Arlington Public Schools – BSEA #01-4302



<br /> Arlington Public Schools – BSEA #01-4302<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

IN RE: Arlington Public Schools

BSEA# 01-4302

DECISION ON CROSS MOTIONS FOR SUMMARY JUDGEMENT

This decision is rendered pursuant to M.G.L. Chapters 15, 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and all of the regulations promulgated under each of these statutes.

A hearing in the above-entitled matter was held on February 27, 2002 at the Massachusetts Department of Education in Malden, MA.

Those in attendance were:

Father

Mother

Student

Michael Turner Attorney for Parents/Student

Marilyn Bisbicos Director of Special Education, Arlington Public Schools

Rebecca Bryant Attorney for Arlington Public Schools

Raymond Oliver Hearing Officer, Bureau of Special Education Appeals

The evidence consisted of Parents’ Exhibits labelled P-A1- P-A12; P-B1- P-B18; P-C1-P-C9; and P-D1-PD9; and Arlington Public Schools Exhibits labelled S-1-S-44 and S-A-SBB. The Hearing Officer also considered the oral arguments of the parties; all written pleadings, motions, statements of fact, memoranda and briefs submitted by the parties; and all additional documentation requested by the Hearing Officer of each party at the close of the hearing on February 27, 2002. The record closed on March 6, 2002.

HISTORY/STATEMENT OF THE CASE

At the time this appeal was initiated by Parents on April 18, 2001, Student was a 12 th grade student at Arlington High School (AHS). Student had been a special education student within the Arlington Public Schools (APS) functioning under Individual Education Plans (IEPs) since 1 st grade. (See P-B1-P-B18; S-5,6,8,13,20,22; S-E, F, G, I, J). Student also had received numerous evaluations during his educational career within APS. (See P-A1-P-A12; S-1, 2, 3, 7, 12, 18, 19; S-H).

On March 12, 2001, while in an automotive shop class, Student took a gun from his car and with other students present approached the teacher, held the gun to the teacher’s head, and said “don’t move.” The teacher removed the gun from Student and called the principal who called the police. Student was arrested and charged with assault with a dangerous weapon. Student’s conditions of release, issued March 13, 2001 by the Massachusetts District Court, required that Student remain away from AHS, the alleged victim and all witnesses. (See S-43, 44; S-L, S; P-C5, C9). On March 14, 2001 APS suspended Student for 10 days through March 27, 2001 pending the scheduling of an expulsion hearing (P-C4; S-27; S-M).

On March 27, 2001 APS held a team meeting to consider whether Student’s conduct was a manifestation of his disability and made a determination that it was (S-30, 31; S-M, S). Therefore, no expulsion hearing was held. Based upon Student’s conditions of release, the parties agreed that APS would provide Student with tutoring services (S-31; S-L, M, S). On April 9, 2001 a team meeting was held in which APS offered to place Student in an Interim Alternative Educational Setting (IAES) at: 1) Dearborn Academy or Campus Academy, either of which could perform a Functional Behavioral Assessment (FBA); or 2) alternatively, have Student tutored in subjects necessary for his high school graduation for 10-15 hours per week in a neutral location. Upon completion of APS’ graduation requirements, Student would be awarded an AHS diploma. APS also agreed to perform Parent requested academic and psycho-social evaluations upon Parents’ consent (P-C2; S-36; S-N). Also on April 9, 2001, Parents met with the Superintendent of APS and requested that Student be allowed to attend the senior prom and graduation.

On April 13, 2001 the APS Superintendent wrote to Parents that Student would be eligible to receive his diploma from AHS when he had satisfied the graduation requirements but that he would not be allowed to attend the senior prom and graduation ceremonies (P-C1; S-O). On April 19, 2001 Parents accepted the 10-15 hours of tutoring per week at a neutral location for Student’s IAES and consented to their requested educational and psychological testing (S-P). On April 27, 2001 Special Education Director Bisbicos wrote to Parents that since they had opted for the 10-15 hours of tutoring for Student’s IAES rather than either of the placements where a FBA could be performed, that APS would conduct the FBA and enclosed a consent form for the FBA (S-P). No consent to perform a FBA was ever sent by Parents to APS (Stipulation of Parents’ Attorney). On May 1, 2001 Ms. Bisbicos wrote to Parents requesting consent to send Student’s special education and disciplinary records to law enforcement authorities for their consideration. On May 20, 2001 Student wrote back that no documents were to be released to any entity without the express written consent of Student or his Parents. (See P-Q).

Meanwhile, on April 18, 2001, Parents requested a hearing before the Bureau of Special Education Appeals (BSEA) alleging procedural violations by APS; requesting Student’s immediate reinstatement to AHS; and requesting that he be allowed to participate in the senior prom and graduation exercises. A hearing was automatically scheduled for April 30, 2001. A number of pre-hearing conference calls were conducted in late April and early May and the parties agreed to a pre-hearing conference on May 21, 2001. At that May 21, 2001 pre-hearing conference the parties agreed to enter into an agreement of stipulated facts. Upon execution of such stipulated facts by the parties on May 23, 2001, the Hearing Officer then issued the following Order (See S-S for Stipulated Facts and Order):

Pursuant to the above-cited exhibits submitted by the parties and the above-stipulated facts, I, Raymond Oliver, order that [Student’s] 45-day period of Alternative Education Placement is over and that pursuant to 20 U.S.C. 1415(K), et seq ., he is entitled to return to Arlington High School. The Order of the Hearing Officer pursuant to federal special education law has no bearing on matters relating to any criminal charge currently pending in state or federal court. The parties’ rights are preserved as to all other issues pending before the BSEA.

On May 24, 2001 the Massachusetts District Court amended Student’s conditions of release to permit his attendance at AHS if APS re-admitted him (P-D6; S-L, T). APS planned to seek a count injunction, which did not happen as a result of apparent agreements between Student’s Attorney with APS’ Attorney and Student’s Attorney with the District Attorney that Student would remain out of school through May 29, 2001 which was the last day of school. (See S-T). However, Student did appear at AHS on May 29, 2001 and approached the teacher/alleged victim which resulted in further court action on May 30, 2001 and further restrictions on his conditions of release that Student could not leave his home unless accompanied by a Parent. (See P-D6; S-L).

Contemporaneously, on May 29, 2001, Student’s Attorney filed a civil action in Massachusetts Superior Court seeking a preliminary injunction requiring APS to allow Student to attend the senior prom on June 1, 2001 and graduation ceremonies on June 10, 2001. (See S-U). On June 1, 2001 the Massachusetts Superior Court denied Student’s request for a preliminary injunction noting:

Plaintiff has not shown a likelihood of success on the merits. Plaintiff is ordered not to interfere directly or indirectly with the prom or graduation proceedings. This includes encouraging his friends to do so. (See S-V).

On June 11, 2001, the day following graduation, Parent called AHS inquiring when Student would be able to receive his diploma. On June 18-19, 2001 Student was notified that he had completed the course of studies for a diploma from AHS; that the AHS principal would present the diploma to Student if Student wished it; and that if there was no response within 10 days that the diploma would be mailed to Student. The diploma was mailed to Student on June 26, 2001 but was unclaimed and returned. (See S-X).

On July 12, 2001 a meeting was held to review the evaluations that APS had completed pursuant to Parental request. (The results of these evaluations can be found at P-D5 and S-W, Y). On July 31, 2001, more than 6 weeks after Student’s diploma had issued and the expiration of his most recent IEP, Parents and Student rejected all of his previously accepted and expired IEPs from grades 9 through 12 (1997-2001) and also rejected his diploma. (See S-Z).

Having heard nothing further from the parties since his May 23, 2001 Order, on August 6, 2001 the BSEA Hearing Officer issued a 30 Day Order To Show Cause Why This Case Should Not Be Dismissed. On August 17, 2001 BSEA received Parents’ Motion To Amend Filing And Motion For A Further Pre-Hearing Conference. A pre-hearing conference was scheduled for September 13, 2001 and eventually took place on November 7, 2001. Settlement proved elusive and the parties agreed upon a time schedule for a clarification of the relief now sought by Parents/Student; discovery; filing of motions and responses/rebuttals thereto with accompanying briefs; and finally a Hearing On Motions which took place on February 27, 2002.

On December 6, 2001 Parents filed their Amended Relief Sought, summarized below:

1. Establishment of a record of all alleged APS procedural violations and denials of FAPE to Student for his entire educational career for purposes of Student seeking monetary damages through a future court action. (See Frazier v. Fairhaven 112 F. Supp. 124 (D. Mass 2000) ).

2. Reimbursement for remedial courses already taken to help bring Student up to a level be able to participate in regular Jr. College courses.

3. Sanction APS for failure to follow a lawful BSEA Order.

4. Reimbursement for additional remedial courses which Student may be required to take in order for him to be able to participate meaningfully in college courses.

5. Sanction APS for its alleged failure to follow the procedures and mandates it certified to Massachusetts Department of Education and United States Department of Education when APS accepted federal funds for special education.

6. Provide such sanctions, money damages, and/or services to Student as deemed just and reasonable by the Hearing Officer.

On January 23, 2002 APS filed a Motion For Summary Decision And Dismissal Of Complainant’s Hearing Request, with accompanying memoranda, on the grounds that the undisputed material facts do not establish a claim upon which relief can be granted. APS contends: 1) that the undisputed facts show that Student has received a valid high school diploma and is, therefore, not eligible for any award of prospective services; 2) that Student is not eligible for compensatory services because both Parents/Student failed to reject applicable IEPs prior to their expiration; and 3) due to equitable considerations. In the alternative, APS moves to severely limit the scope of this hearing.

Also on January 23, 2002, Parents filed a Motion For Summary Judgment, with accompanying memoranda, on the grounds that APS had failed to provide Student with a free and appropriate public education or one that maximized his possible development. Parents/Student allege: 1) failure to make academic progress during his high school years; 2) denial of transitional services; 3) failure to provide measurable annual goals; 4) failure to provide “legal” team meetings; 5) failure to provide agreed upon services; 6) violation of the BSEA Order of May 23, 2001; 7) failure to provide a FBA; 8) failure to send Student’s special education and disciplinary records to appropriate authorities to whom it reports a crime; and 9) Parent’s Rights Brochure was difficult to read as it was blue printing on blue paper.

On February 8, 2002 and February 11, 2002 respectively, APS and Parents filed Memoranda of Rebuttal to each other’s Motions For Dismissal/Summary Decision/Summary Judgment.

FINDINGS AND CONCLUSIONS

Based upon the evidence, documentation and written submissions/memoranda of the parties; the oral argument presented; and a review of the applicable law; I conclude that APS’ Motion For Summary Decision/Dismissal Of Complainant’s Hearing Request is GRANTED and Parents’ Motion For Summary Judgment is DENIED .

My analysis follows.

I.

The undisputed facts in the instant case clearly demonstrate: 1) that Parents and later Parents and Student participated in team meetings to develop all of his high school IEPs, all of which include notice of his graduation in June 2001; 2) that Parents/Student received notice of their procedural rights (See P-D5 for copy of Parents’ Rights Brochure) which explains numerous procedural rights including the right to receive independent evaluations at public expense, the right to accept or reject IEPs, and the right to seek a hearing before the BSEA to resolve any disputes; 3) that Parents accepted all such high school IEPs when they were proposed and throughout the lives of such IEPs (See P-B1-P-B4; S-8, 13, 20, 22; S-F, G, I, J); and 4) that Parents/Student did not reject any high school IEPs until after the final IEP had expired upon issuance of Student’s high school diploma.1

Based upon the above, I conclude that there is no justification for an award of compensatory services ( Pihl v. Mass. Dept. of Education 9 F. 3 rd 184 (1 st Cir. 1993)) to remedy any alleged deprivations that occurred while Student was eligible for services under the IDEA while still in high school. In the instant case all IEPs were accepted by Parents after participation in team meetings and receipt of procedural rights,2 including the right to reject an IEP and seek redress before the BSEA. No IEPs were ever rejected by Parents/Student during the terms of those IEPs. There is no allegation by Parent that APS refused to provide a placement or service or failed to provide services pursuant to these IEPs. The fundamental reality is that Parents are not satisfied with Student’s skill level and now seek to argue, after the fact, that the IEPs they accepted/agreed to were inappropriate.

Both the courts and the BSEA have repeated held that Hearing Officers are precluded from revisiting/re-opening accepted IEPs that have expired where parents have participated in the development of the IEP; parents have received notice of their options for rejection of an IEP and proceeding to a due process hearing; parents have chosen to accept the IEP; and parents have never rejected the IEP during its term. See Chris A. v. Stow Public Schools 16 EHLR 1304 at 1310 (MA 1990), affirmed on appeal, Amann v. Stow School System 982 F. 2d 644 at 651 (1992). See also Burlington v. Department of Education 736 F. 2d 773 at 796 (1984); Burlington v. Department of Education 471 U. S. 359 at 373 (1985); Amherst-Pelham Regional School District v. Department of Education 376 Mass 480, at 483 (1978); Manchester School District v. Christopher B . 19 IDELR 143 at 147 (DNH 1992); Gaylord Community School 32 IDELR 21 (SEA Michigan 1999); In re: Carver Public Schools 7 MSER at 167 at 170 (SEA Mass. 2001); In re: Marblehead Public Schools 7 MSER 176 at 180 (SEA Mass. 2001).

Equitable considerations also warrant a dismissal of Student’s claim for compensatory services. I conclude that Parents’/Student’s decisions: 1) to reduce special education services offered by APS for Student’s 10 th grade year; and 2) not to access additional special education services offered by APS for Students 12 th grade year (See S-A; P-D1, D2, D3); equitably bars a claim for compensatory services by Parents and Student now. See In re: Brockton Public Schools 6 MSER 3 at 8 (SEA Mass 2000); In re: Carver Public Schools 7 MSER 167 at 170 (SEA Mass 2001). The situation in Carver is closely analogous to the instant case where the Hearing Officer found: … . Student’s affirmative request to eliminate services in February 1999 coupled with her subsequent refusal of Carver’s June 1999 offer of services is sufficient to ban an award of compensatory relief.

II.

I conclude that there is no basis for an award of prospective services for Student. Local and state officials not courts, hearing officers, or teams set the academic standards for the awarding of a regular high school diploma. See Stock v. Massachusetts Hospital School 392 Mass 205 (1984). The undisputed facts in this case demonstrate that Student met APS’ graduation requirements and that he was granted a valid diploma from AHS (S-C, X; P-D5). The awarding of a regular high school diploma terminates a student’s eligibility for special education services under both state law, 603 CMR 28.02(9), and federal law, 34 CFR 300.122 (a)(3)(i), thereby clearly extinguishing any claim for an award of services on a prospective basis.

Alleged failure to meet goals and objectives is not a basis for invalidating a diploma. See Hamilton County Schools 23 IDELR 772 (SEA TN 1996), citing Hendrick Hudson District Board of Education v. Rowley 548 U.S. 176 (1982). See also In re: Carver Public Schools , supra. In any event, in the instant case non-rebutted achievement testing results obtained during Student’s 10 th grade and at the end of his 12 th grade demonstrate that Student made approximately 2 years growth in reading from a 7 th to a 9 th grade level; 2 years growth in spelling from a 6 th to an 8 th grade level; and just under 1 years growth in math to just under a 7 th grade level even though Student took no math course during his 12 th grade year! (See P-D5; S-W). Moreover, Student is now enrolled at Massachusetts Bay Community College (MBCC) for both the fall 2001 and spring 2002 semesters, taking 3 courses each term including English and math (S-AA). To be enrolled at MBCC a high school diploma or GED is required (S-BB). Therefore, MBCC has accepted Student’s AHS diploma and/or AHS transcript (S-C) for admission to MBCC. Parents characterize Student’s MBCC courses as “remedial” (S-AA). However, MBCC offers no courses that it entitles “remedial”. MBCC does offer 2 sequential courses in English and 2 sequential courses in math which MBCC entitles as “basic”. For the spring semester of the 2001-2002 school year, MBCC has scheduled 20 sections of basic English and 20 sections of basic math with approximately 30 students in each section (S-B). Therefore, of 969 freshman, up to 600 students are enrolled in basic courses (S-B, BB).

Based upon the above, I conclude that Student has been tendered a valid high school diploma; that Student has made documented progress within AHS during his high school career; and that Student currently is validly enrolled at a community college. I find absolutely no basis for an award of prospective services or that APS has any obligation to fund Student’s college courses.

III.

Parents allege denial of transitional services by APS for Student. 20 U.S.C. 1414 (d)(i)(A)(vii)(I) and (II), amended in 1997 and effective in July 1998, provide:

1. beginning at age14 , and updated annually, a statement of the transition service needs of the child under the applicable components of the child’s IEP that focuses on the child’s course of study (such as participation in advanced placement courses or a vocational education program).

2. beginning at age 16 (or younger, if determined appropriate by the IEP Team), a statement of needed transition services for the child, including, when appropriate, a statement of the interagency responsibilities or any needed linkages. Emphasis added.

I note that Student was already 16 years of age when the above first statutory provision became effective to begin at age 14. I also note that Student was exposed to and participated in a number of vocational/vocationally oriented courses while at AHS including woodworking, culinary arts, design technology, OCAD, and 3 automotive technical courses. (See S-C). I further note that 1 of Student’s 3 part time jobs is in the automotive field. (See S-AA). Regarding the above second statutory provision, I note the words needed transition services . There is no explicit requirement in the statutory language that schools must include in an IEP a statement of transition services that are not needed or a statement that no transition services are necessary. There are no allegations that Student required the services of any state human service agencies or that there was any interagency responsibility. Nor have Parents offered any evidence as to what transition services they believe Student required.

The language of the federal special education statute makes it clear that the benefit Congress intended from transition services was movement from school to post school life. Specific outcomes from the contemplated transition services are listed under 20 U.S.C. 1401(30)(A) as: … movement from school to post school activities including post secondary education , vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. Emphasis added.

As stated in Section II and the current Section above, Student is already enrolled and attending MBCC as a college student and has also obtained integrated employment since graduation from AHS. Therefore, I conclude that Student has achieved outcomes contemplated by the federal statute and cannot establish any substantial harm necessary to show that the lack of a transition plan, if even required under these circumstances, deprived him of an educational benefit. In Roland M. v. Concord School Committee 910 F. 2 nd 983 at 994 (1 st Cir. 1990) the U.S. Court of Appeals for this circuit held:

Before an IEP is set aside, there must be some rational basis to believe that procedural inadequacies compromised the pupil’s right to an appropriate education, seriously hampered the parents’ opportunity to participate in the formulation process, or caused a deprivation of educational benefits.

I conclude that the above rationale in Roland M. v. Concord School Committee is even more cogent in the instant case where Parents/Student never rejected any IEPs during their lifetimes but waited until after they had all expired and Student had graduated from AHS.

Remaining Issues

The BSEA has no jurisdiction to award monetary damages. See In re: Brockton Public Schools 6 MSER 20 (SEA Mass 2000); In re: Natick Public Schools 6 MSER 48 (SEA Mass 2000).

APS did not violate the BSEA Order of May 23, 2001. That Order, based upon an agreement of stipulated facts, simply stated that pursuant to 20 U.S.C. 1415(k) Student’s 45 day IAES was over and he was entitled to return to AHS pursuant to said federal special education law. The BSEA Order specifically had no bearing on any criminal charges then pending. The parties and the District Attorney’s Office apparently reached agreements that Student would remain out of AHS, which Student apparently violated, resulting in more restrictive conditions of release. The BSEA Order did preserve all other issues pending before the BSEA. However, Parents/Student then sought redress before the Massachusetts Superior Court via an injunction against APS, citing the BSEA Order. The Massachusetts Superior Court denied Parents’ request for an injunction because Parents had not shown a likelihood of success on the merits. (See also HISTORY/STATEMENT OF THE CASE , above).

Parents argue that APS failed to provide a FBA and failed to send Student’s special education and disciplinary records to the appropriate authorities for their consideration. However, Parents/Student failed to consent to APS’ performing a FBA and specifically refused to allow Students records to be sent to anyone without their permission. (See HISTORY/STATEMENT OF THE CASE , above). Parents cannot have it both ways. Refusal or lack of consent constitutes a waiver of such claims. See In re: Dennis-Yarmouth School District 4 MSER 25 at 27 (SEA Mass. 1998).

Parents argue that the Parents Rights Brochure was difficult to read and understand because it was blue printing on blue paper. (See P-D4). However, a review of said brochure, published by the Massachusetts Department of Education, demonstrates that it is perfectly legible and written in understandable language.

Parents argue that APS failed to provide math services during Student’s 12 th grade year. However, Student, with Parents’ knowledge and consent, did not take a math course during his 12 th grade year (S-A). While a math goal remained on Student’s accepted 12 th grade IEP, such IEP was a 502.1-Monitor IEP which did not provide for direct services in math in any event. (See S-22; S-J; P-B1). Further, Student’s progress reports in 12 th grade repeatedly noted that he was not taking a math class. (See S-23; 24; S-K). I am at a loss to understand how APS can be faulted for failing to monitor Student’s regular education progress in math when he was not taking any regular education math course. Parents’ argument has no merit.

Finally, Parents argue that APS failed to provide “legal” team meetings because all possible members were not at each team meeting. Based upon the evidence presented in this case, such an argument would likely have been de minimis, at best. However, even if the teams should have been differently constituted, the times to have raised such issues would have been at the team meetings or certainly during the life of the IEPs-not after all of Student’s IEPs had been accepted, all of Student’s IEPs had expired and Student had graduated. (See Sections I and II of FINDINGS AND CONCLUSIONS , above). See also quote from Roland M. v. Concord Schools Committee cited in Section IV, above).

ORDER

APS’ Motion For Summary Decision/Dismissal Of Complainants’ Hearing Request is GRANTED .

By the Hearing Officer,

Raymond Oliver

Dated: May 2, 2002


1

Obviously, while Student’s 12 th grade IEP was rejected 6 weeks after its expiration, his 11 th grade IEP was rejected more than one year after its expiration; his 10 th grade IEP rejected more than two years after its expiration; and his 9 th grade IEP rejected more than three years after its expiration.


2

Parents were no strangers to their procedural rights. Student had been a special education student since the end of 1 st grade. On at least 2 occasions Parents had requested that APS fund an independent evaluation (IE) of Student. APS did fund 2 separate IE’s of Student and Parents received 2 IE’s of Student, first from Children Hospital in Boston (P-A11; S-D) and later at New England Medical Center in Boston (P-A12; S-D).


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