behavior, his lack of insight into his conduct, and his difficulty controlling his own behavior as consistent with his combination of ADHD and ODD deficits. Testimony of King.8
The conduct in question is Student’s threatening behavior towards Ms. Ragland on December 11, 2006, but in order to understand this conduct, one must view it within the context of the preceding events. By the time of the confrontation between Student and Ms. Ragland, Student had become highly agitated and oppositional as a result of the math class incident and suspension by Mr. Silveira. Swansea witnesses stated that Student’s agitated, oppositional behavior at this time was similar to Student’s conduct during previous incidents earlier in the school year, and Student’s previous conduct had been addressed by Swansea special education staff without leading to violent or aggressive conduct. I find (and there is little dispute on this point) that there was a direct and substantial relationship between Student’s disabilities (ADHD and ODD) and his agitated and oppositional conduct prior to his confrontation with Ms. Ragland. Testimony of Silveira, Pimento.
I further find that there was a direct and substantial relationship between Student’s disabilities and his subsequent threatening and potentially dangerous behavior towards Ms. Ragland on December 11 th . I reach this conclusion because Ms. Ragland’s confrontation of Student while he was in a highly agitated, even hysterical condition caused Student to lose all ability to self-regulate. It was the chain of events, beginning with Student’s agitated and hysterical frame of mind as a result of the math class incident and suspension, combined with a confrontation by an authority figure who sought to prevent Student from leaving the building and who would not return his cell phone even as Student became more and more agitated, that ultimately precipitated Student’s threatening and dangerous behavior. In short, Student’s emotional and oppositional behavior, which was initially caused by his disabilities, spiraled out of his control when confronted by Ms. Ragland. Under these circumstances, I am persuaded that Student’s conduct was a manifestation of his combination of disabilities. Testimony of King; Facts pars. 12, 13, 14, 15.
Swansea argued to the contrary. All of the Swansea witnesses testified that, in their opinions, at the time when Student was physically threatening to Ms. Ragland, his conduct was not a manifestation of his disabilities. In general, they reasoned that although Student had previously demonstrated angry and oppositional behavior as a result of his disabilities, his conduct on December 11 th went further in that it had a physical component that was violent and threatening. They opined that Student had, in the past, been able to control himself to avoid this kind of extreme behavior, and he therefore could have and should have self-regulated his conduct on December 11 th , particularly with respect to his confrontation with Ms. Ragland. The Swansea witnesses explained that Student had, in previous difficult situations, found ways to back off, leave the area, or obtain staff assistance to defuse his anger. They further pointed out Student’s leadership abilities that include working well with others, as well as his general capacity to follow school rules, all of which argue in favor of Student’s ability to make good choices. Ms. Pimento added that violence and aggression are not associated with ODD and ADHD. Testimony of McCann, Silveira, Robidoux, Pimento, Nientimp.
For the following reasons, I did not find the testimony of the Swansea witnesses to be persuasive.
Their opinion that Student was able to make a reasonable choice within the context of the December 11 th incident is not persuasive. In previous situations, Student had typically regained control by backing off, leaving the area, or obtaining support from staff. On December 11 th , during the confrontation with Ms. Ragland, Student was attempting to leave the building (which likely would have defused the situation), but Ms. Ragland sought to direct Student into an office and then refused to return his cell phone. Faced with this dilemma, the undisputed statements of Ms. Ragland and Mr. Silveira indicate that Student lost total control of himself by the time he became threatening to Ms. Ragland; he was “beyond reason.” In addition, there was no special education staff in the area who understood Student’s disabilities and how to assist him to de-escalate. Testimony of Nientimp; Facts, pars. 14, 15.
It is also instructive to note Ms. Pimento’s testimony that if she has a confrontation with Student (or other special needs student) in the classroom, she sets the expectation for the student and directs the student (for example, to move to the back of the room), but then does not further confront the angry or oppositional student. Instead, another classroom staff person follows up by assisting the student to comply with Ms. Pimento’s directive. This is done routinely in order to avoid an escalation of the student’s oppositional/angry conduct that may naturally occur if the original authority figure continues to request the student’s compliance. On December 11 th , Student was provided no such opportunity to avoid an escalation of the original confrontation with Ms. Ragland, with the result that a spiraling of confrontational, out-of-control behavior occurred. Testimony of Pimento.
Finally, I note that Dr. King demonstrated a greater depth and breadth of knowledge and expertise regarding ADHD and ODD (and, in particular, the co-existence of these two disabilities) than the Swansea witnesses. This allowed Dr. King to testify more persuasively than the Swansea witnesses regarding Student’s disabilities and how they led to the escalation of his behavior on December 11 th . Testimony of King.
For these reasons, I conclude that Student’s conduct in question had a direct and substantial relationship to his disabilities. Therefore, his conduct on December 11, 2006 was a manifestation of his disabilities.
IV. ORDER
Student’s conduct on December 11, 2006 was a manifestation of his disabilities.
By the Hearing Officer,
William Crane
Dated: April 4, 2007
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
THE BUREAU’S DECISION, INCLUDING 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).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
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
None of the witnesses at the Hearing was present during this initial part of this incident. The above paragraph (# 12) and the following two paragraphs (# 13, 14) describing this part of the incident are based on: (a) testimony of Mother, who heard part of the incident over the telephone, (b) testimony of Mr. Silveira who investigated the incident, and (c) written documents, including a statement from Ms. Ragland and a transcript of the January 9, 2007 expulsion hearing.
2
20 USC 1400 et seq . Congress reauthorized and amended the IDEA in 2004, with changes to take effect on July 1, 2005. Unless otherwise indicated, references in this Decision to the IDEA are to IDEA 2004.
3
MGL c. 71B.
4
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
5
Schaffer v. Weast , 546 U.S. 49, 126 S. Ct. 528, 163 L. Ed. 2d 387 (2005).
6
20 USC § 1415(k)(1)(E)(i); 34 CFR §300.530(e).
7
34 CFR 300.530(e)(2).
8
Dr. King has a master’s degree in counseling (1971), a certificate of advanced graduate studies (CAGS) in educational leadership, a CAGS as a school psychologist, and a doctorate degree in educational leadership. Her employment includes being a teacher, guidance counselor, director of guidance counseling, school psychologist, director of special education services for twelve years in a public school system, and director of special education services in a charter school. In preparation for her testimony, Dr. King reviewed all of Student’s exhibits (except P-48 which was not available until the day of the Hearing) and spoke with Student and Mother. Dr. King did not evaluate Student. Prior to testifying, Dr. King heard the testimony of Mr. McCann, Mr. Silveira, and Mr. Robidoux, as they described the events of December 11 th . Dr. King presented as knowledgeable about ADHD and ODD, in general, and as familiar with Student’s particular deficits in these areas. She also demonstrated an understanding of the incident on December 11, 2006. Dr. King testified in a candid and balanced manner. I found her expert testimony to be credible.