COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Pittsfield Public Schools
BSEA# 25-05764
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
This matter comes before the Hearing Officer on Parent’s request for an in-person hearing, made via email on December 13, 2024. Parent contended that
“in order to have a fair hearing, both parties need to be present. I have concerns that a privacy breach may occur. I don’t believe that the parties should be at home or an office as there may be unplanned and unintentional disruptions by other parties. I also feel that because my son is a student there, it’s important that there isn’t room for people to misunderstand body language or facial expressions. I also believe that both parties should come prepared and not have the ability to email or text each other, or other parties during the hearing. The only way to ensure that is by being present in person in front of a hearing officer. Lastly, [i]f there are any connection issues, because technology is not 100% reliable, it could delay our hearing. I kindly ask that you please hold this hearing fully in-person.”
The Pittsfield Public Schools (Pittsfield or the District) requested that the matter proceed via virtual platform “given the hardship for all involved to attend in person whether the hearing is held in Pittsfield, Springfield or Malden.”
In addition, on December 13, 2024, Pittsfield filed a Motion to Dismiss on the grounds of mootness. Specifically, the District asserts that
“During the Pre-Hearing Conference, the District stated that it would erase 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.”
According to Pittsfield, this “renders the Parent’s expedited hearing moot. There is no relief that the Hearing Officer can order which the District has not already offered. Additionally, while this matter was granted expedited status because the Parent claimed the Manifestation Determination was incorrect, there is no exigency related to the facts of this case. The Student is not suspended and is attending school regularly. There is no actual reason why this hearing needs to be done on an expedited [sic[ matter.” In response, Parent indicated via email that it is her “right to have a hearing.” Specifically, she stated that that “purpose of a hearing is for [her] to have an opportunity to voice [her] concerns and respond to everyone else’s statements.”
Neither party has requested a hearing on the motions. 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, Parent’s request for an in-person hearing is ALLOWED, in part. The District’s Motion to Dismiss is DENIED. The District’s request to remove the matter from the expedited track is also DENIED.
PROCEDURAL HISTORY AND RELEVANT FACTS:
For the purposes of this Motion, I must take as true the assertions set out in the Parent’s pleadings. [1]
Student is eligible for special education and related services. He is diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and a conduct disorder. On November 19, 2024, Student stated that another student was “cheating” because of her “ethnicity.” As a result, Student was suspended for five days. Following a manifestation determination review held on December 9, 2024, Student’s behavior was found not to be a manifestation of his disability.
Parent filed for due process on December 9, 2024, alleging that the behavior leading to the disciplinary action 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 an expedited hearing. It was scheduled for hearing on December 24, 2024.
The matter was assigned to Hearing Officer Amy Reichbach but reassigned to the undersigned Hearing Officer on December 13, 2024 for administrative reasons. Via email communications dated 12/13/2024, the hearing was advanced to 12/19/2024.[2]
LEGAL STANDARDS AND DISCUSSION:
- Pittsfield’s Request to Remove Matter from Expedited Track
- Legal Standard:
BSEA Hearing Rule II C states that hearings
“involving discipline are scheduled on an expedited timeline consistent with federal IDEA regulations. Expedited status will be granted:
- when a parent disagrees with a school district’s determination that the behavior leading to discipline was not a manifestation of the student’s disability; or
- when a parent disagrees with a school district’s decision regarding a student’s placement in the discipline context; or
- when a school district asserts that maintaining the current placement of the student during the pendency of due process proceedings is substantially likely to result in injury to the student or others.
- Application of Legal Standard:
The matter was granted expedited status on December 9, 2024. The District asserts that “Student is not suspended and is attending school regularly. There is no actual reason why this hearing needs to be done on an expedited [sic]matter.” Nevertheless, the matter clearly meets the standard for expedited status pursuant to BSEA Hearing Rule II C (a). As such, the matter remains on an expedited track, and the hearing will be held on December 19, 2024 per the agreement of the parties.
- Parent’s Request for In-Person Hearing
- Legal Standard:
The BSEA began holding hearings via a virtual platform during the COVID-19 pandemic. There is no legal standard for determining whether hearings proceed in person, via a virtual platform, or in a hybrid format, except that the Hearing Officer considers the individual circumstances of the case and weighs the preferences of the parties, including the availability of witnesses.
- Application of Legal Standard:
Here, in response to Parent’s request for an in-person hearing, the Hearing Officer offered to hold the hearing in Worcester, Massachusetts. Parent agreed to said location, but the District requested to participate via a virtual platform. In response, Parent asked for a “fully” in person hearing. She argues that this is necessary for “a fair hearing.” As grounds thereof, she assets that remote hearings are subject to “unplanned and unintentional disruptions,” leave “room for people to misunderstand body language or facial expressions,” are susceptible to technological issues, and allow participants to “email or text each other, or other parties during the hearing.”
Although Parent’s concerns are understandable, the Hearing Officer begins a remote hearing by providing the parties and participants with a series of cautions that address all of these concerns. Specifically, parties are instructed to testify in a room where no other person is present and to testify from their own memory. While a witness is in the process of testifying there shall be no communication between the witness and anyone else at any time, including during any breaks. Communication includes texts or “chats”. “Breaks” when testimony cannot be discussed, include breaks between direct and cross examinations of a witness, even if this happens over more than one day; in other words, witnesses cannot discuss their testimony with anyone until after they are formally excused from all their testimony on the record by the Hearing Officer. Witnesses and parties may communicate with a student’s Advocate/Counsel or the District’s Counsel by texting (except while they are testifying). All participant cell phones must be silenced prior to commencement of the Hearing. The parties are also instructed that there is no live-streaming or video or audio recording of any portion of the proceeding. All attendees are muted during the Hearing except for the attorneys, the witness, the stenographer, and the Hearing Officer, to prevent disruptions.
Although technological issues may arise, these are typically dealt with smoothly and quickly.
Therefore, Parent, any of her witnesses and the Hearing Officer will participate in the Hearing in person at a yet to be determined location in Worcester, Massachusetts, The District and its witnesses may participate via a remote format.
- Pittsfield’s Motion to Dismiss
- Legal Standard:
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 Code Mass Regs 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.”[3] 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.”[4] These “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[5]
Pursuant to both state and federal special education law, the BSEA has jurisdiction over “any matter relating to the identification, evaluation or educational placement of the child or the provision of a free and appropriate public education.”[6] “Any matter” refers to a current, live dispute between the parties; the IDEA states that “a due process complaint must allege a violation…”[7] Massachusetts law provides for hearings to resolve disputes.[8] It is well established that matters that come before the BSEA must involve a live or current dispute between the Parties.[9] As such, the BSEA has no jurisdiction over a matter that is rendered moot because the underlying dispute has been resolved.[10]
- Application of Legal Standard:
In evaluating the Motion to Dismiss under the LEGAL STANDARD set forth supra, I take allegations as true as well as any inferences that may be drawn from them in the Parent’s favor, and deny dismissal if these allegations plausibly suggest an entitlement to relief.[11] Here, considering as true all facts alleged by the party opposing dismissal (in this case, Parent), I find dismissal inappropriate. My reasoning follows.
The District asserts that its offer to Parent has rendered the matter moot. Here, because Parent is pro se, I find it inappropriate to dismiss her claims in the event that she has not been able to articulate her claims for relief as clearly as if she had been represented by counsel.[12] As such, Parent will be allowed to present her claims during a hearing on the merits.[13] Therefore, the District’s Motion to Dismiss is denied.
ORDER:
Parent’s request for an in-person hearing is ALLOWED, in part. Specifically, Parent, any of her witnesses, and the Hearing Officer will participate in the Hearing in person at a yet-to-be-determined location in Worcester, Massachusetts. The District and its witnesses may participate via a remote format.
The District’s Motion to Dismiss is DENIED.
The District’s request to remove the matter from the expedited track is also DENIED. The matter will proceed on December 19, 2024.
By the Hearing Officer:
/s/ Alina Kantor Nir
Alina Kantor Nir
Dated: December 16, 2024
[1] See Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).
[2] Via email dated December 13, 2024, the District requested an advancement of the hearing date due to witness unavailability.
[3] Iannocchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
[4] Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).
[5] Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) (internal quotation marks and citations omitted).
[6] See 20 U.S.C. §1415(b)(6)(A); 34 CFR §300.507(a); M.G.L. c71B, §2A(a)(i); 603 CMR §28.03.
[7] See 20 U.S.C. §1415(b)(6)(B); 34 CFR §507(a)(2).
[8] See 603 CMR §28.03.
[9] See In Re: Student v. Bay Path Reg’l Vocational Tech. High Sch., BSEA # 18-05746 (Figueroa, 2018).
[10] See In Re: Littleton Public Schools (Ruling on Parents’ Motion for Summary Judgment and School’s Motion to Dismiss), BSEA # 2009921 (Berman, 2020) (“In the context of a BSEA proceeding, a hearing request may be dismissed as moot if the party against whom the hearing request was filed grants all of the relief sought in the hearing request”); see also Nashoba Regional School District (Ruling), BSEA # 1906261(Byrne, 2019) (where on the first day of hearing, the district offered an IEP with “the requisite substantive elements to permit an immediate parental decision and the associated school placement” which the parents had sought in the due process complaint, there was nothing for the hearing officer to award that the district was not already offering, making the case moot).
[11] Blank, 420 Mass. at 407.
[12] See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court must hold a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”) (internal quotation marks omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). See also Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice”).
[13] 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)).