COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Student v. Lincoln-Sudbury Regional School District
BSEA # 2402356
RULING ON LINCOLN-SUDBURY REGIONAL SCHOOL DISTRICT’S MOTION TO DISMISS
This matter comes before the Hearing Officer on Lincoln-Sudbury Regional School District’s Motion to Dismiss (District or Lincoln-Sudbury) filed on September 8, 2023. seeking dismissal of Parent’s complaint on the grounds of lack of subject matter jurisdiction (Motion).
On September 19, 2023, Parent, who is pro se, indicated via email that she would not be responding to 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 District’s Motion to Dismiss is hereby ALLOWED.
RELEVANT FACTS AND PROCEDURAL HISTORY:
For the purpose of this Ruling, I consider the factual allegations in the Hearing Request to be true, as well as all reasonable inferences in Parent’s favor:
- Student is a 12th grade resident of Sudbury, Massachusetts. He is currently being home schooled and is attending “Middlesex Community College to complete his high school requirements.”
- Prior to being home-schooled, Student attended an in-District program pursuant to an IEP which included “accommodations for ADHD [and] emotional support.”
- According to Parent, Student “was not able access the curriculum at [school] despite efforts made by the school, [and] his emotional needs were not met.” Student was “labelled as having school avoidance.” Even when in school, he struggled to attend class.
- In the fall semester of 2022, Student received failing grades in math, chemistry, and economics.
- Parent filed the instant appeal on September 5, 2023. In her complaint, she asserted that the District was “trying to band aid the symptoms by providing inappropriate supports” or “cookie cutter” solutions, such as proposing an out-of-district placement. Parent further contended that Student received failing grades due to inappropriate supports offered by the District and asks, as relief, that “the F’s [sic] be reverted [sic] to ‘incomplete’, because [Student’s] disability prevented him from finishing the coursework.”
- Legal Standard for Motion to Dismiss
Hearing Officers are bound by the BSEA Hearing Rules for Special Education Appeals (Hearing Rules) and the Standard Rules of Adjudicatory Practice and Procedure, 801 CMR 1.01. Pursuant to Rule XVII (A) and (B) of the Hearing Rules and 801 CMR 1.01(7)(g)(3), a Hearing Officer may allow a motion to dismiss if the party requesting the hearing fails to state a claim upon which relief can be granted. These rules are analogous to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As such, Hearing Officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim, which require the fact-finder to make a determination based on a complaint or hearing request alone.
To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.” The hearing officer must take as true “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor.” These “[f]actual allegations must be enough to raise a right to relief above the speculative level.”
- Jurisdiction of the Bureau of Special Education Appeals
The IDEA at 20 U.S.C. § 1415(b)(6) grants the Bureau of Special Education Appeals (BSEA) jurisdiction over timely filed complaints 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.” In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter 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.” A parent of a student with a disability may also request a hearing on any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973….” However, 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.”
APPLICATION OF LEGAL STANDARDS:
I note at the outset that “[d]ismissal of an IDEA due process claim must be approached with caution  especially when the party opposing dismissal is appearing pro se.”
After reviewing the Hearing Request in the light most favorable to Parent, as I am required to do, I find that her claims are outside the jurisdiction of the BSEA and must therefore be dismissed with prejudice. My reasoning follows.
In this matter, the District argues that
“the requested relief for the student who is not enrolled in [Lincoln-Sudbury], is to change his failing grades to incomplete grades. While the parents complain that their son was unable to get back on track, or successfully access his classes, prior to withdrawing from [Lincoln-Sudbury], they make no procedural violation assertion, such as the team failed to convene, or that efforts were not made by the team and/or other teachers and administrators to support [Student] in school. …[T]he Parents here do not specify a procedural protection that was violated by the district….They do not now seek a publicly funded change in placement to a DESE approved program …. Instead, they simply seek a change to the transcript, based on [Student’s] receipt of better grades from another private educational program, secured for [Student] a home-schooled student. Failing to assert a procedural violation and/or denial of FAPE related to their claim, the BSEA has no jurisdiction.”
The District cites to a recent ruling by Hearing Officer Amy Reichbach, In re: Bobby v. Hingham Public Schools, BSEA #2311739. There, Parents alleged that their child “was denied the opportunity to choose credit/no credit grades for his sophomore year,” but they did “not challenge [the] IEP, nor [did] they contend that [the student] was denied a FAPE” or “identify a procedural protection applicable to students with disabilities that [the student] was denied, much less argue that any such procedural inadequacies constituted a violation of his right to a FAPE.” Hearing Officer Reichbach concluded that the BSEA lacked subject matter jurisdiction over the claim because “[a]ccess to a particular form of grading (i.e., credit/no credit) is not a procedural protection guaranteed by state or federal special education law.”
The facts in the instant matter differ somewhat from those in In re: Bobby in that, there, Parents made no reference to the District’s violations of Student’s substantive or procedural rights regarding a FAPE, whereas, in the instant case, Parent alleges that Student received failing grades because of inappropriate supports offered by the District. Nevertheless, I agree with Hearing Officer Reichbach that the BSEA is not the proper forum for grade challenges. As in In re: Bobby, the relief sought is simply unavailable at the BSEA. Specifically, Parent asks that “the F’s [sic] be reverted [sic] to ‘incomplete’, because [Student’s] disability prevented him from finishing the coursework.” Even if the factual allegations in the Hearing Request are true, and I make all reasonable inferences in Parent’s favor, as I am required to do, I could not order the relief Parent seeks. Therefore, dismissal is warranted.
The District’s Motion to Dismiss is hereby ALLOWED. The Hearing scheduled to begin October 10, 2023 is cancelled.
By the Hearing Officer:
/s/ Alina Kantor Nir
Alina Kantor Nir
Dated: September 20, 2023
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF FINAL BSEA ACTIONS AND RIGHTS OF APPEAL
Effect of BSEA Decision, Dismissal with Prejudice and Allowance of Motion for Summary Judgment
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Similarly, a Ruling Dismissing a Matter with Prejudice and a Ruling Allowing a Motion for Summary Judgment are final agency actions. If a ruling orders Dismissal with Prejudice of some, but not all claims in the hearing request, or if a ruling orders Summary Judgment with respect to some but not all claims, the ruling of Dismissal with Prejudice or Summary Judgment is final with respect to those claims only.
Accordingly, the Bureau cannot permit motions to reconsider or to re-open either a Bureau decision or the Rulings set forth above once they have issued. They are final subject only to judicial (court) review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. This means that the decision must be implemented immediately even if the other party files an appeal in court, and implementation cannot be delayed while the appeal is being decided. Rather, a party seeking to stay—that is, delay implementation of– the decision of the Bureau must request and obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” while a judicial appeal of the Bureau decision is pending, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program.”
Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement while judicial proceedings are pending must ask the court having jurisdiction over the appeal to grant a preliminary injunction ordering such a change in placement. Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Elementary and Secondary Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a final agency action by the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing
Company, 898 F.2d 1371 (8th. Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
 See Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).
 Iannocchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
 Blank, 420 Mass. at 407.
 Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) (internal quotation marks and citations omitted).
 See 34 C.F.R. §300.507(a)(1).
 Limited exceptions exist that are not here applicable.
 603 CMR 28.08(3)(a).
 See 29 U.S.C. 794 (Section 504 of Rehabilitation Act); 34 CFR 104.
 In Re: Georgetown Pub. Sch., BSEA # 1405352 (Berman 2014).
 In Re: Student & Natick Public Schools (Ruling on Motion to Dismiss), BSEA # 16-11011 (Berman, 2016)
 Iannocchino, 451 Mass. at 636; Blank, 420 Mass. at 407.
 In re: Bobby v. Hingham Public Schools (Ruling on Motion to Dismiss), BSEA #2311739 (Reichbach, 2023).
 See, e.g., R.S., No. EDS 2168-00, 2000 WL 558892, at *3 (EFPS Apr. 18, 2000) (“this dispute concerning the contents of R.S.’s pupil records does not appear to involve issues properly asserted in an impartial ‘due process hearing’”); Bristol Borough School District, 1459, 40 IDELR 227 (SEA PA 2004) (“A hearing officer cannot be a roving dispute resolution mechanism for any complaint of a student with a disability”); Fairfax County Public Schools, 38 IDELR 275 (SEA VA 2003) (“The remedy the parent is requesting in this proceeding, changing [Student]’s grades, is in the nature of a mandatory injunction, which seeks to alter the status quo” and as such was not a remedy the hearing officer could order); Hacienda La Puente Unified Sch. Dist., 27IDELR885 (SEA CA 1997) (concluding there was no jurisdiction over a dispute concerning credits earned by learning disabled student, as the process for challenging credits or grades was separate from special education “due process hearings”); Houston Indep. Sch. Dist., 26IDELR 817 (SEA TX 1997) (concluding there was no jurisdiction under the IDEA to order a school district to amend portions of pupil records).
 See Blank, 420 Mass. at 407.
 The relief Parent seeks is distinct; she does not seek a finding that the District denied Student a FAPE nor does she request compensatory services. See M.A. v. Wall Twp. Bd. of Educ., No. CV 20-05218 (FLW), 2021 WL 5448911, at *7 (D.N.J. Nov. 22, 2021) (agreeing that a due process hearing is an improper venue for a request to change grades, but distinguishing a case involving a dispute over whether a plaintiff received grade changes pursuant to their IEP); see also Swope v. Cent. York Sch. Dist., 796 F. Supp. 2d 592, 604 (M.D. Pa. 2011) (where Plaintiff’s complaint alleged that Plaintiff’s standardized test achievements were not commensurate with his satisfactory school grades, Plaintiff’s mother repeatedly requested a re-evaluation of Plaintiff’s learning services, Plaintiff’s academic success declined dramatically beginning in the seventh grade, Plaintiff demonstrated poor test results and a high absence rate in ninth grade, Plaintiff’s GPA and class rank plummeted during his ninth and tenth grade years, and the District refused to make changes in Plaintiff’s educational program despite the fact that Plaintiff repeated eleventh grade, “[t]hese averments do more than simply recite the elements of an IDEA claim. Combined with allegations that the District failed to recognize the failures of Plaintiff’s special education program and failed to provide an updated psychological evaluation or develop an appropriate IEP, they represent an allegation of factual content that allows the court to make a reasonable inference that the Defendant failed to provide Plaintiff with a FAPE in violation of the IDEA. In short, the complaint sets forth a plausible IDEA claim and Defendant’s motion will be denied in this regard”); Sept. 23,.
 See Ruling on Marshfield Public Schools’ Motion to Dismiss, BSEA # 2305747 (Kantor Nir, 2023).