COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Zelda1 v. Bridgewater-Raynham Public Schools and Bristol County Agricultural School
BSEA #06-0256
Ruling on Cross-Motions for Summary Judgment and on the Motion of Bristol County Agricultural School to Dismiss the Student’s Claims
This matter comes before the Hearing Officer on the Motion of the Student for Summary Judgment on her claims against Bristol County Agricultural School (hereinafter “Bristol Aggie”), on the cross Motion of Bristol Aggie for Summary Judgment and on Bristol Aggie’s Motion to Dismiss of all the Student’s claims against it. Bridgewater-Raynham Public Schools (hereinafter “B-R”) has no pending motions and takes no official position with regard to the Motions of the other parties.
The Student originally requested a hearing and preliminary injunction on July 12, 2005. Her initial complaint included the Massachusetts Department of Education (hereinafter the “DOE”) but she withdrew all claims against the DOE on July 28, 2005. The matter was scheduled for hearing on August 16, 2005. The Student requested a postponement of the hearing and withdrew the Motion for Preliminary Injunction. The parties worked on settlement of the issues but were unable to reach resolution. After several phone conferences and submission of briefs, reply briefs and supplemental briefs the parties presented arguments on their dispositive motions on October 21, 2005.
I. Issues
Zelda, a student with a disability, seeks initial admission to the 9 th grade exploratory program at Bristol Aggie. During the winter of 2005 she followed the standard admission procedure by submitting an application, transcripts and written recommendations as well as sitting for an interview with a member of the Bristol Aggie staff. Neither Zelda nor her parent was ever notified of the result of the application process. At the end of June 2005, Zelda’s parent learned informally through a staff person at the alternative school Zelda attended that Zelda had been placed on the “wait list” for admission to Bristol Aggie. Zelda’s parent believes that Zelda was not admitted to Bristol Aggie because she has a disability: school phobia and depression. She asserts that Bristol Aggie wrongfully relied on the manifestation of that disability, medically excused absences during Zelda’s 7 th grade year, to deny her admission to the school. She also asserts that Bristol Aggie deliberately failed to notify the parent of its decision not to admit Zelda in order to circumvent the appeal procedures available under its own admission policy.
Based on the submissions and arguments of the parties I believe the substantive and procedural issues presented by these facts may be stated as follows2 :
1. Whether the Student is receiving the free, appropriate public education in the least restrictive setting to which she is entitled pursuant to 20 U.S.C. § 1401 et seq . and M.G.L. 71B?
2. Whether the actions of Bristol Aggie with respect to Zelda’s application for admission to the class beginning in September, 2005, violated section 504 of the Rehabilitation Act of 1973 (29 USC 794) and 42 USC § 1983?
II. Facts
The parties agree on the following salient facts:
1. Zelda is a student with a disability who has received special education through the Bridgewater-Raynham Public Schools for at least the past three years. During the 2003-2004 school year Zelda attended the 7 th grade at the Bridgewater Middle School. Due to significant school phobia, depression and anxiety Zelda found it impossible to maintain perfect attendance.3 During the 2004-2005 school year Zelda attended the 8 th grade at Southeast Alternative School. She maintained excellent attendance, grades and conduct throughout the 8 th grade. (Student Motion for Summary Judgment, ex. 1, 5, 6)
2. In February 2005, Zelda applied for admission to the 9 th grade exploratory program at
Bristol Aggie. She submitted the transcripts, recommendations and interview required by the Bristol Aggie Admission Policy. (Bristol Aggie Motion for Summary Judgment, ex. 4)
3. Bristol Aggie is a publicly funded specialized high school with a limited enrollment. It has a facially neutral admissions policy under which it assigns applicants points for attendance,4 conduct, recommendations, academic record and performance on interview. Applicants are rated on a 100 point scale. Beginning in March admission offers are made in descending order to applicants with the highest aggregate score until the class is filled. According to the policy, all applicants are accepted, declined or placed on a wait list. Applicants who are notified that they are not accepted may request a review of the decision within ten days of notification by sending a letter to the principal. If an applicant receives an adverse written decision from the principal, she/he may appeal to the superintendent within ten working days. (Student MSJ ex. 3 ; Bristol Aggie MSJ ex. 1, 7)
4. Zelda met the eligibility requirements set out on page 1 of the Bristol Aggie Admission policy. At the time of her application she was an eighth grade resident of Bristol County who expected to be promoted by her local school district (B-R) to the 9 th grade. She was also eligible for priority admission as a resident of Raynham. (Student MSJ ex. 3 ; Bristol Aggie MSJ ex. 1)
5. To date no written notice of any Bristol Aggie action concerning Zelda’s application for admission has been received by Zelda or her family. (Student MSJ ex. 1)
6. Zelda’s mother learned that Zelda had been placed on a wait list at Bristol Aggie through informal conversations with staff at the Southeast Alternative School. She was told that Bristol Aggie considered Zelda’s application “incomplete” because of her record of absences during the 7 th grade 2003-2004 year. (Student MSJ ex. 1; Bristol Aggie MSJ affidavit of Mark Dufresne; ex. 7)
7. Bristol Aggie was aware that Zelda’s absences during the 2003-2004 were directly linked to her disability: school phobia, depression and anxiety. (Affidavit of Russell James; Affidavit of Mark Dufresne)
8. Zelda is currently attending the 9 th grade at B-R High School. She maintains her interest in animals and in attending Bristol Aggie. Her 2004-2005 IEP calls for some modifications in the pace and presentation of material in the mainstream to avert “perfectionism”. The only direct service listed on the IEP is in-school counseling twice per week. (Student MSJ ex. 7)
Discussion
While the IDEA, which sets out the framework for the delivery of special education services to a student with disabilities, is clearly implicated in the Parent’s claims against both school districts, the Student’s predicate and corollary claim is more accurately characterized as one of discrimination on the basis of handicap. The Student asserts that she was denied access to a publicly funded educational program by reason of her known handicap. This type of claim is analyzed under Section 504 of the Rehabilitation Act of 1973, 29 U. S. C § 794 (hereinafter “Section 504”).5 She also contends that Bristol Aggie’s failure to admit her, and its failure to notify her of its admission decision so that an appropriate challenge could be made, demonstrates gross misjudgment and bad faith. This claim rests on the civil rights protection statute 42 U. S. C. § 1983 (hereinafter Section 1983). I therefore analyze the Motions presented for decision in the context of those statutes.
I. Motion of Bristol Aggie to Dismiss Student’s Claims.
Dismissal of a student’s claims will be granted under BSEA Rule VII and 801 CMR 1.01 7(d) only when, viewing all proferred facts in the light most favorable to the claimant, it is clear that the claimant can prove no set of facts which would entitle her to relief. That is not the case here. The Student’s allegations under each statute are sufficiently supported by both agreed upon facts, and asserted uncontradicted facts to entitle her to relief. See: In Re: Mass. Dept. of Education, 9 MSER 1 (2003) ; In Re: Inessa, 2 MSER, (1995) .
A. IDEA
Zelda asserts that she is a student with a disability for whom the IEP Team determined that a small, highly structured vocational placement would provide a free, appropriate education during the 2005-2006 school year. Although accepted, the program proposed in the 2005-2006 IEP is not currently being provided. These facts are sufficient to state a claim that Zelda is not receiving the free, appropriate public education to which she is entitled under 20 U. S. C. § 1401 et seq .
B. Section 504
Section 504 prohibits discrimination against a qualified handicapped individual by any program that receives federal funds. 29 U.S.C. 794, Section 504 of the Rehabilitation Act of 1973 as amended by P. L. 100-259 (the Civil Rights Restoration Act of 1987). It is aimed at eradicating all forms of discrimination against disabled individuals. Helen L. v. DiDario , 46 F. 3d 325, 3330 (3 rd Cir. 1995), cert. denied , 516 U. S. 813 116 S. Ct. 64, Allen v. Heckler , 780 F. 2d 64, 66 (D. C. Cir. 1985). Section 504 provides that:
No otherwise qualified individual with a disability in the United States…shall solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…
29 U. S. C. § 794(a).
Disputes arising from the alleged denial of the right of a student with a disability to a free appropriate public education under Section 504 are resolved through a hearing process at the BSEA similar to that available for IDEA challenges. 34 CFR § 104.34-104.39, at 104.33(c)(4). 603 CMR 28.08(3)(2). To prevail on a claim of discrimination against a public school under Section 504 the Student must demonstrate that:
a) she has a qualifying disability;
b) she is otherwise qualified to participate in school activities;
c) the school receives federal financial assistance;
d) she has been excluded from participation, has suffered discrimination, or has been denied benefits by the School;
e) the exclusion, discrimination or denial was based on the Student’s disability.
Baird v. Rose , 192 F. 3d 462 (4 th 1999); Wynn v. Tufts Univ. School of Medicine [Wynne II], 976 F. 2d. 791, 795 (1 st Cir. 1992), cert. denied , 507 U. S. 1030, 113 S. Ct. 1845 (1993); W. B. v. Matula , 67 F. 3d 484, 492 (3 rd Cir. 1995) (quoting Nathanson v. Medical Coll. Of Pennsylvania , 926 F. 2d 1368, 1380 (3rd Cir. 1991); Ridgewood Bd. Of Educ. V. N.E. for M. E ., 172 F. 3d 238 (3 rd Cir. 1995).
Here, the first four elements of a successful Section 504 claim are not in dispute. The parties agree that Zelda has a qualifying disability; that she is an age-eligible resident student and thus “otherwise qualified” to attend Bristol Aggie; that Bristol Aggie receives federal “flow through” financial assistance due to state department of education funding; and that she has not been admitted to Bristol Aggie. The only element in dispute is causation. Zelda asserts that she was denied admission due to her disability. Bristol Aggie counters that Zelda simply did not achieve sufficient points on the facially neutral admissions policy point scale to qualify for admission. Determination of causation, in this instance, is a question of fact. Viewing Zelda’s claim in its most favorable light, and drawing the available inferences from Bristol Aggie’s acknowledgement that it did not award her points for seventh grade due to her absences and that it knew those absences were disability-related,6 I find that the Student has established a prima facie case of discrimination on the basis of disability under Section 504 and therefore that her claim survives Bristol Aggie’s attempt to dismiss it.
C. Section 1983
Based on the facts asserted, and supported, in the record submitted by the parties the Student has a claim for deprivation of her civil rights under Section 1983. The Student claims that Bristol Aggie has a custom or policy of not informing prospective students of their placement on a waitlist or the denial of their application for admission thereby preventing them from challenging the admission decision under the appeals procedure set out in the school handbook. Bristol Aggie does not deny that it failed to inform Zelda directly of its decision to place her on an amorphous “wait list”. These facts are sufficient to state a claim under §1983 for violation of procedural due process. Zelda adds to that bare bones claim, however, by asserting that the no notification policy was intended to, and did indeed have the effect of, shielding Bristol Aggie from inquiry and examination of its admissions practice with respect to students with disabilities. Therefore she claims, the lack of procedural due process in admissions at Bristol Aggie was the result of gross misjudgment, bad faith, and intentional discrimination. Based on the affidavits submitted by both parties, along with other documents concerning Zelda’s application for admission to Bristol Aggie, I find that the Student has made out a cognizable and supportable claim under Section § 1983.
Considering the findings recited above, the Motion of Bristol Aggie to Dismiss the Student’s Claims is DENIED.
II. Cross Motions For Summary Judgment
Motions for Summary Judgment in administrative proceedings before the Bureau of Special Education Appeals are evaluated according to the traditional standards set out at Rule 56(c) of the Federal Rules of Civil Procedure. Summary Judgment is proper when the pleadings, sworn discovery responses, and affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law on those undisputed facts.
A. IDEA
Whether a student is being offered a free, appropriate public education in the least restrictive setting is a highly fact intensive and individual inquiry in most instances. Ordinarily, Summary Judgment is appropriate in IDEA proceedings only when the parties agree on all operative facts, supporting that agreement with documents and affidavits, and present a question of law for decision. Here the parties do not agree on all the facts pertinent to the Student’s IDEA claim. Fundamentally, the Student and Bristol Aggie disagree on whether placement in a small structured vocational program is the least restrictive special education option in which the Student’s special education needs can be met. They also disagree about whether the June 2005 Team recommended such a placement. They disagree about whether the procedural requirements the IDEA imposes in advance of a change in special education placement were met. These disputed facts are reflected in the documents and affidavits presented by the parties. Therefore Summary Judgment on the Student’s IDEA claim is not proper.
B. Section 504
As noted above the Student has articulated a prima facie case of invidious discrimination on the basis of handicap against Bristol Aggie. The inquiry does not end there. Bristol Aggie has offered evidence purporting to show that it properly applied a facially neutral admissions policy to the Student’s application which resulted in an automatic denial of admission.7 If believed, Bristol Aggie’s rebuttal would defeat the Student’s Section 504 claim.8 However the Student may now show that the facially neutral admission policy is a mere pretext for discrimination, and that the true reason for Zelda’s exclusion was her disability. If the Student succeeds in establishing “pretext” she also succeeds on the Section 504 claim. The affidavits and documents in the record before me that touch on the last two analytical elements of a 504 claim are contradictory. The affidavits submitted by Bristol Aggie in support of its decision not to admit Zelda tend to buttress the conclusion that the facially neutral admission policy was applied to her application at least erroneously, if not intentionally, resulting in exclusion on the basis of her disability. However, there is no direct information in the record from the individual responsible for scoring Zelda’s application. Without that evidence the issue of intentionality on the one hand, or improper training on another, cannot be resolved. I believe such an important finding requires a more focused evaluation of the credibility of the informants and the weight to give their testimony.
Since I am unable to discern agreement on the “facts” necessary to support/or disprove the Student’s 504 claims of intentional discrimination on the basis of disability and/or disparate impact of implementation of a facially neutral policy, I must deny the Cross Motions for Summary Judgment.
C. Section § 1983
The Student has established that Bristol Aggie failed to notify her of its admission decision and of the opportunity for appeal consistent with its own admission policy and the notification requirements of Section 504. There is no contrary information in the record. The Student’s argument that this failure constitutes a deprivation of procedural due process rights contrary to Section 1983, in addition to supporting her claim of discrimination on the basis of handicap under Section 504, is not well articulated in the briefs. The Student does, however, clearly claim that Bristol Aggie had a policy and custom of failing to notify unsuccessful candidates for admission of their status and appeal rights. The difficulty with that claim lies only in its source of support. The underlying facts are attributed to counsel rather than to anyone acting in a responsible position at Bristol Aggie. Without some genuine factual support in the record summary judgment is inappropriate. This issue too then will be taken up at hearing. Having determined that genuine issues and omissions of material fact exist in the record before the Bureau, the parties’ Cross-Motions for Summary Judgment are DENIED.
III. Proper Parties
The Student originally included the Massachusetts Department of Education (“DOE”) as a party in this appeal. She later withdrew the action against the DOE for unknown reasons. In reviewing the claims of the Student, and the cross-claims of both school districts, it is my conclusion that full relief cannot be granted to any current party without the participation of the DOE. I find that the presence of the DOE is necessary and appropriate pursuant to BSEA Rule IJ and therefore join it sua sponte in this action.
Here the Student alleges that the Team unanimously recommended her placement in a small, structured vocational program. Such a program was not available at B-R the LEA responsible for developing Zelda’s IEP. Furthermore, B-R may not, consistent with state law governing vocational education, create such a program to meet Zelda’s needs.
When the state refuses to permit a responsible LEA to create or maintain an appropriate vocational program for an eligible student for whom such a program is recommended by the Team, and does not guarantee alternate access to such a program for the Student, the state itself is the agent thwarting the provision of FAPE to the student.9 Furthermore, when an eligible student is determined by an IEP Team to need a “rigorous and challenging academic and technical program” 34 CFR 300.38(b)(5)(a) which is available only at a publicly funded regional vocational school to which the Student is denied access ostensibly because of her disability, Title II of the ADA is implicated. The DOE, as the ultimate guarantor of access to and provision of a free, appropriate public education, and non-discrimination in all publicly funded education programs, has a vital interest in participation in the resolution of this Student’s claims against Bristol Aggie, B-R, and ultimately, the state.
Therefore, the Massachusetts Department of Education is joined as a party to this appeal forthwith.
IV. Conclusion
Having denied the parties’ dispositive prehearing Motions, this matter will now proceed to hearing. Any discovery sought by any party must be completed within forty-five days of this ruling. Based on the discussion above Bristol Aggie is on notice that at a hearing it will be required to show, at minimum, that it provided procedural due process to the Parent and Student by affording her direct and timely notice of its admissions decision and a genuine opportunity to appeal. Moreover, Bristol Aggie must demonstrate that it did not rely on prohibited factors associated with Zelda’s disability, such as medically excused absences, in calculating Zelda’s admissions points. Without a convincing showing on these elements its position in opposition to Zelda’s admission is simply not supportable.
Order
Pursuant to the findings set out above, the following orders are entered:
1. The Motion of Bristol County Agricultural School to Dismiss the Student’s Claims is DENIED.
2. The Motion of the Bristol County Agricultural School for Summary Judgment is DENIED.
3. The Student’s Motion for Summary Judgment on its claims against Bristol County Agricultural School is DENIED.
4. The Massachusetts Department of Education is Joined as a party to this appeal.
5. The parties shall contact the scheduling coordinator at the BSEA within 15 days of the date of this ruling to arrange four mutually convenient dates for hearing. Should the parties be unable to agree in a timely manner, the hearing officer will select hearing dates.
6. The parties shall submit written status updates within 30 days of the date of this ruling.
7. All discovery shall be completed within 45 days of this ruling.
Lindsay Byrne, Hearing Officer
1
“Zelda” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
This ruling is based on my understanding of the legal arguments of the parties at this time. I am mindful of the role of administrative hearing officers and the duty to avoid addressing constitutional and federal civil rights claims when other, less lofty findings will resolve the issues. To the extent that the legal arguments and supporting facts are clarified at hearing the phrasing of the issue(s) may change.
3
There is no official information in this record concerning Zelda’s attendance in the 7 th grade. Therefore it is not clear how many absences there were, whether the absences were excused, whether alternative educational programming was provided, and whether the absences had any effect on Zelda’s academic achievement or acquisition of academic credits.
4
Note that the policy specifically refers to “unexcused absences” when assigning points for attendance.
5
Analysis and precedent derived from matters decided under Title II of Americans with Disabilities Act, 42 U. S. C. § 1201, are extremely helpful in evaluating Section 504 claims.
6
See Facts, ¶ 7.
7
See: PGA Tour, Inc. V. Martin , 532 U. S. 661 (2001) for a discussion of the impact of a facially neutral rule on an otherwise qualified individual with a disability.
8
Whether this type of “burden-shifting” analysis is required to state or prove Section 504 claim concerning the education of students with disabilities is not settled. See: Theriault v. Flynn , 162 F. 3d 46(1 st Cir. 1998). A showing of discriminatory intent and/or disparate impact is, however, highly relevant to the assessment of appropriate remedies should the Section 504 claim be supported. S.W. v. Holbrook , 8 MSER 279 (2002).
9
See In Re: Massachusetts Dept. of Education 9 MSER 1 (2003), for a thoughtful discussion of the state education agency’s responsibilities under the IDEA 2000. The pertinent sections remain in place in IDEA 2004 and therefore Hearing Officer Crane’s analysis in that matter remains instructive.