In re: Student v. Westfield Public Schools – BSEA# 22-12235

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Student v. Westfield Public Schools

BSEA# 2212235

RULING ON PARENTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

This matter comes before the Hearing Officer on Parents’ Motion for Partial Summary Judgment (the Motion) filed by Parents on September 19, 2022. Said Motion asserts that Parents are entitled to judgment as a matter of law, such that the Westfield Public Schools (Westfield or the District) discriminated against Student in violation of § 504 of the Rehabilitation Act of 1973 on the basis of his disability through a pattern of excessive/disproportionate suspensions between June 17, 2019 and June 17, 2022, inclusive of beginning and end dates. On September 26, 2022, Westfield filed Westfield Public Schools’ Motion in Opposition to Parents’ Motions for Partial Summary Judgment.

Neither party has requested a hearing on its motion. 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, Parents’ Motion for Partial Summary Judgment is hereby DENIED.

I. ISSUE:

The issue here presented is whether Parents are entitled to summary judgment as a matter of law, such that the District discriminated against Student in violation of § 504 of the Rehabilitation Act of 1973 on the basis of his disability through a pattern of excessive/disproportionate suspensions between June 17, 2019 and June 17, 2022, inclusive of beginning and end dates.

II. RELEVANT PROCEDURAL HISTORY:

On June 17, 2022, Parents filed a due process complaint with the BSEA, asserting claims under both the Individuals with Disabilities in Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). Specifically, Parents alleged that in violation of the IDEA, the District “committed significant procedural violations that resulted in a denial of [] FAPE” to Student “by changing [Student’s] placement through procedural inadequacies in connection with school discipline” and by denying Parents meaningful participation during the manifestation determination review meeting. In addition, Parents asserted that the District discriminated against Student in violation of Section 504 “through a pattern of suspensions and manifestation determination review decisions [in 6th, 7th and 8th grade] made in bad faith and with gross misjudgment”; and that Student’s “[p]unishments [were] disproportionately severe for [the] offenses [committed] and [amounted to] differential treatment.” Parents sought to have the BSEA “[o]verturn MDRs from 2019 and 2022”; “[e]xpunge discipline records” from 2019 to 2022; “return [Student] to school, provide an appropriate continuum of services and supports that will allow him to attend his neighborhood school in order to be in the LRE with his peers”; “[p]rovide all compensatory services in a manner that allows [Student] to access and benefit from said educational services by a fully qualified and licensed professional in-person”; “[a]llow [Student] to register for his classes at Westfield High School”; reimburse Parents for “all legal fees incurred by parents since 2019”; and award any “other such remedies BSEA deems necessary to make corrective measures.”

On June 17, 2022, the BSEA granted the matter expedited status pursuant to the IDEA and the applicable BSEA Hearing Rules. On June 27, 2022, the District proposed to expunge from Student’s record the 34-day suspension and the manifestation determination meeting related to said incident, for purposes of settling the pending expedited claims. On June 28, 2022, the District filed Westfield Public Schools’ Motion to Dismiss Expedited Claims arguing that in light of the District’s proposal to expunge Student’s 34-day suspension and the manifestation determination meeting related to said incident, the pending claims should proceed on a regular track along with any counter claims. On June 29, 2022, in Ruling on Westfield Public Schools’ Motion to Dismiss Expedited Claims, I found that because the District had offered to expunge from Student’s record the 34-day suspension and the manifestation determination meeting related to said incident, and since the 2019 suspension and manifestation determination relative thereto were beyond the two-year statute of limitations of the IDEA, there were no claims remaining that satisfied the standard for expedited hearings pursuant to the IDEA and BSEA Hearing Rule II(C).

In addition, on July 26, 2022, I issued Ruling on Westfield Public Schools’ Partial Motion to Dismiss Parents’ Amended Hearing Request and Counterclaim, dismissing several of Parents’ claims as beyond the IDEA’s 2-year statute of limitations. Specifically, I found that Parents’ claims asserting that the District discriminated against Student on the basis of disability in violation of § 504 by failing to conduct proper manifestation determination review meetings and by failing to provide Parents with opportunities to participate meaningfully therein were intertwined with IDEA claims and were hence subject to the two-year statute of limitations. As such, I dismissed any and all claims accruing prior to June 17, 2020 asserting a denial of a FAPE to Student resulting from the District’s substantive and procedural violations relative to school discipline.

I found however that any claims asserting discrimination in violation of § 504 on the basis of disability through the administration of disproportionately severe punishments were not FAPE or IDEA based claims as they were not based on a dispute concerning Student’s eligibility under the IDEA or § 504 or the discharge of the School’s procedural and substantive responsibilities under the IDEA or Section 504 of the Rehabilitation Act of 1973. I applied the three-year statute of limitations applicable to allegations of civil rights violations in Massachusetts to such claims and dismissed all such claims that accrued prior to June 17, 2019.

III. FACTUAL BACKGROUND:

The following facts are not in dispute and are derived from the Hearing Request, Westfield Public Schools’ response thereto, Parents’ Motion for Summary Judgment and exhibits (PE-1 to PE-25)1, as well as Westfield Public Schools’ Motion in Opposition to Parents’ Motions for Partial Summary Judgment.

1. Student is a ninth-grade student attending a full inclusion program in Westfield Public Schools pursuant to a stay-put Individualized Education Program (IEP). He has been diagnosed with ADHD, specific learning disability (dyslexia), anxiety, and disruptive mood dysregulation disorder (DMDD). (PE-1a through PE-1i).

2. Student struggles with emotional and behavioral regulation, impulse control, taking accountability, advocating for breaks, and staying on ask. Behaviors include verbal outbursts, environmental aggression, elopement, non-compliance, and physical aggression, all of which are exacerbated by anxiety. The function of the behaviors appears to be attention and escape. (PE-1a, PE1b, PE-1c , PE-1d, PE-1e, PE-1f, PE-1g, PE-1h, PE-1i) Because Student cannot tolerate redirection or consequences for his behaviors, he feels persecuted, and “this resentment than [sic] fuels a desire for revenge that seems to manifest in increased disruptive and disrespectful behavior” which then results in school discipline, including suspension. (PE-1g, PE-1h, P4a)

3. School and independent evaluations ranging from 2017 to 2021 recommend a highly structured classroom where Student’s needs can be addressed in a comprehensive and integrated manner by special education teachers who have additional training an expertise with working with students who have emotional challenges. Student also requires a structured behavioral management plan across all settings. (PE-1a, PE1b, PE-1c, PE-1e, PE-1g, PE-1h, PE-1i, PE-3k)

4. Upon arrival at school on September 13, 2019, Student began swearing and yelling. He was a given a choice of rooms and chose an empty classroom with adult supervision but continued to exhibit noncompliant behaviors. He “did a back flip” in a classroom full of children and threw the lid of a marker in a staff member’s eye, hitting him. Student was placed in a “basket hold” for 30 seconds and was then escorted into a time out room which was propped on by a chair, where a staff member sat. Student asked for a water and bathroom break and staff indicated he could have them after demonstrating willingness to comply with staff. Within less than 20 minutes, Student was escorted to the bathroom and to get water. He spent the rest of the day, from 9:30AM on, in the time-out room. Staff repeatedly asked Student if he wanted to leave the room and Student elected to stay and continued to exhibit noncompliant behavior. The record reflects that this in school suspension was imposed “for defiance, insubordination, and inappropriate language”. (PE-3c, PE-4a, PE-4b, PE-5)

5. According to Parents, following the incident Student was “traumatized and “afraid.” The room had been bare and cold. The District was aware that small rooms exacerbated Student’s anxiety. (PE-3c, PE-4a, PE-4b) Parents notified the District that they would “not consent to any activity that involves physically or mechanically restraining” Student. They indicated that Student’s “difficulty [in the fall of 2019 was] caused, at least in part, by a failure of the district to produce an IEP that appropriately addressed [Student’s need].” Parents also had not been receiving copies of Student’s “point sheets” which made them “question if this part of [Student’s] IEP [was] being actively followed with fidelity.” A behavior support team meeting was scheduled to discuss Student’s behavior and interventions. (PE-3a)

6. Westfield school staff have been “trained” in the “restraint and exclusionary protocols provided by the Department of Elementary and Secondary Education.” (PE-3d, P-6)

7. Parents filed a complaint with the Department for Elementary and Secondary Education (DESE) alleging improper use of restraints and seclusion. According to the results of DESE’s investigation, the District implemented Student’s behavior support plan but failed comply with state law when placing Student in the time out room and allowing him to remain there after he had calmed; specifically, “the principal did not give approval for continuing the exclusionary time out beyond 30 minutes as required.” DESE did not find “conclusive evidence” that Student was improperly restrained after hitting the staff member with a marker lid. (PE-5)

8. A meeting was held in early October 2019 to discuss an extended evaluation and to update Student’s positive incentive/behavioral system. Parents felt an extended evaluation was “premature.” According to Parents it was inappropriate to discuss “other options” for Student, where his behavior support plan had not been followed with fidelity. Parents requested a BCBA to “to facilitate implementation of a BIP and work with staff on how [Student’s] conditions affect behavior and how to better manage his symptoms.” (PE-3e, PE-3f, PE-3g, PE-3i, PE-3j)

9. Meetings were also held in school in mid and late-October 2019. The District agreed to provide multiple independent evaluations, including an occupational therapy evaluation, an FBA and a clinical psychological evaluation. (PE-3k) Parents refused to complete a release of information with Student’s pediatrician and therapist. (PE-3j, PE-3k) The District recommended an extended evaluation at an alternative setting, and Parents rejected this option. (PE-3j, PE-3k, PE-3l) Although Student’s IEP called for B Grid services from a Behaviorist, Parents requested said services be suspended. The District disagreed with the request, as they did with Parent’s request to contract with a BCBA; the District indicated it had trained staff to support Student. Parents also rejected tutoring services, asserting that Student would not be receptive. (PE-3k)

10. An FBA was conducted at public expense by an outside provider in the fall of 2019. (PE-1e, PE-3k)

11. During Student’s 6th grade school year (2019-2020), there were many documented incidents of school-based disruptions, which included insubordination, disrespect toward other peer groups, disruption of classroom , being out of bounds, and vocal outbursts. Three short term suspensions accompanied some of the disciplinary infractions. Parents declined to attend some of the disciplinary meetings because they disagreed with “disciplinary actions due to [Student’s] unsupported disability related behaviors.” (PE-1i, PE-2a, PE-2b, PE-2c, PE-3h, PE-10)

12. One long term suspension was imposed on November 8, 2019. Student was suspended out of school for 85 days for behaviors occurring from October 10, 2019 to November 8, 2019, including insubordination, unacceptable conduct in class, hallways, impermissible use of electronic devices, inappropriate language, lack of care of school property, and tardiness. (PE-2d, PE-3m, PE-9) According to Parents, the District was suspending Student “for disability-related behaviors.” (PE-3m) Held in abeyance pending a manifestation determination hearing, the long-term suspension was ultimately imposed when Student’s behavior was found to be not a manifestation of his disabilities. (PE-3n)

13. Parents appealed the long-term suspension to the Superintendent. On February 12, 2020, the Superintendent concluded that the

“suspension stemmed from multiple incidents of disruption of the educational environment by [Student] which interfered with learning of other students. Further, the conduct directed at staff members constituted insubordination, and in some cases, bordered on threats and assault of a staff member. [He] determined the suspension [was] appropriate because the conduct did occur and it was disruptive, insubordinate, and in some cases threatening. [He indicated that Parents] did not dispute the occurrence of most incidents, but rather sought to excuse [Student’s] conduct which the Superintendent] not accept.

While [the Superintendent] determined [that Student’s] conduct did violate the code of conduct for the school and suspension out-of­school was [] justified, [he] decided to reduce the number of suspension days to 48 (from 85 s) in view of [Student’s] matriculation to Agawam as a School Choice student. However, if, for some reason [Student] does not remain in Agawam and transitions back to Westfield, [Student would] be subject to the entire length of the original suspension.” (PE-14)

14. During Student’s 7th grade school year (2020-2021), there were also several documented incidents of school-based disruptions, which included insubordination, disrespect toward peer groups, disruption of classroom , being out of bounds, once for vaping, once for blowing vape in the face of his counselor, vocal outbursts, swearing at staff, and once for jumping out of a bus window. Two2 short term suspension accompanied some of the disciplinary infractions, and Student lost “large bus privileges” beginning on June 4, 2021, at which time, the District proposed an “amendment” for a minivan. Parents declined and chose to drive Student instead. Parents continued to decline to attend the disciplinary meetings because they disagreed with “disciplinary actions due to [Student’s] unsupported disability related behaviors.” (PE-1i, PE-2a, PE-2b, PE-2c, PE-2e, PE-2f, PE-3h, PE-3o)

15. The District completed an FBA in May-August 2021. (PE-1i)

16. Student began his 8th grade school year (2021-2022) in a 45 day assessment in the Westfield Middle School special education sub-separate RISE program. (PE-1i) There was no behaviorist on staff within the program. (PE-3p)

17. In the fall of 2021, Student continued not to be allowed on the large school bus. (PE-3o) In each of September and October 2021, Student served a short-term suspension for videotaping a peer and “disrupt[ing] the entire office and guidance area” in response to “los[ing] possession of his phone to administration” and “escalating and repeated comments to [a staff member] about want[sic] to hurt him.” (PE-2g, PE-2h, PE-3o) Parents believed there were mitigating circumstances; they argued that Student is “highly sensitive and will react with using bad language when he feels threatened”; also, he “is highly sensitive to his friends getting in trouble.” When his friend was sent to the office, [Student] reacted to the para by calling him a bad word and telling his friend to, “punch him in the face … hardly a legitimate “threat”, let alone one that would warrant an emergency removal.” (PE-2g, PE-2h, PE-3p) According to Parents, Student was treated “more harshly in order to push him out of district.” (PE-3p) Moreover, according to Parents, the District failed to provide Student with proper supports while staff was “trying to trigger negative responses in [Student].” Parent continued to request a “BCBA to properly facilitate an FBA/BIP.” (PE-3p, PE-5)

18. On May 2, 2022, the school principal imposed a 34 day out of school suspension when Student threatened to hurt a pregnant staff member.3 According to the principal, although Student was attending a therapeutic program at RISE, the statements he made were “not even … acceptable in that program.” (PE-2i, PE-21)

19. On May 13, 2022, Parents appealed the principal’s long-term suspension. The Superintendent upheld the suspension. (PE-22a through PE-22c)

20. On May 19, 2022, Parents were summoned to the Hampden County Juvenile Court to respond to an application stating that Student was a child requiring assistance (CRA). On June 15, 2022, the District requested that the petition be dismissed and proposed a settlement agreement with Parents, seeking dismissal of their claims against the District.

21. On June 27, 2022, the District expunged from Student’s record the 34-day suspension and the manifestation determination meeting related to said incident, for purposes of settling the claims in the instant appeal.

IV. DISCUSSION:

1. Legal Standards:

A. 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.”4 In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter5 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.”6 Nevertheless, it is well established that matters that come before the BSEA must involve a live or current dispute between the Parties.7 In addition, 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

B. 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.”9 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.”10 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 jury could resolve the point in the favor of the non-moving party.”11  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.12

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.”13 To survive this motion and proceed to hearing, the adverse party must show that there is “sufficient evidence” in her favor that the fact finder could decide for her.14 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.”15 The non-moving party’s evidence will not suffice if it is comprised merely of “conclusory allegations, improbable inferences, and unsupported speculation.”16

As such, to analyze whether the party moving for summary judgment has met its initial burden such that the burden shifts to the opposing party, I must view all the evidence it has submitted in the light most favorable to the opposing party and determine that there is no genuine issue of material fact related to the claims before me. Only if the moving party is successful in this first step does the burden then shift to the opposing party.

In the instant matter, therefore, to decide as to Parents’ Motion for Partial Summary Judgment, I must first determine whether disputed issues of material fact exist or whether, as a matter of law, the District discriminated against Student in violation of § 504 of the Rehabilitation Act of 1973 on the basis of his disability through a pattern of excessive/disproportionate suspensions between June 17, 2019 and June 17, 2022, inclusive of beginning and end dates.

Hence, I first turn to the legal standards regarding disability discrimination and its interplay with school discipline.

C. Discrimination On the Basis of Disability

Pursuant to § 504 of the Rehabilitation Act of 1973, “no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . “17 To prevail on her claims under § 504, Parent must establish that (1) Student is a “handicapped individual”; (2) Student is “otherwise qualified” for participation in the program; (3) the program receives federal financial assistance; and (4) Student was “denied the benefits of” or “subjected to discrimination” under the program.18 Since only the fourth element is at issue in this matter (i.e., whether Student was denied “the benefits of” or “subjected to discrimination” through disproportionate and excessive use of discipline, seclusion and restraint), I will not address the other three elements.19

The United States District Court for the District of Massachusetts has held that to prevail on an educational disability claim under § 504, a parent “must demonstrate that a school district acted with bad faith or gross misjudgment.”20 Hearing Officer Amy Reichbach explored this subject in detail in her 2018 decision, In Re: Adam and Taunton Public Schools, where she concluded that “in order to prove bad faith or gross misjudgment, the moving party must establish that the school’s actions ‘depart[ed] substantially from accepted professional judgment, practice or standards [so] as to demonstrate that the person[s] responsible did not base the decision on such judgment.'”21

Courts have found that “statutory noncompliance alone does not constitute bad faith or gross misjudgment;”22 it is a high standard to meet.23 For example, parents’ claim that the district removed a student from honors classes, removed a writing fluency goal from his IEP, and failed to incorporate recommendations from an independent educational evaluation necessary for the student to receive a FAPE, in violation of § 504, was dismissed on summary judgment for failure to demonstrate gross misjudgment.24 Similarly, parents’ Section 504 claim regarding, among other things, a district’s failure to comply with certain regulations implementing Section 504 and the ADA did not survive summary judgment because the facts, even construed in the light most favorable to parents, did not suggest that the district “deviate[d] so substantially from accepted professional judgment, practice, or standards as to demonstrate that the defendant acted with wrongful intent.”25 In other words, parent must provide evidence that the school has “particular animus towards the learning disabled [child].”26

On the other hand, the exclusion of a child from school and other educational activities because of his disability, if proven, would constitute a violation of Section 504,27 and allegations that a school district discriminated against a student with mobility issues in violation of § 504 by failing to maintain physical accessibility of programs, facilities, and activities were sufficient to survive a motion to dismiss.28 A school district may rebut the allegation of discrimination by providing a reasonable explanation for the action or inaction that the moving party is alleging to be discrimination.29

2. Application of Law:

To prevail on their Motion, Parents must demonstrate that there is no genuine dispute of material fact on their claims under Section 504.30 After reviewing the pleadings, the submissions of the parties, as well as their thoughtful arguments, and applying the LEGAL STANDARDS delineated supra, I find that Parents failed to demonstrate that there is no dispute of material fact such that the District “acted with bad faith or gross misjudgment”31 by “depart[ing] substantially from accepted professional judgment, practice or standards [so] as to demonstrate that the person[s] responsible did not base the decision on such judgment.”32 My reasoning follows.

Here, during the relevant school years, Student served seven short-term suspensions, one bus suspension, and two long term suspensions. Parents argue there is no genuine issue of fact that the suspensions were excessive, disproportionate to the offenses, deviated from reasonable professional judgment, and formed a pattern of discrimination. Parents’ argument is unpersuasive.

School personnel may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct as long as those removals do not constitute a change of placement under 34 CFR 300.536.33 Caselaw suggests that, in the context of school discipline, a parent is unlikely to show intentional discrimination where a student is subjected to a short-term suspension.34 In the case of a bus suspension, a student may be removed from the bus for unsafe behavior provided a different mode of transportation of offered. 35 Even in a case where a student is disciplined and excluded for more than 10 days for behaviors which are a manifestation of his disability, the court looks for “the record [to] support the conclusion that the school personnel involved in the decisions to suspend the student acted in bad faith or pursuant to a gross misjudgment.36

Here, as a consequence for Student’s violations of the code of conduct, the District imposed less than a handful of short-term suspension per relevant school year.37 Parents did not dispute that the behaviors leading to said suspensions took place. The District asserts “it has acted fairly and equitably relative to Student and that it has and continues to have Student’s best interest in mind as evidenced by the proposals for a more therapeutic program to meet his needs.” The District convened meetings with Parents to attempt to problem-solve the behaviors and to develop strategies and interventions. It also proposed and conducted evaluations, including two FBAs. The District also proposed an extended evaluation of Student. Although Student was removed from his bus for inappropriate and unsafe behavior, the District offered him a different mode of transportation, which parents declined.38 That Parents disagreed that the District was using the correct interventions does not substantiate a discrimination claim.39 Hence, Parents have not demonstrated that the “professional judgment” exercised by the principal in issuing said short term suspensions and bus suspension “depart[ed] grossly from accepted standards among educational professionals.”40  Rather, this is an issue of fact that requires an evidentiary hearing.

In the context of school discipline, discrimination may be found where a district disciplines41 a student with a disability more harshly than students without disabilities,42 as a district may not impose a disciplinary sanction upon a student with a disability if the district would not have imposed the same sanction on a nondisabled student under the same circumstances.43 Nevertheless, school districts are not prohibited from imposing harsher discipline on a particular student as long as the harsher punishment is justified under the circumstances and is not discriminatory.44 OCR generally considers three questions when investigating a complaint of different treatment in student discipline: “(1) whether there is evidence the school treated the student differently based on disability; (2) whether the school stated a legitimate, nondiscriminatory reason for the different treatment; and (3) whether the school’s stated reason was pretext for discrimination.”45 If a school did not have a legitimate, nondiscriminatory reason for different treatment of a student with a disability or if its stated reason was a pretext for discrimination, OCR would find that the school violated Section 504.46

Here, Parents have not demonstrated that no material issue of fact exists such that Student’s two long-term suspensions were more severe than those imposed on other nondisabled peers in similar circumstances.47 Parents offer no evidence of any other nondisabled student who was treated less harshly under similar circumstances48; as repeatedly stated by courts, “Discipline is an essential part of a school’s curriculum; absent a showing that the school’s disciplinary procedures as applied to Plaintiff were significantly different from those applied to other students or otherwise unreasonable, courts should be reluctant to find that a school administrator disciplined a student with retaliatory intent.”49  In support of their Motion Parents cite to In re: Adam and Taunton Public Schools, BSEA # 17-08888. 50 However, in contrast to the instant matter, in Adam the District imposed repeated out of school suspensions over a long period without conducting a single manifestation determination review. Parents also support their Motion with instructional exhibits including, but not limited to, Guiding Principles: a Resource Guide for Improving School Climate and Discipline. (IPE-11i; see also PE-11a through PE-11h and PE-12a through PE-12d). However, while Guiding Principles and the like may offer reasonable guidelines for effective school discipline, in the instant appeal, the school principal and the Superintendent cite to the severity of Student’s behaviors as the rationale for the harsh discipline imposed on Student (i.e., suspension of 85 and 43 school days, respectively). Whether such rationale provides “a reasonable explanation” for the suspensions sufficient to “rebut the allegation of discrimination” is a genuine issue of material fact that cannot be resolved via a summary judgment motion.51

Parents also raise the issue of excessive punishments in the form of inappropriate use of restraints and seclusion. Section 504 does not prescribe particular behavior intervention techniques, and there is no mention of restraint or seclusion therein. In Massachusetts, 603 CMR 46.00 et seq governs the use of physical restraint on students in publicly funded elementary and secondary education programs. Judicial and administrative decisions assess the use of restraint and seclusion on a case-by-case basis.52 The Office for Civil Rights (OCR) and administrative and judicial decisions have found that restraint in response to student behaviors could constitute disability discrimination.53 In Dear Colleague Letter: Restraint and Seclusion of Students with Disabilities, 69 IDELR 80 (OCR 2016), OCR explained that the restraint and seclusion of a student with a disability could violate Section 504 if it: 1) constitutes unnecessary different treatment; 2) is based on a policy, practice, procedure, or criterion that has a discriminatory effect on students with disabilities; or 3) denies a student FAPE.54 However, restraint would not constitute unnecessary different treatment if there is no evidence to suggest that the school would have treated a non-disabled student exhibiting the same behavior any differently than it treated a student with a disability; that a student’s behavior is “a manifestation of his disability” is not sufficient to demonstrate that school staff utilized restraint or seclusion “by reason of” his disability.55 Some courts and OCR Letters of Findings have upheld a district’s use of restraint and seclusion as nondiscriminatory especially where restraint and/or seclusion were implemented as emergency measures in the face of imminent harm and in accordance with state law.56 Therefore, evidence that a school used inappropriate techniques to manage the behaviors of a student with a disability will not in itself entitle the parent to relief for disability discrimination if the school can show it acted in the student’s interest or offer evidence providing a reasonable explanation for the action.57

In the instant matter, Parents’ argument that no genuine issue of fact exists such that the District discriminated against Student on the basis of his disability by restraining and secluding him is unpersuasive. First, the District’s deviation from 603 CMR 46.03 on September 13, 2019 does not per se equate to discrimination. 58 (PE-5) With regard to the restraint implemented on the same day, Parents offered no evidence that it was implemented inappropriately or that the District acted in a manner that “departs substantially from an accepted professional judgment.”59 Nor was evidence offered to suggest that the school would have treated a non-disabled student exhibiting the same behavior any differently.60 Parents argue that Student was restrained because of his disability, but the fact that a student’s behavior is “a manifestation of his disability” is not sufficient to demonstrate that school staff utilized restraint or seclusion “by reason of” his disability. 61 Because a genuine issue of material issue fact remains as to discriminatory intent, Parents are not entitled to summary judgment.

V. ORDER

Parents’ Motion for Partial Summary Judgment is hereby DENIED. The hearing scheduled to begin on December 5, 2022 will proceed on the following issues:

A. Whether the District discriminated against Student in violation of § 504 of the Rehabilitation Act of 1973 on the basis of his disability through a pattern of excessive/disproportionate suspensions between June 17, 2019 and June 17, 2022, inclusive of beginning and end dates?

B. Whether the District denied Student a FAPE, during the time he was not attending school as a result of being suspended between June 17, 2020 and June 17, 2022, inclusive of beginning and end dates?

C. If the answer to (A) or (B) is yes, what is the appropriate remedy?

D. Whether Student requires additional supports and services at his current placement at Westfield High School in order to receive a FAPE in the LRE?

E. Whether an extended evaluation in a therapeutic milieu is necessary to ensure that Student is able to receive a FAPE, in which case substitute consent is appropriate?

So Ordered by the Hearing Officer:

_______________________________________

Alina Kantor Nir

Dated: September 29, 2022