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In Re: Delilah[1] v. Worcester Public Schools BSEA # 24-12522

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Delilah[1] v. Worcester Public Schools                                         

BSEA # 24-12522

RULING ON WORCESTER PUBLIC SCHOOLS’ MOTION FOR SUMMARY JUDGMENT 

This matter comes before the Hearing Officer on the Motion For Summary Judgment (Motion) filed by Worcester Public Schools (Worcester or the District) on July 26, 2024.

On May 8, 2024, Parents filed a Hearing Request against Worcester, in the underlying case, regarding their daughter Delilah. Following Worcester’s successful Sufficiency Challenge, on May 22, 2024, Parents filed an Amended Hearing Request alleging that Worcester failed to complete Delilah’s special education assessments on time, resulting in a delayed Individualized Education Program (IEP) meeting and a lack of transportation for kindergarten, causing Delilah to miss the first few weeks of school. Parents also asserted that the District failed to investigate two incidents of bullying and allowed Delilah to borrow a book about transgender people from the library without their consent. They requested that the Bureau of Special Education Appeals (BSEA) order the District to transfer Delilah to one of four different District elementary schools and provide her with specialized transportation. The Hearing was scheduled for June 27, 2024.

On June 3, 2024, the District moved to dismiss Parents’ Amended Hearing Request in its entirety. Parents opposed the motion, and on June 24, 2024, the Hearing Officer allowed Worcester’s Motion to Dismiss in part and denied it in part.[2] This allowed Parents’ claims regarding their bullying allegations and untimely assessments, as well as their request for school transfer, to proceed.[3] In the meantime, 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 for Hearing. Their request was granted for good cause and the Hearing was scheduled for July 26 and 29, 2024. Following a Pre-Hearing Conference that took place on June 27, 2024, the District, with Parents’ assent, requested a further continuance given the unavailability of one witness and to permit the parties to continue to explore resolution. Worcester’s request was allowed for good cause, and the Hearing was scheduled for August 28 and 29, 2024.

On July 26, 2024, Worcester filed the instant Motion for Summary Judgment (Motion) accompanied by a Memorandum of Law, 21 exhibits labeled A through U, and an affidavit signed by Tammy Murray, Director of Special Education and Intervention Services for Worcester.[4] The District contends that it completed Delilah’s special education assessments in a timely manner, and that to the extent any assessments were delayed, such delay did not deprive Delilah of a free appropriate public education (FAPE). Worcester also asserts that Delilah was not deprived of a FAPE due to any alleged bullying; that Worcester properly investigated any bullying allegations and determined that no bullying had occurred; and that even if Delilah had been bullied, any such bullying was not related to her disability and as such, the issue is beyond the jurisdiction of the BSEA. Finally, according to the District, Parents have offered no reason related to special education to transfer Delilah between elementary schools, and as such, this request must be dismissed as outside BSEA jurisdiction.

On July 29, 2024, in opposition to Worcester’s Motion, Parents submitted ten PDFs of emails between themselves and Worcester personnel, as well as a Massachusetts Department of Elementary and Secondary Education Problem Resolution System Office (PRS) State Complaint Closure letter.[5]

For the reasons set forth below, Worcester’s Motion is ALLOWED.

FACTUAL BACKGROUND

The following facts are derived from the pleadings and exhibits submitted by the parties. Where a factual dispute exists, I construe it in favor of Parents, as the party opposing summary judgment.[6]

  1. Delilah is a six-year-old rising first grade student attending Tatnuck Magnet School in Worcester, Massachusetts. (S-A)
  2. On April 3, 2023, while Delilah was in preschool, Parents emailed the District requesting a comprehensive evaluation, including academic, psychological, occupational therapy (OT), and speech, to assess her eligibility for special education services. (P-1; S-C)
  3. There was no school on April 7, 2023, and school vacation occurred from April 17 to April 21, 2023. (S-V)
  4. As they had not yet received a consent form, Parents followed up with the District on April 19 and 26, 2023. According to the Department of Elementary and Secondary Education’s Problem Resolution System (PRS), Worcester staff reported to PRS that the consent form was sent on April 24, 2023.[7] (P-4)
  5. The consent form that was sent to Parents proposed educational, academic, speech, psychological, and home assessments. It omitted any reference to an OT evaluation. (S-D; S-V)
  6. The District received the signed consent form on April 28, 2023.[8] (P-12) Parents accepted the proposed evaluation in full. (P-12; S-D)
  7. On May 30, 2023, the District conducted Delilah’s psychological evaluation. The results indicated that Delilah is in the average range for all areas, except for a weakness in short-term memory. (S-E) The report was dated June 14, 2023, and was stamped “received” by the District on June 20, 2023. (S-E, S-V) Worcester sent it to Parents on June 20, 2023. (S-V)
  8. Delilah’s speech evaluation was conducted on June 2 and June 9, 2023. The results indicated that Delilah has mild to moderate stuttering and that in an educational setting with unfamiliar people, she may have more difficulty verbally articulating her thoughts and ideas fluently. The report was dated June 16, 2023, and was stamped “received” by the District on June 21, 2023. It was sent to Parents on June 21, 2023. (S-F, S-V)
  9. Although Delilah’s academic assessments (Educational A and B) are dated June 7, 2023 (S-G), according to Worcester they were not received until August 28, 2023, on which date they were sent to Parents (S-V). These evaluations indicated that Delilah was meeting all grade level expectations, performed skills at an average level, and exhibited no behavioral issues. (S-G)
  10. On August 28, 2023, Delilah’s home assessment was conducted. The report was dated August 28, 2023. (S-H) According to the District, it was received on August 29, 2023 and sent to Parents the same day. (S-V)
  11. In the meantime, on June 27, 2023, Parents filed a PRS complaint against Worcester, asserting two key violations: (1) that the District failed to issue a consent-to-evaluate form to determine eligibility for special education within the prescribed timelines, and (2) that after receiving the signed consent-to-evaluate form, the District had not scheduled a Team Meeting to review the assessments. (P-12)
  12. On August 3, 2023, PRS issued a Letter of Finding sustaining Parents’ allegations. Specifically, PRS determined that Worcester had violated 603 CMR 28.04(1)(a), by failing to respond to Parents’ evaluation request within the required timeline. PRS also determined that Worcester had violated 603 CMR 28.05(4)(1), because although the evaluation consent form had been received on April 28, 2023 (within 30 to 45 school working days before the end of the school year on June 20, 2023), the District had not scheduled a Team meeting to allow for the provision of a proposed IEP or written notice of the finding that the student is not eligible no later than 14 days after the end of the school year. (P-12)
  13. An initial Team meeting was held for Delilah on August 30, 2023[9] to review the evaluations and determine eligibility. The Team determined that Deliah was eligible for special education under the Communication disability category. It proposed a full inclusion setting at Tatnuck Magnet School (Tatnuck) with one goal in the area of Communication, Speech Consult (1×10 minutes/week), and C-grid Speech Therapy (1×30 minutes/week). Parents requested specialized transportation, but their request was denied. They also expressed concerns about Delilah’s susceptibility to bullying given her speech deficit. (S-I, S-U)
  14. On August 31, 2023, the 2023-2024 school year began (S-V)
  15. According to the District, on September 5, 2023, Worcester sent Parents Delilah’s proposed IEP for the period from 8/30/23 to 8/29/24 (2023-2024 IEP), reflecting the Team’s determinations. (S-I, S-V) It appears that the proposed 2023-2024 IEP was also sent to Parents by email on September 9, 2023. (P-10)
  16. Around this time, Worcester recognized that, due to an oversight, it had omitted the OT evaluation Parents requested from the consent form and, as a result, had not conducted this evaluation. Worcester proposed that it do so through an extended evaluation and on or about September 6, 2023, the District sent Parents a consent form for an extended evaluation. Parents accepted this evaluation and Worcester received the signed consent form on or about October 4, 2023. (S-J, S-V) The extended evaluation report, dated November 18, 2023, marked “received” by the District on November 20, 2023, and sent to Parents the same day, did not recommend services for Delilah given her average performance. (S-K)
  17. Between September 6 and September 11, 2023, Parents emailed District personnel several times, expressing concerns that Delilah had missed her first two weeks of kindergarten, that they had yet to receive her IEP, and that her OT evaluation remained incomplete. (P-13)
  18. On September 14, 2023, Delilah attended her first day of school. According to Worcester, Parents kept her home until then because they wanted her to receive specialized transportation and/or a transfer to a different elementary school within the District, and because Parents’ schedule conflicted with the time Delilah was to be dropped off at school. (S-V)
  19. On September 28, 2023, Parents partially rejected the proposed IEP, noting that 1×30 minutes per week of speech is insufficient, and requesting a meeting to discuss the rejected portion of the IEP. They consented to Delilah’s placement in a full-inclusion program at Tatnuck. (S-I)
  20. Delilah’s Team reconvened on November 28, 2023 to discuss the results of the extended OT evaluation and Parents’ partial rejection of the 2023-2024 IEP for lack of additional speech and language services. Parents accepted the determination of no eligibility for OT services. The District rejected their request for additional speech and language therapy. (S-L)
  21. The Team reconvened on or about January 10, 2024 to discuss IEP development. At this time, the Team agreed to increase Delilah’s direct speech and language services to 2×30 minutes/week. (S-M, S-N)
  22. Although the January 10, 2024 Team meeting appears to have led to an IEP dated 1/10/24 to 1/9/25 (2024-2025 IEP), the IEP itself does not appear in the record. According to Worcester, this IEP was sent to Parents on January 12, 2024. (S-N, S-V)
  23. On or about February 7, 2024, Parents partially rejected the proposed 2024-2025 IEP and requested a meeting to discuss rejected portions. The District received the partially rejected IEP on or about February 15, 2024. Specifically, Parents rejected the omission of specialized transportation services. Parents consented to Delilah’s placement in a full-inclusion program at Tatnuck. (S-N)
  24. On March 25 and 26, 2024, Parents contacted the District to report that Delilah had been bullied at school. Specifically, on March 25, 2024, Delilah had been pushed twice by J, a student in her class, causing her to fall and rip her pants. Parents also mentioned that students were making fun of Delilah’s hair because it was different from theirs.[10] They requested that Delilah be transferred to a different elementary school within the District due to safety concerns. (P-8, P-9; S-O)
  25. A Team meeting was held on March 27, 2024, to discuss both the bullying allegations and Parents’ partial rejection of Delilah’s IEP. The Team determined that the incidents described by Parents did not constitute bullying under either Worcester’s definition or the statutory (G.L. 71, § 37O) definition, both of which require repeated conduct by any other student directed toward a student. Moreover, there was no indication these incidents were related in any way to Delilah’s disability. Nevertheless, a Temporary Transition Plan was put in place due to Parents’ concerns that Delilah reported that she was terrified to go to school.[11] (S-P, S-Q, S-U, S-V)
  26. Although Parents had informed Worcester staff that they would be filing a report with DESE regarding the bullying incidents and requested a transfer out of Tatnuck on this basis, they did not request an official bullying investigation related to the allegations from March 25, 2024. (P-6; S-V)
  27. On June 13, 2024, Parent emailed Worcester alleging that Delilah had been bullied that day on the playground by another student. Specifically, a boy who is not in her class had taken a list she made out of her hand and thrown it over the fence, leaving Delilah too scared to say anything. Parents again requested her transfer out of Tatnuck, as well as transportation. (P-5; S-R).
  28. On June 14, 2024, Assistant Principal Caryn McCrohon completed an investigation of the incident that had occurred the previous day. Dr. McCrohon spoke with Delilah, three staff members, and three students. Dr. MCrohon concluded that the events, which did not occur as Parents had reported, did not constitute bullying. She completed a Bullying Prevention and Intervention Incident Reporting Form to reflect the investigation and her findings and informed Parents of the same on that day. (S-R)
  29. In Worcester, students are assigned schools based on their residence. Families who would like their child to attend a school outside of their neighborhood zone may request a voluntary transfer as a general education measure. Under Worcester’s Voluntary Transfer Policy, such requests may be granted if the school to which parents seek transfer has room to accommodate the student. (S-S, S-V)

DISCUSSION

Parents’ claims can be divided into two categories: those related to untimely evaluations of Delilah, which allege procedural violations; and those related to bullying. Their request for a transfer is, in essence, a remedy. As such, I reach it only if I deny Worcester’s Motion for Summary Judgment. To determine whether any of Parents’ claims survives the District’s Motion, I apply the summary judgment standard to the relevant procedural and substantive law.

  1. Legal Standards
  1. Legal Standard for Summary Judgment

Pursuant to 801 CMR 1.01(7)(h), summary decision may be granted when there is “no genuine issue of fact relating to all or part of a claim or defense and [the moving party] is entitled to prevail as a matter of law.”[12] In determining whether to grant summary judgment, BSEA hearing officers are guided by Rule 56 of the Federal and Massachusetts Rules of Civil Procedure, which provides that summary judgment may be granted only if the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law.”[13] “A genuine dispute as to a material fact exists if a fact that ‘carries with it the potential to affect the outcome of the suit’ is disputed such that ‘a reasonable [fact-finder] could resolve the point in the favor of the non-moving party.’”[14] Whether a fact is material depends on the applicable substantive law.[15] “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”[16]

The moving party bears the burden of proof on this motion, and all evidence and inferences must be viewed in the light most favorable to the party opposing summary judgment.[17]  This means that the court must assess evidence in a way that gives the benefit of the doubt to the non-moving party.

In response to a motion for summary judgment, the opposing party “must set forth specific facts showing that there is a genuine issue for trial.”[18]  This means that the adverse party must show that a finder of fact (in BSEA cases, a hearing officer) must hear the case because the facts in dispute are genuine – in other words, they may “reasonably be resolved in favor of either party.”[19] This requires “sufficient evidence” in favor of the party opposing summary judgment.[20] Moreover, if the evidence the non-moving party brings forth in its efforts to create a genuine dispute of material fact is comprised of “conclusory allegations, improbable inferences, and unsupported speculation,”[21] or if it is “merely colorable, or is not significantly probative, summary judgment may be granted.”[22]

As such, to analyze whether the party moving for summary judgment has met its initial burden such that the burden shifts to the opposing party, I must view all of the evidence it has submitted in the light most favorable to the opposing party and determine that there is no genuine issue of material fact related to the moving party’s claims. Only if the moving party is successful in this first step does the burden then shift to the opposing party to demonstrate, by use of specific facts, that there is actually a genuine dispute of material fact precluding summary judgment because a fact-finder might reasonably resolve the issue in its favor.

  1. Jurisdiction of the BSEA

20 U.S.C. § 1415(b)(6) grants the BSEA jurisdiction over timely complaints filed by a parent/guardian or a school district “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.”[23] In Massachusetts, a parent or a school district “may request mediation and/or a hearing at any time on any matter[24] 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.”[25]  The BSEA “can only grant relief that is authorized by these statutes and regulations, which generally encompasses orders for changed or additional services, specific placements, additional evaluations, reimbursement for services obtained privately by parents or compensatory services.”[26]

  1. Procedural Protections for Children with Disabilities; Timelines for Evaluations

The right to a FAPE for all students with disabilities is guaranteed by both federal and state law.[27] “A FAPE comprises special education and related services – both instruction tailored to meet a child’s unique needs and sufficient supportive services to permit the child to benefit from that instruction.”[28] The services must be provided in the least restrictive environment appropriate for the child.[29] The IEP is the primary vehicle for delivery of a FAPE, and school districts must ensure that each IEP proposes an educational program that is reasonably calculated to deliver educational benefits and “enable the child to make progress appropriate in light of the child’s circumstances.”[30]

It is well settled that a FAPE entails not only the substantive right to an IEP that is tailored to meet the unique needs of the child, but also procedural protections.[31] These procedural protections embedded in the IDEA serve a dual purpose: they ensure that each eligible child receives a FAPE, and they provide for meaningful parental participation.[32] They are so important that the IDEA recognizes that even if no substantive irregularities have occurred, procedural errors may amount to a deprivation of a FAPE 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.”[33] Under this standard, not all procedural errors automatically entitle a parent or disabled child to relief; some procedural errors may not result in any substantive harm.[34]

Parents in this matter allege procedural violations in the form of Worcester’s failure to comply with timelines. Specifically, Parents assert that the District failed to timely issue consent forms for Delilah’s initial evaluations and failed to timely convene a Team meeting to review the evaluations and determine eligibility.

Procedural protections associated with initial evaluations for children in Massachusetts are set forth in 603 CMR 28.04(1), which provides that when a student is referred for an evaluation to determine eligibility for special education, the school district shall send written notice to the student’s parent(s) within five school days of receipt of the referral, and such notice shall seek parental consent for the evaluation to occur. A second set of procedural protections associated with evaluations for children in Massachusetts is set forth in 603 CMR 28.05(4)(1), which provides, in relevant part, that within 45 school working days after receipt of a parent’s written consent to an initial evaluation, the school district shall provide an evaluation (within 30 days of receipt of parental consent); convene a Team meeting to review the evaluation data and determine whether the student requires special education; and if so, develop a proposed IEP and placement. Moreover, pursuant to this provision, “[i]f consent is received within 30 to 45 working days before the end of the school year, the school district shall ensure that a Team meeting is scheduled so as to allow for the provision of a proposed IEP or written notice of the finding that the student is not eligible no later than 14 days after the end of the school year.”[35]

To prevail on this procedural claim following a hearing, therefore, Parents must prove both that one or more procedural errors occurred in connection with Delilah’s evaluation and initial Team meeting, and that such errors amounted to a deprivation of a FAPE.

On the other hand, for Worcester to prevail on its instant Motion for Summary Judgment, the District must make a threshold showing through its filings that there is no genuine dispute of material fact as to whether procedural errors occurred, or that any errors that did occur did not result in a denial of FAPE.[36] If Worcester succeeds in this first step, the burden shifts to Parents, who must then present sufficient evidence to show that a genuine dispute exists regarding whether one or more procedural violations did occur and that sufficient evidence exists from which a fact-finder could conclude that that such violation(s) impeded Delilah’s right to an appropriate education, deprived her of educational benefits, or significantly hindered Parents opportunity to participate in the decision-making process.[37] If Parents can make this showing, then Worcester’s Motion must be denied.

  1. Bullying

Consistent with the legal definition of bullying under M.G.L. c. 71, § 37O, the District’s Bullying Prevention and Intervention Policy (Policy) defines bullying as the:

“repeated use by one or more students, or a member of school staff, of a written, verbal, or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that: (1) causes physical or emotional harm to the target or damage to the victim’s property; (2) places the victim in reasonable fear of harm to himself or herself or of damage to his or her property; (3) creates a hostile environment at school for the victim; (4) infringes on the rights of the victim at school; [or] (5) materially and substantially disrupts the education process or the orderly operation of a school.”[38]

          To prevail on their bullying claim following a hearing, Parents must prove that bullying occurred, and that either the bullying or the District’s handling of the bullying was connected to Delilah’s disability in some way.[39]

If Worcester makes a threshold showing through its Motion for Summary Judgment and evidence submitted in support thereof that there is no genuine dispute that the alleged bullying incidents failed to constitute bullying under M.G.L. c. 71 § 37O, or that any incidents that did occur were not disability-based and did not result in a denial of a FAPE, the burden shifts to Parents.[40] Parents must then present sufficient evidence for a fact-finder to determine that bullying did occur and that it was disability-based or that it impacted Delilah’s right to a FAPE.[41] Should Parents meet this burden, Worcester’s Motion must be denied.

  1. Application of Legal Standards

I apply the standards outlined above to each set of Parents’ allegations. I incorporate by reference my findings above, so as to avoid needless repetition.

  1. Although Worcester Committed Procedural Violations in Connection with Delilah’s Initial Special Education Assessments, These Violations Did Not Deprive Her of a FAPE

Parents allege that Worcester violated procedural safeguards under the IDEA when it failed to issue evaluation consent forms, conduct evaluations, and convene an initial eligibility Team meeting in accordance with the required timelines, thereby impeding Delilah’s right to a FAPE. The District contends that there was no meaningful delay in Deliah’s special education assessments or IEP meeting, and that even if a delay did occur, it did not impact her ability to receive a FAPE.

  1. It is undisputed that Worcester committed several procedural violations in connection with Delilah’s special education assessments and her initial Team meeting.[42]

Parents first emailed Worcester to request evaluation of Delilah on April 3, 2023. Pursuant to 603 CMR 28.04(1)(a), Worcester should have sent written notice to Parents, along with an evaluation consent form, within five school days, or by April 11, 2023.[43] The District did not provide the required form until April 24, 2023.[44] This was procedural error.

Parents returned the signed evaluation consent form to Worcester on April 28, 2023. The 30-day deadline for completing evaluations was June 12, 2023, and – given the last day of school on June 20, 2023 and the start of the new school year on August 31, 2023 – the 45-school-day deadline would have been September 13, 2023. Because the consent form was received approximately 36 days before the end of the school year, within the 30 to 45 window specified by 603 CMR 28.05(4)(1), however, Worcester was required to ensure that a Team meeting was scheduled that would allow for the proposal of an IEP, or a written notice of a finding of ineligibility, no later than July 4, 2023, 14 days after the school year ended. However, the IEP in the instant matter was not proposed until September 5, 2023. Thus, Worcester’s failure to comply with the timelines in this regard constituted procedural error.

  1. Parents will be unable to prove that these procedural violations impacted Delilah’s access to a FAPE.

In their Amended Hearing Request,Parents contend that Worcester’s failure to complete Delilah’s special education assessments on time resulted in a delayed IEP meeting and no transportation for kindergarten. They state that she missed the first few weeks of school as a result of the District’s negligence. Specifically, Parents assert that Worcester’s delays in evaluating Delilah, convening the Team, finding her eligible, and proposing her 2023-2024 IEP, caused Delilah to miss the first two weeks of the school year.

The evidence submitted by the District demonstrates that Delilah’s initial IEP meeting was held on August 30, 2023, the day before school began. Parents were provided with Delilah’s IEP on September 5, 2023, yet did not sign it until September 28, 2023, at which time they accepted the proposed speech services, while partially rejecting the IEP because they believed Delilah required additional speech services. Delilah returned to school on September 14, 2023. Based on the Affidavit submitted by the District, Parents kept Delilah home until that date because they wanted her transferred to a different school and were upset that specialized transportation was not proposed as part of her IEP; and because Parents’ schedule conflicted with the time Delilah was to be dropped off at school. There is no evidence before me to the contrary.

Worcester has met its threshold burden to establish, through evidence, the absence of a genuine dispute of material fact as to whether Delilah missed any IEP services when she was absent from school for the first two weeks. She did not, as Parents had not yet accepted the IEP that provided for speech services. As such, the burden shifts to Parents to provide sufficient evidence in their favor from which I, as the fact-finder, can reasonably conclude that Worcester’s procedural inadequacies impeded Delilah’s right to a FAPE; significantly limited Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to Delilah; or caused a deprivation of educational benefits.[45]

Although Parents produced evidence regarding the District’s violations of the relevant timelines in response to Worcester’s Motion, they have not provided anything beyond “conclusory allegations, improbable inferences, and unsupported speculation”[46] as to how these delays contributed to Delilah’s absence from school, much less how they impeded her right to a FAPE, significantly impeded their opportunity to participate in the decision-making process regarding the provision of a FAPE to her, or caused a deprivation of educational benefits.[47] Delilah was absent from school beyond the date that Parents received her proposed IEP. This fact, coupled with Parents’ failure to demonstrate a linkage between the delays and her absence, prevents a reasonable fact-finder from resolving the point in their favor.[48] As a result, Parents have not met their burden, triggered by Worcester’s satisfaction of its initial burden, to present specific facts demonstrating a causal connection between the District’s procedural violations and Delilah’s ability to receive a FAPE. Additionally, the evidence before me demonstrates Parents’ regular attendance at and participation in Team meetings and consistent email communication with teachers and administrators.[49] Parents have not provided sufficient evidence from which a fact-finder could conclude that their ability to participate in the decision-making process was significantly impeded as a result of Worcester’s procedural violations.[50]

In light of the foregoing, entry of summary judgment is appropriate on Parents’ claim that Worcester failed to complete Delilah’s special education assessments on time, resulting in a delayed IEP meeting and a lack of transportation for kindergarten,[51] causing Delilah to miss the first few weeks of school. The District has met its burden to establish the absence of a genuine issue of material fact: Worcester committed several procedural violations, but these violations did not amount to a denial of a FAPE or significantly impede Parents’ participation in the decision-making process regarding Delilah’s education.[52]

  1. No Genuine Issue of Material Fact as to Disability-Based Bullying Precludes Entry of Summary Judgment

Parents argue that Worcester failed to investigate and address properly the March and June 2024 bullying incidents involving Delilah, which resulted in a denial of her right to a FAPE. To succeed on its Motion for Summary Judgment, the District must demonstrate that Parents cannot prevail on this claim because there is no genuine dispute that there is no connection between any alleged bullying and Delilah’s status as an individual with a disability; that bullying did not occur; and/or that if bullying did occur, Worcester responded appropriately.

Viewing the evidence in the light most favorable to Parents, I conclude that on March 25, 2024, Delilah was pushed twice by J, causing her to fall and tear her pants on a piece of playground equipment, and that other students teased her because of her hair on the same day. On June 13, 2024, a boy who is not in Delilah’s class took a list she had made out of her hand and threw it over a fence, leaving her too scared to say anything. Moreover, Delilah had told Parents during the previous school year, while at a different elementary school, that she kept being pushed by another boy, but there is no evidence linking those incidents to those that occurred during the 2023-2024 school year. I also conclude that the incidents that occurred on March 25 and June 13, 2024 do not meet the applicable definitions of bullying, which require that expressions, acts, or gestures complained of be repeated, and further that the District completed a comprehensive investigation of the incidents that occurred on the latter date, finding that no bullying had occurred. Following the incidents that occurred on March 25, 2024, Delilah’s Team convened on March 27, 2024 and, among other things, developed a Temporary Transition Plan. For the next 10 weeks, Delilah used one of the tools created as part of the Plan to indicate that she had a “Great” recess every day.

The District has met its threshold burden to show that there is no genuine dispute that the “bullying incidents” described by Parents in their Amended Hearing Request and the exhibits they submitted in support of the Amended Hearing Request and in opposition to the District’s Motion,were not related to Delilah’s disability; that Worcester handled these incidents appropriately; and that no bullying occurred. The burden, therefore, shifts to Parents to present sufficient allegations in their favor, beyond mere speculation, that would permit a fact-finder to conclude otherwise.[53]

Parents presented no evidence that the incidents they describe as bullying were repeated, related to Delilah’s speech disability, or deprived her of a FAPE. In their Opposition to Worcester’s Motion to Dismiss, Parents argued that Delilah is more susceptible to being bullied because of her speech disability, which they claim causes her to shut down emotionally and become unable to defend herself. However, these are “conclusory allegations” and “unsupported speculation.”[54] To the extent that Parents’ reports of the March and June incidents triggered the District’s obligations under its Bullying Policy, the evidence shows that the school investigated the allegations promptly in both instances. Parents also alleged that Delilah had missed school due to bullying, but the March and June 2024 incidents were unrelated to Delilah’s absences in September 2023. Moreover, to the extent they assert that Delilah was too afraid to return to school following the March 2024 incident, Parents have provided no evidence that she missed school, much less missed any of the speech services associated with her IEP. Parents have not presented sufficient evidence from which a fact-finder could conclude after a hearing that Delilah has been bullied, much less bullied on the basis of her disability, or that any such incidents have resulted in a denial of a FAPE.[55] Without a connection to her disability, Parents’ assertions amount to conclusory allegations, which are insufficient to establish a genuine issue of material fact. [56]

CONCLUSION

Upon consideration of the District’s Motion for Summary Judgment, supporting Memorandum of Law, and accompanying documents, as well as Parents’ submissions and all relevant exhibits, I find that Worcester has met its burden to establish that there is no genuine issue of material fact relating to any of Parents’ claims. As such, the District is entitled to judgment as a matter of law.

ORDER

Worcester’s Motion for Summary Judgment is hereby ALLOWED.

The Hearing scheduled to begin on August 28, 2024 is cancelled.

By the Hearing Officer:[57]

  /s/  Amy Reichbach                                                               

Amy M. Reichbach

Dated: August 16, 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] Parents’ claims regarding the book Delilah borrowed and their request for specialized transportation were dismissed as beyond the jurisdiction of the BSEA.

[3] In my Ruling, I noted that although Parents had not explicitly linked their bullying claims and transfer request to Delilah’s special educational needs, under the standards for a Motion to Dismiss, I construed their complaint liberally, took their allegations as true, drew all inferences in their favor therefrom, and concluded that these claims could not be dismissed at such an early point in the proceedings.

[4] These documents, including the affidavit, have been marked exhibits S-A through S-V.

[5] These documents have been marked exhibits P-1 through P-11. Parents submitted a Letter of Finding issued by the Massachusetts Department of Elementary and Secondary Education’s Problem Resolution System (PRS) dated August 3, 2023, with their Amended Hearing Request. This document has been marked exhibit P-12. Also submitted with their Amended Hearing Request was a chain of emails reflecting correspondence between Mother and Lisa Edmonson, a Worcester employee, dated September 6 to September 13, 2023, which has been marked exhibit P-13.

[6] See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).

[7] The Notice Date on the N-1 form submitted by the District (S-D) is 4/15/2023, and the affidavit submitted as S-V states that the consent for initial special education evaluation was sent to Parents on April 15, 2023. However, the email exchange submitted by Parents, which includes responses from Delilah’s Team Chair, supports the PRS finding that the consent form was actually sent to Parents on April 24, 2023, and I construe this factual dispute in Parents’ favor. See Adickes,398 U.S. at 157 (for purposes of summary judgment, the materials filed by the moving party “must be viewed in the light most favorable to the opposing party”).

[8] Although the stamp on the signed consent form in Worcester’s records indicates that it was received on May 2, 2023, Parents reported to PRS that they had hand-delivered it on April 28, 2023, and PRS used that date to calculate timelines. I view the evidence in the light most favorable to Parents, as the party opposing summary judgment, and use April 28, 2023 as the date on which the District received the signed consent form. See Adickes,398 U.S. at 157.

[9] Although the N-1 mentions August 29 in one place, the remainder of the documents suggest that the meeting occurred on August 30, 2023. (S-I, S-V)

[10] In their Amended Hearing Request, Parents also cited alleged bullying that had occurred at Delilah’s previous school during the 2022-2023 school year and attached emails they had exchanged with staff there. (S-T)

[11] The Temporary Transition Plan included: a re-entry meeting with Delilah; an age-appropriate bullying lesson for Delilah’s class; two recess observations; close monitoring of Delilah during recess with reports on her experience; post-recess check-ins by Delilah’s teacher with weekly charting of recess quality; and a follow-up by Parents with the Assistant Principal, Dr. McCrohon, regarding their decision whether to proceed with an official bullying investigation. (S-R) The District produced 10 weeks of recess charts, all indicating that recess had been “Great.” (S-Q)

[12] 801 CMR 1.01(7)(h).

[13] See Anderson, 477 U.S. at 247; Maldonado-Denis, 23 F.3d at 581; see also In Re: Student v. Medway Public Schools, BSEA # 2410703 (Figueroa, 2024) (applying this standard); Student v. Littleton Public Schools,BSEA # 2313812 (Putney-Yaceshyn, 2023) (same).

[14] French v. Merrill, 15 F.4th 116, 123 (1st Cir. 2021) (internal citation omitted).

[15] See Anderson, 477 U.S. at 248.

[16] Id.

[17] See Adickes, 398 U.S. at 157; Anderson, 477 U.S. at255; see also Maldonado-Denis, 23 F.3d at 581 (summary judgment involves “scrutinizing the entire record in the light most flattering to the nonmovant and indulging all reasonable inferences in that party’s favor”).

[18] Anderson, 477 U.S. at 250.

[19] Maldonado-Denis, 23 F.3d at 581 (internal citation omitted).

[20] Anderson, 477 U.S. at 249; Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).

[21] Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

[22] See Anderson, 477 U.S. at 249-50.

[23] See 34 C.F.R. §300.507(a)(1).

[24] Limited exceptions exist that do not apply here.

[25] 603 CMR 28.08(3)(a).

[26] In Re: Georgetown Public Schools, BSEA #1405352 (Berman, 2014).

[27] See 20 U.S.C. §1400, et seq.; M.G.L. c. 71B; 34 CFR 300.000, et seq.; 603 CMR 28.00 et seq; see also 20 U.S.C. §1400(d)(1)(A) (The first purpose of the IDEA is “to ensure that all children with disabilities have available to them a [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”).

[28] C.D. v. Natick Public Sch. Dist., 924 F.3d 621, 624 (1st Cir. 2019) (internal citations and quotation marks omitted).

[29] See 20 U.S.C § 1412(a)(5)(A); 34 CFR 300.114(a)(2); M.G.L. c. 71 B, §§ 2, 3; 603 CMR 28.06(2)(c).

[30] Endrew F. ex. rel. Joseph F. v Douglas Cnty. Sch. Dist., 580 US 386, 399 (2017); see Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982).

[31] See Roland M. v Concord Sch. Comm., 910 F.2d 983, 994 (1st Cir. 1990).

[32] See Honig v. Doe, 484 U.S. 305, 311 (1998) (“Congress repeatedly emphasized throughout the [IDEA] the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness).

[33] 20 U.S.C. §1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); see Roland M., 910 F.2d at 994.

[34] See Michael D.M. ex rel. Michael M. v. Pemi-Baker Reg’l Sch. Dist., 2004 U.S. Dist. LEXIS 17400, at *12 (D.N.H 2004); see also Murphy v. Timberlane Reg’l Sch. Dist. 22 F.3d 1186, 1196 (1st Cir. 1994) (“It is plainly true, of course . . . that not every procedural irregularity gives rise to liability under the IDEA”).

[35] 603 CMR 28.05(4)(1).

[36] See Anderson, 477 U.S. at 247; Maldonado-Denis, 23 F.3d at 581.

[37] See Anderson, 477 U.S. at 250.

[38] See Exhibit S-U.

[39] See, e.g., In Re: Student v. Dracut Public Schools, BSEA # 2312210 (Kantor Nir, 2023)(dismissing as beyond BSEA jurisdiction claims regarding a school district’s “improper response to Student’s allegations of bullying . . . because, other than indicating that a Section 504 Plan was proposed by the District, the Hearing Request makes no claim of any connection between Student’s disability and . . . the bullying . . or the District’s handling of the incidents. Parent does not assert that the bullying . . . incidents impacted Student’s receipt of Section 504 FAPE services or that she required additional or different services”); In re: Monomoy Regional School District, BSEA # 2009834 (Berman, 2020) (requiring plausible factual allegations indicating that bullying was related to disability); 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”).

[40] See Anderson, 477 U.S. at 247; Maldonado-Denis, 23 F.3d at 581.

[41] Anderson, 477 U.S. at 250.

[42] PRS came to the same conclusion and ordered, as corrective action, that a Team meeting be held for Delilah as soon as possible following the start of the 2023-2024 school year and that the District review the requirements of 603 CMR 28.04(1)(a) and 603 CMR 28.05(4)(1) with evaluation team chairpersons, then provide DESE with evidence that both of these measures had occurred.

[43] There was no school on April 7, 2023. (S-V)

[44] Parents submitted the PRS Letter of Finding, which listed April 24, 2023 as the date on which the consent form was provided to them. (P-12) There was no school between April 17 and April 21, 2023 due to April vacation. As such, the consent form was provided four school days past the April 11, 2023 deadline. (S-V)

[45] See 20 U.S.C. §1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); Anderson, 477 U.S. at 250; Roland M., 910 F.2d at 994.

[46] See Medina-Munoz, 896 F.2d at 8.

[47] In their Opposition to Worcester’s Motion to Dismiss, Parents asserted that Delilah had missed the first month of kindergarten and “qualifying speech services” due to the District’s failure to complete her assessments and convene her Team meeting in a timely manner. They have provided no evidence to support this allegation.

[48] See French, 15 F.4th at 123.

[49] See Anderson, 477 U.S. at 250.

[50] See id. at 249.

[51] As transportation was not proposed as a related service for Delilah, the absence of such service cannot be linked to any delays in the proposal of Delilah’s 2023-2024 IEP.

[52] See Michael D.M., 2004 U.S. Dist. LEXIS 17400, at *12; Murphy,22 F.3d at 1196.

[53] See Anderson, 477 U.S. at 249; Medina-Munoz, 896 F.2d at 8.

[54] See Medina-Munoz, 896 F.2d at 8.

[55] See Anderson, 477 U.S. at 249; Mack, 871 F.2d at 181.

[56] See Anderson, 477 U.S. at 249; Medina-Munoz, 896 F.2d at 8.

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

Updated on August 19, 2024

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