In re: Delilah BSEA #24-12522




In re:    Delilah[1]

BSEA # 24-12522


                This matter comes before the Hearing Officer on the Motion of the Worcester Public Schools (“Worcester” or “the District”) to Dismiss the Hearing Request filed by Parents on behalf of Delilah. Worcester filed its Motion to Dismiss, accompanied by a Memorandum of Law in support thereof, on June 3, 2024. On June 12, 2024, Parents filed an Opposition. Neither party requested a hearing on the Motion, and as testimony or oral argument would not advance the Hearing Officer’s understanding of the issues involved, this Ruling is being issued without a hearing pursuant to Rule VII(D) of the BSEA Hearing Rules for Special Education Appeals (Hearing Rules).

For the reasons set forth below, Worcester’s Motion to Dismiss is hereby ALLOWED IN PART and DENIED IN PART.


On May 8, 2024, Parents filed a Hearing Request against Worcester seeking a transfer to either Nelson Place School or Flagg Street School with specialized transportation for their daughter, Delilah, for the 2024-2025 school year. Parents noted that they were reserving the right to continue the previously filed Problem Resolution System (PRS) complaint against the District.

On May 20, 2024, Worcester filed a Sufficiency Challenge to Parents’ Hearing Request and on May 21, 2024, the undersigned hearing officer issued an order granting it. Pursuant to BSEA Hearing Rule I(E), Parents were permitted 14 calendar days to file an amended hearing request with the necessary information (a description of the problem, including relevant facts which led Parents to seek specialized transportation and a school transfer).

On May 22, 2024, Parents filed an Amended Hearing Request. According to Parents, the District failed to complete Delilah’s qualifying Special Education Assessments on time, which delayed her Individualized Education Program (IEP) meeting and caused her to miss the first few weeks of kindergarten due to a lack of transportation. They also contend that on December 12, 2023, the District allowed Delilah to borrow a book about transgender people from the library without their consent, prompting a meeting where they requested Delilah’s transfer to a different elementary school within Worcester. Additionally, Parents allege that on March 25, 2024, a student pushed Delilah to the ground on the playground in an incident of bullying related to her hair. They claim that in response, a meeting was held where staff decided to give a presentation on bullying, speak with the student involved, and allow Delilah to have indoor recess if she chose. However, Parents argue, they never received confirmation that these actions occurred. They also assert that the District did not interview the bus driver and monitor about the incident as promised.[2] Following the bullying incident, Delilah was afraid to return to school and required a “transition back” to do so.[3] Parents requested again that Delilah be transferred to another school. In their Amended Hearing Request, Parents note that they filed a PRS complaint and are demanding an investigation into the District’s handling of bullying incidents. After making numerous transfer requests throughout the school year, Parents now request that the BSEA order the District to transfer Delilah to a new elementary school with specialized transportation for a “fresh start.”

                The Hearing was scheduled for June 27, 2024.

                On June 3, 2024, the District filed its Motion to Dismiss, seeking dismissal of Parents’ Amended Hearing Request in its entirety. Worcester argues that Parents’ requests for transfer and specialized transportation, and their claims regarding both bullying and Delilah’s borrowing a book on transgender people, fall outside the jurisdiction of the BSEA and must be dismissed with prejudice. Specifically, the District contends that these issues do not concern the identification, evaluation, educational program, or educational placement of a child with a disability, or the provision of a free and appropriate public education (FAPE) arising under M. G.L. c. 71B, the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq, or Delilah’s rights under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Section 504).

                On June 12, 2024, Parents filed their Opposition. They assert that Delilah requires specialized transportation due to her speech disability, which they allege also makes her an “easier target” for bullying as she tends to “shut down emotionally and [] remain quiet.” Parents further elaborate on the extent of Delilah’s fear of returning to school due to ongoing bullying incidents. Additionally, they contend that the District’s failure to schedule Delilah’s IEP meeting in a timely manner caused her to miss speech services and necessary transportation.

                On June 18, 2024, the parties jointly requested that the Hearing be continued for one month to permit them additional time to discuss and narrow the issues. On June 21, 2024, their request was granted for good cause and the Hearing was scheduled for July 26 and 29, 2024.


Whether Parents’ claims survive a Motion to Dismiss turns on both the procedural standards for such a motion and the substantive standards governing their claims.

  1. Standard for Ruling on Motion to Dismiss a Hearing Request Filed Pro Se

Pursuant to the Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1.01(7)(g)(3) and Rule XVIIB of the BSEA Hearing Rules, a hearing officer may allow a motion to dismiss if the party requesting the appeal fails to state a claim on which relief can be granted. This rule is analogous to Rule 12(b)(6) of the Federal Rules of Civil Procedure and as such hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim. Specifically, what is required to survive a motion to dismiss “are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.”[4] In evaluating the complaint, the hearing officer must take as true “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor.”[5] These “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact). . . .”[6]

According to the First Circuit Court of Appeals, complaints filed by pro se parties should be construed liberally.[7] “The policy behind affording pro se plaintiffs liberal interpretation is that if they present sufficient facts [to state a claim], the court may intuit the correct cause of action, even if it was imperfectly pled.”[8] This principle aligns with “[o]ur judicial system [, which] zealously guards the attempts of pro se litigants on their own behalf” while not ignoring the need for compliance with procedural and substantive law.[9]

Under these standards, Parents’ claims that Worcester failed to properly handle the bullying of Delilah by her peers and did not complete the Special Education Assessments of Delilah in a timely manner plausibly suggest an entitlement to relief, even if they are imperfectly pled. Therefore, as to these claims, the District’s Motion to Dismiss is denied. However, the motion is granted with respect to Parents’ remaining claims.

  1. BSEA Jurisdiction

The IDEA, 20 U.S.C. § 1400 et seq., provides parents with a formal due process complaint process 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.”[10] In Massachusetts, the BSEA is the administrative agency before which any impartial due process hearing regarding these issues takes place. The BSEA is an agency of limited jurisdiction; it has jurisdiction over requests for hearing filed by:

a parent or school district   . . . on any matter concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities. A parent of a student with a disability may also request a hearing on any issue involving the denial of the free appropriate public education guaranteed by Section 504 . . . .[11]

                Although the United States Supreme Court recently clarified that plaintiffs need not exhaust claims under other statutes seeking only relief that is not available under the IDEA,[12] it is well-established that BSEA jurisdiction extends to IDEA-based claims.[13] The IDEA’s exhaustion requirement ensures that the BSEA is able to develop a factual record and apply its “specialized knowledge.”[14] Whether a claim is IDEA-based turns on whether the underlying claim is one of violation of the IDEA.[15] A claim is not IDEA-based, and therefore not properly before the BSEA, where a student solely seeks money damages for tort-like damages not subsumed in a federal claim, or “where there are no factual allegations to indicate that a dispute exists concerning the individual student’s eligibility under the IDEA or Section 504 or the discharge of the School’s procedural and substantive responsibilities under the IDEA or Section 504.”[16]

                It is within this legal framework that I now examine the allegations in this case.

  1. Application of Standards Permits Partial Dismissal

Worcester argues that all claims should be dismissed. I consider each in turn.

  1. Claim relating to Parents’ objection to Student borrowing book

        According to Parents, Delilah was permitted to borrow a book, without parental consent, that discusses transgender people. This caused them to feel “appalled and disgusted.” To the extent Parents allege a violation of their rights in connection with this incident, it is unrelated to Delilah’s disability or the provision of a FAPE under the IDEA or Section 504.[17] These claims are neither directly within federal or state grants of jurisdiction to the BSEA, nor are they IDEA-based.[18] Even construed liberally, they do not plausibly suggest an entitlement to relief.[19]

  1. Claim regarding the District’s response to bullying allegations

        Parents contend that Delilah was bullied; that as a result, she was afraid to return to school; and that the District has not responded appropriately. Although Parents do not explicitly state that the bullying led to a denial of a FAPE, the facts presented, including references to incidents at her previous school and her intense fear of returning to school, which impacted her attendance, as well as claims that Delilah was more susceptible to bullying due to her disability, imply that the bullying allegations may be connected Delilah’s disability.[20] Taking Parents’ allegations as true, drawing inferences therefrom, and construing their complaint liberally, their assertion that the District failed to address the bullying incident adequately, plausibly suggests entitlement to relief for a denial of FAPE above the speculative level.[21] As such, these claims cannot be dismissed at this early stage in the proceedings.

  1. Claim of failure to timely complete Special Education Assessments

                Parents’ Amended Hearing Request alleges that Worcester failed to complete Delilah’s qualifying Special Education Assessments in a timely manner, resulting in a delayed IEP meeting and causing her to miss school. Such delays could impact Delilah’s ability to receive a FAPE.[22] Under the IDEA, procedural errors, such as delays in completing required assessments, may amount to a deprivation of a FAPE if they (1) impede the child’s right to a FAPE, (2) significantly impede Parents’ opportunity to participate in decision-making regarding the provision of FAPE to the child, or (3) cause the child to be deprived of educational benefits.[23] While procedural errors alone do not automatically render an IEP legally defective or constitute a violation of the IDEA, at the motion to dismiss stage, it is sufficient that the allegations plausibly entitle the party to relief.[24] Therefore, this allegation survives the District’s Motion to Dismiss.

  1. Request for Specialized Transportation

                Worcester raises two points regarding specialized transportation: that Parents’ Amended Hearing Request offers no evidence to support the need for specialized transportation or to show that Delilah’s Team recommended specialized transportation; and that the BSEA lacks jurisdiction to order the District to provide her with transportation because it is a general education issue.

                First, Worcester is incorrect in assuming that evidence is required at the motion to dismiss stage. A decision-maker must only determine whether the party requesting the appeal has articulated a legally cognizable claim, not assess the merits or weigh the evidence.[25] The complaint must only contain sufficient factual matter which, accepted as true, states a claim to relief that is plausible on its face.[26] Second, if Delilah requires specialized transportation arrangements to access her education, this would not be a general education issue. However, if Delilah is not entitled to specialized transportation directly for her disability,[27] the BSEA lacks jurisdiction over this general education issue.

                Parents state only that Delilah should have received transportation for kindergarten and/or that she should receive “specialized transportation.” Even when their assertions are construed liberally, Parents do not allege that the requested specialized transportation is connected to Delilah’s disability. Consequently, the factual allegations in the complaint do not raise a right to relief above the speculative level, and this claim does not survive the District’s Motion to Dismiss.[28]  

  1. Request for Relief

                Worcester argues for the dismissal of Parents’ Amended Hearing Request on the basis that the BSEA lacks the authority to grant the requested relief. However, the inability to grant the exact relief requested does not warrant the dismissal of the entire complaint, nor should the remedy be addressed at this stage.[29] The focus of a motion to dismiss is whether the allegations plausibly entitle Parents to relief, not the specific remedy sought.[30] Therefore, if the facts alleged suggest any plausible claim for relief that may be granted by the BSEA, even if it differs from the requested remedy, those claims may proceed.[31] The appropriate relief will be determined later in the proceedings.

                Should a hearing on the merits reveal that Worcester has failed to provide a FAPE and that Parents’ transfer request is related to Delilah’s special education needs, the BSEA possesses the authority to compel the school district to make requisite adjustments to fulfill the services outlined in Delilah’s IEP. As it is within the jurisdiction of the BSEA to grant such relief in circumstances where such transfer is required for a student to receive a FAPE, Parents’ requested relief does not bar their claims.[32] Where such remedies are supported by the evidence, the BSEA has the power to order changed or additional services, specific placements, additional evaluations, reimbursements for services obtained privately by parents, and/or compensatory services.[33]

                Even if the specific remedy Parents seek, such as transfer between schools within the District, is ultimately deemed untenable, the case may continue if the facts plausibly indicate a right to some form of relief that the BSEA may order the District to provide. Accordingly, it is premature to grant dismissal of the matter in its entirety at this stage.


                Upon reviewing Worcester Public Schools’ Motion to Dismiss and Parents’ Opposition thereto, I find that Parents’ allegations regarding bullying, untimely assessments, and transfer requests plausibly suggest an entitlement to relief.[34] Parents’ allegations related to the book and specialized transportation are beyond the jurisdiction of the BSEA.


                Worcester’s Motion to Dismiss is hereby DENIED as to Parents’ claims regarding bullying and untimely special education assessments, and as to their request for relief in the form of a transfer between schools within the District. Worcester’s Motion to Dismiss is hereby ALLOWED as to all other claims.

                A Pre-Hearing Conference will take place at 9:00 AM on June 27, 2024 via Zoom, and the Hearing will take place on July 26 and 29, 2024, also via Zoom.

By the Hearing Officer:[35]

  /s/  Amy Reichbach

Amy M. Reichbach

Dated: June 24, 2024

[1] “Delilah” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in the documents available to the public.

[2] According to Parents’ Amended Hearing Request, on the day Delilah was bullied on the playground she refused to talk to the bus driver and monitor, who both noticed that her pants had been ripped.

[3] Further contributing to Delilah’s fear of returning to school, Parents state that on April 23, 2024, after Delilah wet her pants, an Instructional Assistant denied her access to the nurse’s office and instead gave her “boys’ underwear” to wear. Since then, Delilah has repeatedly asked if she must wear “boys’ underwear” when getting dressed for school, indicating that “[t]his incident has stayed with her.”

[4] Iannocchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).  

[5] Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).                                       

[6] Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) (internal quotation marks and citations omitted); see Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (internal citation omitted) (“in order to ‘show’ an entitlement to relief a complaint must contain enough factual material ‘to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)’”).

[7] See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).

[8] Id.

[9] Id.

[10] 20 U.S.C. § 1415(b)(6).

[11] 603 CMR 28.08(3)(a). Sections 3(c) and 3(d) of 603 CMR 28.08 contain certain exceptions that do not apply here.

[12] See Perez v. Sturgis Public Schools, 598 U.S. 142, 147-48 (2023) (“The statute’s administrative exhaustion requirement applies only to suits that seek relief . . . also available under IDEA”) (internal quotation marks and citation omitted). See also Lartigue v Northside Indep. Sch. Dist., 100 F.4th 510, 515 (5th Cir. 2024) (“if the relief sought is not one that the IDEA can provide, such as compensatory damages, the plaintiff need not exhaust the IDEA’s administrative hurdles. But if the relief sought is offered by the IDEA, a plaintiff must fully exhaust the administrative processes as required by § 1415(l).”)

[13] See Fry v. Napoleon Community Schools, 580 U.S. 154, 168 (2017) (“§ 1415(l)’s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a FAPE. If a lawsuit charges such a denial, the plaintiff cannot escape § 1415(l) merely by bringing her suit under a statute other than the IDEA”). See also id. at 170 (exhaustion required “when the gravamen of a complaint seeks redress for a school’s failure to provide a FAPE, even if not phrased or framed in precisely that way”); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 59 (1st Cir. 2002) (exhaustion requirement “is not limited to claims based directly upon violations of the IDEA); Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000) (IDEA’s exhaustion requirement is not limited to IDEA claims, as it “applies even when the suit is brought pursuant to a different statute so long as the party is seeking relief that is available under subchapter II of IDEA”); Ruling on Acton Boxborough Regional School District’s Partial Motion to Dismiss and Parent’s Motion to Join the Town of Acton, BSEA #2101061 (Reichbach, 2021) (“The inquiry is . . . whether the ‘gravamen’ of plaintiff’s suit is an IDEA-based claim”) (internal citation omitted).

[14] Frazier, 276 F.3d at 60; see Fry, 580 U.S. at 168 (noting that IDEA hearing officers have expertise in addressing FAPE-related claims); In Re: Georgetown Pub. Sch., BSEA #1405352, (Berman, 2014) (recognizing that FAPE-related claims asserted under non-IDEA laws may be subject to the IDEA’s exhaustion requirement if the BSEA can “provide some meaningful relief or a superior record on which the court could make its determination”).

[15] See Fry, 580 U.S. at 170; Frazier, 276 F.3d at 59; Rose, 214 F.3d at 210.

[16] In re: Student v. Springfield Public Schools (Ruling on Springfield Public Schools’ Motion to Dismiss), BSEA # 2208440 (Kantor Nir, 2022) (internal citation omitted); cf. Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 28 (1st Cir. 2006) (“It is black letter law that punitive damages—indeed money damages of any sort—are not available in a private suit under the IDEA”); Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 125-26 (1st Cir. 2003) (noting that “[s]everal circuits have barred money damages under 42 U.S.C. §1983 for IDEA-based claims”).

[17] See G.L.71B, § 2A(a); 603 CMR 28.08(3).

[18] See 20 U.S.C. § 1415(b)(6); 603 CMR 28.08(3)(a); Frazier, 276 F.3d at 60 (noting that particular claims need not be brought before agencies such as the BSEA where the processwould be “futile or inadequate”) (internal citation omitted).

[19] See Iannacchino, 451 Mass. at 636 (internal quotation and citation omitted).

[20] See In re: Student v. Springfield Public Schools (Ruling on Springfield Public Schools’ Motion to Dismiss), BSEA #2208440 (Kantor Nir, 2022) (“taking Parent’s allegations as true, Parent’s assertion that the District’s actions relative to Student’s Title IX complaint resulted in the District’s failure to deliver FAPE and in the deprivation of ‘educational opportunity [to Student] that directly correlated to significant regression, lack of progress, and anxiety, and depression … [as well as] a fear of school’ forms the basis of Student’s complaint. Because the gravamen of the claim is IDEA-based, it requires exhaustion of administrative remedies under the IDEA and survives dismissal”) (internal citations and quotations omitted); see also Dear Colleague Letter: Responding to Bullying of Students With Disabilities, 64 IDELR 115 (OCR 2014) (“Schools have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive FAPE in accordance with his or her IEP”). Cf. In Re: Student v. Dracut Public Schools – BSEA #23-12210 (Kantor Nir, 2023)(emphasizing need for connection between “Student’s disability and either the bullying . . . or the District’s handling of the incidents” for BSEA jurisdiction); In re: Monomoy Regional School District, BSEA #2009834 (Berman, 2020) (requiring plausible factual allegations indicating that bullying was related to disability).

[21] See Golchin 460 Mass. at 223; Blank,420 Mass. at 407; Marram v. Kobrick Offshore Fund., Ltd., 442 Mass 43, 45 (2004); Ahmed, F.3d at 890 (1st Cir. 1997).

[22] See Doe v. Attleboro Public Schools, 960 F. Supp. 2d 295, 295 (2013) (“The IDEA provides that where a party to a state or local educational agency action alleged procedural violations, the Hearing Officer may find that the student did not receive a FAPE” under certain circumstances).

[23] See 20 U.S.C. §1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2) (“In matters alleging procedural violations, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies – (I) impeded the child’s right to a free appropriate public education; (II) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free appropriate public education to the parents’ child or (III) caused a deprivation of educational benefits”); see also Gonzalez v. Puerto Rico Dep’t of Educ., 969 F. Supp. 801, 812 (D.P.R. 1997) (“A procedural infraction constitutes a violation of the IDEA when there is ‘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.’”) (internal citations omitted).

[24] See Ocasio-Hernandez,640 F.3d at 12 (“In order to ‘show’ an entitlement to relief a complaint must contain enough factual material ‘to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact’”).

[25] See Twombly, 550 U.S. at 556 (“Asking for plausible grounds does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement”).

[26] See Iannacchino, 451 Mass. at 628 (2008) (quoting Twombly, 550 U.S. at 557).

[27] See Student v. Sharon Public Schools, BSEA #1807731 (Putney-Yaceshyn, 2018) (“If special transportation is noted on the student’s IEP, the student is entitled to receive transportation services”) (quoting 603 CMR 28.05(5)(b)).

[28] See Golchin, 460 Mass. at 223 (internal quotation marks and citations omitted).

[29] See Twombly, 550 U.S. at 555 (“[P]laintif[] [is] obligat[ed] to provide the ‘grounds of his ‘entitle[ment] to relief’”).

[30] See Iannacchino, 451 Mass. at 636  (“What is required at the pleadings stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief”) (quoting Twombly, 550 U.S. at 557 (2007)).

[31] See Golchin, 460 Mass. at 223; Ocasio-Hernandez, 640 F.3d at 12 (“Non-conclusory factual allegations in the [complaint] must be treated as true, even if seemingly incredible”); see also Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (refusing to reject assertions “on the ground that they are unrealistic or nonsensical”). 

[32] See Perez, 598 U.S. at 147-48 (2023); Lartigue, 100 F.4th at 515 (“if the relief sought is offered by the IDEA, a plaintiff must fully exhaust the administrative processes as required by § 1415(l)”).

[33] See In re: Student v. Old Colony Regional Voc. Tech. Public School, BSEA #24-10548 (Kantor Nir, 2024) (nothing that although hearing officers cannot order transfer of a student from one general education class to another, they can find that a student requires addition supports and services to receive a FAPE in an assigned class).

[34] See 20 U.S.C. § 1415(b)(6); 603 CMR 28.08(3)(a); Haines v. Kerner, 404 U.S. 519, 520 (1972) (allegations contained in hearing requests are to be held to “less stringent standards than formal pleadings drafted by lawyers”); Ahmed, 118 F.3d at 890; Iannocchino, 451 Mass. at 636.

[35] The Hearing Officer gratefully acknowledges the diligent assistance of legal intern Sara Pompeo in the preparation of this Ruling.

Updated on June 25, 2024

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