Felix v. City on a Hill Charter Schools – BSEA #03-4037



<br /> Felix v. City on a Hill Charter Schools – BSEA #03-4037<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

In Re: Felix*1 v. City on a Hill Charter Schools

BSEA# 03-4037

DECISION

This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794 and the regulations promulgated thereunder. A hearing was held in the above entitled matter on April 17, 2003, at the Department of Education in Malden, MA. Those present for all or parts of the proceeding were:

Paul Hays Principal, City on a Hill Charter School

Lindsa McIntyre Dean, City on a Hill Charter School

Ayo Adoramola Case Manager

Felix Student

Mother

Step father

Malies Spanjaard Ed Law Project

Erin Han Ed Law Project

Jenny Chou Ed Law Project

Shruti Desai Attorney for Student, Ed Law Project

Lindsay Byrne Hearing Officer

The official record of the Hearing consists of: documents submitted by the Parent marked P-A through P-E; documents submitted by the City on a Hill Charter School (hereinafter “COAH”) marked S-1 through S-15; and approximately five hours of recorded oral testimony. The Parent submitted a written closing argument by the due date of April 28, 2003. None was received from COAH. The record closed on April 28, 2003.

Issue

I) Whether the City on a Hill Charter School complied with the proceduralguarantees afforded to students under the IDEA and Chapter 766 when it expelled Felix in March, 2003? And II) If so, is Felix entitled to compensatory education as a result of the denialof access to his regular education placement?

Facts

The pertinent facts are not in dispute and may be briefly summarized.

1. Felix is a sixteen year old 9 th grade student. For the first half of 2001-2002school year he attended 9 th grade at West Roxbury High School. He was home-schooled for the second half of that academic year. He started his second year of 9 th grade at City on Hill Charter School in September, 2002. (Parent; S-14)

2. Felix was not identified as a Student in need of special education whenhe entered the City on a Hill Charter School. He demonstrated some academic difficulties during the first quarter after which extra academic supports were put into place. Although his academic performance improved, Felix’s attitude and behavior began to deteriorate over the course of the 2002-2003 school year. (Hays)

3. The Parent requested a special education evaluation in December, 2002. >On December 12, 2002, the Parent signed consents to perform psychological and educational evaluations. (P-A; Parent)

4. On March 24, 2003, Felix was asked to leave school after he wasobserved in class playing with a lighter and attempting to set another Student’s hair alight. (S-1, 2; Hays)

5. The Judicial Hearing Board, the disciplinary body of City on a Hill Charter School responsible for determining the punishment for grave infractions of COAH’s discipline code, met on March 27, 2003, to consider whether or not to expel Felix for his March 24, 2003, behavior. Felix and his Parent were informed in advance of the nature and timing of the Judicial Board meeting. They were afforded the opportunity to attend, to bring a representative, and to present evidence. Both Student and Parent attended the Judicial Board meeting. The Parent told the Board that a special education evaluation had been requested and that results were not yet available. She requested that the Board delay any discipline until after the evaluation had been completed. (Parent, Hays; S-2, P-B)

6. The Board found that Felix had engaged in multiple, serious violations ofof the COAH discipline which warranted his immediate expulsion. The family was notified of the Board’s decision by letter dated March 31, 2003. No internal appeal was taken. (S-2; P-D; Parent)

7. Felix has not attended COAH since March 24, 2003. He is listed on theattendance roster as “not enrolled” as of March 28, 2003. (S-11

8. No special education evaluations had been conducted by COAH by the time of the March 27, 2003, judicial board meeting.

9. The Student requested an expedited Bureau of Appeals Hearing on April 2, 2003. No evaluations were conducted by the scheduled hearing date of April 11, 2003. During a conference call held to structure the hearing the parties agreed that no Team meeting had been held, no manifestation determination meeting had been held; and no interim educational services or placement had been offered. The hearing was postponed for one week, until April 17, 2003, during which COAH was to complete an evaluation and conduct a Team meeting, both of which occurred on April 16, 2003. The Team resulted in an agreement that Felix would receive home tutoring as the interim alternate educational placement. Tutoring began on April 28, 2003. (Hays; S-6, 7, 12)

Conclusions of Law

Massachusetts follows the federal statutory scheme governing the discipline of students with special needs. While the federal procedural language is not a model of clarity, there can be no doubt that when a special education evaluation is requested in writing on behalf of a student before any incident prompting the imposition of discipline that student is entitled to the full panoply of protections afforded to Students with disabilities under the IDEA. 34 CFR 300.527. Here the uncontroverted evidence shows that Felix became a presumptive Student with a disability no later than December 12, 2003. At that time he was entitled to expect completed evaluations by February 6, 2003, and a Team meeting to consider whether he was eligible for special education by March 6, 2003. 603 CMR 28.04 (2) Both dates passed with no action by the School. Had COAH complied with the regulatory time frames the outcome of this matter might have been different.

The parties agree that the incident of March 24, 2003, involved a “dangerous weapon” as defined by 18 U.S.C. § 930 (g) (2) and therefore that COAH was entitled to remove Felix immediately from its program, regardless of his special education status, and place him in an alternate educational setting. 34 CFR 300.520. At the same time, however, COAH was obliged to continue to treat Felix as a Student with a disability by: convening a Team within ten days of the removal to consider whether the behavior that resulted in the imposition of discipline was a manifestation of a disability; conducting a behavioral assessment or reviewing the existing behavior plan; and developing a plan for the interim alternate educational services. 34 CFR 300.522, 523, 520. COAH met none of these obligations.

The evidence demonstrates that COAH has consistently ignored Felix’s procedural protections under the IDEA. As a result Felix did not receive appropriate or timely evaluations, comprehensive educational planning or an immediate alternate education placement. I find that COAH’s violations of state and federal special education law are substantial and ongoing. At a minimum Felix is entitled to compensatory education for the period of time he should have received interim alternate educational services as a result of his exclusion from COAH but did not. At the time of the hearing it was calculated that Felix has missed twenty school days as a result of COAH’s failure to comply with the IDEA’s procedural requirements for disciplining students with disabilities.

Order

The City on a Hill Charter School violated the procedural protections of Massachusetts and federal special education law when It failed to evaluate the Student in a timely manner, failed to conduct discipline related assessments and team meetings, and failed to provide an appropriate interim alternate educational setting. The procedural violations resulted in substantive educational harm to the Student. Therefore COAH is hereby ordered to:

1. complete all evaluations of the Student by May 23, 2003;

2. hold a Team meeting to both consider the evaluation results and develop a plan to deliver compensatory education consisting of a minimum of the equivalent of twenty days worth of interim alternate education services to the Student no later than June 4, 2003;

3. submit a written report of its compliance with this Order to the Hearing Officer on June 3 and June 13, 2003.

Lindsay Byrne, Hearing Officer


1

“Felix” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.


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