COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Student v. Mendon-Upton Regional School District
BSEA# 25-04547
RULING ON THE PARENT’S MOTION FOR HEARING OFFICER’S RECUSAL
This matter comes before the Hearing Officer on the Parent’s November 12, 2024 Parent’s Motion for Hearing Officer’s Recusal. As grounds thereof, Parent asserts that “the motion is [for] failure to consider my hearing request sent on 11/8/24, which I believe demonstrates bias against me.” On November 14, 2024, Mendon-Upton Regional School District filed an Opposition to Parent’s Motion to Recuse the Hearing Officer, asserting that the “sole
reason for the Request for Recusal is based on dissatisfaction with Hearing Officer Nir’ s
ruling on November 12, 2024. The substance of the Parent’s Motion contains no reason
whatsoever for Hearing Officer Nir to consider recusal.”
Specifically, on October 28, 2024, Parent filed a due process complaint with the Bureau of Special Education Appeals (BSEA)alleging that the District had “failed to maintain the privacy and safety of my child on numerous occasions, and also has failed to uphold her 504 plans as written on multiple occasions.” According to the Hearing Request, Student “is not safe in this school district, and the only solution is for the BSEA to find in her favor and require the district to pay for transportation and tuition to a private school of our choice that will uphold her 504 plan.” According to Parent, Mendon-Upton failed to “[m]aintain confidentiality of our children, as evidenced by two privacy violations for [Student] by improper e-mail disclosure”; “[m]aintain privacy and safety of [Student], as evidenced by two violations of the district’s photo release policy where pictures of children were distributed to third parties and on public social media sites”; “[p]rovide accommodations as set forth on their 504-plans”; “[p]rovide safe transportation to and from school, as evidenced by them being dropped off at a neighbor’s house on 10/22/24”; and the “attorney for the district has failed to maintain confidentiality for [Student], as evidenced by a privacy violation by improper email disclosure.”
On November 8, 2024, Mendon-Upton Regional School District (Mendon-Upton or the District) filed aMotion to Dismiss in which the District sought dismissal of all claims relative to confidentiality violations and safe transportation for lack of subject matter jurisdiction. Also on November 8, 2024, Parent wrote to the Hearing Officer:
“Please accept this as my formal request for a hearing on the matter regarding removing counsel from the case. [District’s Counsel] was unable to maintain confidentiality for my daughter in a past case. She references your response denying my request. At the time, that request was not accompanied by a hearing request to determine the matter. I believe there is merit to this request, as both the district and its counsel should be held to standards ensuring the safety and privacy of students; MURSD and their counsel have failed to do this. I believe it is a violation of my right to due process hearing and my child’s right to privacy to continue with [District’s Counsel] representing the district. You will note she did not deny that she is unable to maintain confidentiality nor that the district is able to do so. Please find in favor of my child’s safety and grant the request for hearing on this matter.” (hereinafter, Parent’s Motion for District’s Counsel’s Recusal)
On November 12, 2024, I issued Ruling on Mendon-Upton Regional School District’s Motion to Dismiss, finding that Parent’s claims that Mendon-Upton failed to “[m]aintain confidentiality of our children, as evidenced by two privacy violations for [Student] by improper e-mail disclosure”; “[m]aintain privacy and safety of [Student], as evidenced by two violations of the district’s photo release policy where pictures of children were distributed to third parties and on public social media sites”; “[p]rovide safe transportation to and from school, as evidenced by them being dropped off at a neighbor’s house on 10/22/24”; and the “attorney for the district has failed to maintain confidentiality for [Student], as evidenced by a privacy violation by improper email disclosure” should be dismissed with prejudice.
Also on November 12, 2024, Parent emailed the Hearing Officer asking, “Did you receive my request for hearing on that matter, sent 11/8/24?” The Hearing Officer responded, “I misunderstood your request. You wanted a hearing on the motion?” Parent responded, “Yes, I requested a hearing and sent you and [District’s Counsel] an email. Let me know if that changes anything.” The Hearing Officer responded, “Unfortunately, a hearing on the motion would not change my position on the issues.”
Neither party[1] has requested a hearing on the Motion For Hearing Officer’s Recusal, and I find that a hearing is not needed because it would not likely advance my understanding of the issues.[2]
For the reasons articulated below, Parent’s Motion for Hearing Officer’s Recusal is DENIED.
LEGAL STANDARDS AND APPLICATION OF LEGAL STANDARDS:
The standards for qualification as a BSEA Hearing Officer are set out in the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq ) and the federal special education regulations implementing said statute, as well as the state regulations implementing the state special education statute (MGL c. 71B). Specifically, 20 U.S.C. §1415(f)(3) states:
A hearing officer conducting a hearing pursuant to paragraph (1)(A) shall, at a minimum-
(i) not be-
–(I) an employee of the State educational agency or the local educational agency involved in the education or care of the child; or
–(II) a person having a personal or professional interest that conflicts with the person’s objectivity in the hearing;
(ii) possess knowledge of, and the ability to understand, the provisions of this title [20 USCS §§ 1400 et seq.), and legal interpretations of this title [20 USCS §§ 1400 et seq.] by Federal and State courts;
(iii) possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and
(iv) possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.[3]
Similarly, Massachusetts special education regulations provide that hearings shall be conducted by impartial hearing officers who do not have personal or professional interests that would conflict with their objectivity in the hearing and who are employed to conduct those proceedings.[4]
Either party may file a motion for recusal.[5] As explained below, the determination whether to recuse herself must be made by the subject hearing officer. Faced with such a motion, a Hearing Officer must engage in a two-part analysis of whether impermissible bias exists. The first part of this analysis requires that the Hearing Officer examine her conscience and emotions to determine whether she could preside over the matter free from prejudice.[6] The second part requires the Hearing Officer to make an objective, fact-based inquiry as to whether there exists a reasonable basis for the moving party’s concerns regarding her ability to be fair and impartial.[7] In the absence of either of these circumstances, a Hearing Officer should not recuse herself.
Underlying these standards are “twin” policy concerns: first, that courts and administrative agencies “must not only be, but must seem to be, free of bias or prejudice . . . [which requires that] the situation . . . be viewed through the eyes of the objective person,” and second, “that a judge [or hearing officer] once having drawn a case should not recuse himself on an unsupported, irrational, or highly tenuous speculation; were he to do so, the price of maintaining the purity of appearance would be the power of litigants or third parties to exercise a negative veto over the assignment of judges.”[8] However, when a litigant is pro se or “when the motion is advanced by a person unfamiliar with, or traditionally disadvantaged by, a complicated administrative due process system,” arguments in opposition to recusal “such as prevention of ‘judge shopping’, promotion of efficiency in case management and conservation of scarce administrative resources while legitimate, and in some instances compelling, do not override the need for close and thoughtful examination of possible factors supporting recusal.”[9]
I begin this analysis by making an objective, fact-based inquiry as to whether there exists a reasonable basis for the moving party’s concerns regarding my ability to be fair and impartial.[10] I will then examine my conscience and emotions to determine whether I could preside over the matter free from prejudice.[11] I will conclude by assessing whether there may be, in this matter, an appearance of impartiality.[12]
1. There are No Objective Bars to My Service as a Hearing Officer in This Matter.
There is no allegation by the Parent that I do not possess the minimum qualifications necessary for employment as a specialized Hearing Officer pursuant to 20 U.S.C. §1415(f)(3). In fact, my qualifications amply meet the minimum requirements for a BSEA Hearing Officer. Therefore, disqualification on the basis of professional qualifications is not warranted.
In addition, the Parent has not alleged, nor is there any reasonable support for finding, the existence of any objective factor that would require recusal. I have no current or historical familial, professional or financial connection to any party, potential witness, public entity or counsel in this matter.
Therefore, I find that recusal is not warranted on the basis of objective factors.
2. There are No Subjective Factors Impeding My Service as a Hearing Officer in This Matter.
To determine whether she is truly capable of conducting an unbiased, impartial due process proceeding, the Hearing Officer must examine her own emotions and conscience. I have made this examination. I approach every appeal, including the one at issue, with compassionate neutrality. Here, I do not have any impermissible bias or prejudgment, and I am capable of fairly presiding over this matter without prejudice to either party and of rendering a decision based solely on the evidence presented and the applicable law.
Therefore, I find that recusal is not warranted on the basis of subjective factors.
3. There is No Reasonable Basis to Support an Appearance of Impartiality on My Part in the Present Matter.
Because recusal standards seek to uphold the “appearance of impartiality” in addition to actual impartiality, I must also consider the perspective of the public outside of the actual controversy, as well as the views of the litigants. A Hearing Officer’s impartiality might reasonably be questioned by the public if there is a pattern of hostile or abusive behavior targeting one party. However, the facts offered to support recusal must show “what an objective knowledgeable member of the public would find to be a reasonable basis.”[13] In other words, “[c]onsiderations of ‘impartiality’ in the context of a motion to disqualify a hearing officer have both a purely factual component and an objective ‘reasonable person’ component.”[14]
Here, Parent offers no objective facts to support her request for recusal. That I did not consider the Parent’s Motion for Counsel’s Recusal, filed on November 8, 2024, when issuing my Ruling on the District’s Motion to Dismiss on November 12, 2024, is not evidence of bias. These two motions, one filed by the District and the other by Parent, are subject to distinct and separate legal standards. In addition, Parent did not request that her Motion for Counsel’s Recusal be addressed together with the District’s Motion to Dismiss. As no ruling has yet to be issued on Parent’s Motion for Counsel’s Recusal, Parent has not been prejudiced by my actions to date, and the grounds for her request for recusal (that is, my alleged “failure to consider my hearing request sent on 11/8/24, which I believe demonstrates bias against me”) are unavailing. Moreover, Parent will have an opportunity for a motion hearing, per her request, at a soon-to-be-determined mutually agreeable date and time.
In light of this, I cannot find on this record that a reasonable member of the public could point to any factor or circumstance causing doubt as to my impartiality.[15] For the reasons described above, recusal of the undersigned Hearing Officer in the above-referenced matter is neither necessary nor appropriate.
ORDER:
Parent’s Motion for Hearing Officer’s Recusal is hereby DENIED. The parties are instructed to provide their availability for a motion hearing on Parent’s Motion for District’s Counsel’s Recusal by the close of business day on November 18, 2024.
So Ordered,
By the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir
Date: November 15, 2024
[1] The Hearing Officer emailed Parent on November 13, 2024 at 9:05AM to clarify whether Parent was seeking a hearing on this Motion. Parent did not respond.
[2] See BSEA Hearing Rule VI D.
[3] See also 34 CFR 300.511(c).
[4] 603 CMR 28.08(3).
[5] See BSEA Hearing Rule VI A.
[6] See Lena v. Commonwealth, 369 Mass. 571, 575 (1976).
[7] See Haddad v. Gonzalez, 410 Mass. 855, 862 (1991); Lena, 369 Mass. at 575 (internal citations omitted).
[8] In Re United States, 666 F.2d 690, 694 (1st Cir. 1981).
[9] In Re: Duxbury Public School and Ishmael (Ruling on Parent Motion to Recuse), BSEA #09-1986 (Byrne, 2008); see also Marblehead Public Schools, BSEA# 02-2828 (Crane, 2002); Malden Public Schools, BSEA# 05-4355 (Beron, 2005).
[10] See Haddad v. Gonzalez, 410 Mass. 855, 862 (1991); Lena, 369 Mass. at 575 (internal citations omitted).
[11] See Lena v. Commonwealth, 369 Mass. 571, 575 (1976).
[12] See In Re: Danvers Public Schools (Ruling on Parent’s Motion for recusal of Hearing Officer), BSEA #1701031 (Oliver, 2017).
[13] See 28 U.S.C. § 455(a).
[14] In Re: Danvers Public Schools (Ruling on Parent’s Motion for recusal of Hearing Officer), BSEA #1701031 (Oliver, 2017).
[15] In Re United States, 666 F.2d at 695.