In re: Student v. Springfield Public Schools – BSEA # 22-08440

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Student v. Springfield Public Schools

BSEA # 2208440

RULING ON MULTIPLE MOTIONS

This matter comes before the Hearing Officer on multiple motions.

On September 19, 2022, the Springfield Public Schools (the District or Springfield) filed Springfield Public Schools’ Motion for Protective Order Relative to Parent’s Request for Production of Documents and Motion to Postpone Hearing (hereinafter, Motion for Protective Order Relative to Discovery Request Nos. 5 and 6¹). Springfield seeks a protective order for Parent’s Document Request No. 5 seeking “Title IX trainings in the district dating back two years” and Document Request No. 6 seeking “redacted Title IX complaint for 2021-2022 school year.” In response, on September 21, 2022, Parent filed Motion to Quash Protective Order and Postponement and Sanctions/Admonishment for Violation of Parents [sic] Right to Required Resolution Meeting (Motion to Quash and Motion for Sanctions Relative to Resolution Meeting,² respectively).

On September 27, 2022, Parent filed Parent’s Motion for District to Produce Resumes and Credentials for [A]ll [SEBS] Programs, and Clinical Staffs[sic] Credentials, Motion for Sanctions and[/]or Admonishment for Violation of Resolution Meeting³ (Motion to Produce Credentials and Second Motion for Sanctions Relative to Resolution Meeting, respectively). In it, Parent asserts that she has a “right to see the credentials of the proposed placement, and request [that] the District is compelled to produce them.” Parent sought a motion to compel and requested that the District be sanctioned for failing to comply with discovery. She also sought sanctions for the District’s continued failure to convene a resolution meeting.

On October 3, 2022, Parent filed Parent’s Motions for Sanctions and/or Admonishments for Violations of Knowingly and Intentionally Interfering with the Impartial Due Process Hearing (hereinafter, Motion for Interfering). In it, Parent asserted, in part, that the District developed the extended evaluation unilaterally without Parent’s input in an “attempt[] to segregate this student into [a] behavioral program prior to having all of the information [as] we have no tangible documentation that this student could not be successful in a full inclusion class room [sic] with 1-1 paraprofessional, a shared paraprofessional, partial inclusion ….” Parent also asserted that “special education students of color like [Student] in Springfield are suspended at rates two to three times that of other students, which makes the action by Dr. Morris[, the Director of Special Education for the District,] a disturbing abuse of power.”

On October 11, 2022, the District filed Springfield Public Schools’ Motion in Opposition to Motion for Sanctions and/or Admonishment for Violation of Knowingly and Intentionally Interfering with the Impartial Due Process Hearing (hereinafter, Opposition to Motion for Interfering), asserting that Dr. Morris issued an Extended Evaluation Consent Form to Parent in order to expedite the process of setting up and beginning the extended evaluation as Parent had made the request. In addition, the District contended that

“the parent, through her advocate is arguing, on the one hand that SEBS is not appropriate and, on the other hand, that she does not have enough information about SEBS to decide if it is appropriate, [and this] does not amount to any procedural violation on the part of the District and/or Dr. Morris. Further perplexing is that the advocate is asserting violations of LRE and attempts to segregate the student by proposing SEBS while simultaneously arguing for an extended evaluation in an out of district school. Further, for the advocate to raise issues of racial discrimination in her motion without any alleged facts that even hint at any kind of discrimination whatsoever, is inflammatory and inappropriate.”

Also on October 11, 2022, the District filed Springfield Public Schools’ Motion for Protective Order Relative to Parent’s Request for Resumes of all SEBS Employees (hereinafter, Motion for Protective Order Relative to Credentials), asserting that Parent’s email request for resumes was not a “formal discovery request” and further that the District is not required to provide this information as the “issue of the extended evaluation at SEBS is not an issue before the Hearing Officer for hearing but rather an offer made as part of discussions”; because Parent has been given a description of the SEBS program and credentials of teachers, it is unnecessary to require disclosure of individual resumes which contain personally identifiable information.⁴ Moreover, the District asserted that this request “appears to be more of a ploy of sorts than an honest attempt to gather relevant information.” On October 11, 2022, Parent responded, asserting, in part, that “Parent has not signed the Extended Evaluation simply because Springfield is intentionally withholding resumes and credentials for the proposed program making our Motion for Sanctions not only appropriate but necessary.”⁵ She also asserted that the Extended Evaluation is “not in line with the agreement [and is] an extremely manipulative/ legal tactic to undermine Parent’s right’s[sic] to meaningful input into the development of the Extended Evaluation while withholding credentials of the staff in the program.”

Parent requested a hearing on the outstanding motions.⁶ On October 14, 2022 the parties argued their respective positions before the Hearing Officer in the presence of a court stenographer. Per Parent’s request, the motion hearing was open to the public.⁷

For the reasons set forth below, Springfield Public Schools’ Motion for Protective Order Relative to Parent’s Request for Production of Documents is ALLOWED, and Parent’s Motion to Quash Protective Order is DENIED; Parent’s Motion for District to Produce Resumes and Credentials for [A]ll [SEBS] Programs, and Clinical Staffs[sic] Credentials, Motion for Sanctions and[/]or Admonishment for Violation of Resolution Meeting is DENIED, and, given my Ruling on Parent’s Motion for District to Produce Resumes and Credentials for [A]ll [SEBS] Programs, and Clinical Staffs[sic] Credentials, Motion for Sanctions and[/]or Admonishment for Violation of Resolution Meeting, Springfield Public Schools’ Motion for Protective Order Relative to Parent’s Request for Resumes of all SEBS Employees is moot and is, therefore, DENIED; Parent’s Motions for Sanctions and/or Admonishments for Violations of Knowingly and Intentionally Interfering with the Impartial Due Process Hearing is DENIED; and Parent’s Motion for Sanctions and[/]or Admonishment for Violation of Resolution Meeting is DENIED.

ISSUES

This Ruling addresses the following issues:

1. Whether the District is entitled to a Protective Order relative to Parent’s Document Request No. 5 seeking “Title IX trainings in the district dating back two years” and Document Request No. 6 seeking “redacted Title IX complaint for 2021-2022 school year”;
2. Whether sanctions against the District are appropriate for failing to produce the resumes and credentials of SEBS staff in relation to the extended evaluation proposed by the District, or whether the District is entitled to a Protective Order relative thereto;
3. Whether the District should be admonished or sanctioned for “knowingly and intentionally interfering with the impartial due process hearing” by proposing the completed Extended Evaluation Form to Parent indicating SEBS as the location therefor and proposing questions; and
4. Whether sanctions against the District are appropriate for failing to convene a resolution meeting relative to Parent’s Amended Hearing Request.

PROCEDURAL HISTORY AND RELEVANT FACTS⁸

1. Student is a 6th grade student in the Springfield Public Schools.
2. On April 11, 2022, the District held an IEP meeting without Parent present.
3. On April 20, 2022, student was involved in sexual misconduct in school for which he was suspended.
4. On April 26, 2022, Parent filed a Request for Hearing seeking an Order to remove Student’s suspension from his record as well as an “Order for compensatory services”; an Order that the District “violated parent’s rights by moving forward with IEP meeting without parent”; an Order that the District “failed to update and implement students [sic] IEP”; and an Order “for a [p]lacement in a different school.”
5. Following a pre-hearing conference, the parties agreed that Student would participate in an extended evaluation during the summer of 2022, which he did. The hearing was postponed for good cause until October 18, 2022.
6. On September 16, 2022, Parent filed an Amended Hearing Request adding the following issues for hearing:

“1. Whether the school district [denied Student a FAPE when it] failed to report and conduct a [T]itle IX complaint when [Student] reported being touched sexually by a student…[;]

2. Whether [the] District denied [a] FAPE to [Student] after sending him to a 45-]day placement at Center [S]chool for observations then came to the meeting denied [C]enter [S]chool[‘s] recommendations including placement, learning disability SLD form, Executive functioning goal, and self-regulation goals[;]

3. Whether [the Director of Special Education for the Springfield Public Schools] denied [Student a] FAPE by making unilateral placement decisions in the IEP meeting[;]

4. Whether [the] conduct [of [the Director of Special Education for the Springfield Public Schools] in the IEP meeting was retaliatory and denied student [a] FAPE because [of Student’s] advocate[;]

5. Whether the IEP was unilaterally written denying parent rights under IDEA and the 14^th [E]qual [P]rotection [A]ct [sic] of the Constitution[;]

6. Whether the District denied [S]tudent [a] FAPE though [sic] undue influenceby saying [Student] could only have transportation if she agreed to the unilaterally offered placement that is not appropriate[; and]

7. Whether the District owe[s] [Student] compensatory services.”

7. Parent sought an Order for compensatory services; an Order that the District “violated parent’s rights by moving forward with IEP meeting without parent; an Order that the “District failed to update and implement students [sic] IEP”; an Order for a placement at Center School; an Order that “the most current proposed IEP was unilaterally written”; and an Order that “the District’s retaliation denied student FAPE and Parent.”
8. The BSEA’s Recalculated Notice of Hearing scheduled the hearing date for October 21, 2022.⁹
9. To date, the parties have participated in 6 conference calls with the Hearing Officer.
10. On September 15, 2022, Parent sent the District her discovery requests, seeking the following:

“1. Emails regarding [Student], [Student’s Parent], [Advocate] in his case dating back two years from today.

2. Text messages regarding [Student], [Student’s Parent], [Advocate] dating back two years

3. Redacted IEP’s[sic] for all students in the Springfield Kiley SEBBS[sic] program

4. Ms. Harris’s Title IX certification

5. Title IX trainings in the district dating back two years

6. [R]edacted title IX complaints for 2021-2022 school year

7. [C]opy of student access log for his special education file[.]”

11. On September 19, 2022, the District filed the instant Motion seeking a protective order relative to Requests No. 5 and 6.
12. On September 20, 2022, in her Ruling on Springfield Public Schools’ Motion to Dismiss, the undersigned Hearing Officer dismissed Parent’s 14^th Amendment and retaliation claims but ruled that Parent’s claim that the District’s failure to conduct a Title IX investigation resulted in a denial of a FAPE survives dismissal.
13. During a conference call on September 26, 2022, Parent indicated that Student has “revealed new information” and now requires another extended evaluation at a therapeutic setting in order to conduct a “clinical psychological evaluation.” Via letter dated same, the District agreed to “accommodate an extended evaluation at SEBS during which time one of its clinicians would be able to complete a clinical evaluation of [Student].”
14. In response, on the same day, Parent’s advocate sent District’s counsel an email in which she wrote, “Please send me the resumes of all SEBS employees.”
15. On September 27, the District’s counsel sent Advocate an email that described the SEBS program and indicated that the teachers in the program are special education teachers.
16. On or about September 28, 2022, the District informed Parent that the extended evaluation could begin the following Monday at the SEBS program. The District provided Parent with an Extended Evaluation Form dated 10/03/2022 to 12/06/2022. The Form indicated that the extended evaluation is intended to answer the following questions:

“1. Does [Student] engage in sexualized behavior in the SEBS Program?

2. How does [Student] engage with his peers in the SEBS Program?

3. How does [Student] respond to adult directions and requests in the SEBS Program?

4. What services and supports does [Student] need to make meaningful progress in the SEBS Program?

This information will be gathered through an Educational Assessment and a clinical assessment completed by staff/evaluators at Springfield Public Schools. Data will be collected on sexualized behaviors and non-compliance via the system in place by the SEBS program.”

17. Parent has yet to respond to the Extended Evaluation Form formally “because Springfield is intentionally withholding resumes and credentials.”
18. Via email dated October 4, 2022, the Hearing Officer wrote to the Advocate and copied District counsel as follows: “ I also note that the extended evaluation has not been raised as an issue in the initial hearing request or the amended hearing request. In order to allow me to rule on the motions relative to the extended evaluation, can you please file an amendment indicating these additional claims?” The Advocate responded in the affirmative, but, to date, no amendment to the Amended Hearing Request has been filed.¹⁰

LEGAL STANDARDS AND APPLICATION OF LEGAL STANDARDS

DISCOVERY ISSUES:

1. Legal Standards

The Hearing Rules for Special Education Appeals (BSEA Hearing Rules) allow discovery in BSEA proceedings. Rule V(A) advises that “the parties are encouraged to exchange information cooperatively and by agreement prior to the hearing.” Additionally, parties can request of other parties that they produce documents or answer up to 25 interrogatories within thirty (30) calendar days of being served such requests, unless a Hearing Officer orders otherwise.¹¹ Where the information or the documents requested are “not subject to any sort of privilege, the accessibility of the documents requested and their relevance to the dispute may militate in favor or against production.”¹² Rule V(B)(1) of the BSEA Hearing Rules provides that

“[a]ny party may request any other party to produce or make available for inspection or copying any documents or tangible things not privileged, not supplied previously, and which are in the possession, custody, or control of the party upon whom the request is made.”

With respect to the scope of discovery, the BSEA looks to Rules 26(b)(1) of both the Massachusetts and Federal Rules of Civil Procedure for guidance. Specifically, Massachusetts Rule 26(b)(1) provides that

“[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party…It is not ground for objection that the information sought will be inadmissible at the trial if…[it]…appears reasonably calculated to lead to the discovery of admissible evidence.”

Federal Rule of Civil Procedure Rule 26(b)(1) allows discovery of

“…any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues…, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information…need not be admissible in evidence to be discoverable.”

The BSEA has interpreted the applicable discovery provisions liberally, to enable parties to thoroughly prepare for hearing or otherwise resolve the dispute.¹³

When appropriate, the applicable rules impose limits on discovery. Objections to any discovery requests can be made within 10 calendar days of service of the request, or parties can move for a protective order within that timeframe.¹⁴ BSEA Hearing Rule V(C) states that the “[p]rotective orders may be issued to protect a party from undue burden, expense, delay, or as otherwise deemed appropriate by the Hearing Officer. Orders of the Hearing Officer may include limitations on the scope, method, time and place for discovery or provisions protecting confidential information.”¹⁵

Furthermore, 801 CMR 1.01(8)(i)¹⁶ authorizes parties who do not receive some or all the discovery responses or answers requested to file a Motion for an Order Compelling Discovery.

Where a party’s Motion to Compel has been granted and the other party fails, without good cause, to obey that order to provide or permit discovery, the Massachusetts Standard Rules of Adjudicatory Practice and Procedure permit a Hearing Officer to exercise discretion in imposing sanctions. In these circumstances, “the Presiding Officer before whom the action is pending may make orders in regard to the failure as are just, including . . . [a]n order refusing to allow the disobedient Party to support or oppose designated claims or defenses, or prohibiting him or her from introducing evidence on designated matters.”¹⁷ In the words of the First Circuit Court of Appeals, “the trial judge has an independent responsibility to enforce the directives he has laid down for the case… . If he or she sets a reasonable due date, parties should not be allowed casually to flout it or painlessly to escape the foreseeable consequences of noncompliance.”¹⁸

2. Application of Legal Standard:

a. The District Is Entitled To A Protective Order Relative To Parent’s Document Request No. 5 Seeking “Title IX Trainings In The District Dating Back Two Years” And Document Request No. 6 Seeking “Redacted Title IX Complaint For 2021-2022 School Year.”

The instant case concerns, in part, a dispute between Parent and the District over whether the program proposed by Springfield is appropriate for Student and whether the District denied Student a FAPE by failing to conduct a Title IX investigation.¹⁹ As part of its discovery, Parent requested that the District produce “Title IX trainings in the district dating back two years” (Request No. 5) and “redacted Title IX complaint[s] for 2021-2022 school year” (Request No. 6). Although the BSEA has interpreted the Massachusetts and federal discovery provisions liberally,²⁰ Parent’s request must still be relevant.²¹ Even if I view Parent’s discovery requests generously, I cannot find that whether the District conducted Title IX trainings over the last 2 years (nor the content thereof) is even remotely relevant to the central issues in this case. Similarly, I do not find persuasive Parent’s argument that “redacted complaints are as relevant as requesting redacted IEP’s [sic] related to issues in the Hearing.” In fact, I cannot find that the “redacted Title IX complaint[s] for 2021-2022 school year” are at all relevant, as the recently issued In Re: Student v. Springfield Public Schools (Ruling on Springfield Public Schools’ Motion to Dismiss), BSEA # 2208440 (Kantor Nir, September 20, 2022) dismissed Parent’s Title IX claims (including any systemic Title IX claims) as not within the jurisdiction of the BSEA. The only surviving claim is that the District’s failure to conduct a Title IX investigation in this matter resulted in a denial of a FAPE to Student. Because the District’s Title IX trainings and the content of other complaints or investigations are irrelevant to the issues in this case, the District’s Motion for Protective Order Relative to Discovery Request Nos. 5 and 6 is ALLOWED, and Parent’s Motion to Quash is DENIED.²²

b. The District Is Not Required To Produce The Resumes And Credentials Of SEBS Staff For The Purpose Of The Proposed Extended Evaluation.

I note at the outset that Parent failed to serve her discovery request in accordance with BSEA Hearing Rules V(B)(1) and (2). Nevertheless, accepting her email as a discovery request, I find that neither a motion to compel nor an order for sanctions is appropriate at this time.

With regard to Parent’s request to compel production of SEBS staff credentials and resumes, as articulated in Parent’s Motion for District to Produce Resumes and Credentials for [A]ll [SEBS] Programs, and Clinical Staffs [sic] Credentials, I find that I cannot compel the production of documents relative to an issue that is not before me,²³ and the issue of whether SEBS is an appropriate location for the second extended evaluation of Student has not been raised in the initial or the Amended Hearing Request.²⁴ In addition, while Parent seeks sanctions within Parent’s Motion for District to Produce Resumes and Credentials for [A]ll [SEBS] Programs, and Clinical Staffs [sic] Credentials, I note that although Hearing Officers have been willing to sanction parties that fail to comply with discovery orders,²⁵ in the instant matter, I have yet to issue any discovery order with which the District has failed to comply, a prerequisite for sanctions.²⁶ Therefore, Parent’s Motion for District to Produce Resumes and Credentials for [A]ll [SEBS] Programs, and Clinical Staffs[sic] Credentials is DENIED.

Because I denied Parent’s Motion for District to Produce Resumes and Credentials for [A]ll [SEBS] Programs, and Clinical Staffs[sic] Credentials, the District’s Motion for Protective Order Relative to Credentials is moot and is, therefore, also DENIED.²⁷

PARENT’S MOTION FOR INTERFERING:

1. Legal Standard for Extended Evaluations

Massachusetts regulations set out the legal standard for extended evaluations. Specifically, 603 CMR 28.05(2)(b) states that if evaluation information is inconclusive such that “the Team finds the evaluation information insufficient to develop an IEP, the Team, with parental consent, may agree to an extended evaluation period.” The extended evaluation is “not considered a placement.”²⁸

2. Application of Legal Standard

1. No Sanctions Are Appropriate Against The District For Proposing To Parent An Extended Evaluation Form Indicating SEBS as the Location and Delineating the Questions To Be Answered.

Parent asserts that the District’s “unilateral development” of the Extended Evaluation Form interfered with due process and “undermine[d] Parent’s right’s [sic] to meaningful input into the development of the Extended Evaluation while withholding credentials of the staff in the program.” In addition, Parent’s Motion for Interfering alleges racial discrimination by the District against Student and other students of color. In response, the District argues that there is no “procedural violation on the part of the District and/or Dr. Morris”²⁹ and that “for the advocate to raise issues of racial discrimination in her motion without any alleged facts that even hint at any kind of discrimination whatsoever, is inflammatory and inappropriate.”

I reiterate that neither issue relating to the extended evaluation (i.e., appropriateness of SEBS as a location for the extended evaluation and the denial of parental participation in developing the extended evaluation) is before me at this time. Nor is Parent’s claim of racial discrimination. None of these issues was included in the initial Hearing Request or the Amended Request for Hearing; as such, the District has not been provided formal notice of them as contested issues for hearing.³⁰ If Parent wishes to challenge the appropriateness of the SEBS program for an extended evaluation or the manner in which it was proposed (or assert any additional claims), she may request a hearing in accordance with state and federal law³¹ and/or amend her hearing request in accordance with BSEA Hearing Rule I (G). Parent’s claims require an evidentiary hearing on the merits. A motion is an inappropriate vehicle via which to assert substantive and procedural violations under the IDEA.³² Therefore, Parent’s Motion for Interfering is DENIED.

PARENT’S SECOND MOTION FOR SANCTIONS FOR FAILING TO CONVENE A RESOLUTION MEETING:

1. Legal Standard for Resolution Meetings

The Individuals with Disabilities in Education Act (IDEA) requires a school district to hold a resolution session within 15 days of receiving notice of a parent’s due process complaint.³³ When a party files an amended due process complaint, the timelines for the resolution meeting begin again with the filing of the amended complaint.³⁴ A resolution meeting is required unless both the parent and the district agree to waive it or agree to use the mediation process in lieu of the resolution meeting.³⁵ The purpose of this requirement is to ensure that the parties have an opportunity to resolve the parent’s complaint before engaging in due process.³⁶

The burden is on the local educational agency to convene the resolution meeting.³⁷ The district does not have to convene a resolution meeting if: 1) the parent and the district agree in writing to waive the meeting; or 2) the parent and the district agree to mediate the dispute.³⁸ If the district fails to hold the resolution meeting within 15 days of receiving notice of a parent’s due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timeline.³⁹

2. Application of Legal Standard

a. No Sanctions Against The District Are Appropriate For Failing To Convene A Resolution Meeting Relative To Parent’s Amended Hearing Request.

BSEA decisions have consistently held that the IDEA and the federal regulations discuss penalties that may be imposed upon parents regarding the resolution session, but provide for no such penalty on a school district that fails to convene the session, other than relieving the parent from his/her duty to participate as a pre-requisite to the due process hearing.40 I explored this issue previously in my September 22, 2022 Ruling on Springfield Public Schools’ Motion to Postpone Hearing and Parent’s Motion for Sanctions Ruling in In re: Student & Springfield Public Schools, BSEA # 2208440 (2022), and I continue to maintain my analysis and determination regarding same in this Ruling. If Parent believes that the District’s failure to convene the resolution meeting resulted in a denial of a FAPE to Student or impacted Parent’s right to meaningful participation, Parent may so assert in a due process complaint.41 As such, Parent’s request for sanctions against Springfield for any alleged procedural violations for failing to convene a resolution meeting is DENIED.

ORDER

In accordance with my reasoning, supra:

1. Springfield Public Schools’ Motion for Protective Order Relative to Parent’s Request for Production of Documents is ALLOWED, and Parent’s Motion to Quash Protective Order is DENIED;
2. Parent’s Motion for District to Produce Resumes and Credentials for [A]ll [SEBS] Programs, and Clinical Staffs[sic] Credentials, Motion for Sanctions and[/]or Admonishment for Violation of Resolution Meeting is DENIED, and, given my ruling on Parent’s Motion for District to Produce Resumes and Credentials for [A]ll [SEBS] Programs, and Clinical Staffs[sic] Credentials, Springfield Public Schools’ Motion for Protective Order Relative to Parent’s Request for Resumes of all SEBS Employees is also DENIED;
3. Parent’s Motions for Sanctions and/or Admonishments for Violations of Knowingly and Intentionally Interfering with the Impartial Due Process Hearing is DENIED; and
4. Parent’s Motion for Sanctions and[/]or Admonishment for Violation of Resolution Meeting is DENIED.

Both parties are instructed to submit all future filings in accordance with the BSEA Hearing Rules.

So ordered,

By the Hearing Officer,

 

______________________________________________

Alina Kantor Nir

Date: October 21, 2022