COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: Millbury Public Schools
BSEA# 01-4734
DECISION ON MOTION FOR SUMMARY JUDGMENT
This decision is rendered pursuant to M.G.L. Chapters 15, 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and all of the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on November 28, 2001 at the Catuogno Court Reporting Offices in Worcester, MA.
Those in attendance were:
Amy DiDonna Attorney for Student/Parent
Joanne Stowe Assistant Superintendent, Millbury Public Schools
Thomas Montimurro Coordinator of Special Education, Millbury
James Gormley Principal, Millbury High School
Regina Williams Tate Attorney for Millbury Public Schools
Raymond Oliver Hearing Officer, Bureau of Special Education Appeals
The materials considered regarding this Motion For Summary Judgment and Opposition thereto included all written exhibits, affidavits, timelines, documentation, correspondence and arguments submitted by the parties; the conference calls held between the parties and the Hearing Officer; and approximately 1 ½ hours of oral argument offered on November 28, 2001.
STATEMENT/HISTORY OF THE CASE
Student, a regular education student, was suspended from Millbury High School (MHS) on December 8, 2000 for drug possession and weapon possession. Pursuant to M.G.L. c.71 s.37H an expulsion hearing was held on December 21, 2000 and on December 22, 2000 Student was expelled by the principal of MHS. Student’s appeal of the expulsion decision to the Superintendent of the Millbury Public Schools (MPS) was held on February 21, 2001. On March 1, 2001 the MPS Superintendent upheld the expulsion but instructed the MHS principal and Student/Parents to meet in June 2001 to consider MPS’ summer school and, upon successful completion of summer school, to consider Student’s readmittance for the 2001-2002 school year.
On March 8, 2001 MPS received a request for evaluation from Student’s attorney. On March 19, 2001 MPS began providing Student 1:1 tutoring. On March 22, 2001 MPS received Parent’s consent for an evaluation. A team meeting was scheduled for April 9, 2001, rescheduled to May 8, 2001 per Student’s attorney’s request. Based upon the team evaluation, MPS determined that Student was eligible for special education services. Also at the May 8, 2001 team meeting, MPS conducted a manifestation determination and determined that Student’s behavior which resulted in his expulsion was not a manifestation of his disability. On May 14, 2001 Parent requested an independent evaluation. On May 17, 2001 MPS proposed an Individual Education Plan (IEP) for Student covering May 8, 2001 to May 8, 2002 (1st IEP) which provided English and tutorial services from the Learning Center Teacher and academics/behavioral services from the General Education Teacher. The IEP also provided:
This IEP will begin upon [Student’s] re-enrollment in his educational program following the termination of his expulsion, as determined by the principal with consideration of [Student’s] academic and behavioral performance during the interim.
On May 18, 2001 MPS authorized an independent evaluation although no independent evaluator had been identified.
On May 21, 2001 BSEA received Student’s attorney’s request for hearing challenging:
1) MPS’ finding that Student’s behavior was not a manifestation of his disability and 2) MPS’ failure to respond to Student’s request for an independent evaluation. On June 1, 2001 portions of the 1st IEP were rejected by Student’s attorney, to wit: current placement and possibly classroom/behavior interventions (waiting for results of independent evaluation) ….. No need to reconvene until a) [Student] returns to MHS or b) independent evaluation results are available.
This rejection of the 1st IEP was received by MPS on June 5, 2001.
On June 18, 2001 a conference call was held between the Hearing Officer and counsel for the parties in which it was determined that the issue of an independent evaluation was resolved and that parties were seeking to identify such evaluator; that tutoring was continuing; and that Student would be attending summer school. On June 22, 2001 MPS authorized Dr. Bozicas to perform the independent evaluation. A second conference call was held on July 12, 2001 in which it was determined that Student was attending summer school; that Parent wished to wait for the results of the independent evaluation before proceeding further; that the independent evaluation was not likely to be completed until late August, 2001; and that there would be a team meeting in September 2001. The Hearing Officer requested status reports by September 17, 2001, which were filed by the parties. In summary, the status reports indicated that a team meeting was scheduled for September 18, 2001; that the parties agreed that Student would begin attending Project COFFEE beginning September 24, 2001 as, at least, a temporary placement in lieu of 1:1 tutoring; and that based upon the independent evaluation Student would be pursuing his appeal.
On October 1, 2001 MPS proposed an IEP at Project COFFEE covering 9/20/01 to 9/20/02 (2 nd IEP). In an October 3, 2001 conference call Student’s attorney articulated that Student wished a placement at MHS rather than Project COFFEE, while MPS’ attorney articulated that Student had done poorly at summer school and did not complete his summer school program; and that Project COFFEE was a much more appropriate placement for Student. The Hearing Officer suggested to the parties some settlement possibilities and various administrative options to consider in lieu of or in addition to proceeding to a hearing. In an October 10, 2001 conference call the parties discussed several settlement/administrative scenarios. A final conference call was scheduled for October 29, 2001. However, on October 17, 2001 Student’s attorney filed with the BSEA a Motion For Summary Judgment with accompanying affidavits. On October 19, 2001 MPS’ attorney filed a motion for an extension of time to respond until November 12, 2001 which was granted by the Hearing Officer on October 29, 2001. Also on October 29, 2001 the Hearing Officer scheduled a hearing on the motion for summary judgment for November 13, 2001, changed on November 9, 2001 per request of the parties, to November 14, 2001. On November 12, 2001 MPS’ attorney filed a Memorandum Opposing Student’s Motion For Summary Judgment along with accompanying exhibits and affidavits. On November 13, 2001 Student’s attorney filed a Motion To Amend Motion For Summary Judgment . Because all of the above filed materials had not been exchanged between the parties by November 14, 2001, the hearing regarding summary judgment could not take place on that date and was rescheduled for November 28, 2001. On November 21, 2001 Student’s attorney filed a Memorandum In Support Of Motion For Summary Judgment with additional exhibits and affidavit. Also on November 21, 2001 MPS’ attorney filed a timeline and additional exhibits. The Hearing On Motion For Summary Judgment took place on November 28, 2001 with leave to file any final documents or affidavits until December 4, 2001, which was done by MPS on December 4, 2001.
ISSUE
Should Student’s Motion For Summary Judgment, As Amended, be granted or denied?
STUDENT’S POSITION
Student argues that his Motion For Summary Judgment, As Amended, be granted and that the Hearing Officer order that Student immediately be returned to MHS. Student primarily cites 34 CFR § 520, 521 and 527 in support of his position.
SCHOOL’S POSITION
MPS opposes Student’s Motion For Summary Judgment, As Amended, arguing that there are genuine issues of material fact regarding: 1) whether MPS had knowledge of Student’s disability prior to his expulsion and, therefore, whether student was entitled to the procedural protections of the IDEA (See 20 U.S.C. § 1415 (k)(8)(A), (B) & (C)); and 2) whether Student’s misconduct was a manifestation of his disability (See 20 U.S.C. § 1415 (k)(4)(C) & (5)(A)).
FINDINGS AND CONCLUSIONS
Based upon all of the written documentation submitted, the written memoranda of law and the oral argument presented, and a review of the applicable law, I conclude that Student’s Motion For Summary Judgment, As Amended, must be DENIED .
My analysis follows.
Pursuant to Mass. R. Civ. P. 56 (c) – Summary Judgment:
… The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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 . (See also Massachusetts Standard Adjudicatory Rules of Administrative Procedure – Formal Rules 801 CMR 1.01 (7)(h) – Motion for Summary Decision).
The submitted written documentation demonstrates that the above-cited standard for summary judgment clearly has not been achieved in the instant case. There are numerous genuine issues of material fact in dispute between the parties. There is a clear dispute between the parties over the two primary issues in controversy, to wit: 1) whether MPS had knowledge of Student’s disability prior to the misconduct that precipitated the disciplinary action and, therefore, whether Student, a regular education student at the time of his suspension, expulsion and decision on appeal of his expulsion, was entitled to the procedural protections of the IDEA; and 2) whether Student’s misconduct that precipitated the disciplinary action was a manifestation of his disability.
Student was a regular education student in regular education classes at MHS at the time of his expulsion for drug possession and weapon possession. He was not a special education student and, therefore, he did not have any special education placement pending appeal (stay put special education placement) pursuant to 20 U.S.C. § 1415 (k)(7). Any claim that Student should be readmitted to MHS is contingent upon whether or not MPS had knowledge of Student’s disability prior to the misconduct that precipitated the expulsion (20 U.S.C. § 1415 (k)(8)(A), (B) & (C)).
Any claim that Student should be readmitted to MHS is further contingent upon whether or not Student’s misconduct was a manifestation of his disability (20 U.S.C. § 1415 (k)(4)(C) & (5)(A)).
Further, there are also numerous other issues in dispute which may affect the outcome or ultimate decision in this appeal including, but not limited to, the following issues: 1) whether Parent/Student did or did not have sufficient notice of the manifestation determination held immediately after the determination that Student was eligible for special education services at the May 8, 2001 team meeting; 2) whether Parent/Student assented to or objected to said manifestation determination taking place on May 8, 2001; 3) whether or not Parent/Student was offered a delay in the manifestation determination; 4) whether Parent/Student accepted or refused a delay in the manifestation determination, if such delay was offered; 5) what placement actually was offered to Student pursuant to the 1 st IEP; 6) whether or not Project COFFEE initially was discussed and/or offered to Parent/Student during the team meeting of May 8, 2001; 7) whether or not Project COFFEE was initially discussed/offered during the second team meeting on September 18, 2001 after the independent evaluation had been completed, which resulted in the 2 nd IEP.
For all of the above reasons, Student’s Motion For Summary Judgment, As Amended, is DENIED .
By the Hearing Officer,
Raymond Oliver
Dated: January 16, 2002