Gil v. Medford Public Schools – BSEA # 10-6258
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Gil1 and the Medford Public Schools
This Decision is issued pursuant to M.G.L.c. 71B and c.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 12 and May 5, 2010. Those present for all or parts of the proceeding were:
Ms. G Parent
Dan Whelan Psychologist
Michael Rooney Director – Curtis Tufts School
Patricia Norton-Pallwoda School Adjustment Counselor – Medford Public Schools
Michael Lambros Teacher – Medford Public Schools
Barbara Parsons Special Education Teacher – Medford Public Schools
Joan Bowen Evaluation Team Leader – Medford Public Schools
Laurence Frey School Psychologist – Medford Public Schools
Kathleen Medaglio Interim Director of Pupil Services – Medford Public Schools
Alisia St. Florian Attorney for Medford Public Schools
Lindsay Byrne Hearing Officer – BSEA
The official record of the hearing consists of documents submitted by the Parent marked P-1 through P-116; documents submitted by the School marked S-1 through S-20; and approximately 10 hours of recorded oral testimony. The Parent proceeded pro se . The School was represented by an attorney. The Parent’s request for an opportunity to submit a written closing statement was GRANTED. The record closed on receipt of the parties’ post-hearing submissions on May 13, 2010.
1. Whether the March 31, 2010 finding of the Manifestation Determination Team that the behavior for which Gil was subject to removal from his accepted special education program was not connected to his disability was supported by substantial evidence? (20 U.S.C. § 1415 (K)(1) and (7); 34 C.F.R. § 300. 530 (e).); and
2. Whether the interim alternative educational setting proposed by Medford, Curtis-Tufts, is appropriate for Gil ? ( 20 U.S.C. § 1415 (K) and 34 C.F.R. § 300. 530 (d); 34 C.F.R § 300. 531.)
Summary of the Evidence
1. Gil is a 17 year old 10 th grade student. He has received special education services in a variety of settings since at least the 2 nd grade. Since he moved into Medford in the 7 th grade, he has been evaluated regularly by Medford Public Schools’ teachers and psychologists, as well as by publicly and privately funded independent evaluators. The results of those evaluations have been consistent over time and setting since at least March 2003. Gil has average cognitive potential and academic skills generally consistent with that potential. He demonstrates mild learning weaknesses in language-related functions and mild executive skill deficits, particularly in the areas of processing speed, organization, initiative, focus and attention. Although the evaluators acknowledged that Gil displayed anxiety, lacked effective coping strategies, and frequently found himself in situations of conflict at school, there are no findings to suggest a social/emotional/behavioral disability. Evaluators have uniformly found that Gil would learn best in a small, highly structured academic setting with consistent, predictable routines. They recommended that Gil be placed in a setting that would permit development of a personal mentor/teacher relationship, provide external structure and guidance, allow movement breaks and include social skills training. (P-1; S-15; P-34, S-17; P-10; P-29; P-31; P-32; P-60; Medaglio)
2. Gil entered Medford High School in September 2008 as a 10 th grade student. His 2008-2009 IEP provided for direct, daily small group special education assistance in reading comprehension, English language, math, science and social studies, as well as weekly speech-language therapy and counseling. There were no disability related modifications to the schedule, the discipline policies, or the setting. The parent accepted the IEP in July 2008. (P-116). In December 2008 the IEP was amended to delete special education instruction in math and reading comprehension, and to add a daily general independent learning period. (P-116).
3. During the 2008-2009 school year Gil was involved in numerous conflicts in school for which discipline was imposed. (P-70; P-2-7; P-9; P-12; P-14; P-17; P-21; P-23; P-24; P-26; P-33; P-36-40; P-44; P-45; P-47; P-63; P-65; P-67). On at least two occasions the Team determined that the behavior which prompted the discipline was not a manifestation of Gil’s identified disabilities. (P-25; P-27; P-62; S-13).
4. Medford conducted a re-evaluation in February and March 2009. (S-15; S-17; P-34; P-29; P-31; P-32.) The Team reconvened and proposed a placement at the Curtis-Tufts School, a small, alternative school (P-43; P-46; S-15; S-16; Rooney) which provides differentiated academic instruction in a setting that emphasizes learning and generalizing appropriate behavioral skills. The Parent rejected the proposed Curtis-Tufts placement. Gil was out of school for medical treatment for a good portion of the spring 2009. (Parent; P-54; P-58; Bower; S-13; S-14) He was also charged with a felony in connection with an out-of-school incident. Following a May 19, 2009 Team meeting which found no nexus between his disability and the behavior prompting the felony charges, Medford excluded Gil from the High School pending resolution of the criminal complaint pursuant to M.G.L.c. 37H½. Although Medford proposed providing the required special educational services to Gil at Curtis-Tufts, the parent requested home tutoring. Gil received home based special education services through the conclusion of the 2008-2009 school year. He was not promoted to 11 th grade.
5. During the summer of 2009, the Parent accepted the proffered placement at the Curtis-Tufts School pending resolution of the felony charges against Gil. Curtis-Tufts is a small, alternative high school designed to provide consistent, positive behavioral support, instruction and practice and individualized academic instruction. Approximately 40 students attend Curtis-Tufts at any one time. Gil attended Curtis-Tufts for about three and one-half months, from September to mid-December of 2009 when he returned to Medford High School. (Parent; S-13; S-14; Rooney; Medaglio)
Michael Rooney, The Director of the Curtis-Tufts School at the time, described Gil as a good, engaged student who worked well in the Curtis-Tufts environment. According to Mr. Rooney, Gil maintained appropriate behavior at all times, maintained consistent attendance, and performed all required academic work. Gil did not have a behavioral plan and did not need one. He did not demonstrate any deficits in executive functioning such as planning, organization, or processing social cues that negatively affected his school conduct and performance. Mr. Rooney stated that Gil understood the difference between right and wrong and could conform his behavior to achieve desired results. Although he never engaged in physical violence, Gill knew how to “push the other kids’ buttons,” and he knew the consequences that would follow from those actions. Mr. Rooney was aware that Gil had been diagnosed with both ADHD and a language learning disability. He testified that he saw no link between these diagnoses and Gil’s in school misconduct or alleged felonious behavior. (Rooney; P-79; P-82).
6. After the pending felony charges were dismissed in December 2009, Gil returned to Medford High School. The “stay put” IEP accepted for the 2008-2009 school year remained in effect. At the Parent’s request an IEP Amendment which replaced a substantially separate special education social studies class with mainstream 10 th grade social studies, was developed and implemented. (Medaglio; P-116). A behavior intervention plan originally developed in February 2009 which called for meeting with support staff to review and reinforce regular disciplinary expectations, for “movement breaks” as needed, and for monitoring behavioral progress was incorporated into Gil’s IEP (P-29; see also P-15). There are no modifications to the regular discipline code in either the IEP or the BIP.
7. During the winter of 2010 Medford conducted several re-evaluations at the Parent’s request: a reading assessment, an assistive technology evaluation and a functional behavioral assessment. (P-86, P-95, P-98). On March 3, 2010 Medford scheduled a Team meeting to review the additional information. The meeting was held on March 15, 2010. The meeting resulted in an IEP proposing to change Gil’s placement from Medford High School to the Curtis-Tufts School, and incorporating an updated Behavioral Intervention Plan. (P-105; see also P-97)
8. In late February and early March 2010, Gil’s in-school behavior began to warrant disciplinary action. On March 2, 2010 Gil was suspended for 2 days for being in a “restricted area” (P-87, S-8). On March 3, 2010 Gil was suspended for 1 day for “profanity” (P-88, S-8). On March 9, 2010 Gil was suspended for 3 days for “fighting” (P-90; S-8). On March 9, 2010 received Saturday detention as discipline for “smoking” (P-92). On March 16, 2010, Gil was suspended for 1 day for “being in a restricted area” (P-94; S-8). On March 26, 2010 Gil was suspended for 2 days for “being in a restricted area” and “head cover violation”. By March 30, 2010, Gil had accumulated a total of 9 out of school suspensions. On March 29, 2010 Medford scheduled a manifestation determination team to occur on March 31, 2010. (P-103)
9. After the March 9, 2010 fighting incident, the Medford High School principal requested that Lawrence Frey conduct a “safety check” of the participants, including Gil, to determine whether re-entry was appropriate for Gil and for the student body. Mr. Frey, a clinical psychologist, had evaluated Gil on one previous occasion. Mr. Frey met with Gil on March 11, 2010 to discuss the fighting incident. Mr. Frey was aware of Gil’s IEP and BIP. Mr. Frey stated that he considered the connection between the diagnosis and the offending behavior as well as the connection between the program/services in place and the offending behavior. Mr. Frey found that Gil had no difficulties planning, understanding or conforming his behavior to school rules. Gil demonstrated that he understood school rules and prohibited conduct, understood that his poor behavioral choice was wrong and would result in negative consequences, that he planned to engage in the conduct despite anticipating trouble because he liked the drama, and that he could control the level of offending behavior to avoid real harm to himself or others. Mr. Frey concluded that Gil’s behavior was immature and adolescent, not disabled. Mr. Frey found no link between Gil’s ADHD or executive functioning deficits and the incident of fighting for which discipline was imposed. He recommended that Gil be permitted to re-enter Medford High School without restrictions. (Frey; 3-18; P-94). Mr. Frey’s evaluation and recommendation were not available to, or considered by, the Manifestation Determination Team.
10. At the end of March 2010, it came to the attention of the principal of Medford High School that Gil had been charged with a felony in connection with an incident that occurred off school grounds on March 23, 2010. The charge was breaking and entering a vehicle in the nighttime while masked and resisting arrest. The principal scheduled an exclusion hearing pursuant to M.G.L.c 37½H to occur on March 31, 2010 (P-101; P-104).
11. Dr. David Whelan, a licensed clinical psychologist, had been seeing Gil for individual counseling sessions once every 4 to 6 weeks since April 2009. In mid-March 2010, Dr. Whelan increased the frequency of counseling sessions to approximately once per week. On March 29, 2010, after learning of the felony charges and Gil’s potential exclusion from school, Dr. Whelan wrote to the school to express his opinion that Gil’s offending behavior in and out of school was linked to substantial executive functioning deficits in planning and organization, time management, working memory and goal directed persistence, as well as to his documented language learning disability. Dr. Whelan wrote that due to those weaknesses Gil becomes easily overwhelmed and frustrated by the demands of school. He recommended that Gil remain at Medford High School (P-102). At the hearing Dr. Whelan testified that Gil had difficulty with characteristics necessary for successful functioning in school: formulating a course of action; maintaining behaviors to follow that course; evaluating the effectiveness of the behaviors; and foreseeing consequences. According to Dr. Whelan weaknesses in these areas do not affect Gil’s ability to understand the discipline code, or to distinguish right actions from wrong, but do affect his ability to conform his behavior to expectations because he will act before, or instead of, thinking. Dr. Whelan testified that he had several good conversations with Mr. Paliwoda concerning Gil’s use of in-school counseling as part of a BIP. In reaching the conclusions about disability related misconduct, however, Dr. Whelan had no contact with, or information from, Medford High School. Although Dr. Whelan was aware that Gil had an IEP he did not know what special education needs or services were reflected in the IEP or whether the IEP was being implemented by Medford. He had not reviewed any of the disciplinary incident reports or the safety check and did not attend the Manifestation Determination Team meeting. (Whelan)
12. The Manifestation Determination Team met on March 31, 2010 to consider whether there was a direct and substantial connection between Gil’s identified disabilities and the behavior subject to past or potential future discipline. The Team also discussed whether Gil’s accepted IEP was being implemented in Medford High School.
The Parent stated that all of the behavior that resulted in discipline at the school and criminal charges in the community was the result of impulsivity associated with Gil’s ADHD, poor language processing and executive functioning deficits associated with his specific learning disability. Ms. G. testified that Gil was being punished for behavior that was not within his control and which the school had inadequately accommodated and remediated. Ms. G. claimed that Medford High School did not appropriately address the social circumstances involving an unhealthy romantic relationship that was precipitating his non-compliant behavior. (Parent)
Gil attended and participated in the Team meeting. Joan Bowen, the Educational Team Leader, chaired the Manifestation Determination Team. Ms. Bowen read a letter she had received by e-mail from Gil’s outside therapist to the Team. (P-102). Ms. Bowen reviewed each school based disciplinary incident with Gil. He acknowledged knowing about and agreeing to follow school rules. He stated that he understood the reasons for the rules, and the consequences for breaking them. He stated that he engaged in prohibited actions because he thought he wouldn’t get caught. Ms. Bowen also discussed with Gil and the Team the circumstances prompting the pending felony charges. As reported by Gil the circumstances indicated advance planning rather than impulsivity (i.e. wearing a disguise, setting up an alibi). The Team concluded that there was no substantial link between Gil’s disabilities and both his in-school rule breaking behavior and the out-of-school incident for which he was subject to felony charges. The Team found that Gil understood the rules and the consequences, demonstrated the ability to conform his behavior to expectations, and was not being disciplined for impulsivity. The Team also determined that all accepted special education services were being delivered in the setting accepted by the Parent. (Bowen)
Barbara Parsons has been Gil’s English and special education teacher at Medford High School since September 2008. She testified that Gil has mild attentional weaknesses and needs frequent reminders to stay focused on academic tasks. Gil functions at approximately the 8 th grade level in written language and reading comprehension, but his oral language comprehension and social communication with peers are both age appropriate. Gil does not act out in class and conformed behavior to class expectations. Ms. Parsons stated that all the services and accommodations listed on Gil’s IEP are being delivered. She also testified that the behaviors for which Gil was disciplined were not connected to any disability. (Parsons)
Patricia Norton-Paliwoda has been Gil’s school adjustment counselor since he entered Medford High School in September 2008. She sees Gil individually once per academic cycle per his IEP. She also sees Gil daily for brief “check-ins”. Pursuant to his behavioral support plan, Gil visits Ms. Norton-Paliwoda whenever he feels “stressed” or “overwhelmed” or when there is a change in his routine such as a substitute teacher. Ms. Norton-Paliwoda explained that Gil is able to conform his behavior in consistent, predictable settings as in academic classes, but is less able to maintain his equilibrium during unstructured periods such as lunch. Ms. Norton-Paliwoda testified that she and Gil have discussed school rules, that he is comfortable with them and understands the consequences of misbehavior. She stated that the conduct that prompted imposition of discipline was not related to any of Gil’s disabilities. According to Ms. Norton-Paliwoda the significant distinguishing factor between behavior that is ADHD related and behavior that is not is advance planning. Gil’s nonconforming behaviors were planned and he could articulate reasons for them as well as consequences for them. Ms. Norton-Paliwoda stated that Gil could conform his behaviors to reasonable standards, and that the drama and provocations associated with the difficult romantic relationship were typical of teens. Ms. Norton-Paliwoda noted that the Team did not discuss the “safety check” conducted by Dr. Frey, but did discuss the observations of Dr. Whelan. (Norton-Paliwoda; see also Medaglio, Bowen.)
13. On March 31, 2010 after a hearing with the Principal of Medford High School, Dr. Krueger, Gil was suspended indefinitely from Medford High School in accordance with M.G.L.c. 71 § 37H½. Dr. Krueger determined that Gil’s continued presence in the High School would have a substantial detrimental effect on the general welfare of the school because of the type and pattern of school misconduct over the course of two academic years (P-108, S-6).
14. On April 8, 2010, Medford formally notified the Parent that the Manifestation Determination Team had found that Gil’s IEP was being implemented and that there was no substantial link between his disabilities and the conduct for which he was subject to discipline by Medford High School (P-115, S-2).
15. To address Gil’s on-going special education needs while he was suspended from the High School, Medford proposed to provide the required services at the Curtis-Tufts School. (P-113; 114; S-3) Gil is currently attending The Curtis-Tufts School on an interim basis. (Parent)
16. The Parent continues to object to the proposed special education placement at Curtis-Tufts School for nondisciplinary reasons. The Parent’s rejection of the IEP proposed in March 2010 following Gil’s re-evaluation is the subject of a different hearing process.
Findings and Conclusions
There is no dispute that Gil is a student with special learning needs pursuant to 20 U.S.C. § 1401 et seq ., and is therefore entitled to the protections set out in 20 U.S.C. § 1415. The issues here are: whether the in-school conduct that precipitated school disciplinary action is directly and substantially related to Gil’s disabilities? whether his disabilities caused the offending conduct? and whether Medford’s failure to implement Gil’s IEP resulted in the offending conduct? As the party seeking relief the Parent has the burden of proving the connection between Gil’s disabilities and his misbehavior. After careful consideration of all the evidence presented in this matter, and of the arguments of the parties, I find that the Manifestation Determination Team correctly concluded that there is no substantial connection between Gil’s disabilities and the conduct for which discipline was imposed and that Medford had fully implemented the IEP in place for Gil. My reasoning follows:
Massachusetts defers to federal law in all matters pertaining to discipline. Pursuant to federal law, students with disabilities are accorded specific rights to challenge proposed school based discipline, especially when that discipline could have the effect of interrupting or changing otherwise acceptable special education services. 20 U.S.C. § 1415 (j) and (k); 34 CFR § 300.530-537. See also M.G.L.c 71B 37H and 37H½. The statutory and regulatory language pertinent to resolution of the issues raised in this matter concern the “manifestation determination”. When a student with disabilities is facing discipline that would interrupt an agreed upon special education program for more than 10 days in a school year, the student’s IEP Team must reconvene to consider: (1) whether the behavior that prompted the discipline is caused by, or is directly and substantially related to, the student’s disability; and (2) whether the student’s offending behavior is a direct result of the school’s failure to implement the student’s IEP. 20 U.S.C. § 1415 (K)(E); 34 CFR § 300.530.5(E). If the team finds that the student’s conduct is a manifestation of an indentified disability the school must, under most circumstances, return the student to the pre-discipline placement, and provide additional assessments and services. If, on the other hand, the Team finds that the student’s offending behavior is not a manifestation of an identified disability the school may impose any form of discipline, including exclusion, that it would impose on a student without a disability for the same offense.
Here the chronology is clear: throughout the month of March 2010, Gil had engaged in a variety of misbehaviors which had warranted short term disciplinary exclusion from school under Medford High School’s Code of Conduct. By March 29 th , Gil had accumulated 9 days of out-of-school suspension. Due to then pending felony charges and an associated M.G.L.c 37½ principal’s hearing, he was facing additional days of suspension making it more likely than not that his special education program would be interrupted for more than 10 days, thereby triggering the requirement that his IEP Team convene to consider the manifestation determination criteria. The Team convened in a timely manner. The Team considered whether Gil’s IEP had been implemented and determined that it had. (Bowen, Parsons, Norton-Paliwoda) There is no evidence to the contrary. The Team discussed whether the conduct for which Gil had been suspended for 9 days in March 2010 (i.e., being in a prohibited area of the school, profanity, fighting, smoking, covering his head) was related to his executive functioning weaknesses, his ADHD, his learning disability, or to the failure to implement his IEP. Gil’s teachers and his guidance counselor agreed that there was no direct or substantial relationship between the misbehavior and any identified disability. They explained that Gil was able to conform his behavior when he wanted to, that he used appropriate supports when he felt disorganized or overwhelmed, that he enjoyed the “drama” of misbehavior and often planned his conduct to achieve maximum exposure and effect. (Paliwoda; Parsons; see also Frey)
I found the witnesses on behalf of the school to be candid, thoughtful, and sympathetic to Gil. I credit their testimony. The Manifestation Determination Team’s finding of a lack connection between Gil’s misconduct and his disabilities received independent support from Dr. Frey whom I found to be particularly persuasive due to his experience with Medford High School, with disciplinary issues and with Gil. On the other hand, I accord Dr. Whelan’s opinion that there is a nexus between Gil’s in school misbehavior and a substantial executive functioning disability little weight because 1) there is no evaluative record of a “substantial” executive functioning disability; 2) Dr. Whelan did not conduct a neuropsychological evaluation and had limited contact with Gil prior to March 2010; 3) Dr. Whelan had limited and primarily one-sided information about Gil’s overall functioning in school, and no knowledge of the incidents that prompted school-imposed discipline. Similarly, the Parent’s assertion of a connection between Gil’s ADHD and learning disability and his in-school misconduct is not supported by the psychological, neuropsychological and educational evaluations in the record.
After considering Gil’s in-school misbehavior and determining that it was not a manifestation of any disability, the Team discussed the out of school incident that resulted in the criminal charges and the then pending M.G.L.c. 71B § 37H½ exclusion hearing. Again, Gil’s teachers and guidance counselor considered that the circumstances of the nighttime car break-in demonstrated careful planning and preparation, an awareness of wrongdoing and of likely consequences if caught. They reasonably concluded that neither ADHD nor a language learning disability caused the allegedly criminal behavior nor was substantially related to it. This conclusion was not seriously challenged at the hearing.
The Team having determined that there was no nexus between Gil’s in-school and out-of-school misconduct and any unmet special education need as required by 34 CFR 300.530, Medford was free to discipline Gil in any manner equivalent to what would be meted out to a student without disabilities. Medford did just that by excluding Gil from the High School pending resolution of the felony charges.2 There is no evidence of any disparate discipline in this record. The Team then properly offered to continue Gil’s special education services through immediate placement in an interim alternative educational setting (“IAES”). That the proposed IAES, the Curtis-Tufts School, is the same placement that Medford had proposed following Gil’s re-evaluation Team meeting in March, and to which the Parent objects, does not in itself render the proposed IAES inappropriate. There is no evidence that the Curtis-Tufts School which, according to Mr. Rooney, offers high school level special educational instruction in all academic areas in small, highly structured, behaviorally connected classrooms, cannot meet Gil’s special education service needs while he remains excluded from Medford High School.
I am persuaded by the clear and convincing evidence in this record that Medford correctly followed the disciplinary procedures set out at 20 U.S.C. § 1414 and 34 CFR 300.350 and that Medford’s conclusion that Gil’s misconduct was not a manifestation of a disability is supported by the substantial weight of credible evidence.
The March 31, 2010 Finding of the Team that the misconduct for which Medford High School imposed short and long term suspensions was not a manifestation of Gil’s disabilities is supported by substantially more than a preponderance of the evidence in the record and is upheld.
May 26, 2010 __________________________
Lindsay Byrne, Hearing Officer
“Gil” is a pseudonym selected by the Hearing Officer to protect the privacy of the student when documents are available to the public.
A principal’s authority to discipline a student who has been charged with a felony is not limited to charges arising out of incidents occurring on school grounds. M.G.L.c. 71 § 37H½ requires only a rational finding that the student’s continued presence in school would have a substantial detrimental effect on the general welfare of the school. DOE v. Superintendent of Schools of Stoughton , 437 Mass 1 (2002). See also : S-19.
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