COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Boston Public Schools & Boston Collegiate Charter School
BSEA # 08-3551
Ruling on Boston Collegiate Charter School’s Motion
to be Dismissed as a Party
A request for hearing was filed by Parents in the above-referenced matter on December 19, 2007, alleging among other issues, that Boston Collegiate Charter School (Boston Collegiate) violated Student’s procedural due process rights in failing to convene a Team meeting after receiving notice that Parents intended to place Student unilaterally at Landmark for the 2006-2007 school year. Parents request for hearing was also filed against Boston Public Schools, the district where Student resides.
On January 7, 2008, Boston Collegiate responded to Parents’ request for hearing and requested to be removed from the above referenced matter as Parents allegedly wrongfully named Boston Collegiate in the request for hearing. Boston Collegiate stated that Parents withdrew Student from Boston Collegiate in September 2007, after notifying it of their intention to place Student at Landmark1 .
Boston Collegiate asserted that Jenna Ogundipe, School Principal at Boston Collegiate, received a voicemail message on September 5, 2006, from Parents stating that they had withdrawn Student from Boston Collegiate. The message further stated that the previous Friday September 1, 2006 was Student’s last day at Boston Collegiate. Boston Collegiate responded to Parents via letter of sent on September 8, 2006 from Kathleen Sullivan, Executive Director, confirming that Student had not been attending school and was no longer a student there. According to Boston Collegiate, the withdrawal form enclosed with the letter was for “Student’s [Boston Collegiate’s] files “ Boston Collegiate heard nothing back from parents until their attorney wrote to the school on December 19, 2006. Boston Collegiate further argued that even if Parents’ voice mail message was insufficient as a notice of withdrawal, Boston Collegiate’s attendance policy sufficed to un-enroll Student2 . Boston Collegiate’s personnel and Parents spoke on September 11, 2006 to inform them that no Team meeting would be convened. Boston Collegiate added that it did not count Student in its enrollment report submitted to the Massachusetts Department of Education in October 2006. It argued that Student was withdrawn by Parents on September 5, 2006 when Parents called the school and in the alternative, no later than five consecutive days after his last day in attendance pursuant to the Student Handbook. Thereafter, Boston Collegiate asserted that it was no longer responsible to provide Student with special education services. According to Boston Collegiate, once Student was un-enrolled from the charter school, Student was entitled to receive educational services from the district in which he resided, that is Boston. Boston Collegiate relied on M.G.L. c. 76 §5 in making this argument.
Boston Collegiate further argued that by letter of November 29, 2006, Jennifer Williams, Assistant Program Director, Boston Public Schools (Boston), informed Parents that a Team meeting would be set-up for Student. Boston scheduled the Team meeting, conducted evaluations and developed an IEP. On December 14, 2006, Ms. Sullivan of Boston Collegiate wrote to Parents to convey Boston Collegiate’s understanding that Student had been withdrawn and that Boston was Student’s local educational agency responsible for his education. Boston Collegiate argued that Parents’ requested remedy was the responsibility of Boston and could not be imposed against Boston Collegiate. Boston Collegiate argued that compensatory services, in the form of tuition funding and transportation, are not permissible against Boston Collegiate pursuant to First circuit decisions, namely Ms. M. v. Portland Sch. Comm., 360 F. 3d 267 (1 st Cir. 2004), and the Charter school statute found at M.G.L. c. 71 §89(t).
On January 18, 20083 , Boston filed an Opposition to Boston Collegiate’s request to be removed as a party. Parents also opposed Boston Collegiate Charter School’s request to be removed from the above referenced action on January 18, 2008. Boston stated that
Boston argued that Boston Collegiate was a necessary party because it was responsible for the 2006-2007 IEP it developed for Student for the period from February 2006-February 2007. Boston states that Parents’ decision to place Student unilaterally arose from their belief that the program and placement offered by Boston Collegiate were inappropriate and Boston was not involved in the creation of the IEP. Boston also states that as a matter of law Boston Collegiate cannot be dismissed because Boston was not aware of the alleged withdrawal of Student from Boston Collegiate until after September 5, 2006, at which time Student was not registered in Boston. The relief requested by Parents does not constitute automatic grounds for dismissal against Boston Collegiate because, according to Boston, if Parents prove their case, they may be entitled to equitable remedies, which may include tuition reimbursement consistent with federal and state law.
On January 25, 2008, Boston Collegiate submitted a response to the Opposition briefs filed by Parents and Boston. It reiterated its position that Student was withdrawn as of September 5, 2006 and that out of district expenses are exclusively the responsibility of the resident district, that is, Boston. In its opinion, Parents’ belief that Boston Collegiate was legally responsible to convene a Team meeting is a misapplication of MGL c. 71 § 89 (t). Boston Collegiate stated that where a Student requires an out of district placement the responsibility shifts back to the district of a student’s residence. It further argued that cancellation of its Team meeting did not preclude Boston from convening a Team meeting and discussing the need for an out-of-district placement for Student since, according to Boston Collegiate, Boston was on notice upon Boston Collegiate’s cancellation of its Team meeting of September 12, 2006. Therefore, Boston Collegiate argued that it should be dismissed as a party.
Following a Pre-Hearing Conference on February 27, 2008, the Parties requested additional time to submit an opinion from the legal office of the Massachusetts Department of Education, addressing the DOE’s understanding of the application of the regulations regarding school district responsibility for students. In addition, Boston’s requested additional time to file a Motion to Defer a Ruling on Dismissal of Boston Collegiate until after the Hearing. In turn Boston Collegiate requested an opportunity to respond. An Order was issued on February 28, 2008 allowing the Parties’ requests and establishing the following deadlines: the deadline for additional submissions, requests and arguments on the Motion to Dismiss Boston Collegiate as a Party was March 7, 2008 and the deadline to respond was March 17, 2008.
Parents’ submission was received on March 7, 2008 and Boston Collegiate’s first response on March 17, 2008. On March 10, 2008, Boston Public Schools requested an extension of time to submit its Motion, which request was granted by the BSEA Director4 . At Boston Collegiate’s request, an extension was also granted for submission of its response. Boston Public Schools’ submission was due on March 13 and Boston Collegiate’s on March 20, 2008. The submissions were received from both parties on the due dates. The record for purpose of issuing this ruling closed on March 20, 2008.
Parents stated that the DOE’s opinion supports their position that at least until such time as responsibility for Student shifted to Boston, Boston Collegiate was responsible both financially and programmatically. On March 13, 2008, Boston requested that a decision to dismiss Boston Collegiate be deferred until the end of the hearing, and concurred with Parents that the opinion letter issued by the DOE confirms the inapplicability of 603 CMR 28.10 (6)(a), and contemplates the possibility that in the case of a unilateral placement of a child previously in a charter school, liability for tuition reimbursement to the parents may fall on the charter school. Boston asserts that at a minimum, Boston Collegiate may have been programmatically responsible for Student; there is a dispute of material facts between the parties, and that Boston Collegiate is a necessary party.
The interpretation provided by DOE on February 28, 2008, addressing 603 CMR 28.10(6)(a) and Unilateral Placements under 34 CFR 300.148, concluded that the aforementioned Massachusetts regulation “does not apply to situations in which a parent makes a unilateral placement in accordance with 34 CFR 300.148 and then seeks reimbursement for that placement.” The DOE opinion goes on to explain the particular regulation albeit concluding that it does not apply to the situation brought by the Parties.
In its final submissions, Boston Collegiate responded distinguishing the cases on which Parents and Boston relied and asserting that judicial expediency called for a determination regarding dismissal of Boston Collegiate prior to the hearing.
I agree with Boston Collegiate that a determination must be made prior to hearing and therefore, DENY Boston’s request to defer a determination until after the hearing. However, since there is at present no regulation addressing the unique facts of this case, and since at this juncture there is a dispute of material facts, even though my original inclination was to dismiss Boston Collegiate, I am persuaded that such action would be premature. Therefore, Boston Collegiate’s Motion to be dismissed as a party is hereby DENIED .
This matter will proceed to a hearing on the merits as previously scheduled on April 29, 30 and May 1, 2008 at the Bureau of Special Education Appeals.
So Ordered by the Hearing Officer,
______________________________________
Rosa I. Figueroa
Dated: April 3, 2008
1
Written notification was forwarded to Boston Collegiate on August 18, 2006.
2
Boston Collegiate’s Student Handbook for the 2006-2007 school year states:
If a student is absent for five consecutive days during the school year, and there has been no successful contact between the family and the school to explain his or her absences, the student will lose his or her seat at [Boston Collegiate] and will be considered un-enrolled from the school.
3
Boston Public Schools and Parents were granted an extension, to file their responses to Boston Collegiate Charter School’s Motion through Friday, January 18, 2008.
4
This Hearing Officer was at a conference out of state.