COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Student v. Old Colony Regional Vocational Technical Public School
BSEA # 24-10548
RULING ON OLD COLONY REG[] VOC[] TECH[] PUBLIC SCHOOL’S
MOTION TO DISMISS/MOTION FOR SUMMARY JUDGMENT
AND ON
[PARENTS’] AMENDED HEARING REQUEST AND SUPPLEMENTAL REQUEST FOR RELIEF
This matter comes before the Hearing Officer on the April 16, 2024 Old Colony Reg[] Voc[] Tech[] Public School’s Motion to Dismiss/Motion for Summary Judgment (Motion to Dismiss and Motion for Summary Judgment, respectively, and together, the District’s Motions) in which the Old Colony Regional Vocational Technical Public School (Old Colony or the District) asserts that “[i]t is not within the purview of the BSEA to order a placement in a particular vocational shop at the parents’ request.”
On April 23, 2024, Parents filed [Parents’] Opposition To Old Colony’s Motion To
Dismiss/Motion For Summary Judgment (Opposition) asserting that the District has not
“[met] their burden for a dismissal or summary judgment. First,in the case at [b]ar, [Parents have] alleged facts depicting an inequitable and discriminatory selection process that the [District] is utilizing against him for admittance into a shop. Second, [Parents have] alleged facts that this selection process has resulted in the deficient implementation of his IEP and precludes him from making effective progress. Finally, [Parents] assert[] that this [] Hearing Officer can fashion relief under federal or state special education statutes and under [Section] 504.”
On the same day, Parents also filed [Parents’] Amended Hearing Request And Supplemental Request For Relief (Parents’ Motion to Amend) seeking to amend the Hearing Request to request relief above and beyond a change of vocational shop/placement including:
- Compensatory Services designed to assist [Student] in getting caught up with any new [] shop;
- A finding that the [District] has violated section 504 of the Rehabilitation Act by utilizing a selection process that discriminates against [Student];
- An order that Old Colony place [Student] in an out of district vocational school, at their expense, should they not have the ability to place him in an appropriate shop reflective of his IEP and disability; and
- Order that the [District] pay all the [Parents’] attorney fees and costs associated with this action.”
On April 24, 2024, the District filed Old Colony Reg[] Voc[] Tech[] Public Schools’ Opposition to Parents[‘] Amended Hearing Request and Supplemental Request for Relief (District’s Opposition).
Neither party has requested a hearing on the District’s Motions or on Parents’ Motion to Amend. 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 DENIED. The District’s Motion for Summary Judgment is also DENIED. Parents’ Motion to Amend is ALLOWED.
PROCEDURAL HISTORY:
On March 28, 2024, Parents filed the instant appeal asserting that the “school’s continuing refusal to place [Student] in a shop that will allow him to make effective progress violates [his] rights to a free and appropriate public education.” Parents requested “a simple transfer to a shop more conducive to [Student’s] disability and needs.”
On April 16, 2024, the District filed its Response to the Hearing Request and the instant Motions in which Old Colony “move[d] to dismiss this matter on the grounds that the Bureau lacks jurisdiction to adjudicate parents’ claims as Parents have failed to state a claim upon which relief can be granted.” In the alternative, the District sought “a Summary Judgment in its favor as a matter of law.” Specifically, Old Colony argued that:
“[i]n this case, [Student] is [] not being excluded from any school programs or shops that are available to all other students. The same process for shop assignments is used for every student, regardless of their regular or special education status. There is a robust IEP in place to provide [Student] with the supports he needs and the school is prepared to provide modifications to [Student]’s shop classes as needed. The parents are not raising any concerns regarding the IEP services in place, and in fact, signed the IEP, accepting it in its entirety.
The parents are seeking for Old Colony to bypass their own process and place [Student] in a shop of their choosing, bypassing any other student that may be on a waitlist, including both regular education and special education students, thus giving [Student] preferential treatment in placement in very popular shops. Absent this, they are requesting that the BSEA order a transfer to [Student]’s preferred shop.
…. The school has offered alternatives to the current shop, and the parents have refused to try a different one if it is not one they prefer.
There is no issue with the current IEP providing [Student] with FAPE. The parents’ stated remedy is simply for the BSEA to order that [Student] be placed in the vocational shop of their choosing due to his special education status.”
On April 24, 2024, Parents filed their Opposition, asserting, in part, that the BSEA has jurisdiction to order placement in a specific shop as
“Old Colony has refused to acknowledge the impact [Student’s] intellectual disability has on his academic skills and has refused to acknowledge the benefit a shop more conducive to a hands on [sic] approach would be for [Student]. This is the exact type of dispute the BSEA qualifies as adjudicating. The BSEA can order a school district to place a child out of the district and in another school if the BSEA finds that the school is not, or cannot, meet the student’s needs. That is a broad and far reaching [sic] order available to the BSEA if needed. To assert that the same BSEA cannot offer relief via a far less burdening measure of simply ordering a different vocational shop placement for a student qualifies as devoid of credibility.”
Moreover, Parents argue that Student
“seeks placement in a shop that will allow him to overcome his intellectual disability by utilizing hands-on learning and relying less on academic acumen. That combination gives him the best chance to meet his IEP goals and accords him the opportunity to make effective progress in the curriculum….”
According to Parents, “the schools [sic] invalidation of [Student’s] disability in assessing his shop eligibility violates section 504 of the Rehabilitation Act.” In addition, Parents assert that Old Colony’s
“reliance on [Student’s] exploratory average from his first semester as the current impediment to placing [Student] in an appropriate shop violates [Student’s] rights to a free and appropriate public education. In support, [Parents point] to the fact that [Student’s] first semester IEP was insufficient and required modifications mid year [sic]. His exploratory average could have, and most likely would have, been higher if he had the proper supports and services in place during the first semester.”
Also on April 24, 2024, the District filed Old Colony Reg[] Voc[] Tech[] Public School’s Opposition to Parents[‘] Amended Hearing Request and Supplemental Request for Relief (District’s Opposition), asserting, in part, that
“There is no dispute here that [Student] has been given full access to the general education curriculum provided by Old Colony. His IEP was developed to ensure that this happens. He also has the same access to shop choices as all of the other students in the program. What Section 504 does not do, is provide a student with a disability preferential treatment for the programming of his choice.”
In response to Parents’ request for “‘compensatory services’ designed to assist [Student] in getting caught up with any new [] shop,” the District argues that there
“is no assertion in any of the Parents’ pleadings that the services and accommodations on his IEP have not been implemented, thus it is unclear under how [sic] the parents believe they are entitled to compensatory services. The services and accommodations are utilized in both the academic weeks and the shop weeks.”
In addition, according to Old Colony, “Any delay in placement in an appropriate shop is due to the Parents’ refusal to consider another shop for [Student] other than the ones they have personally identified as their preferences.” Moreover, Old Colony “does not have the ability to place a student out of district.”
The Initial Hearing Date scheduled in this matter is May 2, 2024.[1]
STATEMENT OF FACTS:
The statement of facts is prepared principally in order to rule on the District’s Motions.
- Student is a resident of Mattapoisett, Massachusetts. He currently attends the ninth grade at Old Colony Regional Vocational Technical High School. (Hearing Request, P-B)
- Student receives special education and related services pursuant to the Intellectual Impairment disability category. Student’s areas of need include Communication, Reading, Writing, and Math. His fully accepted IEP dated 9/21/2023 to 9/20/2024 (as amended on January 5, 2024[2]) includes goals and corresponding services in Academic and Social areas, and calls for a full inclusion placement. Pursuant to this IEP, Student receives numerous accommodations, including “Pair verbal Information with visuals: use models, demonstrations, hand-on activities, checklists, etc.”. The content of the general curriculum is adjusted for Student through “the provision of key concepts and the accompanying elimination of extraneous detail.” In part, the Methodology/Delivery of Instruction is adjusted through “a multisensory delivery (visual, tactile, auditory, kinesthetic) of instruction with spiraling, repetition and over-learning” and includes small group instruction and “chunking instruction”. Academic Support is provided both in and out of the general education classroom “to work on academic skills.” (Hearing Request, P-B, Response)
- Student completed the first semester of the 2023-2024 school year with a B average. (P-E, Response)
- In January 2024, after completing an exploratory period, Student was assigned to the Electronic Engineering Shop. This shop was not one of Student’s top-five shop choices.[3] (Hearing Request)
- On January 12, Parents emailed Principal Michael Parker seeking a transfer for shop on the grounds that
“[t]his shop requires a student to comprehend and synthesize abstract and theoretical concepts. The shop is heavily academic based and, accordingly, students with higher intellectual aptitudes will achieve greater success…. [Student] does not, and cannot, understand the topics presented. He is overwhelmed by the complexities of the subject and has no ability to participate in a meaningful manner [i]n classroom discussions or activities. Further, and just as significant as his academic struggles, [Student] is suffering from acute anxiety attendant to this Shop placement. He has the self awareness [sic] to recognize that he is in a place that he does not belong. Unfortunately, that anxiety has been exacerbated by bullying that he has endured from several shopmates [sic]. Specifically, in this shop, [Student] has been bullied for both his intellectual struggles and his physical appearance. The bullying has increased to the extent necessitating [Parents] to file a police report.” (Hearing Request, P-D).
- Parents believe this shop is “completely inconsistent with [Student’s] IEP and with his Intellectual disability” and that he requires a shop “based on his IEP needs.” They sought a transfer “to one of five shops that rely less on academic and intellectual prowess and, rather, utilize a more hands on learning approach [such as] Automotive, Electrical, Metal Fabrication, Carpentry, and Culinary.” However, Principal Parker indicated that Student’s top “choices” had no space; offered a transfer to Business Technology, Architectural and Engineering Technology, Computer Science or Graphics Communication; and explained that students are moved “around based on what is available and their exploratory averages.” (Hearing Request, P-E, S-2, S-3)
- According to Old Colony,
“Each student at Old Colony attends exploratory shops for the first 8 weeks of the school year, where they rotate through all thirteen vocational shops. At the conclusion of this phase, each student completes a vocational program selection sheet, which ranks the programs of interest from one to thirteen. Old Colony utilizes a rubric for the exploratory program for all students. Both students and parents are provided this this information upon orientation at Old Colony, and it is also on the website….
The rubric takes academics into account, but also looks at engagement, professionalism, employability, safety, workmanship, productivity and attendance. Each area is assigned points. Based upon the points earned, the students are then simply ranked by point values and the highest point earner gets to choose their shop, then the next highest, etc.” (S-1, S-3, Response)
In its communication to all parents, the District states, “Please be aware that we do not guarantee your student’s placement preference for assignment to their permanent vocational program.”[4] (S-1, S-3)
- According to Parents, “exploratory averages” may be used for “regular education students”, but Old Colony “should look into other factors” due to Student’s disability. Specifically, Student’s “IEP, his testing and his strengths mandate that he be in a shop that allows him to utilize his inclination to learn visually and hands on.” In addition, Student’s IEP at the start of the school year was inadequate, and as such, amended in January 2024. This resulted in a lower grade point average. (Hearing Request, P-E, S-4)
- In an email dated February 7, 2024, Principal Parker indicated that Student’s top five choices had no space. He offered a transfer to Business Technology, Architectural and Engineering Technology, Computer Science or Graphics Communication. Parents found these proposals inappropriate and reiterated that Student required a shop that was “conducive to his IEP and how he learns.” (Hearing Request, P-E, S-4, S-5)
- A meeting to address Parents’ concerns was held on February 16, 2024. Present at the meeting were the Principal, the Special Services Coordinator, the Vocational Coordinator, the Business Technology Teacher and Parents. Old Colony reviewed the available shops at that time and shared with Parents the business technology curriculum, explaining that this shop was “live work” and entailed a job-like atmosphere. According to the District, the “Team felt it was a great fit for [Student].” Parents disagreed. (Response, S-5, S-6)
- Parents appealed the shop placement to the Superintendent, but the appeal was “unsuccessful.” (Hearing Request)
LEGAL STANDARDS AND DISCUSSION:
- Jurisdiction of the Bureau of Special Education Appeals (BSEA)
20 U.S.C. § 1415(b)(6) grants the Bureau of Special Education Appeals (BSEA) jurisdiction over timely complaints filed 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.”[5] In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter[6] 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” or on any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973….”[7] 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.”[8]
I. Parents’ Motion to Amend
- Legal Standard For Amending a Hearing Request
The Individuals with Disabilities Education Act (IDEA) requires the party initiating a due process hearing to file a complaint and provide notice of this complaint to the other party and the state educational agency. In part, the complaint must include a description of issue(s), including facts relating to such issue(s) and a proposed resolution to the dispute, to the extent known and available to the party at the time.[9] This provides the opposing party with notice as to the issues for hearing.
BSEA Hearing Rule I(G) allows the moving party to amend the Hearing Request under two circumstances: “1. In response to a Hearing Officer’s determination that a hearing request is insufficient, …[and] 2. If the other party consents in writing, or the Hearing Officer grants permission. (The Hearing Officer may not grant such permission later than five (5) calendar days before the start of the hearing.)”
BSEA Hearing Rule I(G) further states that whenever a Hearing Request is amended, new timelines for the entire process are thereafter calculated, as if the amended hearing request were a new request. Under this Rule, however, to the extent the amendment merely clarifies issues raised in the initial hearing request, the date of the initial hearing request shall be controlling for statute of limitations purposes. For issues not included in the original hearing request, the date of the amended hearing request shall be controlling for statute of limitations purposes.[10]
- Application of Legal Standard.
In the instant matter, Parents seek to amend the relief sought in the initial Hearing Request. Although the District responded substantively to Parents’ Amended Hearing Request and Supplemental Request for Relief, it did not indicate whether it objects to the Motion to Amend.
I note first that Parents’ request was made in a timely manner, more than five (5) calendar days before the start of the hearing. In addition, as Parents’ amendment relies on the same facts alleged in the initial Hearing Request, I find that no undue prejudice will result by allowing Parents’ Motion to Amend. Therefore, Parents’ Motion to Amend is allowed, and new timelines for the process will be calculated, as if the amended hearing request were a new request.
II. The District’s Motion to Dismiss.
- Legal Standard for Motion to Dismiss.
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.”[11] 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.”[12] These “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[13]
- Application of Legal Standard.
Here, Parents claim that the District utilized “an inequitable and discriminatory selection process … against [Student] for admittance into a shop”; “that this selection process has resulted in the deficient implementation of [Student’s] IEP and precludes him from making effective progress”; and, that the Hearing Officer “can fashion [the requested] relief under federal or state special education statutes and under [Section] 504.” The District asserts that that Parents seek no changes to Student’s currently accepted IEP, its goals, accommodations, or services. Rather, Parents ask, in part, that the BSEA “transfer [Student] to a shop more conducive to [Student’s] disability and needs” or, in the alternative, order placement “in an out of district vocational school” and order “compensatory services.”
The District is correct that shop assignment or reassignment is a general education matter over which the BSEA has no jurisdiction.14 Specifically, as relief at the BSEA generally encompasses orders for changed or additional services, specific placements, additional evaluations, reimbursement for services obtained privately by parents or compensatory services, the BSEA is unable to compel Old Colony to place Student in a specific shop.15 After all, it is “well-established that schools, and not parents, have the discretion to assign disabled students to particular classrooms (including general education classrooms) so long as the IEP of a child with disabilities can be implemented in the chosen classroom.”16 Nor are students with disabilities Parents’ argument that placement in a vocational shop is akin to placement in an “out of the district [school] … if the BSEA finds that the school is not, or cannot, meet the student’s needs” and is therefore of the kind of relief that the BSEA offers is unpersuasive. School districts must offer a continuum of alternative placements for students who require special education and related services, and the continuum begins with the regular education classroom and becomes more restrictive at each placement on the continuum.18 Such “restrictiveness” is based on a student’s access to non-disabled peers.19 Because an eligible student’s access to non-disabled peers is substantially similar regardless of his vocational shop assignment, there is no distinction on the continuum between different types of shop classes.20 Placement in a vocational shop is akin to placement in a general education classroom.
Nevertheless, if I accept Parents’ allegations as true for purposes of this Motion to Dismiss and make all reasonable inferences in their favor, as I am required to do, I find that dismissal of this claim, at this stage, is premature; following a Hearing on the merits, should I find that Old Colony could not and cannot implement Student’s IEP in the assigned shop or in any of the District’s proposed shops, I would be unable to order a change in shop (as this would be akin to a Hearing Officer ordering the District to transfer Student from one general education class to another), but I could find that Student requires additional supports and services to enable Student to receive a FAPE in his assigned shop.21 Therefore, Parents’ claim that Old Colony could not and cannot implement Student’s IEP in the assigned shop or in any of the District’s proposed shops, and that, as such, the District did not offer Student a FAPE survives dismissal.
In addition, Parents assert that by relying on Student’s “exploratory average,” the District violated Section 504 of the Rehabilitation Act “by utilizing a selection process that discriminates against [Student]”. As 603 CMR 28.08(3)(a) states that Parents may 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,” this claim is within the purview of the BSEA. Therefore, Parents’ claim that, by relying on Student’s “exploratory average,” the District discriminated against Student in violation of Section 504 also survives dismissal.
As these are the only claims identified in the Hearing Request and in [Parents’] Amended Hearing Request And Supplemental Request For Relief, and said claims survive dismissal, the District’s Motion to Dismiss is DENIED.
III. The District’s Motion for Summary Judgment
- Legal Standard for Summary Judgment.
Pursuant to 801 CMR 1.01(7)(h), summary decision may be granted when there is “no genuine issue of fact relating to all or part of a claim or defense and [the moving party] is entitled to prevail as a matter of law.”22 In determining whether to grant summary judgment, BSEA hearing officers are guided by Rule 56 of the Federal and Massachusetts Rules of Civil Procedure, which provides that summary judgment may be granted only if the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law.”23 A genuine dispute as to a material fact exists if a fact that “carries with it the potential to affect the outcome of the suit” is disputed such that “a reasonable [fact-finder] could resolve the point in the favor of the non-moving party.”24. The moving party bears the burden of proof, and all evidence and inferences must be viewed in the light most favorable to the party opposing summary judgment.25
In response to a motion for summary judgment, the opposing party “must set forth specific facts showing that there is a genuine issue for trial.”26 To survive this motion and proceed to hearing, the adverse party must show that there is “sufficient evidence” in its favor that the fact finder could decide for it.27 In other words, the evidence presented by the non-moving party “must have substance in the sense that it [demonstrates] differing versions of the truth which a factfinder must resolve at an ensuing trial.”28. The non-moving party’s evidence will not suffice if it is comprised merely of “conclusory allegations, improbable inferences, and unsupported speculation.”29
- Application of Legal Standard.
Here, the District’s Motion fails from the outset, as it does not and cannot show the absence of a genuine dispute as to a material fact.. Specifically, although the parties agree that the District relied on Student’s “exploratory grade” as a factor in assigning Student a shop, there is a “genuine” disagreement on the “discriminatory” nature of such reliance in the shop selection process, a fact that is “material” in that its resolution in favor of the non-moving party carries with it the potential to affect the outcome of the appeal.. Similarly, the parties dispute whether Student’s accepted IEP could be implemented in any of the shops proposed by the District. This dispute is “genuine” in that if I find that Student’s IEP could not be implemented in Student’s class, the matter could be resolved in favor of Parents. Therefore, the District’s Motion for Summary Judgment must be DENIED.
ORDER:
Parents’ Motion to Amend is hereby ALLOWED. In accordance with BSEA Hearing Rule I(G), new timelines for the entire process will be calculated, as if the amended hearing request were a new request.
The District’s Motion to Dismiss is hereby DENIED. The District’s Motion for Summary Judgment is also hereby DENIED.
The matter may proceed to Hearing on the following issues:
- Whether by relying on Student’s “exploratory average” the District discriminated against Student in violation of Section 504; and
- Whether Student’s IEP could not be implemented in his shop assignment, and, if so, whether the District denied Student a FAPE?
By the Hearing Officer:
/s/ Alina Kantor Nir
Alina Kantor Nir
Dated: April 24, 2024
[1] Although a date certain has yet to be decided, the parties have indicated their agreement to postpone the matter by a few weeks in order to accommodate a conflict on the part of Parents’ Counsel.
[2] Parents’ Hearing Request notes the date of the Amendment as February 4, 2024. However, Parents’ Exhibit C indicates the date of the Amendment is January 5, 2024.
[3] According to Parents, this was Student’s 9th choice. (P-E, S-2) According to the District, this was Student’s 6th choice. (P-E, S-2, Response)
[4] The email includes a link to the District’s Vocational Technical Program Placement. (S-1)
[5] See 34 C.F.R. §300.507(a)(1).
[6] Limited exceptions exist that do not apply here.
[7] 603 CMR 28.08(3)(a).
[8] In Re: Georgetown Pub. Sch., BSEA #1405352 (Berman, 2014).
[9] See 34 CFR 300.508(b).
[10] BSEA Hearing Rule I(G).
[11] Iannocchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
[12] Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).
[13] Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) (internal quotation marks and citations omitted).
14 See In Re: Hampden-Wilbraham School District, BSEA # 1403110 (Figueroa, 2013); see also In re: Dracut Public Schools (Ruling On Dracut Public Schools’ Motion To Dismiss The Parent’s Request For Hearing And On Parent’s Motion For Counsel’s Recusal), BSEA # 2312210 (Kantor Nir, 2023) (“Parent’s claims relative to “safety” [], the District’s faulty “email system” and Chromebook/online use policies [], the failure of the Superintendent to respond to Parent’s emails and Parent’s inability to participate in-person in a parent-teacher conference [], and the Superintendent’s refusal to change Student’s school [], must be dismissed with prejudice for lack of subject matter jurisdiction”).
15 See, e.g., In re: Dracut Public Schools (Ruling On Dracut Public Schools’ Motion To Dismiss The Parent’s Request For Hearing And On Parent’s Motion For Counsel’s Recusal), BSEA # 2312210 (Kantor Nir, 2023) (“Dismissal of the above claims is also appropriate in this matter as, for relief, Parent wants … a new email address, password, and Student ID number as well as “firewalls and protection” and a “new online sign in system” … None of these remedies is available as relief at the BSEA”); In re: Acton-Boxborough Regional School District, BSEA # 2103253 (Figueroa, 2021) (the BSEA “may award only the limited remedies available under the IDEA, MGL. C. 71 B and Section 504 after a finding of past or current failures by school districts to offer FAPE; funding or reimbursement to parents for evaluations, private placements and or related services; modification of special education programs; school placements; and compensatory education and related equitable relief”); In re: Georgetown Pub. Sch., BSEA # 1405352 (Berman, 2014) (“The BSEA can only grant relief that is authorized by these statutes and regulations [M.G.L. c. 71B and its regulations; IDEA, 20 USC§ 1400 et seg. and its regulations; Section 504 of the Rehabilitation Act of 1973, 29 USC§ 794 and its regulations]”); In Re: Mendon-Upton Regional School District and Xander (Ruling On Mendon-Upton Regional School District’s Motion To Dismiss), BSEA #1703303 (Reichbach, 2016) (“the relief Parents seek – a rebuke of school officials for their failure to accede to Parents’ demand for a general education teacher other than the one to whom their son was assigned – is beyond the scope of BSEA jurisdiction”).
16 In Re: Pentucket Regional School District (Ruling On Pentucket Regional School District’s Partial Motion To Dismiss), BSEA No. 10-6783 (Berman, 2010) (where “Parent originally objected to the class assignment because she felt that the regular education teacher was too inexperienced to deal with Student’s needs, because she felt that the ‘inclusion’ classroom contained too many other children with disabilities (which, she felt would have a detrimental effect on Student’s emotional status), and because she felt that the setup of this particular class would require more transitions between rooms, teachers and subjects than Student could handle, given his disabilities,” and she “argued that the School did not consult with the TEAM in making the assignment, but rather, made an administrative decision without parental input,” the Hearing Officer dismissed Parents’ objections but allowed Parent to proceed to Hearing on the sole claim “that the School could and/or did not implement Student’s IEP in the assigned classroom, or that even if it did implement the IEP, it did not provide Student with FAPE”).
18 See 34 CFR 300.115(a).
19 See 34 CFR 300.114(a).
20 See id.
21 Parents inartfully and erroneously refer to such services as “compensatory services”, but it appears that they, in fact, seek services “designed to assist [Student] in getting caught up with any new [] shop.” Similarly, by requesting an “order that Old Colony place [Student] in an out of district vocational school, at their expense, should they not have the ability to place him in an appropriate shop reflective of his IEP and disability,” Parents, while glossing over the correct process for a change of placement pursuant to 603 CMR 28.10(6), suggest that they would entertain a change of placement as one alternative to the requested relief.
22 801 CMR 1.01(7)(h).
23 Id.
24 French v. Merrill, 15 F.4th 116, 123 (1st Cir. 2021); see Maldanado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).
25 Anderson, 477 U.S. at 250.
26 Id. at 249
27 Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).
28 Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
29 Anderson, 477 U.S. at 252.