COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Laura* and Boston Public Schools
BSEA # 03-1154
RULING ON MOTION FOR PARTIAL SUMMARY DECISION
Introduction.
On April 10, 2003, Parents filed a Motion for Order for Partial Summary Decision and for Stay Put Placement (hereafter, Motion for Partial Summary Decision ). Boston Public Schools (hereafter, Boston) filed an opposition on April 18, 2003. The Motion for Partial Summary Decision was heard on April 23, 2003. The record was held open until April 28, 2003 to allow the parties time to research and report to the Hearing Officer any additional legal authorities.
A. Positions of the Parties .
1. Parents’ position . Boston proposed an IEP for the 2002-2003 school year which would retain Student in the 8 th grade, rather than promote her to the 9 th grade. Parents’ Motion for Partial Summary Decision takes the position that to so retain Student denies her a free appropriate public education (hereafter, FAPE), violates Boston’s Promotion Policy and discriminates against her in violation of Section 504 of the federal Rehabilitation Act.1
2. Boston’s position . In its opposition to the Motion for Partial Summary Decision , Boston takes the position that there are factual disputes requiring dismissal of the motion. Boston argues that Student’s IEP was appropriate because Student had certain social deficits and had not completed the requisite academic requirements necessary for promotion to the 9 th grade, with the result that retention in the 8 th grade was justified. Boston denies that the decision to retain Student was made on the basis of her disability.
B. Standards for Deciding the Motion for Partial Summary Decision .
The Executive Office of Administration and Finance adjudicatory rules of practice and procedure allow for a party to file a motion for summary decision when the party is of the opinion that there is no genuine issue of fact relating to all or part of a claim or defense, and that the party is entitled to prevail as a matter of law.2
Further guidance is found by turning to the motion for summary judgement which sets forth a substantially similar standard. The courts have explained that in order for the moving party to prevail on a motion for summary judgement, the moving party must demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”3 A fact is material only when its resolution affects the outcome of the case.4 A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party.5 All evidence and inferences are to be viewed in a light most favorable to the nonmoving party.6 The nonmoving party “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”7
Facts
The following facts are not in dispute.
Student is a fourteen-year-old girl (date of birth 6/16/88) who resides with her Parents in Boston. Student’s most recently proposed IEP (for the 2002-2003 school year) describes her as having diagnoses of non-verbal learning disability, Asperger’s Syndrome, attention deficit hyperactivity disorder and anxiety.
Student attended Boston’s Mary Lyon Elementary School (hereafter, Mary Lyon) beginning in kindergarten. During the 2001-2002 school year, Student attended the 8 th grade at Mary Lyon. However, on or about March 4, 2002, Parents removed Student from Mary Lyon and unilaterally placed Student at the Learning Prep School (hereafter, LPS), with no break in school days. LPS is a 766-approved private special education school located in West Newton, Massachusetts. Student continued to attend LPS for the remainder of the 2001-2002 school year.
Student’s report card for the first two marking periods of 8 th grade at Mary Lyon indicates that she received passing grades in all subjects, including a grade of B + in 8 th grade English Language Arts for both marking periods. She completed her 8 th grade at LPS where she received passing grades in all subjects, including a grade of B in language arts and a grade of B in literature.
The Mary Lyon is an elementary school which does not go beyond the 8 th grade. In its IEP for the 2002-2003 school year, Boston proposed that Student return to the Mary Lyon where she would repeat the 8 th grade, rather than be placed at a different school and be promoted to the 9 th grade. In July 2002, Parents rejected this IEP. For the 2002-2003 school year, Student has continued to attend LPS, where she is in the 9 th grade.
Discussion
Parents take the position that Student has the right to be educated in the 9 th grade, and therefore the IEP retaining Student in the 8 th grade should be considered inappropriate as a matter of law. Parents advance essentially three arguments in support of this position.
First, Parents argue that Student’s right to FAPE pursuant to special education law includes the opportunity to learn the material that is covered by the academic standards in the Massachusetts curriculum frameworks, that Student has been exposed to and learned this material for the 8 th grade, and that she is now entitled to learn this material for 9 th grade. Second, Parents argue that Student has met all relevant criteria for promotion to the 9 th grade, as set forth in Boston’s Promotion Policy , and Boston therefore may not retain Student in the 8 th grade. Third, Parents argue that Boston sought to retain Student solely on the basis of her social/emotional disabilities in contravention of Section 504 of the federal Rehabilitation Act, which forbids discrimination on the basis of handicap.
After considering the question of subject matter jurisdiction, I will address each of Parents’ claims separately below.
A. Jurisdiction Over Issues of Promotion and Retention .
Neither party has argued that the BSEA lacks jurisdiction to determine the matter before me. Nevertheless, I must consider at the outset whether promotion/retention is an issue which may be addressed by a BSEA Hearing Officer as part of a due process proceeding challenging an IEP proposed by Boston.
As a BSEA Hearing Officer concluded in another dispute, a decision to retain or promote a student may, in an appropriate case, be understood as a regular education decision which would not be subject to a due process proceeding before the BSEA.8 The federal Office of Special Education Programs (hereafter, OSEP) has also concluded in one of its letters that the federal special education statute does not address standards for retention or promotion, essentially leaving it to individual states to determine how this issue should be addressed.9
However, this OSEP letter goes on to include the following statement, addressing the question of hearing officer jurisdiction:
In general, this office does not view retention and promotion decisions that are separate from placement decisions as being the sole basis for a due process hearing request. However, there may be FAPE issues that have a direct impact upon retention and promotion decisions, and these issues can be the basis for a hearing request.10
For reasons that will be explained below, I find that Boston’s decision to retain Student cannot be considered as separate from a placement decision, and that its decision to retain Student has significant implications with respect to Student’s receipt of FAPE. I therefore conclude that I have jurisdiction over the subject of retention/promotion for purposes of deciding Student’s Motion for Partial Summary Decision.
I also note the potential importance of this issue to Student’s education. As one court has observed, even at an early stage of education, retention “may permanently delay the
student’s ultimate academic goals.”11
B. Massachusetts Curriculum Frameworks .
In order to consider Parents’ claim regarding the Massachusetts curriculum frameworks, I must first determine whether Student has a right, pursuant to state or federal special education law, to be instructed in the material that is covered by the academic standards in the Massachusetts curriculum frameworks.
The federal special education law (or IDEA) defines a student’s right to a free appropriate public education (hereafter, FAPE) to mean “special education and related services that . . . meet the standards of the State educational agency . . . .12 Massachusetts’ law further defines FAPE as “special education and related services . . . which meet the education standards established by statute or established by regulations promulgated by the board of education .13 In other words, Massachusetts provides the additional requirement that the state education standards, which are to be met as a part of FAPE, be found within state statute or education regulations; and I therefore now turn to the state statute and regulations.
Curriculum frameworks are the subject of s. 1E of MGL c. 69, which is the Massachusetts Education Reform Act. Section 1E provides, in part, as follows:
The board [of education] shall direct the commissioner [of education] to institute a process for drawing up curriculum frameworks for the core subjects covered by the academic standards provided in section one D. The curriculum frameworks shall present broad pedagogical approaches and strategies for assisting students in the development of the skills, competencies and knowledge called for by these standards.
The Massachusetts special education regulations refer to the curriculum frameworks in several places.14 For purposes of this dispute, perhaps the most relevant reference is within a subsection of the regulations entitled “Contents of the IEP” which states, in part: (b) The Team shall carefully consider the general curriculum, the learning standards of the Massachusetts Curriculum Frameworks, the curriculum of the district, and shall include specially designed instruction or related services in the IEP designed to enable the student to progress effectively in the content areas of the general curriculum.15
I find, on the basis of these statutory and regulatory references, that the curriculum frameworks has been established by state statute and regulation as an education standard applicable to special education students in Massachusetts.
I further note that the Massachusetts Department of Education (hereafter, DOE) has left little doubt that it intends that Massachusetts curriculum frameworks be included within the state standards referenced in FAPE. In its administrative advisory providing guidance on the Massachusetts FAPE standard, DOE explained (in my view, appropriately) the applicability of curriculum frameworks to special education students as follows:
The state standards [which are to be incorporated into FAPE] include not only the requirements of the Special Education Regulations (603 CMR 28.00) but also the learning standards that Massachusetts has established through the state curriculum frameworks. All students in the Commonwealth’s public education system, including students with disabilities, are entitled to the opportunity to learn the material that is covered by the academic standards in the Massachusetts curriculum frameworks.16
During 8 th grade, Student had the opportunity to learn material in the 8 th grade curriculum frameworks. It is not disputed that the 9 th grade curriculum framework includes standards that are not found within the 8 th grade curriculum frameworks. Repeating 8 th grade at the Mary Lyon would result in Student’s not having access to the curriculum frameworks for the 9 th grade. Rosoff Affidavit, par. 10. I therefore find that Boston’s 2002-2003 IEP necessarily denies Student the opportunity during the 2002-2003 school year to learn material that is covered by the academic standards in the curriculum frameworks for the 9 th grade.
The right to be able to learn what is covered by the academic standards in the curriculum frameworks for a particular year is not, however, without limitation. It is self-evident that an over-arching principle within the FAPE standards is that Student’s special education and related services must be provided pursuant to an IEP designed to meet her unique individual needs.17 Student’s opportunity to learn the 9 th grade curriculum frameworks may be limited, as necessary to meet her individual needs.18
Boston argues that denial of the opportunity to learn the 9 th grade curriculum frameworks was appropriate because, at the time Boston developed the 2002-2003 IEP, Student was not yet ready to advance to the 9 th grade. Boston takes the position that she had not gained sufficient mastery of English language arts in order to be promoted. In support of this position, Boston filed an affidavit of Carrie-Ann Kerwin (an Assistant Program Director with Boston’s special education department) who states that she has first hand knowledge of Student’s special education program, services and education at the Mary Lyon School, and was a member of Student’s Team that developed the 2002-2003 IEP.
In her affidavit, Ms. Kerwin states that Student, while in 8 th grade at Mary Lyon, had been enrolled in a 7 th grade class for English language arts and had not yet mastered the 8 th grade curriculum. Kerwin affidavit, pars. 8, 9. Boston further points to its Promotion Policy for the 2001-2002 school year which appears to require that a student pass 8 th grade English language arts in order to be promoted to the 9 th grade. Promotion Policy , 4 th page.19
Parents have filed affidavits and other documents in rebuttal of Boston’s position. Student’s report card of June 2002 indicates passing grades for all courses for the terms which Student completed at Mary Lyon, including a grade of B + in 8 th grade English language arts for the first two marking periods of the 2001-2002 school year. Student left Mary Lyon on March 4, 2002 to attend LPS for the remainder of the school year. An LPS progress report indicates passing final grades in all courses for the remainder of the 2001-2002 school year, including a grade of B in 8 th grade language arts and a B in 8 th grade literature. The affidavit of the LPS Director supports the conclusion that Student successfully completed the 8 th grade at LPS, and was then promoted to the 9 th grade at LPS. The affidavit further explains that the courses Student completed at LPS complied with the curriculum frameworks requirements. Rosoff affidavit, pars. 4, 6, 8.
Parents further point out that in Student’s 2002-2003 IEP, the only explanation for Student’s retention was Student’s maturity deficits.20 During oral argument, Boston agreed that these deficits, by themselves, would be insufficient to justify retention.
I also note that once Student left Mary Lyon on March 4, 2002, it was obviously no longer possible for her to complete any course work at the Mary Lyon . In order for Boston to have appropriately determined that Student should be retained, Boston would have had to assess her work and progress at LPS for the remainder of the 2001-2002 school year. Through its affidavit and other documents, Boston has not explicitly answered the question of whether it made this inquiry, nor has Boston otherwise explained the basis for its conclusion that Student had not mastered the 8 th grade English language arts curriculum by June 2002.
It seems apparent that Parents, through their documents, have presented more complete and more credible factual arguments than Boston. However, at this point in the proceedings, Boston need not persuade me that it would likely prevail on the merits, but only must convince me that there is a genuine issue of material fact, after viewing all evidence and inferences in a light most favorable to Boston as the nonmoving party.21
I find that there is a genuine dispute regarding an important factual issue – that is, whether an IEP for Student’s 2002-2003 school year must necessarily place Student in an 8 th grade class in order to meet her unique individual needs and thereby deny her access to the 9 th grade curriculum frameworks. Boston is entitled to an evidentiary Hearing on this issue.
C. Boston’s Promotion Policy .
Parents separately claim that Boston’s retention of Student through the 2002-2003 IEP violated Boston’s written Promotion Policy which was in place for the 2001-2002 school year. (The Promotion Policy is Exhibit A attached to Parent’s affidavit and is also Boston’s Exhibit A.)
At the outset, I note that Boston’s decision to retain Student, as set forth in the 2002-2003 IEP, was made by Student’s IEP Team rather than the principal of Mary Lyon.22 The Team proposed an IEP that would continue Student at the Mary Lyon, an elementary school which does not go past the 8 th grade. It is apparent that the decision to retain Student in the 8 th grade was not separate from the placement decision that Student would be appropriately served at the Mary Lyon for an additional year. Accordingly, I view the decision to retain Student in the 8 th grade at Mary Lyon as part of a placement decision by the Team.
1. Applicability of the Promotion Policy . On the face of it, the written Promotion Policy applies to students with disabilities. Promotion Policy , 7 th page. And, both the Parents and Boston, through their arguments, appear to agree that the policy applies to the instant dispute.
Parents has relied on the policy in support of their arguments for promotion when they argued that Student met the substantive standards for promotion contained within the policy and that Boston violated Student’s procedural protections contained within it. Boston has sought to use the substantive standards contained within the policy to justify and defend the actions of the IEP Team and its proposed IEP to retain Student. And, neither party has taken the position that part or all of Boston’s Promotion Policy should be disregarded for purposes of determining Student’s right to be promoted to the 9 th grade.
For these reasons, I will assume, for purposes of this Ruling only, that Boston’s written Promotion Policy , including the procedures and standards contained within it, should be applied to the present dispute.
2. Procedural protections within the Promotion Policy . As explained above, the IEP Team made the decision to retain Student. However, the Promotion Policy provides for the retention decision to be reviewed by a Promotion Review Team with the principal apparently having final authority for the decision. Promotion Policy , 10 th and 11 th pages; affidavit of Kerwin, par. 18. The Promotion Policy provides no role for the IEP Team in the retention decision-making process other than to determine appropriate services.
In addition, the Promotion Policy includes procedural requirements regarding written notification to Parents by specific dates. It is not disputed by Boston that these written notification procedures were not followed; however, Boston maintains that there were frequent discussions between Boston staff and Parents regarding the risk of retention.23
Parents correctly argue that the Promotion Policy makes clear that retention is to be a last resort, and that much of the process within the policy is intended to provide the maximum opportunity for a student, parents and school staff to identify early on any potential impediment to promotion and then to consider and implement possible alternative strategies, including additional services, in order to provide the student with the maximum opportunity to be promoted to the next grade. In general, these procedures are of obvious importance to a student and parents seeking promotion to the next grade.
In general, in order for a violation of procedural rights in special education cases to warrant relief, I must conclude that the violations resulted in substantive harm.24 Parents have not submitted sufficient facts, at this juncture in the proceedings, to indicate that harm actually occurred as a result of Boston’s not precisely following the procedures set forth within the Promotion Policy .25
3. Substantive standards contained within the Promotion Policy . Boston’s Promotion Policy for the 2001-2002 school year appears to require that a student pass 8 th grade English language arts in order to be promoted to the 9 th grade. Promotion Policy , 4 th page. The question of whether Student meets this standard has been addressed above in this Ruling (see the section of this Ruling addressing the Massachusetts curriculum frameworks).
For the reasons already explained, I conclude that there is a genuine issue of material fact relevant to the substantive standards contained within the Promotion Policy . Boston is entitled to an evidentiary Hearing on this issue.
4. Issues for further consideration . I have assumed, for purposes of this Ruling only, that Boston’s written Promotion Policy , including the procedures and standards contained within it, should be applied to the present dispute. However, in the event that this matter proceeds to an evidentiary Hearing, it may be appropriate to re-visit this issue, and any additional guidance from the parties regarding the following questions would likely be helpful:
· Was it appropriate for the IEP Team to make a determination regarding retention?
· Does Boston’s Promotion Policy provide procedures and standards which Boston must comply with when the Team makes a decision regarding retention/promotion?
· If so, are the procedures and standards within Boston’s Promotion Policy to be implemented through the IEP Team process or separately?
· May the procedures and standards contained within Boston’s Promotion Policy be enforced through a BSEA due process proceeding?
D. Section 504 of the Federal Rehabilitation Act .
Section 504 of the federal Rehabilitation Act prohibits a program receiving federal financial assistance from discriminating, on the basis of handicap, against an otherwise qualified individual with a handicap.26 It is not disputed that Boston is a program that receives federal financial assistance and that Student is “handicapped” for purposes of this statute. The federal Department of Education regulations pursuant to Section 504 make clear that Student is a “ qualified handicapped person” and therefore entitled to protection under Section 504 by virtue of her eligibility for special education services pursuant to federal special education law.27
Parents take the position that Boston’s decision to retain, rather than promote, Student should have been made on the basis of whether Student met the criteria for promotion to the 9 th grade, but instead this decision was based on her disability – that is, her social and emotional deficits.
Boston, however, disputes these factual assertions. As explained more fully above, Boston takes the position that Student was retained because she had not mastered the 8 th grade English language arts curriculum and therefore could not access the 9 th grade high school curriculum. (Boston also acknowledges that Student’s social/emotional deficits are not sufficient to justify retention.) If Boston can demonstrate that the decision to retain Student was justified on the basis of her individual needs pursuant to state and federal special education laws, Boston will have defeated Parents’ Section 504 claim.28
I conclude that there is a genuine dispute regarding a material fact relevant to Parents’ Section 504 claim – that is, the question of whether there was sufficient basis for Boston’s decision to retain Student. Boston is entitled to an evidentiary Hearing on this issue.
Order
For the above-stated reasons, Parents’ Motion for Partial Summary Decision is DENIED.
By the Hearing Officer,
_________________
William Crane
Dated: April 30, 2003
1
* Laura is a pseudonym for the Student in this dispute.
Parents also argued in their Motion for Partial Summary Decision that since Student was entitled to be promoted to the 9 th grade but was not offered such placement by Boston, Student’s stay put placement is the unilateral 9 th grade placement at the Learning Prep School. However, during the Motion Hearing, Parents’ counsel indicated that Parents would not further pursue this claim at this time.
2
801 CMR 1.01(7)(h).
3
Celotex Corp. v. Catrett, 477 US 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). See also Pederson v. Time, Inc . 404 Mass. 14, 16-17 (1989).
4
Anderson v. Liberty Lobby, Inc., 477 US 242, 248 (1986).
5
Id. at 252.
6
Anderson v. Liberty Lobby, Inc., 477 US 242, 255 (1986); Hub Associates v. Good , 357 Mass. 449, 451 (1970).
7
Fed.R.Civ.P. 56(e).
8
In Re: Greater Fall River Regional Vocational School District , 7 MSER 275, 283 (SEA MA 2001).
9
Letter to Anonymous , 35 IDELR 35 (OSEP 2000)
10
Id .
11
Gant v. Wallingford Bd. of Educ ., 69 F.3d 669 (2nd Cir. 1995).
12
The IDEA’s full definition of FAPE is as follows:
The term “free appropriate public education” means special education and related services that —
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency ;
(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 614(d).
33 USC 1401(8) (emphasis supplied). The federal regulations adopted pursuant to the IDEA include a similar definition of FAPE. 34 CFR 300.13.
13
Massachusetts’ full definition of FAPE is as follows:
“ Free appropriate public education”, special education and related services as consistent with the provisions set for in the 20 U.S.C. 1400 et seq. [the IDEA], its accompanying regulations, and which meet the education standards established by statute or established by regulations promulgated by the board of education.
MGL c. 71B, s.1 (emphasis supplied).
14
E.g., 603 CMR 28.02(18) (definition of “progress effectively in the general education program”); 603 CMR 28.04(2)(a)2 (discussion of the content of an educational assessment); 603 CMR 28.09(9)(b) (discussion of the educational program requirements for an approved special education school).
15
603 CMR 28.05(4)(b).
16
Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002.
17
E.g., Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (“appropriateness requires that the instructional plan be custom tailored to address the handicapped child’s ‘unique needs’”); Burlington v. Department of Education , 736 F.2d 773, 788 (1 st Cir. 1984) (educational instruction must be based on the “unique needs of the disabled child” with sufficient support services so that the child will benefit from that instruction); In re: Arlington , 37 IDELR 119, 8 MSER 187, 195 n.23 (SEA MA 2002) (collecting authorities).
18
Similarly, the federal statutory requirement of full participation of each student with a disability in the general curriculum is not an absolute right. The federal guidelines explain that participation of the child in the general curriculum is to occur “to the maximum extent appropriate to the needs of the child.” 20 USC 1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii); 64 Fed. Reg. No. 48, page 12595, column 1; In re: Worcester Public Schools , BSEA # 00-0912, 6 MSER 194 n. 11 and 12 and accompanying text (SEA MA 2000).
So too, the right to receive special education in the least restrictive environment may be limited, as necessary, to meet the needs of the particular student. See, e.g., 20 USC 1412(5)(A) (“To the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”); Burlington v. Mass. Department of Education , 471 US 359, 369 (1985) (federal statute “contemplates that such education will be provided where possible in regular public schools, with the child participating as much as possible in the same activities as nonhandicapped children”).
19
Although Boston has also raised the issue of Student’s social deficits as a rationale for retention, Boston made clear during its oral argument that if Student were found to have completed the 8 th grade requirements regarding English language arts, she should have been promoted to 9 th grade, since her social deficits could be addressed in either 8 th or 9 th grade.
20
The IEP states in relevant part:
The Team is recommending that [Student] continue in the inclusion program at the Mary Lyon School. Although she has made progress, [Student] continues to have significant maturity issues and thus retention is recommended in order to consoladate [sic] the gains she has made.
21
See Anderson v. Liberty Lobby, Inc., 477 US 242, 255 (1986) (“all evidence must be construed in the light most favorable to the party opposing summary judgment”); Hub Associates v. Good , 357 Mass. 449, 451 (1970) (not appropriate at this juncture “to pass upon the credibility of witnesses or the weight of the evidence”).
22
Although the Mary Lyon principal was a member of the Team that met and proposed the 2002-2003 IEP retaining Student, Boston takes the position that the principal participated only as a Team member, and there is no evidentiary support for any other conclusion.
23
Kerwin’s affidavit, at par. 11, makes the general statement that Boston followed the “appropriate steps” in the Promotion Policy , but Boston’s attorney during oral argument conceded that many or all of the written notification procedural requirements had not been met.
24
See NL v. Knox County Schools, 38 IDELR 62 (6 th Cir. 2003) (“school district’s failure to comply with the procedural requirements of the Act will constitute a denial of FAPE only if such violation causes substantive harm to the child or his parents”).
25
See Pederson v. Time, Inc . 404 Mass. 14, 17 (1989) (moving party in summary judgement “assumes the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue”).
26
29 USC 794.
27
34 CFR 104.3(k)(2)(iii).
28
See Smith v. Robinson , 468 US 992 (1984) (comparing the protections under Section 504 with the protections under the federal special education statute).