COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Monson Public Schools
BSEA# 02-3525
Ruling on Parent’s Motion for Reinstatement
This matter comes before the Bureau on the Parent’s request for an Immediate Order returning the Student to a regular education program at the Granite Valley Middle School in Monson, Ma., and the School’s Opposition thereto. Pursuant to a conference call held on April 12, 2002, the Parties agreed to waive hearing on the Motion and to submit arguments on undisputed facts in writing. This ruling is therefore based on a very limited factual record, and may be rescinded, modified, or supplanted after full evidentiary hearing.
Factual Background
1. During the first semester of the 2001-2002 school year the Student attended the 8 th grade at the Granite Valley Middle School in Monson, Ma., as a regular education student. Sometime in the fall, 2001, his parents became concerned about his behavior. The mother’s affidavit states that she made a written request for a special education evaluation on December 14, 2001. The School asserts that it received a written request from the Parents for a special education evaluation on January 2, 2002. There is no dated written request for a special education evaluation in the record. (See Attachment A.)
2. On January 9, 2002, the Student was found to be in possession of illegal drugs and drug paraphernalia in school.
3. The Student had no prior disciplinary referrals.
4. The Student was immediately placed on short term external suspension to be served from January 9, 2002 through January 23, 2002.1
5. On January 18, 2002, the Middle School Principal, Mr. Peters, conducted an expulsion hearing. He concluded that the Student should be expelled for the remainder of the 2001-2002 school year and considered for readmittance to high school with conditions. (Attachment B)
6. On January 18, 2002, the School received written parental consent to evaluate the Student.
7. The parents appealed the Principal’s expulsion decision to the Superintendent on January 30, 2002. The Superintendent’s hearing was scheduled for February 6, 2002, but postponed at the Parties’ request.
8. The School conducted a psychoeducational evaluation on February 7, 2002, which concluded that the Student did not have a learning disability. (Attachment C.)
9. The School began providing home tutoring to assist the Student to maintain progress in regular 8 th grade course work on February, 2002. These services continue to date.
10. The Superintendent’s hearing had been re- scheduled for March 1, 2002, but was suspended pending the outcome of the initial Team meeting.
11. The Team met on March 1, 2002, to consider the psychoeducational and psychological evaluations and teacher assessments gathered since January 18, 2002. The Team determined further assessments were necessary. It reconvened on March 7, 2002, to consider additional psychological and medical evaluations and home and guidance assessments. The Team again postponed a determination of eligibility pending results of a psychiatric evaluation.
12. On April 1, 2002, the Parents requested an expedited hearing at the Bureau of Special Education Appeals and an order for the Student’s immediate return to the pre-discipline regular 8 th grade program.
13. The Team reconvened again on April 11, 2002, to consider all available evaluative information. The Team determined that the Student was not eligible for special education or Section 504 services because he did not have a disability.
14. The Parents requested an independent psychoeducational evaluation on April 11, 2002.
Legal Framework
The rules governing imposition of discipline on students known, or suspected, to be disabled are set out in federal special education regulations and have been incorporated by reference into Massachusetts practice. See 34 CFR § 519-529. In particular, as there has been no determination that the Student here is a Student with a disability, the language of 34 CFR 527 is applicable. That section provides, in pertinent part, that a regular education student facing a disciplinary expulsion may be afforded the procedural protections of the IDEA2 if, before the event precipitating the discipline, the School had reason to suspect that the student had a disability.
A school is deemed to have knowledge that a student has a qualifying disability if, prior to the incident precipitating the discipline: 1) the Parent has notified the School in writing of the Student’s need for special education; 2) the behavior or performance of the Student demonstrates the need for special education services; 3) the Parent has requested a special education evaluation; or 4) a teacher has expressed a concern about the behavior or performance of the Student. 34 CFR. 527 (b) (1) – (4).
Conclusion
Here, based on the limited evidence before me, I am unable to conclude that this Student is entitled to the procedural protections of the IDEA. Therefore, the School may impose its regular discipline pursuant to M.G.L. c. 71 Sec. 374, and need not return the Student to his pre-discipline regular education placement pending the outcome of the Team process and the Superintendent’s hearing.
The evidence before me indicates that this regular education 8 th grader had no history of poor academic or behavioral performance in school that warranted teacher concern. There is no evidence in the record that at the time of the January 9, 2002, incident precipitating the suspension/expulsion the school had been notified in writing by the Parent of the Student’s need for special education services. While the Parent indicated she had requested an evaluation prior to January 9 th , the only documentation of that assertion is the School’s receipt of the Parent’s consent to evaluate on January 18, 2002, the same day as the Principal’s expulsion hearing. There is no clearcut evidence that the School knew, or should have known, that the Student was suspected of having a disability prior to its imposition of discipline on January 9, 2002. Richard V. v. City of Medford , Civil Action No. 95-12770 (D. Mass. April 24, 1996); Hampshire Regional School District , 4 MSER 81 (1998). Therefore, between January 9, 2002, and January 18, 2002, the Student could be treated for disciplinary purposes as a regular education student. On January 18, 2002, when the School first had indisputable evidence of the Parent’s request for special education, the Student’s IDEA protections attached. At that point the Student became entitled to “stay put.” His “stay put” placement was suspension. Deborah V. v. Leonard , 1993 W.L. 393055 (D. Mass. Sept. 24, 1993). The School chose however, to provide interim educational services, home tutoring, pending the Team’s eligibility determination. See 34 CFR 300.520. The Student underwent numerous public and private evaluations. The Team attempted on three occasions within a forty-five day period to determine the Student’s eligibility for special education. Finally, on April 11, 2002, the Team determined that the Student did not have a disability requiring special education. While the Parent rejected that finding by requesting an independent evaluation, the determination of a Team that a Student does not have a qualifying disability terminates any IDEA protections that have been afforded to the regular education student up until that point. Milton Public Schools , 7 MSER 248, 254 (2001); 20 U.S. C. 615 (8)(b)(k). Therefore, in this case, the Student’s current status is one of expelled regular education student, at least until the Team, the Superintendent, or the Hearing Officer after a full evidentiary hearing, determines otherwise.
Order
The Parents’ Motion for Reinstatement is Denied . The Parties shall submit written status reports no later than May 22, 2002, indicating: the scheduling of any additional evaluations; the scheduling of the Superintendent’s hearing; the scheduling of any Team meeting; any change in the status of the Student; all issues remaining for hearing; and proposed dates for hearing, if necessary.
By the Hearing Officer,
____________________________
Lindsay Byrne, Hearing Officer
1
It is asserted by the School and not disputed by the Parents that this discipline is consistent with the School’s Parent-Student Handbook. The Handbook was not entered into the record.
2
These protections include: limited discipline; receipt of educational services during the disciplinary period; expedited behavioral assessments, eligibility and “manifestation” determinations and hearings; designation of an educational setting for a limited time; and, central to this matter, the right of return to the pre-discipline setting.