COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
Re: Student v. Boston Public Schools
BSEA # 01-5104
DECISION
This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the Regulations promulgated under said statutes.
The decision follows an emergency hearing requested by the Student/Parent on Friday June 8, 2001, and held at the Bureau of Special Education Appeals, Malden, MA, before Rosa I. Figueroa, Hearing Officer on June 13, 2001. Given the emergency nature of this matter, an Order was issued on June 14, 2001. (Attachment #1) The record closed on June 14 th upon receipt of Boston Public Schools’ (hereinafter, “Boston”) submission of the Students’ Handbook marked as SE-19 and the Student’s psychiatric evaluation (Attachment #2) marked as PE-6.
The hearing involved the Student’s/Parent’s request that the Student who had been subject to a disciplinary exclusion from the school be allowed to participate in the graduation exercises to be held the evening of June 14 th .
Those present for all or part of the Hearing were:
Student
Student’s Mother
Amy McDonald Rogers, Esq. Attorney for the Boston Public Schools
Charles Skidmore Brighton High School Headmaster, Boston Public Schools
Margaret Judges Brighton High School Special Education Director,
Boston Public Schools
Thomas J. Lane Boston Public Schools
Sara Berman Hearing Officer, BSEA, observer
Student’s/Parents’ Exhibits 1 through 6 and School Exhibits’ 1 through 19 were admitted in evidence.
ISSUE PRESENTED
1. Whether Boston is correct in its determination to exclude the Student from graduation exercises on the basis of dangerousness and safety concerns as a result of the incident of May 16, 2001?
POSITION OF THE PARTIES
School’s Position:
Boston states that Student was disciplined as a result of a threat found in a classmate’s journal that he would “get his pay back and blow up the school”. Boston disciplined the Student by suspending him for five days, excluding him from the senior prom and the graduation exercises. It is now concerned that it will not be able to guarantee either the Student’s safety or the safety of other students and therefore stands by its decision to exclude Student from receiving his diploma at the graduation ceremony on June 14, 2001. Boston argues that since the Student has been away from school for a month his mere presence at graduation could cause problems. Therefore, it is concerned about not being able to guarantee anyone’s safety. The Student was allowed to complete his class-work and will be allowed to graduate from Boston.
Parents’ Position:
The Student/Parents argue that the incident leading to Boston’s determination to exclude the Student from the graduation exercises was a bad joke and that he is not a danger to himself or others. The Parent states that the Student is “a good kid with a big mouth” and that is what got him into trouble. Prior to this incident the Student did not have any other disciplinary problems. The family requests that he be allowed to participate in the graduation ceremony.
FINDINGS OF FACT
· Born on 5/04/1982, Student is a nineteen year old, twelfth grader about to graduate from the Brighton High School in Boston. (Testimony of the Student, Parent, Mr. Skidmore) His entitlement to special education services and areas of need are not disputed. At the time of the incident, giving rise to this hearing, he was receiving services in English and math under an Individualized Educational Plan (hereinafter, “IEP”) which ran from January 2001 through January 2002. (SE-18) At the request of his mother, Student received counseling services, arranged through Boston, though the services did not appear in the Student’s IEP. (Testimony of Ms. Judges)
· The Student’s most recent IEP followed a Team meeting of January 30, 2001, and was accepted in full by the Parent on February 16, 2001. (SE-18) The IEP called for small group setting with 1:1 instruction /assistance, practice repetition, frequent oral directions, cooperative learning, positive reinforcement, preferential seating and detailed task analysis with a multi-sensory approach to address a specific mild learning disability. The IEP focused on Reading and Language Arts, arithmetic and social emotional skills. (Id.; Testimony of Ms. Judges and the Parent)
· This IEP followed a three-year evaluation which included a psychological assessment. (Testimony of Ms. Judges) While it is unclear whether the report was available at the Team meeting of January 30 th , the evaluator was part of the Team, the evaluation was discussed and recommendations for the Student to participate in counseling were made. (Id.) The Parent remembered discussing the result of the evaluations with Leon J. Monnin, Ph. D, the evaluator prior to the Team meeting but did not remember participating in a Team meeting, discussing the evaluation or the recommendations back in January of 2001. (Testimony of the Parent) The attendance sheet shows that Esther Davis, Margaret Judges, Leon Monnin, Lois Smith, Kim O’Quinn, John Grant, Vincent Donovan, Whitney Bennet, the Student and the Parent participated in the Team meeting. (SE-18) As a result of the discussion, the Student received counseling services through the Allston-Brighton Mental Health Center once per week, for approximately half an hour each, from February 2001 through the end of the school year. (Testimony of Ms. Judges, the Parent) This arrangement came as a result of Parent’s request that the counseling services were not included in the Student’s IEP. (Testimony of Ms. Judges)
· Leon J. Monnin, Ph D, performed the Student’s psychological evaluation on January 18, 2001. (SE-17) It is this evaluation that Boston relies on in determining that the Student is at present a danger to himself or others. (Testimony of Mr. Skidmore) According to the evaluator the Student had a history of behavioral emotional issues in addition to his learning disabilities. However, the incidents of May 11 and May 16, 2001 were the first for which any disciplinary action was taken. (Testimony of Mr. Skidmore, Ms. Judges, the Parent) During the evaluation the Student provided Dr. Monnin a school history which was inconsistent with the one provided by the Parent or the school records. The Student related feeling that he was the most disliked Student in the building, that he was alienated from black and Hispanic Students because he was of German and native American ancestry. (SE-17; Testimony of the Parent)
· Dr. Monin found the Student to display significant emotional vulnerabilities. He found Student to have:
· difficulty in perceiving things the same as others might see them. He appeared very reactive to affective stimulation and tended to distort under stress. [Student] misrepresented events in his life and experienced himself as being hated by his peers. He was at high risk of alienating others in his environment and felt that his peers were out to harm him. (SE-17)
· The evaluator stated that thematically, the Student’s responses suggested underlying anger and hostility without knowing healthy ways of dealing with them. The Student’s overall response style was consistent with a thought disorder with no evidence of acute psychotic process. The Student’s style however, placed him at risk for distorting reality and inability to see things as others perceive them, something that Dr. Monnin found to be quite consistent with individuals who presented with non-verbal learning disabilities. (Id.)
· Dr. Monnin recommended that the Student’s emotional needs be addressed through counseling, that he undergo a medical/psychiatric evaluation and that his other significant academic deficits be addressed. In closing he stated that:
· [Student] needs to learn how to check out the perceptions of others in his environment to give him insight into his world. He needs to learn to take a step back, when he is affective stressed so that he can make better decisions. He needs to see his part in things so that he can make better choices in his interactions. (SE-17)
· On or about Friday May 11, 2001, the staff at Brighton High School having been apprised by students that the Student had verbally threatened to tamper with the punch at the senior prom by putting in laxatives, contacted the Boston Police and escorted the Student to the Special Education Office. (Testimony of Ms. Judges, SE-15) Allegations were also made that the Student intended to pay back students who had harassed him at the conclusion of the graduation ceremony. He was questioned by school staff and the Boston School Police, and was evaluated by an Allston Brighton Mental Health staff for dangerousness. The evaluation did not yield a recommendation for hospitalization. (SE-15, SE-1, SE-2) At the time the Student was reported to answer all the questions calmly and was adamant in his responses that he had no intentions to harm anyone. (SE-15; Testimony of Ms. Judges) The Student spent the rest of that day in the resource room and was asked to return to school with his mother the following Monday, May 14 th . (Testimony of Ms. Judges, the Parent) The Boston School Police was contacted, the Student was given the Miranda Rights and was questioned and searched, though nothing was found. A complaint was filed in Brighton District Court. (SE-1) Concerns also rose over a book written by the Student containing five chapters of a violent story, which the Student characterized as fictional. (Testimony of the Student) The Student testified that he loved to write and that many students at Brighton High School had seen this book. (Id.) Recommendations were made for him to receive on-going support through psychotherapy in the community. (SE-2)
· The Student and the Parent met with Brighton school personnel on Monday, May 14 th and after a lengthy two-hour discussion, it was decided that no further disciplinary action would be taken since it seemed that the Student had understood the consequences of his actions. (Testimony of Mr. Skidmore) The Student spent the rest of that day in the resource room and was warned that any further problems would result in disciplinary action. (Id.)
· On May 16 th Sergeant Flaherty was contacted again after a teacher obtained a student’s journal which contained a note allegedly written on May 14 th by the Student which stated among other things “I still plan to get my pay back and blow up the school”. (SE-3, SE-6) The note was in the Student’s handwriting and was signed by him. (Id.) It was not dated. While the student who received it claimed that it had been handed to her on May 14 th , the Student admitted to being the author of the note and claimed that he had written it in April and meant it as a joke. (SE-5, SE-6; Testimony of the Student) SE-5 indicates that Student had the classmate’s book from April 14 th through May 14 th . The Boston School Police Incident Report indicates that the Student would be excluded from the Brighton High School campus, the Senior Prom and Graduation Ceremonies. (SE-3) The Student was searched and referred for another mental health evaluation. (Id.; Testimony of the Student, Mr. Skidmore) The evaluator determined that no intervention was warranted at that time. (SE-4) The Student appeared calm but anxious and frightened during the evaluation. (Id.)
· On May 16 th , the Student’s Parent was notified and a suspension hearing was set for the following date. According to Brighton High School’s Headmaster, Mr. Skidmore, it is this incident that caused the Student’s disciplinary action that resulted in his exclusion from the senior prom and participation in the graduation ceremony. (Testimony of Mr. Skidmore)
· A suspension hearing was held by Mr. Skidmore on May 17, 2001. The Parent, Student, Mr. Donovan and Ms. Judges were present at that time. (Testimony of the Parent and Mr. Skidmore) The Student was suspended for five days as a result of the written note found in a classmate’s book but the decision was not reached until May 18 th . (Id.) The Parent and the Student were advised to come to the school the following day for an expulsion hearing and were advised that they could bring witnesses. (Id.)
· Boston’s Policy Handbook for Parents and Students for the 2000-2001 school year includes in the code of discipline section providing examples of offenses for which a student may be suspended or expelled, harming or attempting to harm another person with a weapon or dangerous object . (SE-19) Both the Student and the Parent were cognizant of this handbook.
· On May 17 th the Parent received a Boston Public Schools document from Mr. Skidmore which both Parent and Student were asked to sign. The document contained the following statements:
1. It is recommended that [Student] seek an advocate to ensure support of his identified special needs.
2. It is strongly recommended based on a recent SPED evaluation and Allston Brighton Mental Health Center consultation that [Student] seek immediate psychiatric consultation through his Primary Health Care Provider.
3. [Student] is excluded from the Brighton High School campus and all extracurricular school functions, including the school prom and graduation. (PE-5)
Mr. Skidmore testified that the document represented the recommendations of the mental health providers, Dr. Beckford from Boston’s Student Support Services and and David Drucker from Allston Brighton Mental Health, who had evaluated the Student. The Parent contended that up to the date of the Hearing she was not aware that this was the origin of the document.
· On May 18 th an expulsion hearing was held at Brighton High School officiated by Mr. Skidmore. (Testimony of the Parent, Mr. Skidmore, Ms. Judges) Both the Parent /Student and the school presented evidence. Several days later, on May 25 th Mr. Skidmore reached the decision that the Student would be suspended for five days (from May 17 th through the 23 rd ), would be allowed to complete his course-work and receive a diploma but would be excluded from the senior prom and the graduation ceremony. (SE-7, SE-11; Testimony of Mr. Skidmore)
· Following the expulsion hearing the Student’s Team met to determine whether the behaviors that led to the disciplinary action were a manifestation of the Student’s disability. The Team reached a conclusion that the behaviors were indeed a manifestation of his disability. (SE-8, SE-9; Testimony of Ms. Judges)
· The Student/Parent dispute the School’s determination that the incident was a manifestation of the Student’s disability. (Testimony of the Parent)
· Given the information received during the expulsion hearing and the manifestation determination, the Parent, the Student, Mr. Skidmore and Ms. Judges reached an agreement and an emergency placement was made on May 25 th as a result of which the Student received tutoring services through the end of the school year (seven business days later.) The Student completed his course requirements and was to receive a diploma from Boston. (SE-14; Testimony of the Parent, Student, Mr. Skidmore and Ms. Judges) The Student was also asked to participate in an intervention program at the Barron Center in Roslindale. The Student participated in this program which he completed satisfactorily. (Testimony of the Parent and the Student) Mr. Skidmore felt very strongly that the safety of the Student as well as others could be compromised if the Student attended the graduation ceremony on June 14 th . (SE-14; Testimony of Mr. Skidmore)
· On May 29 th Ms. Judges issued an emergency placement letter. (SE-15) According to her, Brighton High School was the third Boston placement for the Student. He had to be transferred from English and Hyde Park due to safety concerns because of racial issues. (Id.)
· As of October 12, 1999, the Student was in good academic standing, progressing effectively in Boston and meeting the goals and objectives in his IEP. (PE-3, PE-4; Testimony of Mr. Skidmore and Ms. Judges ) Character witness letters from Mr. Donovan, Assistant Headmaster and Kim W. Oquinn, English M.S. SPED, corroborate the Student’s efforts. (PE-1, PE-2) Ms. O’Quinn describes the Student’s behaviors in class as exceptional, and states that he was well-mannered and consistent. (PE-2) The Student plans to attend a two-year college and then possibly transfer to Northeastern University.
· At the request of the Hearing Officer, the Student underwent an emergency psychiatric evaluation on June 14, 2001 by Dr. Schreiber of Beth Israel Hospital. Dr. Schreiber stated that at the time of the evaluation the student was not at imminent risk of harm to himself or others and that a hospitalization was not warranted. (PE-6)
RULINGS OF LAW
The Parties agree that the Student presents with disabilities which fall within the purview of the IDEA entitling him to the protections embodied within special education law.
The sole issue before me is whether this special education student who was the subject of a disciplinary action as he was about to graduate from Boston’s Brighton High School may participate in the graduation ceremony to be held on June 14, 2001. The Student/Parent do not contend that the offenses that led to the disciplinary action are not serious, nor do they challenge any portion of Boston’s disciplinary decision other than the Student’s right to participate in the graduation ceremony. After careful consideration of the evidence before me, I find that Boston failed to present sufficient evidence to support its claim that at the present time the Student is such a danger to himself or others to warrant his exclusion from the graduation ceremony. I also find that Boston violated the Student’s procedural due process rights in having conducted the expulsion hearing prior to convening the Team to determine whether the behaviors had been a manifestation of the Student’s disability. My reasoning follows:
Central to the determination of whether the Student may participate or not in the graduation ceremony is the issue of whether or not he presents a danger to himself or others. Regarding this claim, I find that the evaluative evidence presented at hearing does not support a finding that the Student would be a danger to others or himself at graduation. Boston’s dangerousness assessment conducted on May 11, 2001 did not result in a recommendation for hospitalization of the Student and the consultation of May 16 th stated that the Student did not warrant an intervention. (SE-2, SE-4) Neither of these supported a finding that the Student constituted a danger to himself or others. Furthermore, these findings were consistent with the psychiatric evaluation conducted on the eve of the graduation at the Beth Israel Hospital, which the Student underwent at the request of the Hearing Officer. (PE-6) The emergency psychiatric evaluation was performed on June 14, 2001 by Dr. Schreiber of Beth Israel Hospital. Dr. Schreiber stated that at the time of the evaluation the student was not at imminent risk of harm to himself or others and that a hospitalization was not warranted. In making its’ dangerousness claim at the Hearing, Boston relied on a January 30 th evaluation that recommended counseling but did not support exclusion of the Student from school. (SE-17) The five-day suspension imposed by Boston on May 25 th made retroactive to May 18 th was the Student’s first suspension during the 2000-2001 school year. Therefore, without proof of dangerousness, following the five-day suspension the Student should have been able to return to his regular activities at Boston’s Brighton High School, including graduation. Having found no support for Boston’s claim regarding dangerousness, I now turn to a discussion of some other related matters.
According to Federal law and regulations, Boston’s consideration of a change in placement could not have proceeded until after the Team had gathered to consider whether the behaviors were a manifestation of the Student’s areas of disability, until Boston had conducted a functional behavioral assessment, had taken measures to address the Student’s needs in the general educational environment or had requested an expedited hearing before the BSEA to exclude the Student on the basis of dangerousness. A change in placement must be the result of a Team recommendation accepted by the Parent or a decision issued by a hearing officer following a full hearing on the merits.
Since June 29, 1999, Massachusetts defers to the Federal Statute and Regulations in cases involving disciplinary action of special education students. See 20 U.S.C. 1415 (k), 34 CFR §300.519 through §300.523.
Under 34 CFR §300.520 the federal regulations provide that:
a) School personnel may order-
1. (i) To the extent removal would be applied to children without disabilities, the removal of a child with a disability from the child’s current placement for not more than 10 consecutive school days for any violation of school rules, and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under 34 CFR §300.519 (b));
(ii) After a child with a disability has been removed from his or her current placement for more than 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under 300.121(d); and
2. A change in placement of a child with a disability to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days, if-
i) The child carries a weapon to school or to a school function under the jurisdiction of a State or a local educational agency;
ii) The child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a State or local educational agency…
In the case at bar, the Student’s behavior was a violation of a school rule published in the Students’ Handbook and therefore fell within the purview of 34 CFR §300.520 (a) (1).
MGL c. 71 §37 H requires schools to publish their policies regarding discipline. Boston’s Parents and Students’ handbook set the District’s policy in this regard. The Student was aware of the contents of this handbook. A section of this handbook provides examples of offenses for which a student could be suspended or expelled. One of the examples provided is “harming or attempting to harm another person with a weapon or a dangerous object, hurting another person (or threatening to hurt another person)…” (SE-19) The schools’ decision to suspend the Student for five days was therefore warranted. The Parent/Student assert that this disciplinary action was justified. (Testimony of the Parent, and the Student) Boston’s further exclusion of the Student from activities that took place beyond 10 days was impermissible under Federal law and regulations since it did not observe the procedural due process rights afforded to the Student.
The evidence before me shows that Boston violated the Student’s procedural due process rights in conducting a suspension and an expulsion hearing before gathering the Team to determine whether the behaviors were a manifestation of the Student’s disability as mandated under 34 CFR §300.523. Since Student has been identified as a special education student receiving services under an IEP, Boston was mandated to ascertain first whether the conduct was a manifestation of the Student’s disability before it subjected the Student to disciplinary action. See 20 U.S.C. 1415 (k)(5)(A); 34 CFR §300.523 and §300.524. Instead, the decision to suspend the Student for five days, change his educational placement to another setting and exclude him from the prom and graduation activities was made before gathering the Team. Boston ultimately found that the behaviors were a manifestation of the Student’s disability and the Parent consented to the alternative placement.
The Federal law requires that at the time the disciplinary action to change the placement of the Student is contemplated , the Team must be convened to determine whether the behavior is a manifestation of the Student’s area of disability. 20 U.S.C. 1415 (k)(4) (A) (ii) The Student’s Individualized Educational Plan Team is charged with the responsibility to look at the student’s disabilities and determine whether they impaired the student’s ability to control the behavior, and whether the student was able to understand the impact and consequences of the behavior warranting disciplinary action. 34 CFR §300.523 The Team must include the school personnel, other qualified personnel, the parents and in this case the Student since his age is of legal majority. (See 603 CMR 28.314.3, 314.4 and 314.5 regarding composition of the TEAM.) This means that a manifestation determination Team meeting is a mandatory step prior to holding the exclusion/expulsion hearing. 34 CFR §300.523. Boston should have held its’ manifestation determination Team meeting within the 10 days required by Federal law, prior to the expulsion hearing. Since it failed to do so, Boston could not exclude the Student from school based activities at the completion of the five-day suspension. It is worth noting that during this period of time, the Student did everything that was required of him. (Testimony of the Student, Parent, Mr. Skidmore and Ms. Judges)
The evidence supports a finding that Boston violated the Student’s procedural due process rights by conducting the expulsion hearing before first providing notice, reconvening a proper Team, conducting a fair and proper assessment of the Student’s IEP and his placement, or considering his evaluations and diagnostic results. Boston however, offered the Student an alternative placement which was agreed to by the Parent/Student in which the Student was able to complete the requirements to graduate from high school. The Student indeed complied with everything that was required of him. (Testimony of the Parent, Student, Mr. Skidmore and Ms. Judges) Therefore, while there were procedural due process violations, substantively Boston offered the Student an opportunity to complete his education in an alternative setting decreasing the effect of harm to the Student.
Finally, Boston argued that graduation was an extracurricular activity to which the Student had no right as it was not a part of his IEP. Without evidence that a Student is a safety hazard to himself or others, t his argument is not persuasive since the Federal Special Education Regulations specifically require that public agencies take steps to provide special education students an equal opportunity to partake in nonacademic and extracurricular services and activities as would a non-disabled student. 34 CFR §300.306
Under regular circumstances, a child has the right to receive educational and related services in the least restrictive setting appropriate. See, e.g., 34 CFR § 300.550(b)(1) (“to the maximum extent appropriate,” a child must be “educated with children who are nondisabled”). Under the Federal standards, the student’s IEP must contain statements regarding special education, related services and supplementary aids and services to be provided to the student in addition to any necessary modifications that would allow the student to participate in the general curriculum as well as in extracurricular and other non-academic activities. 34 CFR § 300.347 . The federal IDEA regulations extend this right of participation with nondisabled students to the provision of nonacademic and extracurricular services and activities. 34 CFR 330.553. Participation must occur to the maximum extent appropriate to the needs of the particular child. 34 CFR § 300.553. Nearly identical language can be found in the Section 504 Of The Rehabilitation Act Of 1973 regulations, 34 CFR part 104.37, and in Massachusetts’ Chapter 766 Regulations.
The evidence is persuasive that Boston has acted responsibly in addressing the serious disciplinary concerns that arose between May 11 th and 18 th . The evidence however, was not persuasive that Boston had taken all possible steps to ensure the student’s safe participation in graduation given its own finding that the behaviors were a manifestation of the Student’s disability. The evidence presented at Hearing regarding the Student’s written statement that Student “still plan[ed] to get his pay back and blow up the school” warranted the disciplinary measures imposed by Boston including the five day suspension from May 17 through the 23, 2001. After May 23, 2001 the Student would have been able to return to Brighton High School had it not been for the agreement entered into by the Parent/ Student and Boston to offer him services in an alternative setting.
While Boston’s arguments that the Student presented a danger to himself or others at graduation was not supported by the evidence, Mr. Skidmore’s statements regarding concerns over Student’s safety vis a vis other students’ reaction to seeing the Student at graduation after spending one month out of school were persuasive. Boston shall take all necessary precautions to assure the Student’s safety. This may include provision of an escort for the Student during graduation, preferential seating, allowing the Student to leave the premises before other students do and any other necessary considerations to assure his safety and that of others.
So ordered by the Hearing Officer,
Rosa I. Figueroa
Dated: July 5, 2001