COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Springfield Public Schools
BSEA #24-14829
RULING ON PARENT’S MOTION FOR PRELIMINARY INJUNCTION
This matter comes before the Hearing Officer on Parent’s[1] September 13, 2024 Motion for Preliminary Injunction[2] in which she asks that the Hearing Officer issue a preliminary injunction ordering Springfield Public Schools (Springfield or the District) “to immediately place [Student] in an appropriate alternative placement, as recommended by [Student’s] mental health clinician, such as Renaissance School or STEM Middle School, or another suitable school with the clinician’s approval that addresses [Student’s] anxiety triggers and educational needs; … to provide appropriate transportation to the new school placement; … to ensure all of [Student’s] IEP services and accommodations are implemented at the new placement…; [and] … to provide [Student’s] mother with a proposed IEP within 2 school days of the new placement….” As grounds therefor, Parent asserts that the BSEA has the authority to issue preliminary injunctions in special education matters pursuant to 603 CMR 28.08(7)(c) and that, in the instant matter, Student “is suffering irreparable harm each day she remains in an inappropriate placement, including [] [o]ngoing and worsening anxiety; [m]issed instructional time due to absences and anxiety-related early dismissals; [f]alling behind academically; [e]xposure to bullying and social conflicts that exacerbate her PTSD and anxiety; and, [l]ack of consistent implementation of necessary accommodations and supports.”
On September 17, 2024, Springfield filed the Springfield Schools’ Opposition to Parent’s Motion for Injunctive Relief (Opposition), asserting that a change to a different school is not a special education change in placement over which the BSEA has jurisdiction; that “Parent provides no reasoning within her Motion for Injunctive Relief as to why either the Renaissance School or STEM Middle School is a more appropriate school for [Student] to attend from a special education perspective”; that “[o]ther than [Student’s] attendance and her stating that she will feel anxious in the future, there is no evidence that her anxiety or school attendance is related to her assigned school [and] [e]ven if it were, this is not a special education issue over which the BSEA has jurisdiction”; that “[a]ll the claims raised in Parent’s Motion are matters of fact [that…] would require a full due process hearing, including submission of exhibits and testimony of evidence, before a Hearing Officer could issue any order even assuming she had jurisdiction over the request, which in this case she does not.” In addition, the District asserts that Parent has not yet responded to the IEP, and, as such, Student remains a general education student at this time.
On October 7, 2024, Parent filed Reply To Opposition To Motion For Preliminary Injunction
And Supplemental Filing Regarding Proposed IEP[3] (Reply), asserting, in part, that the District incorrectly asserts that the BSEA lacks jurisdiction over the placement issue and that “[e]ven if the school assignment were not within the purview of IDEA (which we dispute), reassigning [Student] to a school other than her ‘boundary school’ is necessary to address disability-related barriers to educational access under Section 504. The District’s rigid adherence to boundary school assignment … fails to consider the individualized needs of [Student] as required by both IDEA and Section 504.” Parent’s Reply also asserts that the District was untimely in proposing Student’s IEP and that the IEP itself includes inappropriate goals and services.
For the reasons set forth below, Parent’s Motion for Preliminary Injunction is DENIED.[4]
PROCEDURAL HISTORY AND RELEVANT FACTS[5]:
- Student is an 8th grade student at Kiley Middle School in Springfield, Massachusetts.
- On or about May 23, 2024, Student was found eligible for a 504 Plan based on her disability of anxiety.
- On June 12, 2024, Student was found ineligible for special education and related services.
- On June 14, 2024, Parent filed for a due process hearing with the Bureau of Special Education Appeals (BSEA) challenging the finding of ineligibility. Subsequently, Parent amended the hearing request and requested an Extended Evaluation.
- On August 29, 2024, Springfield convened an IEP Team meeting. The Team found Student eligible for special education services based on her emotional disability. The IEP counselor consultation 1×10 minutes/cycle, a math goal with attendant math skills services within the general education setting 1×30 minutes/cycle and counseling services 1×16.25 minutes/cycle. The proposed placement is full inclusion.
- According to Springfield, the IEP was sent to the Parent on September 13, 2024, and a corrected version was sent to Parent on September 17. According to Parent, she has not yet received the proposed IEP.
- At the Team meeting, Student’s therapist indicated that a “different school within the district would be helpful to reduce [Student’s] triggers.”
- The Team refused Parent’s request to discuss alternative placement options, asserting that “Kylie is the student’s boundary school” and that the “IEP team did not determine a different placement based on special education related needs.”
- According to Parent, in the first week of the 2024-2025 school year, Student “has already experienced renewed social conflicts and anxiety triggers at Kiley Middle School. These ongoing issues demonstrate that Kiley Middle School continues to be a source of anxiety and potential trauma for [Student], directly impacting her ability to attend school and access her education.”
- Student reports that “[b]eing at Kiley Middle School causes [her] severe anxiety. [She] often feel[s] physically sick and unable to go to school because of [her] anxiety. Even with special door-to-door transportation, [she] still feel[s] very anxious about going to school at Kiley.” Student also reports
“having problems with other students at Kiley again this year, which makes my anxiety worse. I feel like I’m not getting enough support at school. I’m uncomfortable with most of the administrators who are supposed to help me, and I feel like no one at school really understands what I’m going through. I would feel much more comfortable attending either Renaissance School or STEM Middle School, where I wouldn’t have the same anxiety triggers I have at Kiley. My anxiety about attending Kiley and not being able to go to school is making it very hard for me to keep up with my schoolwork and learn. I’m often too scared to go to school, which causes me to miss many days of school.”
- According to Parent and Student, Student has not been receiving the accommodations in her 504 Plan.
- Since the start of the 2024-25 school year, Student’s attendance has been sporadic.
LEGAL STANDARDS AND DISCUSSION:
- Motion for Preliminary Injunction
- Legal Standards:
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.”[6] In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter[7] 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.”[8] 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.”[9]
The IDEA’s “stay-put” provision requires that unless the State or local educational agency and the parents otherwise agree, during the time that a parent and school district are engaged in an IDEA dispute resolution process, “the child shall remain in the then-current educational placement of the child….”[10] However, pursuant to 20 U.S.C. § 1415(k)(3)(B)(ii)(II), a Hearing Officer may order a change of placement for a child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others. Similarly, Massachusetts Special Education Regulations dictate that during the pendency of any dispute, the student must remain in his or her then current education program and placement, but add that a Hearing Officer may order a temporary change in placement “for reasons consistent with federal law, including but not limited to when maintaining such student in the current placement is substantially likely to result in injury to the student or others.”[11] In addition, Massachusetts law allows “any party seeking to change the eligible student’s placement during the pendency of proceedings before the Bureau of Special Education Appeals or in subsequent judicial proceedings [to] seek a preliminary injunction from a state or federal court of competent jurisdiction, ordering such a change in placement.”[12]
- Application of Legal Standards:
Although the Massachusetts Special Education Regulations allow a Hearing Officer to “order a temporary change in placement of an eligible student for reasons consistent with federal law, including but not limited to when maintaining such student in the current placement is substantially likely to result in injury to the student or others,” I decline to do so in the instant matter, as no probative evidence has been provided to suggest that a delay would result in injury or harm to Student or others.[13] Parent and Student have provided affidavits indicating that Student suffers anxiety in her current general education placement that prevents her from attending school. However, without a Hearing and the opportunity for both parties to present evidence and testimony and to examine and cross examine witnesses, I cannot find that having Student remain at Kiley is substantially likely to result in injury to Student.[14]
In addition, the Hearing Officer has no authority over general education placement decisions, such as the one requested by Parent.[15] Even if I had authority to make decisions over general education placements, absent a showing “of injury or harm to Student or others,” moving Student to another school at this juncture in the proceeding would be contrary to the purpose of stay-put which is to preserve the status quo so as not to disturb a student’s placement unnecessarily where there is no meeting of the minds between the parties.
ORDER:
Parent’s Motion for Preliminary Injunction is DENIED, at this time.[16]
So ordered,
By the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir
Date: October 8, 2024
[1] In this Ruling, I refer to Parent as the moving party as Student is a minor.
[2] This Motion is supported by 2 affidavits of Parent and Student, respectively.
[3] On September 17, 2024, Parent requested via email leave to respond to the District’s Opposition within 7 days, by September 24, 2024. On October 2, 2024 Parent noted via email that the Reply was outstanding but did not file it until October 7.
[4] This Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).
[5] The information in this section is drawn from the parties’ pleadings and is subject to revision in further proceedings.
[6] See 34 C.F.R. §300.507(a)(1).
[7] Limited exceptions exist that do not apply here.
[8] 603 CMR 28.08(3)(a).
[9] In Re: Georgetown Pub. Sch., BSEA #1405352 (Berman, 2014).
[10] 20 U.S.C. §1415(j); see CP v. Leon County School Bd. Florida, 483 F.3d 1151, 1156 (11th Cir. 2007) (“provision amounts to, in effect, an automatic preliminary injunction, maintaining the status quo and ensuring that schools cannot exclude a disabled student or change his placement without complying with due process requirements”).
[11] 603 CMR 28.08(7)(c).
[12] 603 CMR 28.08(7)(d).
[13] See 603 CMR 28.08(7)(c).
[14] Where Parent’s Reply asserts that the District was untimely in proposing Student’s IEP and that the IEP itself includes in appropriate goals and services, I note that a Hearing on the merits rather than a preliminary injunction is the appropriate venue to address allegations of procedural and substantive violations by the District.
[15] See, e.g., In Re: Westfield Public Schools, BSEA# 2401035 (Mitchell, 2023) (typically, general education decisions are outside the jurisdiction of the BSEA); In Re: Dennis-Yarmouth Regional School District BSEA #03-4447 (Putney-Yaceshyn, 2004) (schools generally have discretion over such items as classroom placement, staff assignments, and methodologies, as long as the goals and objectives of the IEP can be met and the student can make effective progress); In Re: Pentucket Regional School District (Ruling On Pentucket Regional School District’s Partial Motion To Dismiss), BSEA # 10-6783 (BERMAN, 2010)(“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] Nothing contained herein shall preclude Parent from renewing her Motion and requesting a hearing thereon in order to demonstrate, through the use of documentary evidence and witness testimony, that maintaining Student’s current placement is substantially likely to result in injury to Student.