COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Pittsfield Public Schools
BSEA# 25-05764
DECISION
This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
This matter comes before the Bureau of Special Education Appeals (BSEA) pursuant to Parent’s Expedited Hearing Request received on December 9, 2024, seeking a Decision ordering Pittsfield to reverse and vacate a manifestation determination entered on December 5, 2024 regarding a disciplinary incident that occurred on November 19, 2024.
A hearing was held on January 3, 2025, before Hearing Officer Alina Kantor Nir, via a remote format. Parent was pro se. Pittsfield Public Schools was represented by Alisia St. Florian. Those present for all or part of the proceedings were:
Mother
Alisia St. Florian Attorney for Pittsfield Public Schools
Maggie Harrington-Esko Principal, Pittsfield High School
Rachel Bishop Special Education Instruction and Accountability
Coordinator
Stephanie Wondriska-Clark Director of Special Education
Melissa Lupo Court Reporter
Sharvone Small Court Reporter (Observer)
The official record of the hearing consists of documents submitted by Parent and marked as Exhibits P-2 to P-30; documents submitted by Pittsfield and marked as Exhibits S-2, S-4, S-6, and S-11; approximately 1 hour of oral testimony and argument; and a single volume transcript produced by a court reporter.
The parties made oral closing arguments at the close of the evidentiary hearing, and the record closed on January 3, 2024.
RELEVANT PROCEDURAL HISTORY:
Parent filed for due process on December 9, 2024, alleging that the behavior in which Student engaged on November 19, 2024, and which triggered the disciplinary action imposed on December 2, 2024 was a manifestation of Student’s disability and that the District failed to follow Student’s IEP. The matter was found to meet the standard for expedited status, was scheduled for hearing on December 24, 2024 and assigned to Hearing Officer Amy Reichbach.
During a Pre-Hearing Conference held by Hearing Officer Reichbach on December 12, 2024, the District indicated that it would expunge the manifestation determination from the Student’s record, expunge his record of any markings of suspension from this incident, provide compensatory services for the five days that Parent kept Student out of school thinking he was suspended, and mark those absences as excused. In addition, the District agreed to hold a Team meeting to discuss the concerns that Parent raised about Student’s IEP and services. Following this Pre-Hearing Conference, Principal HarringtonEsko sent Parent a letter, a copy of which was sent to Hearing Officer Reichbach, documenting all these offers. Via email communication on the same date, Parent insisted that she had a right to a hearing. She also requested that said hearing take place in person.
The matter was reassigned to the undersigned Hearing Officer on December 13, 2024 for administrative reasons. Via email communications dated December 13, 2024, and due to the unavailability of witnesses on December 24, 2024, the hearing was advanced to December 19, 2024.[1]
On the same date, the District filed Pittsfield Public Schools’ Motion to Dismiss, asserting that Parent’s expedited hearing request must be dismissed on the grounds of mootness since there was no relief that the Hearing Officer could order which the District had not already offered. Parent opposed the Motion to Dismiss on the grounds that she had a right to an evidentiary hearing on the issue of manifestation. On December 16, 2024, the undersigned Hearing Officer issued Ruling On Parent’s Request For In-Person Hearing, Pittsfield Public Schools’ Motion To Dismiss, And Pittsfield Public Schools’ Request To Remove Matter From Expedited Track. Out of an abundance of caution in consideration of Parent’s rights under the IDEA, as well as her pro se status and strong insistence on an evidentiary hearing, I chose, over the District’s objection, not to dismiss the matter on the grounds of mootness.[2]
On December 17, 2024, the District requested that the Hearing Officer reconsider her Ruling on the Motion to Dismiss.
On December 18, 2024, Counsel for Pittsfield notified the parties that she would be unable to proceed on the hearing date due to a death in the family. Parent opposed any postponement. On the same day, due to the exigent circumstances, I postponed the hearing date, over Parent’s objection, to January 3, 2024, such that, in accordance with federal law,[3] the expedited hearing would still occur within 20 school days of the date the complaint requesting the hearing was filed.
At the start of the Hearing, I denied the District’s request to reconsider my Ruling on its Motion to Dismiss.
ISSUE IN DISPUTE:
The following issue is in dispute: whether the determination of the manifestation determination review team on December 5, 2024 was proper.
FACTUAL FINDINGS:
- Student is a 10th-grade student at Pittsfield High School. He is diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD) and is eligible for an IEP pursuant to the Emotional and Health disability categories. (Mother, P-40) Student can be disrespectful. (Mother)
- Student’s IEP notes that it is important not to engage in a power struggle with Student. (Mother)
- Student’s October 2024 Behavior Intervention Plan (BIP) was developed with goals targeting classroom attendance, reduction of phone use, and the development of compliance skills. According to the BIP, Lovanto Wiggins, Dean of Students, is Student’s preferred staff member. The BIP stresses that “singling Student out in a group of peers results in opposition.” Instead, the group should be addressed first and Student second. Parent should be notified each time an incident log is documented. (Mother, P-2)
- On November 19, 2024, Student’s Spanish teacher, Lindsey Mancari, reported that Student stated that a peer was “cheating because she’s Mexican.” (Mother, P-3) The teacher attempted to redirect Student, but Student continued to comment about the situation and the peer. (P-3)
- Student’s log entry on November 19, 2024 does not note the incident at issue. (P-5, P-6)
- On November 20, 2024, Mr. Wiggins called Parent and left her a voice message indicating that a “suspension may be pending due to non-sexual harassing behavior by Student.” (P-10) As such, Parent kept Student home on November 21 and November 22. (Mother, P-13)
- On November 25, 2024, Mr. Wiggins contacted Parent via email, clarifying that he had attempted to call her the previous week on multiple occasions to inform her that the school was attempting to schedule a suspension hearing regarding a write-up for harassment. Because Parent had not responded to his message, the school was moving forward with a short-term suspension hearing on Monday, December 2. In the meantime, Student should attend school, as no suspension had yet been imposed, and if a suspension was determined appropriate following the hearing, the school would hold a Manifestation Determination Meeting before it could be served. (Mother, P-14, P-15, P-18, S-4) On November 26, 2024, Parent responded, stating, “I do not agree with the BIP. I will not be attending the suspension hearing nor will I be attending the MDR hearing either.” (Mother, P-3, P-16)
- Maggie Harrington-Esko is the Principal of Pittsfield High School. On December 2, 2024, Principal Harrington-Esko conducted a short-term suspension hearing and determined that Student would serve an out-of-school suspension for a period of four days and a one-day in-school suspension to begin following a manifestation hearing. (P-19) Parent did not attend. (Mother)
- On December 3, 2024, Principal Harrington issued a short-term suspension letter pursuant to M.G.L. c. 71, sect. 37H ¾. The letter noted that during the suspension, Student would have the opportunity to make up schoolwork. In addition, he would be offered 30 minutes via Zoom with the school adjustment counselor. (P-19)
- Via email, on December 4, 2024, Parent acknowledged receiving the Principal’s letter but stated that she was unclear how the long suspension would last. She expressed that she was
“upset this happened on a Wednesday and nobody left me a voicemail or a text message or an email with what he said until AFTER I reached out to all of you about it, 5 days later. [Parent] was extremely upset [by] [Student]’s statement in Spanish class. [Student took] accountability for what he said, but he said he did not mean it in a harassing or a racist way. He said that when he said ‘she’s cheating because she’s Mexican’ he said she’s cheating because she knows Spanish, because she’s Spanish speaking, because she has an advantage as knowing Spanish and he sees that as cheating. He said he doesn’t think it’s a fair that a fluent Spanish speaker is in Spanish class making everyone look bad. He said he did not mean to put her down because she’s Mexican. [Parent was] trying to teach [him] that he has to pause and think about how things sound before he says them.”
In her email communication, Parent wrote, “It is like the time he said ‘watch out’ for you to move, and you thought he meant watch your back and you took it as a verbal threat. Or yesterday when the cross guard went to help him cross the street and he said ‘I don’t need your help.’ He gets an urge to do or say something, and he does it, without thinking.’” (S-4)[4]
- On the same day, Parent again wrote to Principal Harrington-Esko confirming that Student would be suspended for 5 days. Parent found the length of the suspension “very punitive.” (P-17)
- On December 5, 2024, a manifestation determination review (MDR) was held. In attendance were Parent; Rachel Bishop, Special Education Instruction and Accountability Coordinator; Maggie Harrington-Esko, Principal; Dawn Betters, School Adjustment Counselor; Lindsey Mancari, General Education Teacher; Joseph Marshall, School Counselor; and Lavante Wiggins, Dean of Students. (P-20, P-22, P-23) The MDR Team discussed the incident and the fact that Student had previously engaged in a similar behavior. When Student made a similar comment previously, he was not “written up.” Instead, the classroom teacher used it as a “teachable moment.” (Mother) The MDR Team reviewed whether the conduct in question was caused by or had a direct and substantial relationship to Student’s disability and whether the conduct was a direct result of the School District’s failure to implement the IEP. At that time, the Team responded negatively to both questions and determined that the behavior was not a manifestation of Student’s disability. (P-20, P-22, P-23)
- On December 9, 2024, Parent filed for an expedited hearing with the BSEA to contest the manifestation determination finding. (P-24, P-25) According to Parent’s Hearing Request, the District failed to communicate with her about the incident at issue as required by Student’s BIP. Moreover, during the incident, the teacher engaged in a “power struggle” with Student despite the IEP’s instruction not to do so. When Parent sent Student to school on November 22, 2024, she “learned that administration was telling [Student] that he would be suspended when they got around to meeting with [Parent]. This made [Student] upset[,] and [he refused] to go to school. The only suspension hearing notice that [she] received was [on] Monday, November 25th in the evening, 5 days after the incident. [She] never received a[n] MDR Hearing notice until 2 days after the suspension hearing.” Parent was supposed to be “notified of any suspensions prior to informing [Student] as that has been a trigger for him in the past.” She declined to attend a suspension hearing “two weeks after the alleged incident and [she] never received notice of an MDR hearing. [Parent] thought it was inappropriate to wait such a long time. After [she] declined to attend the suspension hearing on Dec 2, 2024, [she] still did not hear back from the school district. [Parent] sent them an email on December 4, 2024 asking when he could return to school. [The] Principal [] called [her] and informed [her] that he would be out for 5 days.” Parent indicated that she would like Pittsfield to develop “a detailed plan so this does not happen again.” (P-29)
- On December 9, 2024, Principal Harrington-Esko wrote to Parent, indicating that, given Student’s absences the previous week, she was “willing to revisit the suspension timeline” and asked for “a convenient time … to continue this conversation.” (P-26, P-28, P-29)
- On December 12, 2024, Principal Harrington-Esko informed Parent that the District “would ensure that no days of suspension were recorded on Student’s discipline record for the incident in question that occurred on November 19.” Further, the District would “delete the manifestation determination meeting and its outcome.” Finally, the District would provide compensatory services and excused absences for the dates that Parent kept Student home (November 25, 26, December 2, 3, and 4). A Team meeting would be scheduled to discuss the compensatory services as well as the other concerns about Student’s IEP that Parent had raised during the Pre-Hearing conference. (S-6, S-11)
- Mother testified that Student’s suspension has been “dismissed.” (Mother)
DISCUSSION:
- Legal Standards
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).[5] In part, FAPE requires compliance with the procedural protections embedded in IDEA.[6] These procedural benefits serve a dual purpose; they provide for meaningful parental participation, and they ensure each eligible child receives a FAPE.[7]
The IDEA further provides a specific process by which a school may change the placement of a child with a disability who violates the school’s code of conduct. Pursuant to 34 CFR 300.530(b), school districts may remove a child with a disability who violates a code of student conduct for not more than 10 consecutive or cumulative school days in a school year. However, prior to implementing any potential further discipline, 20 U.S.C. §1415(k)(1)(E) and 34 CFR 300.530(e), entitled “manifestation determination,” charge school districts with the responsibility to meet and undertake a manifestation review. The meeting must be attended by the parent, a representative from the school, “and relevant members of the child’s IEP Team (as determined by the parent and the [school]).”[8] At the meeting, the “MDR Team” must review “all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents.”[9]
The purpose of such a manifestation review is to determine: (1) “if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability” or (2) “if the conduct in question was the direct result of the local education agency’s failure to implement the IEP.”[10] This decision is commonly known as a “manifestation determination.”[11] If the MDR Team answers both questions in the negative, “the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities.”[12]
Pursuant to 20 U.S.C. §1415(k)(1)(F)(i) and (ii), if the behavior was found to be a manifestation of the student’s disability, the IEP Team must conduct a functional behavioral assessment and implement a behavioral intervention plan. If, however, the IEP Team had previously developed a behavioral intervention plan for the student, the plan must be reviewed and modified as needed to address the problem behavior. The student must return to the placement from which he was removed unless the parent and the school district agree to a change in placement as part of a modification of the student’s behavioral intervention plan.[13]
Finally, upon making a decision to take disciplinary action, a school district must notify the parent, and provide the parent with the procedural safeguards granted under this section of the IDEA, including the right to appeal before the BSEA.[14]
In a due process proceeding, the burden of proof is on the moving party.[15] If the evidence is closely balanced, the moving party will not prevail.[16] In the instant case, as the moving party, Parent bears this burden.[17]
- Application of Legal Standard:
Certainly, 20 U.S.C. § 1415(h)(2) grants a parent the right to a due process hearing, including the right to present evidence, confront and cross-examine witnesses, and compel their attendance. I note, however, that prior to the hearing in this matter, the District had already conceded that the determination of the manifestation team on December 5, 2024 was not proper, amended the Student’s record to indicate as such, expunged the suspension, and offered compensatory services- in essence, granting Parent all relief sought in her hearing request. In such context, use of this Agency’s resources and the unnecessary burden of litigation placed on the District occasioned by the Parent’s insistence on a hearing must be noted. At the hearing, I was unable to discern any additional relief that Parent was seeking other than the opportunity to express her dissatisfaction.[18]
Nevertheless, I address the merits of the matter.
The fundamental issue in dispute is set out above. After careful consideration of the evidence before me, the legal standards delineated above, and the thoughtful argument of counsel, I conclude that the determination of the MDR Team on December 5, 2024 was not proper.
Student’s cognitive profile includes a diagnosis of ADHD and ODD. His IEP notes that it is “important not to engage in a power struggle with Student, as he needs to have the last word and will not back down from a situation when feeling wronged. Instead, he should be provided a timed break or access to the school adjustment counselor or dean of students.” In addition, Student’s BIP stresses that “singling Student out in a group of peers results in opposition.”
Here, Student’s initial comment regarding the peer in his Spanish class, reflects his difficulty with impulse control. Moreover, Student seems to have been expressing an injustice resulting from the peer’s fluency in Spanish rather than an ethnic slur. The teacher’s response singled Student out and created “a power struggle.” Student clearly struggled with frustration and other overwhelming emotions in that moment, but was not provided access to his preferred staff member for check-in or follow-up. The incident was not “logged”, and Parent was not notified. Therefore, as already acknowledged by the District, the MDR Team erred in finding that the conduct at issue was not a direct result of the District’s failure to implement Student’s IEP.
ORDER:
The Parent has satisfied her burden of proving that the MDR team’s finding of no manifestation was improper.
Given that the District has already acknowledged that the initial determination was incorrect, amended the Student’s educational record to reflect that the behavior leading to the December 5, 2024, manifestation determination review was indeed a manifestation of the Student’s disability, has excused all absences related to this incident, and has offered to provide compensatory services, I now order the District to convene the IEP Team, if it has not already done so, to assess the compensatory services to which Student is entitled for the five days Parent kept him home under the mistaken belief that he had been suspended. These compensatory services must be provided to Student before the end of the 2024-2025 school year.
So Ordered,
By the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir, Hearing Officer
Date: January 3, 2024
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
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. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial 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. Rather, a party seeking to stay the decision of the Bureau must 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,” during the pendency of any judicial appeal of the Bureau decision, 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 during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1st Cir. 1983).
Compliance
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 decision of 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 of the Bureau decision. 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).
Confidentiality
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.
[1] As I allowed school witnesses to participate via a virtual platform in the hearing, Parent agreed to hold the hearing via a virtual platform altogether.
[2] See Alexandra R. ex rel. Burke v. Brookline Sch. Dist., No. CIV. 06-CV-0215-JL, 2009 WL 2957991, at *2 (D.N.H. Sept. 10, 2009) (“State and federal law also establish safeguards that apply to due process hearings, including ‘the right to present evidence and confront, cross-examine and compel the attendance of witnesses’”) (citing 20 U.S.C. § 1415(h)(2)).
[3] Pursuant to 34 CFR §300.532(c)(2), the “SEA or LEA is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed. The hearing officer must make a determination within 10 school days after the hearing.” (emphasis added).
[4] In the same email communication, Parent also requested a reduction in special education academic support services. (S-4)
[5] Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 (d)(1)(A).
[6] See 20 U.S.C. §1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2).
[7] See Honig v. Doe, 108 S.Ct. 592, 298 (1998) (“Congress repeatedly emphasized throughout the [IDEA] the importance and indeed the necessity of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness); see Bd. of Educ. v. Rowley, 102 S.Ct. 3034, 3050 (1982) (“Congress placed every bit as much emphasis on compliance with procedures giving parents and guardians a large measure of participation in every stage of the administrative process . . . as it did upon the measurement of the resulting IEP against a substantive standard”).
[8] 20 U.S.C. § 1415(k)(1)(E)(i); 34 C.F.R. § 300.530(e)(1).
[9] Id.
[10] 20 U.S.C. § 1415(k)(1)(E)(i)(I)–(II); 34 C.F.R. § 300.530(e)(1)(i)–(ii).
[11] 20 U.S.C. § 1415(k)(1)(E); 34 C.F.R. § 300.530(e).
[12] 20 U.S.C. § 1415(k)(1)(C); see 34 C.F.R. § 300.530(c). Exceptions delineated in both the statute and the regulations are not relevant in this matter.
[13] See 20 U.S.C. §1415(k)(1)(F)(iiii). Although the existence of “special circumstances” would prevent the student’s return to his placement, no such “special circumstances” have been alleged in this matter. See 34 CFR § 300.530(g).
[14] See 20 U.S.C. §1415(k)(1)(H).
[15] See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 62 (2008); see also 71 Fed. Reg. 46,723 through 46,724 (2006) (if the parent disputes the results of an MDR concluding the conduct was not a manifestation of a student’s disability, the parent would bear the burden of showing that the child’s misconduct was a manifestation of his disability).
[16] Id. (places the burden of proof in an administrative hearing on the party seeking relief).
[17] Id.
[18] In her closing argument, Parent stated that she insisted on pursuing the hearing because the District only offered to change the manifestation determination and amend the Student’s record after she filed the Hearing Request. She argued that the relief she sought was to ensure that the Student had a “plan in place” to “support him” at Pittsfield High School. However, continuing with an evidentiary hearing on an issue that the District has already conceded—namely, the manifestation determination—was an unnecessary use of resources. If Parent believes the Student’s educational programming is inadequate, the proper course would be to request a Team meeting to amend the IEP, rather than proceeding with a hearing on the manifestation determination issue.