In Re: Isa[1] BSEA #25-00461


COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Isa[1]                                                                    

BSEA #25-00461

RULING ON HINGHAM PUBLIC SCHOOLS’ MOTION FOR DIRECTED VERDICT

          This matter comes before the Hearing Officer on the Motion for Directed Verdict (Motion) filed by Hingham Public Schools (Hingham or the District) at the close of Parents’ case on September 25, 2024. Said Motion was denied orally the same day on the record, and the reasons for such denial are expanded in this Ruling. For the reasons set forth below, the District’s Motion for Directed Verdict is DENIED.

I.       FACTUAL BACKGROUND AND RELEVANT PROCEDURAL HISTORY

The factual and procedural history of this matter is reviewed in detail in my Ruling on Parents’ Motion to Reconsider and Parents’ Motion to Vacate or Quash Subpoenas issued on September 17, 2024, as well as my Ruling on Hingham Public Schools’ Motion to Compel, Hingham Public Schools’ Motion to Postpone, and Parents’ “Emergency Motion” to Delay Submission of Documents issued on September 19, 2024. Following three days of hearing, at the close of Parents’ case, the District moved for a directed verdict on the following claims:

  1. Whether Hingham violated Isa’s right to a FAPE by failing to implement a fully accepted, expired IEP during the 2022-2023 school year, up to and including February 28, 2023;
  2. Whether Hingham failed to propose IEPs reasonably calculated to provide Isa with a FAPE during the 2022-2023 school year beginning February 28, 2023, and if so, whether Parents are entitled to compensatory services;
  3. Whether Hingham failed to propose IEPs reasonably calculated to provide Isa with a FAPE during the 2023-2024 school year; and
    1. If so, whether the Inly School is appropriate for Isa; and
    2. If so, whether Parents are entitled to reimbursement for their placement of Isa at Inly; and/or
  4. Whether Hingham committed procedural violations during the relevant time period that amounted to a deprivation of a FAPE.

II.  DISCUSSION

Parents’ claims largely fall into three categories that will be discussed as follows: the failure to implement claim (A); the failure to provide a FAPE claims (B) and (C); and the procedural violation claim (D). To determine whether Parents’ claims survive the District’s Motion, I shall apply the directed verdict standard to the relevant substantive law.

          A.      Legal Standards

  1. Motion for Directed Verdict

801 C.M.R. §1.01(7)(g)(1), applicable to Bureau of Special Education (BSEA) proceedings, permits a Respondent to move to dismiss a case, upon completion of the presentation of the Petitioner’s evidence, on the ground that upon the evidence, or the law, or both, the Petitioner has not established her case.[2]

A motion for a directed verdict may be granted “only where, construing the evidence most favorably to the plaintiff, it is still insufficient to support a verdict in his favor.”[3] In evaluating the evidence, the finder of fact must also consider reasonable inferences that may be drawn therefrom. The standard, as articulated by the Supreme Judicial Court of Massachusetts in Raunela v. Hertz Corporation, is whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.”[4] For inferences to be considered reasonable, they must be based on “probabilities rather than possibilities,” and not the result of “mere speculation and conjecture.”[5]

In the context of a case before the BSEA, which requires proof by a preponderance of the evidence, the standard is “whether, at the conclusion of Parent’s case, the evidence, construed most favorably to Parent, is insufficient to support a conclusion that the preponderance of the evidence favored Parent’s position.”[6] To determine whether to enter a directed verdict as to any of Parents’ claims, I must consider the substantive and procedural law governing this matter.

  1. FAPE and Unilateral Placement

The Individuals with Disabilities Education Act (IDEA) was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE].”[7] FAPE is delivered primarily through a child’s Individualized Education Program (IEP), which must be tailored to meet a child’s unique needs after careful consideration of the child’s present levels of academic achievement and functional performance, disability, and potential for growth.[8] As summarized by the United States Supreme Court in Endrew F. v. Douglas County School District, the IEP must “describe how the child’s disability affects the child’s involvement and progress in the general education curriculum, and set out measurable annual goals, including academic and functional goals, along with a description of how the child’s progress toward meeting those goals will be gauged.”[9] “To meet its substantive obligation under the IDEA, a [district] must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[10] The goals of all students should be “appropriately ambitious . . . just as advancement from grade to grade is appropriately ambitious for most students in the regular classroom.”[11]

Similarly, Massachusetts FAPE standards require that an IEP be “reasonably calculated to confer a meaningful educational benefit in light of the child’s circumstances,”[12] and designed to permit the student to make “effective progress.”[13] Evaluating an IEP requires viewing it as a “a snapshot, not a retrospective. In striving for ‘appropriateness, an IEP must take into account what was . . . objectively reasonable . . . at the time the IEP was promulgated.’”[14]

Under state and federal special education law, a school district has an obligation to provide the services that comprise FAPE in the least restrictive environment that will “accommodate the child’s legitimate needs.”[15]

Under the IDEA, parents may seek reimbursement from a school district for the cost of a unilateral placement made in response to the district’s failure to propose an appropriate IEP.[16] To prevail on such a claim, parents must prove that the IEP that was proposed at the time of the unilateral placement was not reasonably calculated to provide the child with a FAPE and that their chosen placement was appropriate for the student.[17]

  1. Implementation

Where an IEP has been accepted, the analysis shifts to implementation.[18] “To provide a free and appropriate public education to a student with disabilities, the school district must not only develop the IEP, but it also must implement the IEP in accordance with its requirements.”[19] The United States District Court for the District of Massachusetts has linked the failure to implement an IEP to the failure to permit a student to benefit educationally – or in other words, to provide a FAPE.[20] In a subsequent case, the United States District Court for the District of Puerto Rico relied on the generally adopted standard articulated by the Fifth Circuit in Houston Independent School District v. Bobby R., requiring “more than a de minimis failure” to prevail on an implementation claim under the IDEA.[21] The court summarized the analysis as follows:

. . . a court reviewing failure-to-implement claims under the IDEA must ascertain whether the aspects of the IEP that were not followed were “substantial or significant,” or, in other words, whether the deviations from the IEP’s stated requirements were “material.” A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child’s IEP. This standard does not require that the child suffer demonstrable educational harm in order to prevail; rather, courts applying the materiality standard have focused on the proportion of services mandated to those actually provided, and the goal and import (as articulated in the IEP) of the specific service that was withheld.[22]

The ColonVazquez Court adopted the approaches endorsed by the U.S. Courts of Appeals for the Fifth, Eighth, Ninth, and Eleventh Circuits, as well as the U.S. District Court for the District of Columbia, and is appropriate to follow here as the First Circuit has yet to address this question.[23]

  1. Procedural Violations

The United States Supreme Court has noted that the importance Congress attaches to procedural safeguards in the IDEA “cannot be gainsaid.”[24] States and local education agencies must ensure that students with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a FAPE.[25] Where a party alleges procedural violations, the Hearing Officer may find that the student did not receive a FAPE only if the procedural violations: (1) impeded the child’s right to a FAPE (2) significantly impeded the parents’ opportunity to participate in the decision-making process; or (3) caused a deprivation of educational benefits.[26]

“The fact that a school may have committed a procedural error . . .  does not automatically render an IEP legally defective and therefore does not automatically constitute a violation of the IDEA.”[27] However, flagrant procedural violations that cause a negative impact on an IEP’s ability to adequately deliver an appropriate education are considered a denial of a student’s right to a FAPE.[28]

B.      Analysis

To determine whether each of the challenged claims survives the District’s Motion, I must determine whether the evidence and reasonable inferences that may be drawn therefrom, construed in the light most favorable to Parents, is sufficient to support a decision in their favor by a preponderance of the evidence on each required element of that claim.

In analyzing Parents’ claims, I bear in mind that at the time Hingham made the instant Motion orally, Parents were representing themselves before the BSEA.[29] According to the First Circuit Court of Appeals, complaints filed by pro se parties should be construed liberally.[30] “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.[31] 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.[32] Although the instant Motion was made after the close of Parents’ evidence rather than on their initial pleadings, in keeping with this principle I exercise particular caution before dismissing Parents’ claims prior to adjudication.

  1. Implementation (Claim A)

In their Hearing Request,Parents assert that Hingham failed to implement a fully accepted IEP during the 2022-2023 school year. Specifically, Parents argue that the District’s documentation and data do not demonstrate that Isa received all push-in services and accommodations provided in her IEP. In its Motion, Hingham contends that Parents have offered no evidence to support this claim, and moreover, that to the extent Isa missed services toward the end of the school year, it was due to her extended absence from school. Although the testimony provided during Parents’ case in chief, alone, is insufficient for them to meet their burden on this claim, it is possible that a careful review of the accommodations listed in Isa’s 2022-2023 IEP, in combination with Parents’ exhibits, might demonstrate otherwise. As such, I cannot say with certainty that at the time Hingham made its Motion, the evidence and inferences that might be drawn therefore, construed liberally in the light most favorable to Parents, could not support a decision in Parents’ favor.

  1. FAPE (Claims B and C)

In their Hearing Request, Parents contend that the IEPs proposed for Isa for the remainder of the 2022-2023 school year (beginning in February 2023) and for the 2023-2024 school year were not reasonably calculated to provide her with a FAPE. In its Motion, Hingham argues that Parents have produced no evidence to demonstrate that these IEPs were anything but appropriate to meet Isa’s needs. Although the testimony provided prior to the Motion did not support Parents’ FAPE claims, written documents admitted into evidence demonstrate that Isa’s emotional and behavioral presentation shifted at some point during the 2023-2024 school year, and that Parents (and possibly also Isa’s substitute teacher) believed she needed additional accommodations and services to make effective progress. Therefore, I cannot say with certainty that at the time Hingham made its Motion, the evidence and inferences that might be drawn therefrom, construed liberally in the light most favorable to Parents, could not support a decision in Parents’ favor on their FAPE claims.[33]

  1. Procedural Violations (Claim D)

Parents assert that Hingham committed procedural errors during the relevant time period, impeding Isa’s right to a FAPE and Parents’ ability to participate fully in the decision-making process. Particularly, at the time the District moved for a directed verdict, Parents were focused on their contention that a Team meeting was held in their absence. According to the District, at the time it moved for a directed verdict, Parent had provided no evidence to support this claim. Parents’ only witness testified that Parents voluntarily left a Team meeting because they were unhappy that a particular school administrator was in attendance; that this meeting was then held in Parents’ absence; and that a second Team meeting to cover the same material was convened so that Parents could participate. To determine whether any procedural errors occurred that impacted Isa’s ability to access a FAPE and whether Parents, in fact, were able to participate fully in the decision-making process, I must review all evidence carefully, including notes from both Team meetings, and make credibility determinations. As such, I cannot say with certainty that at the time Hingham made its Motion, the evidence and inferences that might be drawn therefrom, construed liberally in the light most favorable to Parents, could not support a decision in Parents’ favor on their claim regarding procedural violations.

III.      CONCLUSION

At the time Hingham made its oral Motion for Directed Verdict, a significant amount of documentary evidence had been offered by both parties and admitted into evidence, in addition to the testimony of one witness. For the reasons above, I find that it would be premature to dismiss Parents’ claims without careful consideration of all evidence, which requires a detailed review.

ORDER

  1. Hingham’s Motion for Directed Verdict is hereby DENIED.
  1. Written closing arguments, limited to 10 pages, are due by close of business on October 25, 2024, and the record will close on that date.

By the Hearing Officer:[34]

   /s/  Amy Reichbach

Date:  October 22, 2024


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

[2] For guidance in interpreting and applying this standard, I turn to the Rules of Civil Procedure. Mass. R. Civ. P. 50(a) provides that “[a] party may move for a directed verdict at the close of the evidence offered by an opponent.” The language in Fed. R. Civ. P. 50(a) has been updated from “directed verdict” to “judgment as a matter of law,” but essentially permits entry of judgment against a party that has been fully heard on an issue if the finder of fact “would not have a legally sufficient evidentiary basis to find for the party on that issue.”

[3] Alholm v. Wareham, 371 Mass. 621, 627 (1976) (quoting DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 514 (1974)); see Grant v. Carlisle, 328 Mass. 25, 27 (1951).

[4] 361 Mass. 341, 343 (1972); see Stewart v. Acton-Boxborough Regional School District, BSEA # 2101061 (Reichbach 2021).

[5] Alholm, 371 Mass. at 627 (internal citations omitted).

[6] Elizabeth R.L and Worcester Public Schools, BSEA # 062557 (Sherwood 2006); see Student and Worcester Public Schools, BSEA # 094367 (Figueroa 2009) (“decision maker may grant a motion for judgment as a matter of law, including directed verdict, only if the evidence, viewed in the light most favorable to the non-moving party, points so ‘strongly and overwhelmingly’ in favor of the moving party, that a reasonable person could conclude only in favor of that moving party” (internal citations omitted)); see also Stewart v. Acton-Boxborough Regional School District (A motion for a directed verdict may be granted “only where, construing the evidence most favorably to the plaintiff, it is still insufficient to support a verdict in his favor” (internal citations omitted)).

[7] 20 U.S.C. §1400 (d)(1)(A).

[8] See Endrew F. v. Douglas Cty. Reg’l Sch. Dist., 580 U.S. 386, 400 (2017); D.B.  v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012).

[9] Endrew F., 580 U.S. 386 at 391.

[10] Id. at 403.

[11] Id. at 402.

[12]  C.D. v. Natick Pub. Sch. Dist., 924 F.3d 621, 624-25 (1st Cir. 2019) (cert denied).

[13] 603 CMR 28.05(4)(b) (IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”).

[14] Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).

[15] C.G. ex rel. A.S. v. Five Town Comty. Sch. Dist., 513 F.3d 279, 285 (1st Cir. 2008); see 20 USC §1412(a)(5)(A); 34 C.F.R. §300.114(a)(2)(i); M.G.L. c. 71 B, §§ 2, 3; 603 C.M.R. §28.06(2)(c).

[16] 20 U.S.C. §1412(10)(C); see Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 373-374 (1985).

[17] See Burlington, 471 U.S. at 369-70; In Re: Uma, BSEA #2103885 (Reichbach 2021). 

[18] See Colón-Vazquez v. Dep’t of Educ., 46 F. Supp. 3d 132, 143-44 (D. P.R. 2014); In Re: Benjamin, BSEA #2401643 (Reichbach 2024).

[19] Colón-Vazquez, 46 F. Supp. 3d at 144; see Doe v. Hampden-Wilbraham Reg’l Sch. Dist., 715 F. Supp. 2d 185, 198 (D. Mass. 2010).

[20] See Doe, 715 F. Supp. 2d at 198; see also Ross v. Framingham Sch. Comm., 44 F. Supp. 2d 104, 118 (D. Mass. 1999) (“when presented with a claim that a school district failed to implement a student’s IEP, a district court must determine whether the alleged failure to implement the IEP deprived the student of her entitlement to a ‘free appropriate public education,’ as defined under the applicable federal and state prescriptions”).

[21] See Colón-Vazquez, 46 F. Supp. 3d at 143 (Under Houston Indep. Sch. Dist. v. Bobby R., “to prevail on a claim under the IDEA, a party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP”) (citing 200 F.3d 341, 349) (5th Cir. 2000), cert denied, 531 U.S. 817 (2000)).

[22] Id. (citing and quoting Van Duyn v. Baker Sch. Dist., 502 F.3d 811, 822 (9th Cir. 2007) and Garmany v. District of Columbia, 935 F. Supp. 2d 177, 181 (D. D.C. 2013); see Van Duyn, 502 F.3d at 815 (“We hold that when a school district does not perform exactly as called for by the IEP, the district does not violate the IDEA unless it is shown to have materially failed to implement the child’s IEP”).

[23] See In Re: Benjamin; Quinelle v. Nashoba Regional School District, BSEA # 2009112 (Reichbach 2021); Stewart v. Acton-Boxborough Regional School District. See also Doucette v. Jacobs, 2022 WL 2704482 at *13 (D. Mass 2022) (citing Colon-Vazquez with approval).

[24] Bd. of Educ. v. Rowley, 458 U.S. 476, 205 (1982). 

[25] See Roland M., 910 F.2d at 987.

[26] See 20 U.S.C. §1415(f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2); Doe ex rel. Doe v. Attleboro Public Schools, 960 F. Supp. 2d 286, 295 (2013); Roland M., 910 F.2d at 994.

[27] Gonzalez v. Puerto Rico Dep’t of Educ., 969 F. Supp. 801, 804 (D.P.R. 1997); see Roland M., 910 F.2d at 994.

[28] See A.M. v. Monrovia, 627 F.3d 773, 779 (9th Cir. 2010).

[29] Since that time, an Advocate filed a Notice of Appearance on Isa’s behalf, and he represented Parents for the remaining days of the Hearing.

[30] See Ahmed v. Rosenblatt, 118 F.3d 996, 890 (1st Cir. 1997); Ollie v. Springfield Public Schools, BSEA # 2004776 (Reichbach 2020).

[31] See Ahmed, 118 F.3d at 890; Ollie v. Springfield Public Schools.

[32] See Ahmed, 118 F.3d at 890; Ollie v. Springfield Public Schools.

[33] I do not address the unilateral placement aspect of Parents’ FAPE claims, as I will not reach this issue unless I find, after the completion of the Hearing, that the IEPs proposed for Isa during the 2023-2024 school year were not reasonably calculated to provide her with a FAPE.

[34] The Hearing Officer gratefully acknowledges the diligent assistance of legal intern Sophie Rudloff in the preparation of this Ruling.

Updated on October 22, 2024

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