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Milton Public Schools – BSEA # 08-2284

<br /> Milton Public Schools – BSEA # 08-2284<br />



In Re: Milton Public Schools BSEA # 08-2284




This ruling is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (M.G.L. ch. 71B), the state Administrative Procedure Act (M.G.L. ch. 30A) and the regulations promulgated under said statutes.

Pursuant to BSEA Hearing Rule VIID, this matter is addressed on the basis of the papers filed by the parties without a hearing because a hearing would not advance my understanding of the issues.

On November 8, 2007, Parents filed their Hearing Request with the Bureau of Special Education Appeals (BSEA), seeking immediate reinstatement of Student who had been indefinitely suspended from school, funding of independent evaluations, and compensatory services. At the same time, Parents filed a Motion for Partial Summary Judgment with respect to the first two prayers for relief.

The parties were able to reach informal resolution regarding reinstatement and funding of independent evaluations. Milton also agreed that Student should receive compensatory services and began providing tutoring services. Not satisfied with the nature and scope of tutoring that Milton has been providing, Parents renewed their request for partial summary judgment. By Order of January 4, 2008, the Hearing Officer construed this renewed request as focusing solely on the issues of exclusion and any compensatory relief as a result of exclusion.

On January 11, 2008, Milton filed with the BSEA a Motion to Dismiss . In its Motion , Milton took the position that there remain no cognizable claims remaining in this appeal.

This Ruling addresses Parents’ Motion for Partial Summary Judgment and Milton’s Motion to Dismiss .


The Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure, which are applicable to BSEA hearings, allow for summary decision 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.1

Further guidance is found by turning to judicial rules regarding a motion for summary judgment, which rules set forth a standard substantially similar to the above-referenced adjudicatory rules. Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate when “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 a material fact and that the moving party is entitled to a judgment as a matter of law.”

BSEA Rules and the Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure both provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted.2

Similarly, the federal courts have concluded that a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be allowed if the court finds “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”3


The following facts are not disputed by the parties.

Student is fifteen-years-old (date of birth 4/19/92) and lives with his Parents in Milton, Massachusetts. During the 2006-2007 school year, Student was a 9 th grader at the Milton High School. Pursuant to his IEP, Student attended mainstream classes and was provided academic support and a weekly session with an adjustment counselor. Student’s most recent IEP describes him as having an emotional disability.

On June 13, 2007, there was an altercation between Student and a teacher at school. On the basis of this incident, Student was suspended from school indefinitely.

On September 4, 2007, the IEP Team conducted a manifestation determination, concluding that Student’s June 13, 2007 behavior was a manifestation of his disability. However, Milton refused to allow Student to return to school and, instead, offered ten hours per week of tutoring. Milton did not initiate an appeal to the BSEA for the purpose of obtaining an order authorizing a change of placement. Student continued to be excluded from school through the filing of Parents’ Hearing Request on November 8, 2007.



It is not disputed that Student is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)4 and the state special education statute.5

The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”6 State special education law includes parallel requirements.7

Motion for Partial Summary Judgment

The issues to be addressed through the Motion for Partial Summary Judgment are whether Student was unlawfully excluded from school and, if he was, whether the exclusion entitles him to compensatory education services.8

The IDEA provides that within ten school days of any decision to change a student’s placement because of a violation of a code of student conduct, the school district must conduct a manifestation determination.9 The statute then provides instructions to the school district in the event that the manifestation determination finds that the conduct in question was a manifestation of the student’s disabilities.

If the local educational agency, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team shall . . . except as provided in subparagraph (G), return the child to the placement from which the child was removed, unless the parent and the local educational agency agree to a change of placement as part of the modification of the behavioral intervention plan.10

The above-referenced “paragraph (G)” refers to “special circumstances” involving a weapon at school, drugs, or serious bodily injury.11 There is no claim that any of these “special circumstances” applies to the instant appeal.

Similarly, the Massachusetts special education regulations provide as follows:
(7) Student’s right to IEP services and placement. In accordance with state and federal law, during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise.

. . . .

(c) A hearing officer may 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.12

In June 2007, Milton indefinitely suspended Student from the High School (thereby changing his placement) as a result of an alleged code of conduct violation. In September 2007, Milton conducted a manifestation determination, finding that Student’s behavior was a manifestation of his disability. Instead of returning Student to his previous placement at the Milton High School, Milton continued to exclude Student from the High School for more than two months. In so doing, Milton violated Student’s rights under the IDEA and state special education regulations cited above.

Milton was not without the ability to legally place Student in an interim alternative educational setting if Milton (1) believed that maintaining Student in his placement at the High School was substantially likely to result in injury to Student or to others and (2) then requested an expedited due process hearing before the BSEA for these purposes.13 Milton concedes that it omitted this second step.14

For these reasons, I find that Milton improperly excluded Student from school.  This exclusion, which continued for more than two months, caused a substantial deprivation of educational benefits, resulting in a denial of FAPE.15 As a consequence (and as Milton appears to have conceded16 ), Student is entitled to compensatory services.17

Parents’ Motion for Partial Summary Judgment will therefore be allowed.

Motion to Dismiss

There are two parts to Milton’s Motion to Dismiss – requested dismissal of Parents’ claim under MGL c. 76, s.16 and requested dismissal of Parents’ compensatory education claim.

MGL c. 76, s. 16 claim . In their statement of the issues in dispute, Parents wrote that they plan to pursue a remedy for Student’s exclusion from school pursuant to MGL c. 76, s. 16, which provides a tort remedy for improper exclusion from school.18 Parents take the position that exhaustion of administrative remedies requires prior BSEA findings in the instant appeal under MGL c. 76, s. 16. Through its Motion to Dismiss , Milton seeks a determination that the BSEA lacks jurisdiction to make findings under this statute.

Similar to the federal courts,19 the BSEA has limited (rather than general) jurisdiction, possessing only that authority granted by statute or regulation. For reasons explained below, I find that the BSEA’s grant of jurisdictional authority to resolve special education disputes pursuant to state and federal special education law does not extend to making findings under MGL c. 76, s.16.

As noted above, MGL c. 76, s.16 provides a tort remedy for unlawful exclusion from school. The state special education law pursuant to which the BSEA has authority to resolve special education disputes (MGL c. 71B) includes no tort remedy. Similarly, the federal special education statute (IDEA) does not include a remedy in tort.20 As the parties have agreed, the BSEA has no authority to award tort damages.21 Also, MGL c. 76, s. 16 makes no reference to a student’s rights under special education law (such as the right to FAPE) or other rights based upon a student’s disability, but instead refers generally to an unlawful exclusion from school with respect to any student . In sum, MGL c. 76, s. 16 and the tort claim contained within it are materially separate and distinct from both the Massachusetts special education law and the IDEA.

Parents are correct that, pursuant to the IDEA, exhaustion of administrative remedies under the BSEA is generally required prior to seeking judicial relief. The IDEA provides, in relevant part, as follows:
before the filing of a civil action under such laws seeking relief that is also available under this part [20 USC §§ 1411 et seq.], the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part [20 USC §§ 1411 et seq.].22

The exhaustion requirement applies not only to violations of the IDEA but also to appeals brought under a different statute “so long as the party is seeking relief that is available under subchapter II of IDEA.”23 However, as discussed above, tort relief is not available under the state and federal special education statutes, and a tort claim under MGL c. 76, s. 16 is materially distinguishable from claims that could fall within the ambit of state and federal special education law.24 For these reasons, the IDEA’s requirement of exhaustion of the BSEA’s administrative remedies does not apply to a tort claim under MGL c. 76, s. 16.

The premise of Parents’ responsive argument appears to be that there is a connection between the BSEA’s special education dispute resolution authority and MGL c. 76, s. 16, which connection is that in both instances, there may need to be a determination as to whether a school district’s conduct in excluding a student from school was proper. Addressing this argument, Judge Woodlock explained in Bowden ex rel. Bowden :

Defendants’ exhaustion argument does not extend to plaintiffs’ . . . state tort claims (Counts IX, X, and XII). While these claims are premised on the same alleged conduct, they do not allege a FAPE violation.25

Similarly in the instant appeal before the BSEA, a coincidence of subject matter (that is, exclusion of Student from school) does not by itself require exhaustion relative to a tort claim under MGL c. 76, s.16 where this statute includes no reference to FAPE or other special education rights.

For these reasons, I find that exhaustion of BSEA proceedings is not required under MGL c. 76, s. 16. Accordingly, Parents’ claim under MGL c. 76, s. 16 will be dismissed.

Compensatory claim . Milton’s Motion to Dismiss also seeks to dismiss Parents’ compensatory claim. Milton takes the position, and Parents do not dispute, that Milton has conceded the need for and has begun providing compensatory services to Student.

Milton complains that Parents have failed to make demands for any particular compensatory services and, for this reason, Milton has been unable to communicate with and resolve this issue. Milton suggests that dismissal of this claim would appropriately force the parties to discuss and resolve informally Parents’ compensatory claim.

I do not find this argument to provide sufficient basis for dismissal of the compensatory claim.

There would be no jurisdiction over Parents’ compensatory claim if that claim were no longer in dispute. However, Milton does not disagree that Parents’ compensatory claim remains unresolved. Although it appears to be undisputed that Parents have a valid claim for compensatory services, the nature and scope of the compensatory relief remains unsettled.

Parents have made clear their dissatisfaction with Milton’s proffered services to compensate Student for his exclusion from school. For example, in their status report received by the BSEA on January 7, 2008, Parents complained that the Milton tutors were not special education teachers and were providing only regular education services. These disagreements have not been resolved.

For these reasons, I decline to dismiss Parents’ compensatory claim. At the same time, I agree with Milton that Parents have not been sufficiently forthcoming in explaining their requested relief, and an order will issue in this regard.


Parents’ Motion for Partial Summary Judgment is allowed .

Milton’s Motion to Dismiss is allowed with respect to claims related to MGL c. 76, s.16, and is otherwise denied .

Not later than February 11, 2008 , Parents’ attorney shall file with the BSEA a complete statement of requested compensatory relief.

Not later than February 29, 2008 , Parents’ attorney shall (and Milton’s attorney may but is not required to) file with the BSEA a status report, explaining what issues, if any, remain in dispute and what BSEA proceedings, if any, should be scheduled.

By the Hearing Officer,


William Crane

Date: January 30, 2008


801 CMR 1.01(7)(h). These rules govern BSEA proceedings pursuant to 603 CMR 28.08(5)(b).


BSEA Rule 17B; 801 CMR 1.01(7)(g)3.


Judge v. City of Lowell , 160 F.3d 67, 72 (1st Cir. 1998) (quoting Conley v.Gibson , 355 U.S. 41, 45-46 (1957)).


20 USC § 1400 et seq .


MGL c. 71B.


20 USC § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).


MGL c. 71B, ss. 2, 3.


The issues are detailed in the Hearing Officer’s Order of January 4, 2008.


20 USC § 1415(k)(1)(E). See also 34 CFR 300.530(e)(1).


20 USC § 1415(k)(1)(F). See also 34 CFR 300.530(f)(2).


20 USC § 1415 (k)(1)(G). See also 34 CFR 300.530(g).


603 CMR 28.08(7).


20 USC § 1415(k)(3) and (4). See also 34 CFR 300.532 and 300.533; 603 CMR 28.08(7)(c).


Milton’s Motion to Dismiss , page 1.


20 USC § 1415(f)(3)(E)(2)(ii). See also 34 CFR 300.513(2).


Milton’s Motion to Dismiss , page 7 (“the District has conceded the need for compensatory services”).


E.g., C.G. ex rel. A.S. v. Five Town Community School Dist. , 2008 WL 162481 (1 st Cir. 2008) (c ompensatory education intended to make up for education missed when student denied FAPE).


Massachusetts General Laws c. 76, s. 16 provides as follows:

Any pupil who has attained age eighteen, or the parent, guardian or custodian of a pupil who has not attained said age of eighteen, who has been refused admission to or excluded from the public schools or from the advantages, privileges and courses of study of such public schools shall on application be furnished by the school committee with a written statement of the reasons therefor, and thereafter, if the refusal to admit or exclusion was unlawful, such pupil may recover from the town or, in the case of such refusal or exclusion by a regional school district from the district, in tort and may examine any member of the school committee or any other officer of the town or regional school district upon interrogatories.


Kokkonen v. Guardian Life Insurance Co. of America , 511 U.S. 375 (1994) (federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute, which authority may not be expanded by judicial decree).


Nieves-Marquez v. Commonwealth of Puerto Rico , 353 F.3d 108 (1 st Cir. 2003) (“tort-like money damages, as opposed to compensatory equitable relief, are not available under IDEA”).


In Re: Natick Public Schools , BSEA # 99-3852, 6 MSER 48, 56 (SEA MA 2000) (BSEA does not have jurisdictional authority to consider tort claims); Parents’ Objection to Motion to Dismiss at page 2; Milton’s Motion to Dismiss at page 4.


20 USC § 1415 (l).


Frazier v. Fairhaven School Committee , 276 F.3d 52, 59 (1st Cir. 2002) (internal quotations and citations omitted). See also Cave v. East Meadow Union Free School Dist. , 2008 WL 183632 at *6 (2 nd Cir. 2008) (parents’ discrimination claim under 42 U.S.C. 1983 is subject to IDEA exhaustion requirements because the relief sought is available under the IDEA); Bowden ex rel. Bowden , 2002 WL 472293 at *5 (D.Mass. 2002) (“ IDEA exhaustion provision does not apply because the tort and constitutional claims are not claims for which relief is available in any sense under the IDEA”).


See Cave v. East Meadow Union Free School Dist. , 2008 WL 183632 at *5 (2 nd Cir. 2008) (parents’ discrimination claims under Section 504 are subject to IDEA exhaustion requirements because these claims are not materially distinguishable from claims that could fall within the ambit of the IDEA).


Bowden ex rel. Bowden , 2002 WL 472293 at *5 (D.Mass. 2002).

Updated on January 4, 2015

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