COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Arlington Public Schools
BSEA# 25-03543
RULING ON ARLINGTON PUBLIC SCHOOLS’ MOTION FOR DIRECTED VERDICT
This matter comes before the Hearing Officer on the Motion for Directed Verdict (Motion) filed by Arlington Public Schools (Arlington or the District) at the close of Parents’ case in the above-noted matter on November 15, 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 case is reviewed in detail in my prior rulings in the matter and need not be repeated here. Following one and a half days of hearing, the District moved for a directed verdict on the following claims at the close of the Parents’ case:
- Whether Arlington Public Schools violated Student’s rights under IDEA and MGL c. 71B by failing to find Student eligible prior to February 2023;
- Whether Arlington Public Schools violated Student’s rights under IDEA and MGL c. 71B by failing to propose IEPs and placements during the period of February 2023 until the filing of the complaint that were/are reasonably calculated to provide Student with a FAPE.
II. DISCUSSION
To determine whether Parents’ claims survive the District’s Motion, I apply the directed verdict standard to the relevant substantive law.
- Legal Standards
- 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. Although BSEA Hearing Officers are not bound by the Rules of Civil Procedure, they are often consulted for guidance. 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,” and it 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.”
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.”[1] 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.”[2] For inferences to be considered reasonable, they must be based on “probabilities rather than possibilities,” and not the result of “mere speculation and conjecture.”[3]
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.”[4] 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.
- Child Find
The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”[5] As such, “state and federal laws require schools to identify children who qualify as disabled or whom the schools reasonably suspect may qualify as disabled, experience adversity in educational performance due to their disability, and need special education and related services by reason of their disability.”[6] Pursuant to 20 U.S.C. §1412(a)(3), “The State must have in effect policies and procedures to ensure that . . . all children with disabilities residing in the State, . . . regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated” 34 C.F.R. §300.111(a)(1)(i) .”
Similarly, Massachusetts special education law requires each school district to “identify the school age children residing therein who have a disability, . . . diagnose and evaluate the needs of such children, propose a special education program to meet those needs, provide or arrange for the provision of such special education program, maintain a record of such identification, diagnosis, proposal and program actually provided and make such reports as the department may require.”[7]
Although a parent may trigger a school district’s child find obligation by indicating, explicitly or nonexplicitly, [8] a need for special education services or requesting an evaluation of her child, a parent need not make such a referral, as the “obligation applies to a school district regardless of whether the parent (or anyone else on behalf of the student) has actually requested special education eligibility or services.”[9] Child find does not, however, require a school district to evaluate a student whose parent has not requested such evaluation, even if the district is aware of the student’s disability, if the district has insufficient reason to believe the disability has an adverse impact on the student’s educational performance, such that the student needs special education and related services because of the disability.[10] The IDEA’s child find provision does not “demand that schools conduct a formal evaluation of every struggling student.”[11] “A school’s failure to diagnose a disability at the earliest possible moment is not per se actionable, in part because some disabilities ‘are notoriously difficult to diagnose ….’”[12] To establish a violation of the child find requirement, plaintiffs “must show that school officials overlooked clear signs of disability and were negligent in failing to order testing, or that there was no rational justification for not deciding to evaluate.”[13]
- 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).[14] To provide a student with a FAPE, a school district must follow identification, evaluation, program design, and implementation practices that ensure that each student with a disability receives an IEP that is: custom tailored to the student’s unique learning needs; “reasonably calculated to confer a meaningful educational benefit”; and ensures access to and participation in the general education setting and curriculum as appropriate for that student so as “to enable the student to progress effectively in the content areas of the general curriculum.”[15] 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.”[16] This means that to the maximum extent appropriate, a student must be educated with other students who do not have disabilities, and that “removal . . . from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services, cannot be achieved satisfactorily.”[17] “The goal, then, is to find the least restrictive educational environment that will accommodate the child’s legitimate needs.”[18]
An IEP must be individually tailored for the student for whom it is created.[19] When developing the IEP, the Team must consider parental concerns; the student’s strengths, disabilities, recent evaluations, and present level of achievement; the academic, developmental, and functional needs of the child; and the child’s potential for growth.[20] Evaluating an IEP requires viewing it as “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.”[21]
At the same time, a FAPE does not require a school district to provide special education and related services that will maximize a student’s educational potential.[22] In Endrew F., the SupremeCourt explained that appropriate progress will look different depending on the student.[23] An individual analysis of a student’s progress in his/her areas of need is key.[24] The educational services provided to a student, therefore, need not be, “the only appropriate choice, or the choice of certain selected experts, or the child’s parents’ first choice, or even the best choice.”[25] Although parental participation in the planning, development, delivery, and monitoring of special education services is central in IDEA, MGL c. 71B, and corresponding regulations,[26] school districts are obligated to propose what they believe to be FAPE in the LRE, “whether or not the parents are in agreement.”[27]
When parents elect to place a student unilaterally in a private school notwithstanding the availability of a FAPE through the school district, parents retain responsibility for the cost of that education.[28] However, parents who enroll a student in a private school without the consent of or referral by the school district may obtain reimbursement if a hearing officer finds both that the school district “had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate” for the student.[29]
Parents are entitled to reimbursement for a private placement if (1) the school district’s proposed placement violated the IDEA, (2) the parent’s alternative private placement was appropriate, and (3) equitable considerations favor reimbursement.[30] In other words, parents may be entitled to reimbursement for their unilateral placement if, after demonstrating that the district’s proposed IEP and placement were not appropriate, they demonstrate that their chosen placement was appropriately responsive to the student’s needs. To be reimbursed, parents’ chosen placement need not meet state standards for special education schools, provided that the school chosen by the parents is “otherwise proper” under the IDEA or “appropriately responsive to [the child’s] special needs.”[31] Hence, the review of the private placement “is more informal than review of the original IEP: a private placement need not meet the IDEA requirement for a FAPE.”[32]
- 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 Parents in the instant matter are appearing g pro se. According to the First Circuit Court of Appeals, complaints filed by pro se parties should be construed liberally.[33] “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.[34] 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.[35] 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.
- Child Find
In their Hearing Request, Parents assert that Arlington failed to identify Student in September 2022 as a child with a disability requiring special education and related services. In its Motion, Arlington contends that Parents have offered no evidence to support this claim. The testimony provided during Parents’ case in chief, together with the documentary evidence, including email communications between Parents and school staff, may prove to be sufficient for them to meet their burden on this claim. As such, I cannot say with certainty that at the time Arlington 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.
- FAPE
In their Hearing Request, Parents contend that the IEPs proposed for Student from February 2023 until her unilateral placement for the 20224-2025 school year were not reasonably calculated to provide her with a FAPE. In its Motion, Arlington argues that Parents have produced no evidence to demonstrate that these IEPs were anything but appropriate to meet Student’s needs. Although the testimony provided prior to the Motion alone may be insufficient to meet their burden on Parents’ FAPE claims, written documents admitted into evidence may demonstrate that Student’s reading and health needs were not properly addressed during the relevant time period. Therefore, I cannot say with certainty that at the time Arlington 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.[36]
III. CONCLUSION
At the time Arlington made its oral Motion for Directed Verdict, the testimony of Parents’ one witness had been heard, however a significant amount of documentary evidence from both parties had been admitted into evidence. For the reasons above, I find that it would be premature to dismiss Parents’ claims without careful consideration of the totality of the evidence, which requires a detailed review.
ORDER
Arlington’s Motion for Directed Verdict is hereby DENIED.
By the Hearing Officer:
/s/ Alina Kantor Nir
Alina Kantor Nir
Date: November 18, 2024
[1] Alholm v. Wareham, 371 Mass. 621, 627 (1976) (quoting DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 514 (1974)).
[2] 361 Mass. 341, 343 (1972)
[3] Alholm, 371 Mass. at 627 (internal citations omitted).
[4] 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)).
[5] 20 U.S.C. §1400 (d)(1)(A).
[6] Doe v. Cape Elizabeth Sch. Dep’t, 382 F. Supp. 3d 83, 87 (D. Me. 2019) (internal quotation marks and citation omitted). Section 504 of the Rehabilitation Act of 1973 (Section 504) also requires a school district to “establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards.” 34 C.F.R. §104.36. Under Section 504, as under the IDEA, school districts have continuing child find obligations “to identify and evaluate all students who are reasonably suspected of having a disability.” P.P. ex rel. Michael P. v. West Chester Area Sch. Dist., 585 F.3d 727, 738 (3d Cir. 2009).
[7] MGL c. 71B, §3.
[8] See Robertson Cnty. Sch. Sys. v. King, 99 F.3d 1139, 1996 WL 593605, at *4 (6th Cir. 1996) (quoting, with approval, the administrative law judge’s explanation that “a parent who is a neophyte to special education and is unacquainted with IDEA cannot be expected to appear and say ‘My child is eligible for special education services under IDEA, and I am here to refer my child for an individual assessment,'” and continuing, “A request for assessment is implied when a parent informs a school that a child may have special needs”).
[9] In Re: CBDE Public Schools, BSEA #106854 [18 MSER 147] (Crane, 2011); see Bd. of Educ. v. L.M., 478 F.3d 307, 313 (6th Cir. 2007) (“Even children who are only suspected of having a disability, although they are progressing from grade to grade, are protected by [child find] requirement”); W.B. v. Matula, 67 F.3d 484, 501 (3d Cir. 1995) (abrogated on other grounds by A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (3rd Cir. 2007)) (child find requires school district to identify and evaluate children “who are suspected of having a qualifying disability” within a reasonable time after the district is “on notice of behavior that is likely to indicate a disability”); Dep’t of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 (D. Haw. 2001) (child find duty is triggered when school district “has reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability”).
[10] See Cape Elizabeth Sch. Dep’t, 382 F. Supp. 3d at 99; Mr. I. ex rel. L.I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 13 (1st Cir. 2007).
[11] D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012).
[12] Id. (quoting A.P. ex rel. Powers v. Woodstock Bd. of Educ., 572 F. Supp. 2d 211, 226 (D. Conn. 2008)).
[13] Ja.B. v. Wilson Cnty. Bd. of Educ., No. 3:20-CV-00955, 2022 WL 326273, at *9 (M.D. Tenn. Feb. 2, 2022), report and recommendation adopted (Apr. 28, 2022), aff’d, 61 F.4th 494 (6th Cir. 2023) (internal quotations and citations omitted).
[14] Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 (d)(1)(A).
[15] See 20 USC §1401 (9), (26), (29); 603 CMR 28.05(4)(b); C.D. v. Natick Pub. Sch. Dist., No. 18-1794, at 4 (1st Cir. 2019) (quoting Fry v. Napoleon Community Schools, 137 S. Ct. 743, 748-749 (2017)); Sebastian M. v. King Philip Reg’l Sch. Dist., 685 F.3d 84, 84 (1st Cir. 2012); Lessard v. Wilton Lyndeborough Cooperative Sch. Dist., 518 F. 3d 18 (1st Cir. 2008); C.G. v. Five Town Comty. Sch. Dist., 513 F. 3d 279 (1st Cir. 2008); In Re: Chicopee Public Schools, BSEA # 1307346 (Byrne, 2013).
[16] 20 U.S.C § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i); M.G.L. c. 71 B, §§ 2, 3; 603 CMR 28.06(2)(c).
[17] 20 U.S.C. 1412(a)(5)(A); C.D., 924 F. 3d at 631 (internal citations omitted).
[18] C.G., 513 F.3d at 285.
[19] Endrew F. v. Douglas Cty. Reg’l Sch. Dist., 137 S. Ct. 988, 1001 (2017).
[20] 34 CFR §300.324(a)(i-v); Endrew F., 137 S. Ct. at 999; D.B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012); N. Reading Sch. Comm. v. Bureau of Special Educ. Appeals, 480 F. Supp. 2d 479, 489 (D. Mass. 2007) (“The First Circuit has characterized the federal floor, which defines the minimum that must be offered to all handicapped children, as providing a meaningful, beneficial educational opportunity, and that court has stated that a handicapped child’s educational program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”) (internal citations and quotations omitted).
[21] Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).
[22] Bd. of Educ. v. Rowley, 458 U.S. 176, 197, n.21 (1982) (“Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education”); see N. Reading Sch. Comm., 480 F. Supp. 2d at 488 (“The focus of inquiry under 20 U.S.C. § 1415(e)(i) must recognize the IDEA’s modest goal of an appropriate, rather than an ideal, education”).
[23] Endrew F., 137 S. Ct. at 992; see 603 CMR 28.02(17).
[24] Endrew F., 137 S. Ct. at 1001 (“The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue”); see K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 809 (8th Cir. 2011) (explaining that the court would not compare the student to her nondisabled peers since the key question was whether the student made gains in her areas of need).
[25] G.D. Westmoreland Sch. Dist., 930 F.2d 942, 948-949 (1st Cir. 1991).
[26] Rowley, 458 U.S. at 208(“Congress sought to protect individual children by providing for parental involvement … in the formulation of the child’s individual educational program”).
[27] In Re: Natick Public Schools, BSEA #11-3131 (Crane, 2011).
[28] See 34 CFR §300.148.
[29] 34 CFR §300.148(c). See 20 USC §1412(a)(10)(C)(ii); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 243 (2009) (explaining that §1415(i)(2)(C)(iii) authorizes “reimbursement when a school district fails to provide a FAPE and a child’s private school placement is appropriate”).
[30] See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 (1993) (parents are entitled to reimbursement only if federal court concludes public placement violated IDEA and private placement was proper, and the court is to consider all factors in fashioning equitable relief); see also Roland M. v. Concord Sch. Comm., 910 F.2d 983, 1000 (1st Cir. 1990) (“In the typical situation, reimbursement must be denied to the parents if the school system proposed and had the capacity to implement an appropriate IEP”) (internal quotations and citations omitted); Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 349 (1985) (parents may be reimbursed for private special education if court ultimately determines private placement was proper).
[31] Florence Cnty. Sch. Dist. Four, 510 U.S. at 14; see Matthew J. v. Mass. Dep’t. of Educ., 988 F. Supp. 380, 391 (1998).
[32] H.W. v. New York State Educ. Dep’t, No. CV 13-3873 SIL, 2015 WL 1509509, at *19 (E.D.N.Y. Mar. 31, 2015); see Florence Cnty. Sch. Dist. Four, 510 U.S. at 14–15 (“Nor do we believe that reimbursement is necessarily barred by a private school’s failure to meet state education standards…. Indeed, the school district’s emphasis on state standards is somewhat ironic. …[It] hardly seems consistent with the Act’s goals to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to meet the child’s needs in the first place”) (internal citations and quotations omitted).
[33] See Ahmed v. Rosenblatt, 118 F.3d 996, 890 (1st Cir. 1997).
[34] Id.
[35] Id.
[36] 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 Student were not reasonably calculated to provide her with a FAPE.