Boston Public Schools – BSEA# 11-4676



<br /> Boston Public Schools – BSEA# 11-4676<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: Boston Public Schools

BSEA # 11-4676

RULING ON BOSTON PUBLIC SCHOOLS’ SECOND MOTION TO DISMISS

Introduction

This Ruling addresses Boston’s Second Motion to Dismiss ( Motion to Dismiss ), which was filed with the Bureau of Special Education Appeals (BSEA) on March 28, 2011. On March 30, 2011, Parents filed their opposition. The parties have not requested a hearing on the motion, and I have determined that such a hearing would not advance my understanding of the issues and is unnecessary.1

On March 18, 2011, Parents filed a motion to file an amended hearing request; and on March 24, 2011, Parents’ motion was allowed. Parents’ amended hearing request seeks prospective and compensatory relief for Student from the Boston Public Schools (Boston), including transition services. In addition, the amended hearing request includes systemic claims and seeks systemic relief against Boston.

Through its Motion to Dismiss , Boston takes the position that the BSEA does not have the jurisdiction or authority to consider systemic claims or to order systemic relief. Parents disagree.

Motion to Dismiss Standard

BSEA Hearing Rules and the Massachusetts Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure both provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted.2

Similarly, the federal courts have concluded that a motion to dismiss under the Federal Rules of Civil Procedure 12(b)(6) may be allowed if the court finds “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”3

Accordingly, a motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. That is, a hearing officer may dismiss a case if he or she cannot grant relief under either the federal or state special education statutes or the relevant portions of Section 504 of the Rehabilitation Act, after considering as true all allegations made by the party opposing dismissal (here, the Parents), and drawing all reasonable inferences in their favor. Conversely, a hearing officer must deny a motion to dismiss if after “accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the [Parents’] favor…, recovery [can be justified] under any applicable legal theory ….”4

Facts

The following facts are taken from Parents’ amended hearing request. These facts are assumed to be true only for purposes of the instant ruling.

Student is twenty-years-old and attends East Boston High School. He has been diagnosed with significant cognitive delays and has been on an individualized education program (IEP) from Boston since 1993.

Student is bilingual, but his Parents are not. They speak Haitian Creole and read French. Consequently, Parents’ native language (for purposes of both speaking and writing) is not English.

Pursuant to Student’s most recent IEP (which is for the period 12/2009 to 12/2010), Student received one day per week of vocational training at a program run by STRIVE Boston, and takes classes at East Boston High School the remaining four days of the week.

Discussion

It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)5 and the state special education statute.6 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.”7 State special education law includes parallel requirements.8

The IDEA mandates transition planning as part of the process for development of an IEP when a student reaches the age of 16 years,9 and Massachusetts has lowered this age to 14 years.10 The “transition services” and “transition planning” are be provided to “improv[e] the academic and functional achievement of the [student] to facilitate [his or her] movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation.”11

Parents’ amended hearing request claims that Boston failed to provide Student with FAPE since the 2005-2006 school year when Boston allegedly first failed to perform a transitional or vocational assessment of Student, failed to provide appropriate notice regarding transitional services, failed to prepare a transition plan, and failed to provide appropriate transition services. The amended hearing request further alleges that even after Boston acknowledged the need for transition services, it failed to define the needed services (other than budget management instruction), and refused to provide a functional vocational evaluation until early in 2010. The amended hearing request further claims that the alleged denial of FAPE is partially a result of Boston’s failure to inform Parents in their native language of their rights, to inform Parents in their native language of the results of evaluations, and to conduct IEP meetings with the assistance of qualified interpreters. Amended Hearing Request , pages 2, 3, pars. 7, 8.

Parents’ amended hearing request further claims that Boston’s alleged failures regarding Student “stem from systemic deficiencies in the [Boston] system” and “stem from systemic failures to provide required notices and translations to the families of special-education students whose primary language of the home is not English.” Amended Hearing Request , pages 3-4, pars. 9, 10.

The amended hearing request seeks both individual and systemic relief. The requested individual relief seeks completion of certain required evaluations and reevaluations, seeks changes to Student’s current IEP, and seeks compensatory relief. Amended Hearing Request , pages 4-6, parts A, B, C.

The remainder of the requested relief seeks a BSEA order directing Boston to make a series of systemic changes, and to submit written reports demonstrating compliance. The requested systemic relief includes, for example, an order requiring Boston to establish a centralized computer system for identifying the language read and spoken in the home of each special needs Boston student identified as using Haitian Creole as the primary language in the home, an order directing Boston to provide certain information to each such family in Boston, and an order requiring Boston to provide to all its special needs students (regardless of the primary language in the home) certain information relevant to transition planning and services when the student will be turning 14 years old. Amended Hearing Request , pages 6-8, parts D through N.

Boston seeks to dismiss “any and all allegations of systemic violations raised in the Amended Hearing Request and it’s [sic] requested relief.” Motion to Dismiss , page 4. Parents oppose this motion, expressing concern, in particular, that they may face a claim of failure to exhaust administrative remedies if Parents proceed to court and the BSEA has not addressed their systemic claims. Parents’ Opposition , pages 2-3.

The BSEA’s jurisdiction is limited to what can be found within state and the federal special education laws and their implementing regulations. When these authorities are read together, the BSEA jurisdiction may be understood as limited to (1) identification, eligibility, evaluation, placement, IEP, and provision of special education in accordance with state and federal law, (2) procedural protections of state and federal law for students with disabilities, and (3) a parent’s claims regarding any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973, as set forth in 34 CFR §§104.31-104.39.12

I can find nothing within these grants of authority that would permit me, as a BSEA Hearing Officer, to go further than resolving the dispute between Student and Boston. Any findings and relief that I might order are limited to what is necessary to determine whether Boston in the past has complied with (and whether Boston currently and prospectively is complying with) state and federal special education laws with respect to Student; and if not, what relief should be ordered.13

A number of courts have addressed the question of whether the IDEA administrative due process mechanism (which, in the instant dispute, is the BSEA) can address systemic claims. The issue has come up within the context of a school district’s claim that the parents have not exhausted administrative remedies, with parents arguing that the due process mechanism cannot order the relief sought and therefore exhaustion should be excused. I will consider these court decisions.

The IDEA requires, as a general rule, that exhaustion of administrative remedies occur prior to seeking judicial relief. The statutory language provides, in relevant part, as follows:

Nothing in this title [20 USCS §§ 1400 et seq.] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973 [29 USCS §§ 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this part [20 USC §§ 1411 et seq.], the procedures [for the impartial due process hearing] shall be exhausted to the same extent as would be required had the action been brought under this part [20 USC §§ 1411 et seq.].14

An exception to the IDEA exhaustion requirement is futility. In an IDEA dispute, the First Circuit explained that a “ plaintiff does not have to exhaust administrative remedies if she can show that the agency’s adoption of an unlawful general policy would make resort to the agency futile, or that the administrative remedies afforded by the process are inadequate given the relief sought.”15 The First Circuit has not specifically addressed the question of whether it would be futile for administrative due process to consider and rule on systemic claims, but other Circuits have done so.

Courts have recognized that IDEA claims raising “systemic” or “structural” allegations may not need to be administratively exhausted.16 If the hearing officer has no power to correct the violation complained of, it may be considered to be futile to complete the administrative review process.17 This may occur, for example, when “ plaintiffs’ problems could not have been remedied by administrative bodies because the framework and procedures for assessing and placing students in appropriate educational programs were at issue, or because the nature and volume of complaints were incapable of correction by the administrative hearing process.”18

At the same time, a number of Courts have taken pains to explain that whether or not exhaustion needs to be satisfied is often more complicated than simply labeling a claim as “systemic”. In a Ninth Circuit decision, the Court explained as follows:

Structuring a complaint as a challenge to policies, rather than as a challenge to an individualized education program formulated pursuant to these policies does not suffice to establish entitlement to a waiver of the IDEA’s exhaustion requirement. Instead, plaintiffs must demonstrate in addition that the underlying purposes of exhaustion would not be furthered by enforcing the requirement. In Hoeft, we required the plaintiffs to exhaust their administrative remedies even though they challenged a systemic local policy. Exhaustion was still necessary to give the state educational agency an opportunity to correct the problem. Similarly, the Frasers were required to exhaust administrative remedies to bring the alleged systemic failure to the attention of appropriate state authorities.19

In a Tenth Circuit decision, the Court explained that the plaintiffs claimed that the school district had denied them “individualized IEPs because its policies arbitrarily predetermine[d] the duration of [extended-school-day] and ESY services and use[d] a single criterion to determine eligibility for ESY services.” The Court held that exhaustion for these claims was not excused under the futility or inadequate-relief exceptions, explaining that “[a]dministrative remedies are generally inadequate or futile where plaintiffs allege structural or systemic failure and seek systemwide reforms.” However, the Court found that the claims before the court did “not target structural or due process concerns, but rather the effect of a single component of [the school district’s] educational program on individual children’s IEPs.” The Court concluded: “This is not the kind of systemic violation that renders the exhaustion requirement inadequate or futile….”20

In another Ninth Circuit decision, the Court explained, more generally, that a claim is “systemic” (and therefore the administrative process need not be exhausted), if it implicates the integrity or reliability of the IDEA dispute resolution procedures themselves, or requires restructuring the education system itself in order to comply with the dictates of the Act; but that it is not “systemic” (and therefore the administrative process must be exhausted) if it involves only a substantive claim having to do with limited components of a program, and if the administrative process is capable of correcting the problem.”21

I also note that within the context of monetary damages, the First Circuit has concluded that although the BSEA does not have the authority to award such damages, exhaustion requires BSEA fact finding regarding the underlying IDEA dispute relevant to damages.22 This supports the BSEA’s consideration of systemic claims that are relevant to Student’s individual dispute with Boston.

In light of this guidance, I reach the following conclusions:

1. With respect to Parents’ claims that Boston has certain systemic policies or practices and that these policies or practices caused (or contributed to) Student’s being denied FAPE, I find that these systemic claims are relevant to my resolving Student’s individual claims. These claims therefore fall within my authority as a Hearing Officer to determine whether Student was denied FAPE. I find that they can and should be considered by me.23 These claims (appearing in Amended Hearing Request , pages 3-4, pars. 9, 10) are not dismissed.

2. With respect to Parents’ request that I order systemic relief, I find that I have no authority to do so. I can find no useful purpose in considering any systemic relief. The parts of the Amended Hearing Request seeking systemic relief (appearing at pages 6-8, parts D through N) are dismissed .

ORDER

Boston Public Schools’ Motion to Dismiss is ALLOWED in part and DENIED in part, as explained immediately above.

By the Hearing Officer,

_________________

William Crane

Dated: April 4, 2011


1

Parents and Student were represented by attorney Michael D. Vhay of DLA Piper; Boston was represented by attorney Andrea Alves-Thomas of the Boston Office of Legal Advisor.


2

BSEA Rule 17B; 801 CMR 1.01(7)(g)3.


3

Judge v. City of Lowell , 160 F.3d 67, 72 (1 st Cir. 1998) (quoting Conley v.Gibson , 355 U.S. 41, 45-46 (1957)).


4

Caleron-Ortiz v. LaBoy-Alvarado , 300 F.3d 60, 63 (1 st Cir. 2002). See also Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).


5

20 USC § 1400 et seq .


6

MGL c. 71B.


7

20 USC § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).


8

MGL c. 71B, ss. 2, 3.


9

See 20 USC § 1414 (d)(1)(A)(i); 34 CFR §300.320(b).


10

See MGL, c. 71B, s.2.


11

20 U.S.C. § 1401(34); 24 C.F.R. § 300.43.


12

See 20 USC § 1415(b)(6) (a special education Hearing Officer has jurisdiction with respect to a “complaint . . . with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child”) ; MGL c. 71B, s. 3 (“hearing officer shall order such educational placement and services as he deems appropriate and consistent with this chapter to assure the child receives a free and appropriate public education in the least restrictive environment”); 603 CMR 28.08(3).


13

I am not aware of a single instance of a BSEA Hearing Officer ordering systemic relief. On several previous occasions, I have determined that I may go no further than resolving the dispute between the individual student and the school district. See In Re: Nashoba , BSEA # 08-3193, 14 MSER 235 (July 30, 2008) (“Student’s claims of systemic discriminatory violations are not probative unless they can be specifically related to the question of whether Nashoba actually discriminated against Student.”); In Re: Boston Public Schools , BSEA # 01-2461, 7 MSER 16 (February 7, 2001) (hearing officer was “ unable to find support, within this regulatory/statutory structure, for a BSEA Hearing Officer to go beyond the resolution of disputes pertaining to individual students”).


14

20 USC § 1415 (l). See also the similar language found within the implementing regulations. 34 CFR §300.516(e).


15

Rose v. Yeaw , 214 F.3d 206, 210-211 (1 st Cir. 2000). See also Weber v. Cranston School Committee , 212 F.3d 41, 52 (1 st Cir. 2000) (“there are exceptions to the IDEA exhaustion requirement based on the concept of futility”).


16

See J.S. v. Attica Cent. Sch., 386 F.3d 107, 113-14 (2d Cir. 2004); Doe By and Through Brockhuis v. Arizona Dept. of Educ ., 111 F.3d 678, 682-683 (9 th Cir. 1997); Beth V. v. Carroll, 87 F.3d 80, 88 (3d Cir.1996); Heldman v. Sobol, 962 F.2d 148, 159 (2d Cir. 1992); Urban v. Jefferson County School District R-1, 89 F.3d 720, 725 (10th Cir.1996) (dictum); Association for Community Living v. Romer, 992 F.2d 1040, 1043-45 (10th Cir.1993) (dictum); cf. Hoeft, 967 F.2d at 1308-09 (contrasting substantive and structural remedies).


17

See, e.g., Heldman v. Sobol, 962 F.2d 148 (2d Cir. 1992).


18

J.S. ex rel. N.S. v. Attica Central Schools , 386 F.3d 107, 113 -115 (2 nd Cir. 2004)


19

Fraser v. Tamalpais Union School Dist ., 281 Fed.Appx. 746, 748, 2008 WL 2338073, *2 (9 th Cir. 2008). See also Ellenberg v. New Mexico Military Institute,  478 F.3d 1262, 1277-1278 (10 th Cir. 2007) (using a similar analysis).


20

Association for Community Living v. Romer, 992 F.2d 1040, 1043-44 (10th Cir. 1993).


21

Doe By and Through Brockhuis v. Arizona Dept. of Educ ., 111 F.3d 678, 682 -683 (9 th Cir. 1997)


22

See Frazier v. Fairhaven School Committee, 276 F.3d 52, 69-70 (1 st Cir. 2002) ( plaintiffs may not proceed with their Section 1983 claim without first having exhausted the BSEA’s administrative process where plaintiffs had alleged that school officials had violated the student’s rights under the IDEA, even though parents sought no relief other than monetary damages and the BSEA administrative process could not award monetary damages).


23

This kind of consideration of systemic claims occurred in In Re: Boston Public Schools , BSEA # 01-2461, 7 MSER 16 (February 7, 2001).


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