COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Dracut Public Schools
BSEA # 2312210
RULING ON THE DRACUT PUBLIC SCHOOLS’ MOTION TO CLOSE RECORD AND PROCEED TO CLOSING ARGUMENT ON THE THREE (3) REMAINING ISSUES
AND
THE DRACUT PUBLIC SCHOOLS’ MOTION TO QUASH SUBPOENA FOR SUPERINTENDENT STEVEN STONE
This matter comes before the Hearing Officer on The Dracut Public Schools’ Motion to Close the Record and Proceed to Closing Argument and The Dracut Public Schools’ Motion to Quash Subpoena for Superintendent Steven Stone (Motion to Close Record and Motion to Quash, and, together, the Motions) filed on September 6, 2023 requesting that “the Hearing Officer order that the record be closed and that the parties proceed directly to closing argument on the three (3) remaining issues in the above-captioned matter” and that the Hearing Officer “quash [the] subpoena for Superintendent Steven Stone [as he] has no information to share on this matter relevant to the issues at hearing.” On September 7, 2023, Parent objected to the Motions.
Neither party has requested a hearing on the Motion. Because neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).
For the reasons set forth below, The Dracut Public Schools’ Motion to Close the Record and Proceed to Closing Argument is DENIED. The Dracut Public Schools’ Motion to Quash Subpoena for Superintendent Steven Stone is ALLOWED.
PROCEDURAL HISTORY AND RELEVANT FACTS:
On August 16-17, 25, and 26, 2023, the Parties participated in a Hearing in the above-referenced matter regarding the following issues:
- Whether Dracut’s proposed 504 Plan is appropriate;
- Whether the District failed to meet with Parent to amend Student’s 504 Plan in violation of the procedural requirements of Section 504;
- Whether the District retaliated against Parent by ‘taking back’ the 504 Plan and insisting that Parent provide additional documentation of Student’s diagnosis;
- Whether the District failed to implement accepted portions of Student’s 504 Plan;
- Whether Dracut failed to investigate the March 2023 sexual assault incident, and, if so, whether such failure denied Student a FAPE; and
- Whether the District retaliated and discriminated against her in violation of Section 504 of the Rehabilitation Act following her due process filing by seeking to extend the timeline for investigation of the sexual assault incident.
The matter is scheduled to continue on September 21 and 22, 2023. The issues remaining for hearing pursuant to the Hearing Officer’s Second Revised Order Relative to Hearing dated August 28, 2023, are:
- Whether, in violation of Section 504 of the Rehabilitation Act of 1973, the District discriminated and retaliated against Parent for requesting a 504 Plan and advocating for Student:
- By deleting “accounts and private emails in the Class Dojo App after [Parent] requested them in Discovery and before a ruling was [issued] on the matter” and failing to abide by Parent’s ADA accommodations of “need[ing] to have printed copies [ of documents] in order to be sure [she] didn’t miss impot1ant information”; and,
- By “[t]ransfer[ing] the [investigation of Student’s alleged sexual assault] from Title IX investigator Joanna Garneau to Vice Principal Wojcik knowing the parent had an open Bullying rep01i against her”, “intimidate[ing] [Student],” and “forg[ing] documents” relative to this investigation.
- Whether the District failed to provide Student a FAPE due to the limitations of the Aspen system by proposing a 504 Plan with incorrect names and incomplete list of attendees.
- Whether the District was negligent in using the Aspen system as such use “caus[es] a violation of 504 amongst many other violations.”
LEGAL STANDARDS:
1. Close of the Record.
BSEA Hearing Rule IX(E) states, in part, that the record is formally closed when additional submissions permitted by the Hearing Officer, (i.e. documents; written closing arguments), if any, are received by the Hearing Officer, or upon the date such documents or arguments are due, whichever comes first. Once the record is closed, absent waiver or consent, the Hearing Officer “ordinarily may not receive additional factual information of a kind not susceptible to judicial notice unless it fully reopens the record and animates the panoply of evidentiary rules and procedural safeguards customarily available to litigants.”[1]
Moreover, pursuant to BSEA Hearing Rule IX(B), the Hearing Officer has the duty to conduct a fair hearing; administer the oath or affirmation to witnesses testifying at the hearing; to ensure that the rights of all parties are protected; to define issues; to receive and consider all relevant and reliable evidence; to ensure an orderly presentation of the evidence and issues; to ensure a record is made of the proceedings; and to reach a fair, independent, and impartial decision based on the issues and evidence presented at the hearing and in accordance with the law. After consultation with the parties and consideration of the proposed evidence, the Hearing Officer may place reasonable limits on the presentation of evidence to prevent undue delay, waste of time, or needless presentation of cumulative evidence[2]; assist all those present in making a full statement of the facts in order to bring out all the information necessary to decide the issues involved and to ascertain the rights of the parties[3]; ensure that each party has a full opportunity to present its case orally, or in writing, and to secure witnesses and evidence to establish its claims[4]; and regulate the presentation of the evidence and the participation of the parties for the purpose of ensuring an adequate and comprehensible record of the proceedings.[5]
2. The BSEA’s Authority to Quash Subpoenas.
According to BSEA Hearing Rule VII(C):
“A person receiving a subpoena may request that a Hearing Officer vacate or modify the subpoena. A Hearing Officer may do so upon a finding that the testimony or documents sought are not relevant to any matter in question or that the time or place specified for compliance or the breadth of the material sought imposes an undue burden on the person subpoenaed.”[6]
In a motion to quash under the Federal Rules,
“the movant has the burden of demonstrating that the material sought by the subpoena is privileged or protected, or that production would result in an undue burden. The subpoenaing party has the burden of establishing that the requested information is relevant to its claims or defenses. The scope of discoverable information is governed by Rule 26, which allows discovery of items reasonably calculated to lead to the discovery of admissible evidence.”[7]
Whether a subpoena subjects a witness to undue burden
“usually raises a question of the reasonableness of the subpoena, requiring a court to balance the interests served by demanding compliance with the subpoena against the interests furthered by quashing it. This process of weighing a subpoena’s benefits and burdens calls upon the trial court to consider whether the information is necessary and whether it is available from any other source, which is obviously a highly case specific inquiry and entails an exercise of judicial discretion.”[8]
APPLICATION OF LEGAL STANDARDS:
1. Motion to Close Record is Denied.
Dracut argues that the Hearing Officer should order that the record be closed and proceed directly to closing argument on the three (3) remaining issues. As reasons therefore, the District states that
“adequate testimony over four (4) days has already been taken and relevant exhibits have already been submitted on the remaining issues such that additional testimony is not necessary and is not likely to produce additional relevant evidence…. Five (5) District staff members and the Parent testified. Both parties submitted extensive exhibit books. In addition to providing testimony regarding the six (6) original issues, the witnesses were also questioned by the Parent regarding the three (3) remaining issues to the extent that further examination of the witnesses would solely result in duplicative evidence. It is not likely that further testimony from any of the witnesses will produce additional relevant evidence on the remaining issues. The Parent’s witness list does not contain any new witnesses, but rather contains three (3) District staff who have already testified, and the Superintendent.”
The District correctly notes that the Hearing Officer has the authority under Rule IX(B)(4) to “place reasonable limits on the presentation of evidence to prevent undue delay, waste of time, or needless presentation of cumulative evidence.” Nevertheless, the Hearing Officer declines to exercise her authority in such extreme manner as sought by the District in the instant matter.
Parent must have the opportunity to present her case fully. The August 28, 2023 Second Revised Order Relative to Hearing states that “[u]pdated exhibits and witness lists are due at the close of business day on September 14, 2023.” Although Parent submitted her witness list on September 5, 2023, she may still choose to supplement her exhibits and witness lists. In addition, the Hearing Officer cannot presume that Parent’s questioning of the witnesses will be repetitive or duplicative nor that it would not produce additional relevant evidence on the remaining issues.[9] Therefore, Dracut’s Motion to Close is hereby DENIED.
However, Parent will not be allowed to pursue needless, cumulative, or repetitive testimony during the two additional days of Hearing. Parent should strongly consider which witnesses she, in fact, requires at the Hearing and be judicious in whom she calls to testify.
2. Motion to Quash is Allowed.
Whether Superintendent Stone should be compelled to attend and testify at the hearing depends on whether his testimony is relevant to the issues remaining for hearing. Dracut asserts that because the Superintendent has no personal information on any of the issues, his testimony would be irrelevant and an undue burden. In response, Parent asserts that she
“believe[s] that many of [her] questions regarding Aspen can better be, if not only be answered by Superintendent Steven Stone. The area and [her] questioning of him will be focused on the Aspen Program and the issues listed in [issues b. & c.]. [Parent] feel[s] his testimony is necessary to clarify many issues brought to light by his staff in previous testimony.”
I remind Parent that her global grievances and systemic concerns with the Dracut Public Schools are not before me. Parent seeks Superintendent Stone’s testimony on the following issues: Issue b. Whether the District failed to provide Student a FAPE due to the limitations of the Aspen system by proposing a 504 Plan with incorrect names and incomplete list of attendees; and Issue c. Whether the District was negligent in using the Aspen system as such us “caus[es] a violation of 504 amongst many other violations.” Superintendent Stone has had no direct contact with Student and is not a member of her 504 Team. He has never observed Student in school nor has Parent suggested that he ever reviewed Student’s educational record. As such, he would not be able to testify about what a FAPE would entail for Student nor regarding the impact, if any, of the “limitations of the Aspen system” on her ability to access a FAPE. In addition, Superintendent Stone would not have any information about the 504 Plans proposed as he was not involved in their drafting or revision. For these reasons, Dracut’s Motion to Quash is ALLOWED.
ORDER:
The Dracut Public Schools’ Motion to Close the Record and Proceed to Closing Argument is hereby DENIED. The Dracut Public Schools’ Motion to Quash Subpoena for Superintendent Steven Stone is hereby ALLOWED.
So ordered,
By the Hearing Officer,
s/ Alina Kantor Nir
Alina Kantor Nir
Date: September 8, 2023
[1] Lussier v. Runyon, 50 F.3d 1103, 1105–06 (1st Cir. 1995).
[2] BSEA Hearing Rule IX(B)(4).
[3] BSEA Hearing Rule IX(B)(5).
[4] BSEA Hearing Rule IX(B)(6).
[5] BSEA Hearing Rule IX(B)(7).
[6] See also Fed. R. Civ. P. 45 (d)(3).
[7] Jee Fam. Holdings, LLC v. San Jorge Children’s Healthcare, Inc., 297 F.R.D. 19, 20 (D.P.R. 2014) (internal citations and quotations omitted).
[8] Vesper Mar. Ltd. v. Lyman Morse Boatbuilding, Inc., No. 2:19-CV-00056-NT, 2020 WL 877808, at *1 (D. Me. Feb. 21, 2020) (internal citations and quotations omitted).
[9] In fact, in her objection to the Motion to Close Record, Parent states, in part:
“I have many questions regarding the Aspen program and its support and maintenance. Not only have I not asked these questions but none of the witnesses in attendance could answer the few questions that I did ask. Principal Drohan wasn’t even able to say what page or where the document imports the errors from and said she had no idea.”