COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Weymouth Public Schools BSEA # 04-3807
RULING ON STUDENT’S MOTION FOR IMMEDIATE STAY-PUT ORDER FOR STUDENT AT WEYMOUTH ALTERNATIVE HIGH SCHOOL AND WEYMOUTH PUBLIC SCHOOL’S OPPOSITION TO MOTION FOR IMMEDIATE STAY-PUT ORDER
On April 12, 2004, Parents in the above-referenced matter filed a Motion For Immediate Stay-Put Order For Student At Weymouth Alternative High School in the above-referenced matter. During a Telephone Conference Call held on April 14, 2004, the parties agreed that I should decide the Stay-Put issue on the documents deciding to forgo oral arguments. Weymouth asserted that it would submit its response by April 16 th . Weymouth Public Schools (hereinafter, “Weymouth”) filed its Opposition to Motion for Stay-Put Order on April 16, 2004, requesting that Student’s Motion for immediate stay-put order be denied.
The relevant facts in this matter are as follow:
1. Born on July 1, 1988, Student is a fifteen year old resident of Weymouth, MA. Student entered Weymouth as a regular education Student in September 2003. She was transferred to the Alternative High School on January 5, 2004 due to behavioral issues.
2. On or about January 5, 2004, Student’s Father spoke with Weymouth’s Adjustment counselor, Mr. Goldfarb, and discussed his concerns regarding Student. At the time, Student was a regular education student in Weymouth Alternative High School. Student’s Father asked that Student be evaluated for special education and signed the consent for evaluation form on or about January 5 th .
3. Weymouth initiated processing of the evaluation on January 8, 2004. (PE-1)
4. On January 30, 2004, Weymouth sent out an invitation scheduling a Team meeting for Student to be held on February 25, 2004. (SE-1)
5. On February 6, 2004, while Student awaited the determination regarding eligibility for special education services, Student was involved in an incident for which she was disciplined. (PE-2) The incident report filed by Angela Andrews, a staff member in Weymouth, states that Ms. Andrews and a student were walking down the hall towards the bathroom when Student came into the hall to talk to the other student about something that seemed important to her. A teacher came into the hall to break up the conversation. Student became angry and refused to leave until she spoke to the other girl. Student “hit” the teacher’s arm out of the way and the teacher asked Student to leave the building. (PE-2) As she left the building, Student “verbally assaulted” the teacher. This report stated that Student displayed the following behaviors: assault, disrespect, disruptive in the halls, noncompliance, obscene/abusive language, refused directive, threatening and verbal abuse. (PE-2) According to the other student involved in the incident, she was on her way to the bathroom when she saw Student in the hallway, approached her and told her something regarding a third student. Student became very upset and went to look for the third student. A teacher/administrator followed her and tried to call her back while the first student also followed to try to calm Student down. The teacher/administrator approached the two girls and told the other student to go on to where she was going. The girls kept talking and the teacher/administrator put her arm in between the two girls. Student pushed the teacher/administrator’s arm away and walked out. (PE-2) Student was immediately suspended for 10 school days. (SE-2)
6. According to Parents, a Functional Behavioral Assessment was performed by Weymouth. That report states that Student had “used her arm to push staff away from blocking her path.” This report however, was not submitted by either side as an exhibit.
7. The Team was convened on or about February 25, 2004 to discuss Student’s eligibility to receive special education services. (PE-6; SE-1; SE-2) The participants: were Sue Carol Endrusick, Team chairperson for Weymouth, Vanessa Wade, school psychologist, Carol Nuss academic assessor for Weymouth, Karen Clasby Director of Alternative Education, Carlos Jalowayski, guidance counselor at Weymouth, Kathryn White, SAC Alternative, and Student’s mother and father. (PE-6; SE-1)
8. Notes from this meeting state that Student did well in class and her cognitive and achievement testing placed her in the average and above average range. (SE-2) Projective testing done by the School’s counselor showed that Student presented with anxiety, panic attacks, some depressive symptoms, anger, and low self- esteem. There was also a report of marijuana use. Student was seeing a counselor outside school to address the aforementioned symptoms and she was also scheduled for a psychiatric evaluation in April 2004, to discuss medication and diagnosis. The participants commented that she did well in structured environments but not so in unstructured settings. Development of a behavioral intervention plan was contemplated. Also, a Section 504 plan was discussed at the meeting.
9. Based on the information available to the Team, the Team concluded that Student was not eligible to receive special education services under an Individual Educational Plan and similarly did not qualify for accommodations under a “Section 504” Plan. (PE-3; SE-2) The Parent was informed of the finding of no special needs at the conclusion of the Team meeting, and he initialed the ED1 form before leaving the meeting. (SE-2)
10. The following day, February 26, the tenth day of the suspension, Weymouth High School’s Principal held a hearing pursuant to MGL c.71§37H which resulted in Student’s exclusion for the remainder of the 2003-2004 school year.
11. Via letter dated March 12, 2004, the Alternative High School’s Principal formally expelled Student from Weymouth. While the exclusion would last for the remainder of that school year, Student was however, allowed to re-apply for admission for the 2004-2005 school year after July 1, 2004. (PE-4) Parents appealed this decision to the Superintendent of Schools. ( Id. )
12. On March 23, 2004, Weymouth formally notified Student that she had been found ineligible to receive special education services. (PE-3)
13. Also on March 23 rd , Weymouth’s Superintendent of Schools conducted a hearing on Parents’ appeal of the decision of Ms. Slattery, Principal of Weymouth High School, to exclude Student from Weymouth. (PE-4) The Superintendent found insufficient reason to overturn the exclusion as he was persuaded that Student had violated Weymouth’s rules. Via letter dated March 25, 2004, the Superintendent notified Parents of his decision to upheld Student’s expulsion. (PE-4) In his letter the Superintendent wrote, “…be aware that we are exploring ways to continue [Student’s] schooling while she awaits the opportunity to reapply for admission…” (PE-4)
14. Since February 6, 2004 Student has remained without any educational services.
15. On April 5, 2004, Father wrote to Weymouth’s Superintendent stating that he disagreed with the Team experts, challenging their findings and requesting that the Team reconvene with an independent Team of experts.
16. On April 9, 2004, Counsel for Student sent a letter to Weymouth’s Counsel expressly rejecting the finding of No Special Needs and requesting an independent evaluation. (PE-5) Counsel also requested a copy of Student’s file, clarification as to whether a Section 504 meeting had taken place and if not, requested that one be scheduled. (PE-5)
BSEA Jurisdiction:
Under Massachusetts and Federal Special Education Law, and the regulations promulgated under those statutes, the BSEA is charged with the responsibility to adjudicate special education and “Section 504” matters in Massachusetts. M.G.L. c.15 and 71B; 603 C.M.R. 28.00 et seq.; 20 U.S.C. 1400 et seq.; 34 C.F.R. 300; 29 U.S.C. 794 et seq.; 34 C.F.R. 104.
The Parties do not challenge the BSEA’s Jurisdiction to hear this claim and request that Student’s “Stay-Put Rights” be clarified.
Placement Pending Appeal (Stay-Put):
Under the IDEA, during the pendency of any proceeding pursuant to special education law, a student is entitled to remain in his/her then current educational placement unless the parents and the school district decide otherwise. 20 U.S.C. 1415(j). This is known as the “Stay-Put” right. Verhoeven v. Brunswick School Committee , 207 F.3d 1,3 (1 st Cir. 1999). Massachusetts recognizes a student’s right to stay-put in his or her then current educational program and placement during the pendency of any dispute regarding program or services, unless the parents and the district agree otherwise. 603 C.M.R. §28.08 (7).
The right to stay-put is triggered the moment the hearing is requested and lasts throughout the pendency of the educational dispute until the matter is resolved. 20 U.S.C. 1415(j). Consistent with 20 U.S.C. 1415 (j), the Federal Regulations regarding the status of a child during the pendency of a proceeding state that:
1. Except as provided in § 300.526, during the pendency of any administrative or judicial proceeding regarding a complaint under 300.507, unless the State or local agency and the parents or the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.
2. If the complaint involves an application for initial admission to public school, the child with the consent of the parents, must be placed in the public school until the completion of all the proceedings.
3. If the decision of a hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for purposes of paragraph (a) of this section.
The right to stay-put may also apply to students whose entitlement for special education may be pending. 20 U.S.C. 1415 (k)(8)(A).
“ A child who has not been determined to be eligible for special education and related services …and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, … may assert any of the protections provided for in this subchapter if the local educational agency had knowledge… that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. 20 U.S.C. § 1415 (k)(8)(A).
Both the Federal statute and the regulations for special education address this issue. See 34 CFR § 300.526. In issues regarding disciplinary matters, Massachusetts defers to the federal statute and regulations. 603 C.M.R. § 28.01(2) and § 28.08(7).
The Statute and Regulations under the IDEA make it clear that the procedural due process protections applicable to Students eligible to receive special education services and related services are applicable to students whose eligibility is in question if the LEA has knowledge that the student “was a child with a disability before the behavior that precipitated the action occurred.” 34 CMR §300.527 (a). In order for the procedural protections to be triggered, the Student must take affirmative action to assert them, such as by requesting a hearing. ( Id. ) Under 34 CMR §300.527 (b) an LEA is deemed to have a basis of knowledge that the student is a child with a disability when:
1. The parent of the child has expressed concern in writing (or orally if the parent dos not know how to write or has a disability that prevents a written statement) to personnel of the appropriate educational agency that the child is in need of special education and related services;
2. The behavior or performance of the child demonstrates the need for these services, in accordance with §300.7;
3. The parent of the child has requested an evaluation of the child pursuant to §§ 300.530-300.536; or
4. The teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of the agency or to other personnel in accordance with the agency’s established child find or special education referral system.
Therefore, if a school district has received information in any of the four manners described above, it will be deemed to have knowledge that the student has a disability. If this is the case, the student subject to disciplinary action may invoke his/her stay-put right until a manifestation determination to ascertain if student’s behavior is a manifestation of his/her disability, is conducted. 34 CMR §300.527 (b); see S.W. and Joanne W. v. Holbrook Public Schools , 221 F. Supp. 2d 222 (2002).
Parents argue that 20 U.S.C. 1415 (k)(8)(1) provides that a student who has not yet been deemed eligible to receive special education services under the IDEA prior to a disciplinary incident may assert the due process protections granted to students receiving special education services if the school system had knowledge of the student’s disability prior to the disciplinary incident. In such cases, the school will be deemed to have knowledge if the parent has requested an evaluation, or has expressed concern in writing that the child is suspected of requiring special education and related services.
Weymouth asserts that Weymouth knew that Student was not IDEA eligible when it excluded her. Furthermore, the school cannot be deemed to have knowledge that Student had a disability if they conducted the evaluation and entered a determination of non-eligibility prior to disciplining the student. See 34 CFR §300.527(c). Since student was found not to have a disability before the exclusion was imposed she was subject to the same disciplinary measures as a student without disabilities. Therefore, her status for educational placement purposes is that of an excluded student. According to Weymouth, the date giving rise to the disciplinary incident is not relevant for purposes of stay-put but rather the day on which the exclusion was imposed which occurred after Student was found ineligible.
Weymouth rejects the Parents’ position and states that Student was a regular education student at the time of her exclusion over the disciplinary incident as she had been deemed ineligible to receive services at the Team meeting held on February 25 th . She was subsequently excluded on February 26, 2004. Weymouth states that at the time of the Hearing before the Superintendent of Schools, her status was that of an excluded regular education student.
The federal statute and regulations contemplate an exception to whether a school may be deemed to have knowledge, that is,
(c) Exception . A public agency would not be deemed to have
knowledge under paragraph (b) of this section if, as a result of receiving the information specified in that paragraph the agency-
1. Either-
I. Conducted an evaluation under §§ 300.530-300.536, and determined that the child was not a child with a disability under this part; or
II. Determined that an evaluation was not necessary; and
1. Provided notice to the child’s parents of its determination under paragraph (c)(1) of this section, consistent with §300.503.
For this exception to apply, three requirements must be in place: the school must have completed the evaluation prior to the incident that caused the disciplinary action; must have convened the Team and found the student ineligible to receive special education services; and, must have notified the parents of its determination. S.W. and Joanne W. v. Holbrook Public Schools , 221 F. Supp. 2d 222 (2002)
(a) Conditions that apply if no basis of knowledge . (1) General . If an LEA does not have knowledge that a child is a child with a disability (in accordance with paragraphs (b) and (c) of this section) prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures applied to children without disabilities who engaged in comparable behaviors consistent with paragraph (d)(2) of this section.
1. Limitations . (i) If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under §300.520 or §300.521, the evaluation must be conducted in an expedited manner.
(ii) Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.
(iii) If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with the provisions of this part, including the requirements of §§300.520-300.529 and section 612 (a)(1)(A) of the Act. 34 CMR §300.527.
A recent decision issued by the Federal District Court for the District of Massachusetts, opines that the point in time in which the evaluation is conducted is what triggers or does not trigger the limitation. S.W. and Joanne W. v. Holbrook Public Schools , 221 F. Supp. 2d 222 (2002) In this decision, the judge found that under the IDEA the right to stay-put for a student who has not yet been found eligible, and who is the subject of a disciplinary action, extends beyond the point in time that the school found him/her ineligible until “ all ” proceedings have been completed. S.W. and Joanne W. v. Holbrook Public Schools , 221 F. Supp. 2d 222 (2002); 20 U.S.C. 1415(j).
Weymouth agrees that the chronology of events is important in ascertaining whether Student is entitled to stay-put rights. In the case at bar, Student was excluded after the Team convened and determined that Student was ineligible for special education services. Weymouth argues that the Holbrook case, as well as a second case cited by Parents, In Re: Hampshire Regional School District , 4 MSER 81 (1998), are distinguishable from the case at bar in that in both cases the schools acted prior to a Finding of No-Eligibility for special education services. Furthermore, according to Weymouth, in Hampshire Regional School District , student was excluded before the Team meeting.
Conclusions of Law:
Student’s Counsel argues that Student is entitled to the due process protections under the IDEA and asserts that Student is entitled under stay-put to her pre-disciplinary placement once the stay-put right is asserted. She further argues that the facts recited above support Student’s claim and requests that placement take place immediately.
In ascertaining whether Student is entitled to stay-put rights under the IDEA two relevant issues must be determined. First, was a manifestation determination hearing conducted under 20 U.S.C. §1415 (k)(4) and second, did the school have knowledge that the student had a disability before the behavior that precipitated the disciplinary action took place . 20 U.S.C. §1415 (k)(8)(A) et seq.; S.W. and Joanne W. v. Holbrook Public Schools , 221 F. Supp. 2d 222 (2002). Under the relevant facts of this case, Parent initiated the referral for special education on January 5, 2004, one month prior to the disciplinary incident that gave rise to Student’s exclusion, February 6 th , and ultimate expulsion from Weymouth on February 26, 2004.
Regarding the first prong, it is not clear from the documents and information presented whether Weymouth conducted a functional behavioral assessment as well as a manifestation determination meeting consistent with 20 U.S.C. 1415(k)(4) and 34 C.M.R. 300.523. In the body of the Motion, Parents state that there was a functional behavioral assessment. There is however, no mention of a manifestation determination meeting to ascertain whether there was a connection between Student’s suspected disability and the behavior for which she was disciplined. The only meeting mentioned by both sides is the Team meeting of February 25 th to discuss eligibility. Since there is insufficient evidence at this juncture to address these issues I will not comment further on it.
Regarding the second prong, once the father referred Student for an evaluation on January 5 th , Weymouth was placed on notice and is therefore deemed to have had knowledge that the student could have a disability. Weymouth knew of this possibility before the behavior of February 6 th , which precipitated the disciplinary action which took place on February 26, 2004. S.W. and Joanne W. v. Holbrook Public Schools , 221 F. Supp. 2d 222 (2002).
The Court in Holbrook reasoned that the IDEA contemplates that the procedural protections continue until such time as the evaluation is completed, and the issue of eligibility has been decided. Since Parents have requested an independent evaluation challenging the findings by Weymouth’s evaluators as well as the determination of No Special Needs, and a hearing on the issue of eligibility is pending before me, under the Holbrook Court’s analysis, Student would be entitled to the procedural protections afforded disabled students in special education, including stay-put.
Weymouth’s argument that the Holbrook and In Re: Hampshire Regional School District cases are distinguishable from the case at bar because in those cases the schools acted prior to convening of the Team, or before a Finding of No-Eligibility for special education services, is not persuasive. This analysis assumes that the point in time in which Student is expelled is the deciding factor. Under Holbrook what becomes relevant is that Student must have been evaluated and found not eligible to receive special education services prior to the behavior that led to disciplinary action. Parents must also not have challenged the Finding of No-Eligibility. When applying the legal reasoning embodied in Holbrook to the facts of the case at bar, the result is that Student is entitled to stay-put.
Finally, the issue of whether Student has a qualifying disability under the IDEA and whether she is entitled to receive special education services will be decided at a full Hearing on the merits. This Ruling addresses only clarification of Student’s stay-put rights under the IDEA.
Stay-put does not prevent Weymouth from taking other appropriate disciplinary measures to ensure that Student complies with school rules during the pendency of her appeal.
Ruling:
Weymouth is ordered to re-instate Student in the Weymouth Alternative School as a regular education student, pending resolution of the eligibility issue currently before me, unless Weymouth and the Parents agree to a different placement. Weymouth may make additional provisions to ensure that Student complies with School rules during the pendency of the proceedings. Should Weymouth be able to establish that Student is a danger to herself or others, Weymouth may initiate a Hearing under 20 U.S.C. 1415(k)(2).
So Ordered by the hearing Officer,
_______________________________
Rosa I. Figueroa
Dated: April 23, 2004