Xylon and Brockton Public Schools – BSEA # 11-0374
COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION AP PEALS
In Re: Xylon1 & Brockton Public Schools
This matter comes before the Hearing Officer on the request of the appealing party, the mother, that a different Hearing Officer be assigned to hear the instant appeal filed on August 3, 2010. The Parent’s request, by way of letter to the Director of the BSEA on August 26, 2010, is construed as a Motion for Recusal. The School filed an Opposition on September 3, 2010. In order to properly address the Motion, a brief outline of the background is necessary.
This Parent and School District have been at odds for many years about the delivery of supplemental and/or compensatory educational services in the Student’s home. Their disagreements have resulted in several appeals, including BSEA #09-2740, BSEA #09-2740C and BSEA 09-7986, in which the outcomes were unsatisfactory to the Parent. I was the Hearing Officer for BSEA #’s 09-2740 and 09-2740C. Although originally assigned to hear BSEA #09-7986, I requested that it be transferred to a different Hearing officer pursuant to the Parent’s Motion for Recusal. 15 MSER 103 (2009).
On August 3, 2010, the Parent requested a BSEA Hearing asserting that Brockton has failed to implement the “stay put” home education components of Xylon’s 2007-2008 IEP. The Appeal, assigned BSEA #11-0374, was randomly assigned to me. A hearing was scheduled to take place on September 7, 2010.
The parent did not send a copy of the hearing request or any subsequent filings to the School as required. Therefore the hearing schedule has been suspended until the Parent complies with the Federal regulations and BSEA Rules regarding notice. To date the Parent has not produced proof of compliance.
Motion for Recusal
In her Motion to Recuse, the Parent alleges bias and improper handling of BSEA #09-2740. She seeks a different Hearing Officer for the instant appeal because she had an unhappy experience in her first appeal in January 2009. She does not assert any circumstances relating to BSEA 11-0374 or to me that might immediately warrant recusal. Brockton disputes the Parent’s factual allegations and opposes the assignment of a different Hearing Officer to this pending matter.
Motions for Recusal must be considered seriously by the challenged decision-maker. It is of grave importance to the administration of justice that all participants in a judicial or quasi-judicial proceeding have trust and confidence in the impartiality and the expertise of the person conducting the proceeding. It is also important that the administrative functions of a due process entity be efficient, fair and responsive to all interested participants, and not subject to disruption or delay by a very small minority of individuals. Therefore some rules have been established to guide both parties and decision makers considering Recusal options.2 A Hearing Officer must weigh her own professional qualifications to hear the type of appeal presented; must be alert to any objective bars that arise in the particular matter before her; must consider any subjective biases or prejudgments she may have about the parties or the subject matter; and must anticipate how her conduct of the matter might “appear” to the parties and the public.3
I consider these categories of challenges in turn:
1.) Professional Qualifications :
The Parent posed no challenge on this basis and therefore disqualification is not warranted.
2.) Objective Bars :
Objective factors which usually warrant recusal include any personal or professional connection the Hearing officer might have with a hearing participant that might reasonably compromise her ability to render a fair decision. These factors include but are not limited to: potential relationship-based bias due to a familial tie with a participant; residence within the school district, a financial interest in the outcome of the matter, or a prior association with counsel. In this matter the Parent has not alleged, nor is there any reasonable support for finding the existence of any objective factor that would require recusal. I have no current or historical familial, professional or financial connection to any party, potential witness, public entity or counsel in this matter. Therefore I find that there is no objective bar to continuing as a Hearing Officer in this matter.
3.) Subjective Factors :
The Hearing Officer must also examine her own emotions and conscience to determine whether she is truly capable of conducting an unbiased, impartial due process proceeding. I have made this examination. Indeed I make this examination with each ruling or event in all matters before me. I have concluded that I do not have any impermissible bias or prejudgment, that I am capable of fairly presiding over this matter without prejudice to either party and of rendering a decision based solely on the evidence presented and the applicable law.
4.) Appearance :
The final level of inquiry is whether the Hearing Officer’s impartiality might reasonably be questioned by the participants or the general public. To be disqualifying the alleged bias, prejudice, or improper remark, conduct or ties must arise from some extrajudicial source. Facts or circumstances gleaned from participation in a current or prior appeal involving the same parties or subject matter, or objections to prior rulings in the current matter that may be unsatisfactory to the party seeking recusal; do not constitute a proper foundation for disqualification. 28 U.S.C. §455; Boston’s Children First , 244 F.3d 164 (1st Cir.2001); Demoulas v. Demoulas Super Markets , 424 Mass 501 (1997); Commonwealth v. Gogan , 389 Mass. 255 (1983).
Here, the Parent’s argument in support of disqualification in this hearing rests primarily on her dissatisfaction with her experience in, and perceptions of testimony given in, a prior hearing. Unsatisfactory experiences and misperceptions, even a series of them, do not in themselves indicate partiality or bias on the part of the Hearing Officer and do not, without more, provide sufficient support for recusal. While reasonable people may disagree on the substantive merits of any decision, or on the credibility or import of any witness testimony, or may experience discomfort during any part of the hearing process, I cannot find on this record that a reasonable member of the public could point to any factor or circumstances causing doubt as to my impartiality. Therefore I find that recusal is not warranted on the basis of appearance of partiality.
While there is no reasonable basis for granting the Parent’s Motion for Recusal, there remains, nonetheless, the duty to assist pro se litigants to the extent possible to present their claims. In this matter I find that the Parent is likely to be more comfortable presenting her concerns to a hearing Officer less familiar with her and with the history of conflict between the parties.
The Parent’s request for Hearing in this matter, BSEA #11-0374, presents a discrete legal issue: whether a later rescission of an accepted, implemented and expired IEP revives the services set out in a prior accepted IEP under the doctrine of “stay put”? The time frame involved in the Parent’s Request 2006-2009 has been the subject of previous hearings. This precise issue, however, was never presented or decided. While retention of this matter would certainly be more efficient for all concerned, a new Hearing Officer will have no difficulty managing the discrete issue presented by the Parent and separating it from the previous BSEA matters. The potential inconvenience to the School and to the BSEA of late reassignment is outweighed here by the need to maintain confidence in the unbiased administration of justice.
I will therefore on the Mother’s behalf request the administrative reassignment of this matter to another Hearing officer. Reassignment of active matters is an administrative decision made by the Director of the BSEA based on multiple factors extrinsic to the individual case, including Hearing Officer availability, work flow management, conflicts, etc. There is no guarantee that reassignment will be possible.
The Parent’s Motion for Recusal is DENIED . This appeal is, however, referred for administrative reassignment.
By the Hearing Officer
Dated: September 23, 2010
Xylon is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in document available by the public.
20 U.S.C.§1415 (F)(13); 34 CFR 300.511; 608 CR 228.09 (3)
See: Duxbury Public Schools , 14 MSER 363 (2008) Malden Public Schools , BSEA #05-4355, 4/5/05; and Marblehead Public Schools , 8 MSER 84 (2002) for a more thorough discussion of recusal factors.