Needham Public Schools – BSEA #02-2722
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Needham Public Schools
This decision is rendered pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act, hereafter, Section 504), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
A hearing on this matter was held on June 3 rd , 2002. At the conclusion of the hearing, Parents and Needham Public Schools (hereafter, Needham) submitted written as well as oral closing arguments. Persons present for all or part of the hearing were:
Parents of Student
Marcia Berkowitz Director of Student Support Services, Needham Public Schools
Rebecca Bryant Attorney for Needham School Committee
Paul Madden Principal, Needham High School
Elizabeth Mela Regular Education Teacher, Personalized Learning Center, Needham High School
John Miner School Psychologist, Needham Public Schools
Sandra W. Sherwood BSEA Hearing Officer
Parents/Student requested a hearing before the Bureau of Special Education Appeals (BSEA), seeking that Needham Public Schools (Needham) be ordered to issue Student’s high school diploma.1 Needham takes the position that Student is ineligible for graduation, for he lacks eleven credits necessary for his high school diploma.2
STATEMENT OF THE FACTS
1. Student is an eighteen year old regular education twelfth grader at Needham High School; he is diagnosed with depression and an attention deficit disorder (ADD). It is not clear to what extent the parties agree that this condition impacts his ability to attend classes. Clearly, however, the parties agree that at least in part, his depression and ADD impact his ability to restrain from cutting classes. (Mela, P- 1, P-3, P-12, P-13)
2. Student has been able to pass his courses required for graduation.(S-23) However, Student has lost some of the credits for such courses due to his cutting classes (absent without authorization). (S-4, S-5) As a result of this, Student has earned a total of 81 credits, whereas 91 credits are needed for diploma eligibility. (Madden)
3. Needham’s Policy regarding cuts/unauthorized absences from class results in the student’s loss of one credit after three cuts; two credits after the fourth cut; three credits after the fifth cut; and all credit for the course after the sixth cut. (Needham High School’s Handbook, S-1, page 10).
4. After a disciplinary incident, in December of this year, Needham and Parents/Student agreed that he is a student in need of special education, but disagreed on the services; Needham proposed a collaborative special education program; Parents/Student wanted services within the high school. Accordingly, he is receiving only regular education services.
5. The graduation ceremony will commence June 4 th , 2002. Because of the lack of credits, Student is not scheduled to receive his diploma or participate in this graduation ceremony. Needham continues to offer Student the collaborative special education placement, and further offers several regular education options in order to achieve the necessary credits for a diploma.
FINDINGS AND CONCLUSIONS
I find that Needham has offered and provided many accommodations addressing Student’s difficulty attending class. I further find that Parents/Student were unpersuasive that Student was unable to control his cutting class behavior. Finally, I find that Student’s requested accommodation of a waiver of Needham’s cuts/unauthorized absence from class policy, is not reasonable, and is not in Student’s best interest. My reasoning follows.
1. Without disputing that Student’s depression and ADD may have played some role in Student’s behavior, the preponderance of the evidence does not support Parent’s/Student’s claim that he could not control his behavior. His explanations as to why he skipped class, if anything, supported a conclusion that he could control his behavior. He stated that he didn’t need to attend, that he didn’t think he would get caught, and that he didn’t think they could make him. (Mela, Miner) His statement that he didn’t want to attend is more supportive of Parents’/Student’s claim that depression played a role, but not sufficient to support their claim that his depression played such a role that would warrant a waiver of the policy. Further, the fact that Student would skip one class, then show up and work productively for the next class, undermines Parents’/Student’s position that depression caused his cutting class behavior. Dr. Miner was persuasive that the state of depression does not come and go so quickly. (Miner) It may be that, particularly near the end of the school year, Student became more depressed about his difficulties, but the preponderance of the evidence supports a finding that he could control his behavior. This finding is made after a careful look at Dr. Helmus’ Lofgrin, and Yaffee’s correspondences. There is insufficient persuasive opinion supporting the position that, with help, Student couldn’t control his behavior. Rather, they request that Student’s depression and ADD be taken into consideration. Needham has repeatedly done so. Further, it should be noted that, without cross-examination of the doctors, their opinions must be given less weight. Parents were made aware of the option of telephonic testimony, if that were the only way to obtain their testimony, but chose not to do so.
2. Needham did in fact take Student’s depression and ADD into consideration throughout Student’s junior and senior year. They offered many options, from alternative regular education placements, to special education placements. They offered a behavioral contract that included Student’s right to meet with Ms. Mela or Mr. Madden when he thought he needed to cut a class. He failed to avail himself of this option. They in fact waived certain cuts when it was based on solid educational considerations. (Madden) They offered many ways of making up lost credit – some of which Student complied, but not completely.
3. Needham was persuasive that, for this Student, waiving the cuts/unauthorized absences policy, would erode one of the educators’ fundamental missions – to instill self-responsibility and accountability. (See Mission Statement ratified by staff as well as the school committee, S-2, page 1) The cuts/unauthorized absences policy was in fact put in place after the Education Reform Act was put in place, partly to raise the academic standards, and partly to address the character concerns. The policy was designed to maximize Student’s attendance in class, and in fact has been extremely effective in decreasing the numbers of cuts. (Madden) Without ruling on whether a waiver of this policy might apply to some handicapped children, a waiver in this case would undermine this fundamental mission, to instill self-responsibility and accountability, for the evidence supports Needham’s position that, ultimately, Student will be able to earn the necessary credits for graduation, and that, Student could have in fact earned the credits for the June 4 th 2002 graduation. Further, Needham was persuasive that waiving the cuts policy would not be in Student’s long term interest. Student clearly has the academic potential and long term professional goals. Without addressing his emotional and behavioral stumbling blocks, he will only hinder his academic and professional development. Now is the time to address those stumbling blocks. A June 4 th 2002 denial of Student’s diploma is a bitter pill to swallow, both for Student as well as Parents. It is, however, not unexpected. In fact, Student’s depression has been in part, intertwined with his knowledge that his credit record placed his graduation in jeopardy. It is hoped that Student will take this decision as an opportunity to seek the appropriate support so as to overcome his difficulties with self-responsibility, and to pursue his college goals as soon as possible.
By the Hearing Officer,
Sandra W. Sherwood
Date: June 3, 2002
The graduation ceremony is scheduled for June 4, 2002.
At the same time, Needham requested a BSEA hearing, asserting that Parents’/Student’s rejection of its proposed special education program denies Student his legally entitled free and appropriate education. This hearing request is hereby DISMISSED based on the Bureau’s lack of jurisdiction over such issue. (See 603 CMR 28. 08(3)(c)).