COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Parent and Student v. Springfield Public Schools,
BSEA #2309351
RULING ON PARENT’S AND STUDENT’S REQUEST FOR A PUBLIC HEARING
This matter comes before the Hearing Officer on the Parent’s and Student’s Request for a Public Hearing (Public Hearing Request) filed as part of a pleading entitled “Notice of Public Hearing/Change of Venue/Reasonable Accommodation Request” with the BSEA on April 4, 2023[1]. Specifically, Parent and Student “1. [] respectfully request to inform the parties that the Plaintiff’s (sic) are asserting our right to hold a public hearing in BSEA 2309351 pursuant to IDEA §300.512(c) (sic) ‘Parental rights at hearings. Parents involved in hearings mut be given the right to … (2) open the hearing to the public’”.
On June 16, 2023[2], Springfield Public Schools (Springfield or District) filed its Response to the Public Hearing Request, seeking to have the Public Hearing Request denied, or, if not, that the “Hearing Officer should inquire into whether [Student] is knowingly and voluntarily relinquishing his privacy rights when Parent invokes the right to a public hearing in this matter”.
According to the District, in a previous matter between the same Parties (known as “Ollie II[3]”), Parent had also sought a public hearing, which was conditionally allowed by that Hearing Officer, provided that at the start of that hearing on the merits, both Parent and Student made a knowing and voluntary waiver of privacy and other related rights associated with the request to open the hearing to the public. Thereafter, after completing a colloquy with that Hearing Officer of such “knowing and voluntary waiver”, that Hearing Officer determined that Student did not so make a “knowing and intelligent waiver”. As such, the hearing in that matter was closed to the public.
The District argues, therefore, that since Ollie II involved the same parties as those in the instant matter, Parent’s and Student’s current request to open the hearing to the public should also be denied. Alternatively, the District contends that the same conditional approval and “knowing and voluntary waiver” process should be applied to Parent and Student in the instant proceeding.
For the reasons articulated below, Parent’s and Student’s Public Hearing Request is ALLOWED with conditions.
DISCUSSION[4]
In accordance with the IDEA, parents and students over the age of 18 who retain some or all educational decision-making rights have the right to request an impartial due process hearing “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”[5]. At the choice of the parents (and student if appropriate), such an impartial due process hearing can be open to the public[6]. Massachusetts defers to the federal law with regard to this right. Notwithstanding this right, the IDEA and its regulations also require that due process hearings maintain student confidentiality, as do the Family Educational Records Privacy Act (FERPA) and the Massachusetts student record laws and regulations[7].
The BSEA has previously addressed requests for an open hearing, including, as noted supra, in a prior case between the same parties in this matter[8]. While recognizing the parental (and student, if appropriate) right to an open hearing, Hearing Officers, including the undersigned, have imposed certain conditions on how the open hearing would proceed, so as to fulfill their obligation to ensure an orderly presentation of the evidence, and that appropriate decorum and order are maintained during the hearings[9]. I continue to concur with my sister Hearing Officers’ reasoning and analysis in this regard[10].
Based upon the above-cited legal authority, I must defer to Parent’s and Student’s Public Hearing Request despite the risks to Student that may inure from allowing the public to participate in this due process hearing. However, so as to ensure that Parent and Student are making a knowing and voluntary waiver of all confidentiality, privacy and student record protections Parent and Student are otherwise entitled to in a closed hearing, and so as to ensure my ability to maintain appropriate decorum should the public participate in the upcoming virtual hearing, I allow the Public Hearing Request only under certain conditions.
The Public Hearing Request is hereby ALLOWED with conditions as set forth below:
- All attendees are expected to behave with decorum and abide by the instructions read by the Hearing Officer at the beginning of the Hearing. No attendee may record any portion of the Hearing. The transcript and documents admitted in evidence are the official record of the Hearing;
- To ensure that, to the extent possible on an electronic platform, the necessary participants have priority access to the electronic platform, the Parties shall forward to the Hearing Officer and to the stenographer/videoconference administrator the email address of every person they require to be in attendance at the hearing. The Parties will then be informed of the number of remaining “slots” and any other information a member of the public might need to access the Hearing. The Parties may then share that information as they wish;
- All individuals who intend to attend the Hearing for any reason, and for any period of time, must be present at the beginning of the Hearing for identification, equipment check and Hearing Officer instructions. Any person not then present will not be permitted to join later;
- Prior to commencement of the Hearing, and using a separate link that will not be open to the public, Parent and Student shall affirm, orally on the record and in writing, individually, each of their knowing and voluntary requests to open the Hearing to the public; each of their waivers of any confidentiality, privacy and student record rights that Parent and Student would otherwise have as to personally identifiable information under any applicable federal or state statute, regulation, or procedure; each of their waivers of any right to contest or litigate any issue that may arise from intentional or unintended disclosure of Parent or Student’s personally identifiable information by a member of the public; each of their agreements to hold the BSEA, the District and Veritext Legal Solutions and their affiliated personnel and contractors harmless for any publication, dissemination, alteration, use or misuse of their personally identifiable information by a member of the public, and each of their understandings that the loss of confidentiality, privacy and student record rights that occur if the Hearing is open to the public cannot be undone[11].
- After providing the knowing and voluntary waivers orally on the record, and in writing, should Parent and Student wish to proceed with the open hearing, the proceedings will reconvene, and the Hearing will commence using an additional pre-created virtual link that can be shared with the public. A sufficient break period will be provided for this to happen.
- All participants and observers, with the exception of the Hearing Officer, Parent, Student, the District’s attorney, the Stenographer and the testifying witness will be muted at all times, unless otherwise invited to unmute by the Hearing Officer.
- The chat feature on the virtual platform will be disabled. To the extent it is not disabled, no one shall be allowed to use this feature during the Hearing. If anyone needs to address the Hearing Officer during the Hearing, (s)he will find an alternative way outside the virtual hearing platform to message the Parent, Student or District who will inform the Hearing Officer of the message, accordingly.
- The virtual Hearing “host[12]” will be asked to prepare a back-up virtual link that will not be shared with anyone, including the Hearing Officer, unless it is necessary to terminate the open virtual Hearing and reconvene without participation by the public (Back-Up Virtual Hearing). Both Parties will prepare a list of participants, including the email address for each participant, who they would like to attend the Back-Up Virtual Hearing, should it become necessary, and share that with the virtual Hearing “host” at least five (5) business days before the start of the Hearing. The virtual Hearing “host” will be prepared to email these specific participants the back-up virtual link should it be necessary to convene the Back-Up Virtual Hear.
- The Hearing Officer retains sole discretion to determine if or when it is necessary to convene the Back-Up Virtual Hearing in order to ensure the hearing is proceeding in an orderly manner.
So Ordered by the Hearing Officer,
/s/ Marguerite M. Mitchell
Marguerite M. Mitchell
Dated: September 6, 2023
[1] This Request was originally referred to as the “April 4 Notice” in my Ruling on Challenge to Sufficiency of Hearing Request issued on April 18, 2023. As noted at that time, it was dated April 3, 2023, but filed with the BSEA on April 4, 2023. I have previously addressed the “change of venue” and “reasonable accommodation request” aspects of the April 4 Notice in prior Rulings as well as during the May 22, 2023 Conference Call. The instant Ruling, therefore, pertains solely to the “notice of public hearing” request.
[2] In accordance with Paragraph 5 of my May 31, 2023 (revised on June 14, 2023) Ruling on Joint Request to Postpone Hearing), Springfield’s objections to the Public Hearing Request were required to be filed within seven (7) calendar days of my Ruling on Motions to Dismiss, issued on June 12, 2023.
[3] As noted in the Ruling on Motions to Dismiss, Ollie II refers toIn Re: Springfield Public Schools and Ollie, BSEA #2102164.
[4] I have already considered and issued two prior published Rulings (In Re: Dracut Public Schools, BSEA #2207202, Ruling on Parent’s Request for an Open Hearing and For a Court Reporter, 28 MSER 147 (2022) and In Re: North Attleboro Public Schools, BSEA #2308812, Ruling on Parent’s Request for an Open Hearing) addressing requests for an open hearing in separate due process proceedings. I set forth the applicable legal analysis from those matters, here, as it has not changed since I issued either Ruling.
[5] 20 USC 1415(b)(6)(a).
[6] 34 CFR 300.512(c)(2); see 20 USC 1415(f)(1).
[7] 20 USC 1232(g); 34 CFR 300.99 M.G.L. c. 71 §34D; 603 CMR 23.00; see 20 USC 1415(b)(7)(a) and (h)(4)(a); Letter to Schad, 105 LRP 4654 (Family Policy Compliance Office, 2004)“Transcripts’ and exhibits from a[n open IDEA] due process hearing that are maintained by a public school district subject to FERPA qualify as ‘education records’ if they contain information that is directly related to a student”, and the District must obtain written parental consent prior to disclosing the same. See Health Insurance Portability and Accountability Act (HIPAA), Public L. 104-191, providing additional confidentiality protections for any of a student’s medical and health information discussed during due process hearings
[8] In Re: North Attleboro Public Schools, BSEA #2308812, (Mitchell, June 29, 2023); In Re: Dracut Public Schools, BSEA #2207202, 28 MSER 147 (Mitchell, 2022); In Re: Ollie v. Springfield Public Schools, BSEA #21-02164, 27 MSER 33 (Byrne, 2021); Student v. Medford Public Schools, BSEA #20-02451, 26 MSER 40 (Figueroa, 2019).
[9] 603 CMR 28.08(5)(c) states, in pertinent part,
“The Special Education Appeals hearing officer shall have the power and the duty to conduct a fair hearing; to ensure that the rights of all parties are protected;…; to ensure an orderly presentation of the evidence and issues… to take such other steps as are appropriate to assure the orderly presentation of evidence and protection of the parties’ rights at the hearing; to ensure a record is made of the proceedings;…””;
see also Rule IX(B)(15) of the BSEA’s Hearing Rules for Special Education Appeals, advising that one of the powers and duties of Hearing Officers is to “[c]ensure, reprimand, or otherwise ensure that all participants conduct themselves in an appropriate manner.”
[10] As Hearing Officer Figueroa reasoned,
“… the BSEA lacks authority to order anyone not directly connected with the Hearing to abstain from discussing or publishing on social media what they heard at the open hearing. The only way to maximize the likelihood that Student’s confidentiality will be preserved in the context of a BSEA hearing is by holding a closed hearing. Once the hearing is open, Parents must be prepared for the possibility that attendees who are neither employees of [the District] nor the BSEA, may discuss and divulge information related to the open hearing, and the Hearing Officer lacks authority to prevent or sanction said discussions in any context, including internet and/or social media.” Student v. Medford Public Schools, supra.
Similarly, Hearing Officer Byrne explained,
“When a hearing is limited to participants who are actually involved in the day-to-day life of the student and have pertinent knowledge of the history and parameters of the dispute, the Hearing Officer, the Parties and their lawyers may exercise a degree of supervision and/or control over the disclosure of the confidential student and family information that is routinely and necessarily discussed during an IDEA Hearing. For example, unauthorized disclosure of confidential student information by school personnel may result in serious professional consequences. (See e.g., FERPA) [(citation omitted)]. That control evaporates when a hearing is open to the public. And that lack of control over student information and family privacy expands exponentially when sensitive information is available to unknown parties on electronic platforms. The BSEA has no authority to enforce restraints on the recording, duplication, exchange, publication, dissemination, disclosure, alteration, use or misuse of student or family information, images or voices. It is reasonably foreseeable that highly sensitive personal information about [the Student] and the Parent could be made public and could result in significant personal and professional harm. It is doubtful that the framers of the IDEA anticipated the sort of information world in which we currently find ourselves. Nevertheless, the plain language of the governing statute offers no alternative to granting the Parent’s open hearing request.” In Re: Ollie v. Springfield Public Schools, supra.
[11] On July 31, 2023, Parent filed a letter advising that “as of July 28, 2023 I legally have Durable Power of Attorney for my son [ ]”. While the said Power of Attorney (POA) was not attached, I have no reason to doubt that Parent did so obtain this authorization. However, in Massachusetts, I am not aware of any legal ability for POAs to confer educational decision-making authority to a third person on behalf of adult students. Rather, the only way that a student over the age of 18 in Massachusetts can grant educational decision-making authority (which authority includes the right to pursue special education claims on behalf of such adult student] to another person is via the process provided for in 603 CMR 28.07(5), evidence of which is yet to be presented in the instant matter by Parent. See 20 USC 1415(m)(1)(B) (A State… may provide that, when a child with a disability reaches the age of majority under State law …all other rights accorded to parents under this subchapter transfer to the child”); 603 CMR 28.07(5) (“When the student reaches 18 years of age, he or she shall have the right to make all decisions in relation to special education programs and services…. The parents will continue to receive written notices and information but will no longer have decision-making authority, except as provided in 603 CMR 28.07(5)(a) through (c)”); see also Fed. R. Civ. P. 17(b) (state law governs who can sue or be sued); Cody through Szabo v. Kenton Cnty. Pub. Sch., No. 220CV103WOBCJS, 2023 WL 1952791, at *7 (E.Dist. Ky., 2023) (“[w]hether the Szabos can act in a representative capacity on behalf of [their sons] is governed by Kentucky state law”); In Re: Nelson and Taunton Public Schools – BSEA # 108142, 17 MSER 267 (Byrne, 2011) (dismissal not warranted although the parent only had a POA, not educational decision-making authority for her adult student, as the claims were wholly related to when that student was a minor. However, “[w]ere the hearing to result in an order for current special education services to the Student [i.e., claims after Student turned 18], the school would require the Student’s consent to participate consistent with the procedures set out at 603 CMR 28.07(5)”); compare Charlotte-Mecklenburg Schools Board of Education, 119 LRP 20683, (NC, 2018) (A Parent can proceed with an IDEA claim on behalf of her adult son in North Carolina (NC) based upon NC statutory language that specifically authorizes an adult student to “designate[], in writing, by power of attorney or similar legal document, another competent adult to be the student’s agent to receive notices and to participate in meetings and all other procedures related to the student’s educational program”. … Most [states], however, do not entail the power of attorney delegation as in this case” (emphasis added). Similarly, privacy rights under FERPA are subject to state laws, and a Parent’s right to continued access to an adult students’ educational records exist by virtue of 603 CMR 28.07(5) only, which law makes no mention of POAs. 603 CMR 28.07(5); See Letter to Anonymous 110 LRP 51087 (FPCO, 2010) (“while a school may provide the parent with access to the student’s education records as holder of a power of attorney, the law [FERPA] does not require the school to provide access to anyone other than the eligible student”. However, while the federal law does not provide this right, some state laws may provide this right).
[12] In this matter the virtual “host” will be the Stenographer.