Worcester Public Schools – BSEA # 00-0912

<br /> Bureau of Special Education Appeals #00-0912<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Worcester Public Schools

BSEA # 00-0912

DECISION

This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), M.G.L. chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.

A hearing was held on May 1 and 2, 2000 in Worcester, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student

Student’s Mother

Leigh Mellow

Attorney for Student

Janice Ely

Neuropsychologist

Thomas Miller

Educational Supervisor, Perkins School for the Blind

Michael Cataruzolo

Head of Physical Education, Perkins School for the Blind

Kim Charlson

Assistant Director of Braille and Talking Book Library,

Perkins School for the Blind

Mary Joann Reedy

Attorney for Worcester Public Schools

Maggie Terrio Lawler

Head of Vision Department, Worcester Public Schools

William Abraham

Head of Guidance Department, Worcester Public Schools

Keefe Bangert

Vision Teacher, Worcester Public Schools

Joan Dio

Coordinator of Team Evaluations, Worcester Public Schools

James Kieras

Evaluation Team Chairperson at Burncoat High School, Worcester Public Schools

The official record of the hearing consists of documents submitted by the Student and marked as exhibits 1 through 131 and 16 through 20; documents submitted by the Worcester Public Schools (hereafter, WPS) and marked as exhibits A and B; and two days of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on June 7, 2000, and the record closed with the receipt of these arguments.

ISSUES PRESENTED

1. Is the provision of Braille and self-advocacy instructional services only during the regular school day (rather than during an extended day), as set forth in Student’s IEPs for the 1998-1999 and 1999-2000 school years (exhibits # 1, 3), consistent with state and federal special education law, and consistent with Section 504 of the federal Rehabilitation Act?

2. If not, is Student entitled to compensatory services?

Profile and History

Student, who is sixteen years old, is completing his 10 th grade at the WPS Burncoat High School. Student is in an honors curriculum and during 9 th grade was also in a Computer Magnet program. Testimony of Mother, Abraham.

Student has been on an IEP since kindergarten. He has both a learning disability and a vision disability, and receives educational services related to both disabilities. It is services related to the vision impairment disability (and not the learning disability) that are at issue in this appeal.

Student is legally blind. He has a history of congenital aniridia (absence or partial absence of the iris), macular hypoplasia (an underdeveloped optic nerve), nystagmus (constant movement of the eyes), photophobia (discomfort when too much light enters the eyes) and reduced visual acuity. Student has increased risk of glaucoma, cataracts and detached retinas and is monitored by his opthamologist. Student’s vision is tested at 20:200, which means that his vision is generally one-tenth that of a typical person. Testimony of Mother, Lawler, exhibit # 1, 5.

Student began receiving Braille instruction at WPS in the 3 rd or 4 th grade, and this continued through the 8 th grade. During these years, Braille instruction was a “pull-out” service (that is, Student would be “pulled out” from other parts of his regular school day for these services), except in 7 th grade when it was taught outside of the regular school day.

In the IEP for the 1998-1999 academic year (Student’s 9 th grade) (exhibit # 3), Braille instruction was proposed for forty-five minutes, once per week, and self-advocacy instruction was proposed for forty-five minutes once per week.

In the current year IEP (Student’s 10 th grade) (exhibit # 1), Braille instruction is proposed for forty-five minutes, three times per week, and self-advocacy instruction is proposed for forty-five minutes once per week.

Mother agreed that the Braille and self-advocacy instruction was needed, but rejected the requirement within both IEPs that Braille and self-advocacy instruction be provided only during the regular class day since she did not want Student to be taken out of other classes – for example, physical education or health. As a result, Student has not received Braille or self-advocacy instruction in his 9 th or 10 th grade. Testimony of Mother, exhibits # 2, 4.

STATEMENT OF THE EVIDENCE

Student testified that this current academic year (1999-2000), he is taking Latin, geometry, computer science, English, world civilization and chemistry both semesters; and health and physical education for one semester each. He explained that he is in a computer magnet program, reflecting that he has a substantial interest in the area of computer science; the computer science course he is taking this year is part of that program. He testified that he is also in an honors program at the high school, he expects to go to college after high school, and he is interested in becoming a lawyer. He stated that his schedule this academic year generally starts at 7:18 AM and ends at 1:43 PM.

Student testified that his vision is 20:200, as corrected with glasses or contact lenses. He explained that in December 1999, he received contact lenses, which has helped in that he is not so noticeably different than other students. He noted that other students have teased him in the past, calling him names such as “goggles,” “blind” and “handicapped” when he has been wearing his glasses. He believes that his vision impairment has an effect on him socially by making him stand out and appear to be different. He stated that he uses various devices to help see, for example, a monocular, large print books and tests, a closed circuit TV which can be used to enlarge print and a stand magnifier.

Student testified that this and last school years, he has not received Braille or self-advocacy instruction because he wanted to participate in a full schedule with his peers, including physical education and health, rather than being pulled out of these classes to receive Braille and self advocacy instruction. He explained that the purpose of self advocacy instruction is to make him aware of how to deal with others regarding his vision impairment, both at school and in the work environment. For example, he explained that he does not know how best to tell a teacher what he needs and it is therefore difficult for him to request and obtain the assistance that he needs from a teacher; similarly in a work environment, he does not know how to raise the issue of his disability and obtain the assistance he needs. He explained that he is receiving learning disability services (and is pulled out of physical education or health one day per week to receive it) in order to help him develop organizational skills.

Student testified that Braille instruction is important to him (even though he does not currently rely on Braille) because his eyesight may become worse (now he can read standard print if he reads it six inches or less from his eyes) and because he suffers from eye fatigue which can lead to headaches after reading sufficiently long — for example, by evening time. He explained that he has received Braille instruction but not sufficient to write or read more than a simple paragraph – for example, he is not able to write a letter in Braille.

Student testified that at the end of middle school (8 th grade), he had few social skills, had no friends and did not talk to his peers very much. He explained that at the end of 9 th grade, he had one friend, would have some conversations with his peers and did not go out with his peers outside of school. But now, he explained, he has three friends at school, is able to have conversations with his peers and occasionally goes out with peers after school (for example, on Tuesday nights a group of students go out for pizza dinner). He further explained that for five or more years, he has participated in karate classes on Saturdays (but not with any students from his high school); for six or seven years, he has participated in Boy Scouts (but not with any students from his high school); and in 10 th grade, he has been participating in a citywide crew each afternoon for five months out of the school year (this includes three boys from the 10 th grade at his High School).

Student testified that he likes physical education because it gives him the opportunity to interact with other students, to socialize with them, and to participate in team work – things he finds he has not been able to do during other parts of the school day. Similarly, he likes health class as it is an opportunity to discuss in a conversational way important health issues that are real life concerns for him, as well as to discuss other, non-health issues, with his peers. He noted that he has not otherwise had an opportunity to discuss these health-related issues with his peers. He also explained that he feels he has benefited in terms of his social skill development from the physical education and health classes, and these classes have allowed him to relax some during an otherwise fully academic schedule during the day. He noted that in 8 th grade when he was pulled out of most of his physical education classes, he felt that he was not able to be social with his peers in other settings.

Student testified that next year he plans to take an elective course – journalism – because he feels he needs to improve his writing, and therefore he will have a full day, just as he has had this year and last, without any study halls or other breaks in the day during which he could take Braille or self-advocacy instruction. He explained that this year and last year, he had time to have Braille and self-advocacy instruction before the school day, immediately after the school day, in the evenings or on the weekends.

Mother testified that Student has health five times per week the second half of this year and had physical education five times per week during the first half of the year, except that one day a week, Student has been pulled out of these classes for learning disability instruction. Mother explained that she agreed to pull out her son for learning disability services because the learning disability teacher was not an “itinerant” teacher and could not be asked to teach outside of the normal class schedule. Mother explained that she does not want her son pulled out of physical education and health because these are the two classes that offer the most opportunity for developing social skills, an area where Student is deficient. Similarly, she noted that delaying these classes and taking them with students who are not his peers would not provide the social opportunities with his peers and would simply delay his learning social skills.

Mother testified that two years of physical education is required for graduation, and next year if Student takes the normal honors courses, he will also have a full schedule and not have time for physical education or health. She also explained that Student is taking Latin this year for the first time (he switched out of Spanish which he took last year, at the recommendation of the Spanish teacher), and so Student will have to take at least a second year of Latin in order to have the minimum of two years in one foreign language, as required for college admission.

Mother testified that Student needs assistance regarding social skills. She explained that she has seen him in countless social situations with peers where he is at a loss as to how to engage and interact with them, and that this occurs in part because he is not visually able to pick up social cues and understand when and how to become part of the social situation. She explained that a number of teachers have reported Student’s needs in this area. She also noted that Student’s self-esteem is low, and he is currently seeing a therapist.

Mother testified that in 9 th grade, Student was socially isolated, he was never invited to go places with a peer, and he was not successful in inviting a peer to go some place with him after school – for example, he would go to movies by himself. She further explained that since 9 th grade, there has been some improvement, and Student feels that people perceive him differently now, particularly after getting contact lenses several months ago.

Mother testified that Student has other parts of his day available to receive instruction in Braille and self-advocacy – for example, before or immediately after school, in the evenings and on the weekends.

Janice Ely testified that she has a PhD in clinical psychology and is trained as a neuropsychologist. She explained that since 1996, she has been conducting assessments as a neuropsychologist and has consulted to school systems for the past five years. She noted that approximately half of her work as a neuropsychologist has been with adolescents.

Dr. Ely testified that on June 6, 1999, she evaluated Student primarily for the purpose of assessing his learning disability, but she also noticed that he showed more anxiety than she would expect under these circumstances – for example, he spoke softly and rapidly, and had a sense of insecurity about him. She further explained that in reviewing the Achenbach completed questionnaires (exhibit # 7), what was most striking to her was that Student’s social deficits were scored as most highly significant and included being teased, not getting along with others, keeping to himself and being withdrawn. She found a consistency in response between Student (on his questionnaire) and three teachers (on their questionnaires) although Student’s school guidance counselor did not score Student as having significant deficits in this area. She concluded that compared to most other students, Student is deficient regarding social interaction skills and self-esteem.

Dr. Ely testified that, in her opinion, if Student were pulled out of and therefore missed physical education and health, he would suffer by not receiving the education that he needs socially – for example, in gym, he has the opportunity to interact with his peers and to work on the social skills that he is struggling with, and his health class addresses social relations and self-esteem that are important to Student. She noted that some of the goals of the health class are to address the social needs areas where he is deficient. Her opinion is that it is critical to Student that he be part of a group that discusses issues that will be covered in health (see unit 1 of exhibit # 10), and that it would be detrimental for him not to be in this class. She further explained that for Student to be separated from his peers when they are learning the topics covered in health class would place him further outside of his peer group and add to the feeling of separation which he already feels.

Dr. Ely testified that her assessment of Student also showed that he is struggling in the social skill area of assertion, that he feels isolated and different from the others and does not know how to act when teased by others. She recommended (orally, not in her written report) that Student needed contact with people outside his family to feel more connected and thereby address his feelings of isolation, and she also recommended therapy for Student. She believes that since June 1999, Student has made some improvements in this area.

Thomas Miller testified that he has a masters degree in special education with a concentration in deaf, blindness. He explained that for the past seventeen years he has worked at Perkins School for the Blind in Watertown, MA (hereafter, Perkins) and during that time has provided services to adolescents regarding social and sexual education. He further noted that he lectures nationally and internationally regarding social skills and sexual education, he consults to public (and other) schools regarding blind students, he has developed training curriculum in social and sexual education issues, and for twenty-eight years has been an educational administrator with experience developing IEPs.

Mr. Miller testified that in December 1999, he evaluated Student (including an hour interview of Student and a hour and a half interview of Mother) and reviewed the current IEP (exhibit # 1), Dr. Ely’s report (exhibit # 6), and the Achenbach completed questionnaires (exhibit # 7).

Mr. Miller testified that most blind adolescents have difficulties in the area of social skills. He explained that a blind student, particularly someone like Student who has been blind since birth, has not been able to see the visual system of social cues and has therefore not been able to gather information necessary to learn and develop adequate social skills. He explained that this is true of Student. He also noted that Student needs help with assertiveness – for example, initiating and breaking into group situations. He further explained that Student voiced concerns to him (Mr. Miller) regarding peer pressure and isolation.

Mr. Miller testified that he reviewed the “Blind and Visually Impaired Students Educational Service Guidelines” (exhibit # 16) (hereafter, Service Guidelines) as a formal reviewer when they were being developed. He explained that the Service Guidelines are considered best practices, have been accepted by the National Association of State Directors of Special Education, and have been accepted as working guidelines by a number of special education directors in Massachusetts, but the Service Guidelines have not been adopted as a required standard in Massachusetts. Mr. Miller explained that learning for visually impaired students such as Student requires an expanded core curriculum to teach self-help skills, as reflected in the Service Guidelines (health and physical education are considered part of the core curriculum, and Braille and self-advocacy instruction are considered part of the expanded curriculum within the Service Guidelines).

Mr. Miller testified that, as the Service Guidelines explain, it is often required that courses for a visually impaired student go beyond the normal class day in order for a child/adolescent to develop a full range of skills. Mr. Miller believes that since Student is able to access the full, mainstream curriculum offered to him, he should not be pulled out of any of these classes. He further explained that health and physical education are two primary areas in which Student would have an opportunity to relate to peers and obtain information that is important to his development and that it would be detrimental to Student were he not to receive the information from the health class when his peers receive it.

Mr. Miller testified that in his experience, those students who need to return to Perkins for additional services often have not had sufficient social opportunities. He explained that it is important for Student to have social integration with his peer group and physical education is important for this to occur. He noted that often a child/adolescent does not otherwise have the kinds of opportunities (as occur in physical education) to focus sufficiently on interactions with classmates.

Mr. Miller testified that health class is important because it is a critical time to listen to peers and understand health issues relevant to adolescents — Student will be at a loss if he does not have the opportunity to pick up this information at this time. He explained that Student needs to have as much interactions with his peers as possible, and he needs to develop self-advocacy skills and thereby develop more independence in his ability to develop social skills. He further noted that electives are an opportunity for Student to choose courses in areas of interest and thereby meet peers with like interests.

Mr. Miller testified that Student, in particular, demonstrated a strong desire to be a part of his peer group. Mr. Miller noted that especially now that Student has contact lenses and does not appear to be obviously disabled, he is at risk of being overlooked regarding his disability and the need to develop self-advocacy skills and to access his peer group.

Michael Cataruzolo testified that he has a masters degree in education and a CAGS in administration and school law. Currently and for the past twenty years, he has taught physical education at Perkins and for twelve of those twenty years, he has been the head of physical education at Perkins. He further explained that he has developed a health education curriculum at Perkins and has taught health education at Perkins for approximately eleven years. He also explained that he has given many workshops and lectures regarding integration of blind students into the public school environment, and he noted that he has a vision impairment and attended a public school when he was a student.

Mr. Cataruzolo testified that he reviewed the WPS health and physical education program for 9 th and 10 th grades, reviewed Student’s current IEP (exhibit # 1) and spoke with Student twice in January 2000.

Mr. Cataruzolo testified that he believes it is valuable for Student to take physical education and health at WPS. He explained that a major component of physical education is being part of a group through team participation, that this participation within the group helps develop Student’s emotional stability, self-esteem and confidence, and that Student would benefit “tremendously” from this opportunity. Mr. Cataruzolo also stated that there is an important recreational aspect to physical education that promotes interpersonal relations and how to socialize and relate to a group, thus helping to develop Student as a whole person. Mr. Cataruzolo also explained that there are important skills learned and related benefits in physical education that would help Student – fitness (which leads to feeling better about oneself generally and enhances the ability to advocate for oneself), leadership, movement (which promotes independent mobility of a blind person), problem solving, team activity and role play.

Mr. Cataruzolo testified that physical education is particularly important to Student (as compared to other parts of his academic curriculum) since a major part of the goals of physical education are to develop socialization and interpersonal skills, as compared to the other parts of Student’s curriculum which do not include a significant focus on these issues even though other parts of the curriculum may assist Student in these areas. Similarly, he explained that crew, karate and Boy Scouts are helpful in developing skills and making Student more well rounded but are not as helpful as (and should not be seem as taking the place of) physical education because of the impact that physical education has on the development of Student’s socialization and interpersonal skills.

Mr. Cataruzolo testified that if Student were not allowed to participate in physical education during his 9 th or 10 th grades, thus postponing physical education until 11 th or 12 th grades, this would promote a feeling of inferiority of Student – he would be considered different than his peers because he is blind and would likely be seen as not as good as the other students.

Mr. Cataruzolo testified that he recommended Student’s participation in heath education at the High School since the topics covered (for example, safety, diseases, and how to deal with inappropriate behavior) in health are important for Student to learn, and it would benefit Student to learn these topics as part of a group of peers.

Kim Charlson testified that she has a masters in library science, and is currently (and has been for the past fifteen years) the Assistant Director of Braille and Talking Book Library at Perkins. She explained that in this role, she supervises eighteen people, she is responsible for the Braille literacy program at Perkins, and she has taught Braille for four or five years. Ms. Charlson also noted her significant advocacy and volunteer activities, including her current position as president of Bay State Council for the Blind and her position as chair of the Massachusetts Braille Literacy Advisory Council. See also her resume, exhibit # 19.

Ms. Charlson testified that she has reviewed Student’s current IEP (exhibit # 1) and the April 1999 evaluations at Perkins (exhibit # 5), and she has spoken to Student in January 2000 (including a discussion of Student’s Braille literacy).

Ms. Charlson testified that with practice and development, Braille can become an important part of Student’s literacy, that Braille would be a practical and effective learning tool for Student and that Braille would make a difference to Student in his day to day life. She explained that for Student, Braille would complement his print reading and give him an important additional option so that, for example, when Student has eye fatigue from reading or for some other reason he could not read print material, he could read in Braille. She further explained that in her experience, once a person such as Student becomes Braille literate, he or she may prefer to do most of his/her reading in Braille and supplement it with print reading as necessary. She noted that Braille provides a true means of literacy. She explained that it would likely take at least a year of study and practice for Student to become Braille literate.

Ms. Charlson testified that by the phrase “Braille literate” she means having sufficient knowledge of the Braille alphabet, contractions, numbers and punctuation so as to be able to read in Braille what one would typically read in the print medium. She explained that Student is not now Braille literate, as he still needs to learn a number of rules (contractions).

Ms. Charlson testified that forty-five minutes, three time per week is a reasonable amount of time to address Student’s Braille needs at this time, particularly in light of the fact that he has not had sufficient Braille instruction in the past, and with this instruction together with practice, Student could become Braille literate. She also noted that this is an important time in Student’s life to develop the formative skills to be a Braille reader. She noted, however, that she would not recommend that the Braille instruction be given pursuant to a correspondence course since Student needs the immediate feedback that would not be available through a correspondence course.

Maggio Terrio Lawler testified that she has a masters degree in education, has a CAGS in deaf, blind studies, and is certified in intensive special needs. She explained that she has been a teacher for visually impaired students for twenty years at WPS and since September 1999 has been the head of the Vision Department at WPS.

Ms. Lawler testified that she first got to know Student in his 2ndgrade when she was his orientation mobility instructor. She explained that she has also been involved in consulting with others regarding Student and participated in Student’s June 1999 Team meeting. She also noted that she has reviewed the April 1999 evaluation at Perkins (exhibit # 5).

Ms. Lawler testified as to the nature of Student’s vision impairment, explaining that his condition can lead to increased vision loss but in her opinion, the condition is “controllable” through monitoring and treatment in order to reduce or stop any further vision loss, but she agreed on cross-examination that it could not be predicted with certainty whether Student would suffer further vision loss. She testified that the Perkins evaluation (see report by Baker within exhibit # 5) indicates that Student has superior listening abilities, reflecting that Student is able to supplement his print reading with listening to books on tapes. She further explained that the Perkins evaluation (see report by Berg within exhibit # 5) shows that Student’s reading scores, using regular size print, are within the average rate of 9 th grade readers.

Ms. Lawler testified that it is expensive to teach Braille and obtain Braille literacy. She concluded that Student is not now nor ever was a person for whom Braille is an essential medium because Student is reading at the average rate of a 9 th grade reader and because Student has been making effective progress in school without being Braille literate. She therefore does not recommend that Braille instruction be offered to Student. She explained that Braille instruction was included in Student’s current and previous IEPs because this was important to Mother. Ms. Lawler also noted that Student’s eye fatigue can be addressed through talking books rather than through Braille. She explained, however, that Braille, as compared to a talking book, is literacy, and that a book in Braille is easier to use than listening to a tape of a book.

Ms. Lawler testified that the collective bargaining agreement between the Worcester School Committee and the Educational Association of Worcester, dated January 1, 1998-December 31, 2000 (hereafter, Collective Bargaining Agreement or Agreement) (exhibit # A) defines the work day for teachers at WPS. She explained that WPS vision teachers may not work for a longer time than the contract day described in the Agreement. She noted that when vision services were provided to Student after the school day in 7 th grade, this was a voluntary activity by that particular teacher. Ms. Lawler testified that an exception has been made to allow teaching orientation and mobility skills outside of the school day because the nature of the skills being taught require that the teaching occur at times other than during the regular school day, but she stated that Braille instruction for Student would be taught by a teacher who is governed by the Agreement (exhibit # A) and therefore Braille would have to be taught during the regular school day. She agreed, however, that WPS could contract with a teacher from another school district to teach Braille to Student at a time other than during the regular school day.

William Abraham testified that he has a masters degree in guidance and forty-five credits towards a PhD in counseling and psychology. He explained that he has been a guidance counselor in the public schools since 1967 and has also been head of the WPS guidance department since 1984.

Mr. Abraham testified that two half-year physical education courses are required to graduate from the High School at WPS. He noted that, typically, the physical education courses are taken during the 9 th and 10 th grades, although approximately 15 % (or approximately two out of a class of twenty-five students) delay taking physical education until 11 th or 12 th grades because of scheduling conflicts or for other reasons. He further stated that students are also expected to take a half-year health course during 9 th grade and a second half-year health course during 10 th grade, although only one health course is required for graduation (a parent is permitted to opt out of the second course) and approximately 15 % of students take a health course out of sequence.

Mr. Abraham testified that as a guidance counselor at WPS, he has a case load of 230 students. Mr. Abraham explained that he has been Student’s guidance counselor since the beginning of Student’s 9 th grade. Mr. Abraham stated that he feels he knows Student better than most of the students on his case load as a result of individual meetings with Student (which last thirty minutes or so and occur at Student’s request approximately once every “couple of months” but sometimes more frequently), through conversations with Mother approximately once per month, through conversations with his teachers (approximately ten minutes each month) and through Student’s progress reports.

Mr. Abraham testified that, in his opinion, Student had a “problem” socially in 9 th grade, preferring the company of adults to his peers. However, he noted that “by and large” Student had the same concerns as other adolescents although Student had the additional difficulty of feeling self-conscious because of his wearing thick glasses. Mr. Abraham explained that Student had difficulty finding a group of friends but it is not unusual for this to occur in 9 th grade. Mr. Abraham explained that he did not believe that Student needed a special curriculum for the development of social skills, but rather suggested to Student that he become involved in extracurricular activities such as the Model Congress at the High School. He further noted that he believes that Student has become involved in school activities in a way that is comparable to other students and that he has made progress in the area of social skills. Mr. Abraham believes Student to be an articulate, responsible person who already has certain job skills. He explained that socialization development is part of health and physical education but is also addressed in High School academic courses which typically include dialogue and discussion.

Mr. Abraham testified that Student is in an honors program at the High School and that he was in the computer magnet program in 9 th grade but not this year. He noted that Student is taking an introduction to computer science as an elective this year, and similarly, he took a computer programming course as an elective as part of the computer magnet program last year.

Mr. Abraham testified that Student had several options (which were discussed with him and his Mother) of taking Braille during the school day – for example, to take Braille as a course instead of his elective or to take it in place of health and physical education, which courses could then be taken in a later year. He explained that even though it is not “desirable” to take physical education out of sequence, this is what other special needs students do if it is necessary to receive their special instruction during the school day, or they are “pulled out” of part of the physical education or health class in order to receive their special education services.

Mr. Abraham testified that, to his knowledge, the only reason that Student would not be allowed to receive Braille and self-advocacy instruction outside of the school day would be a “contract” requirement of WPS – he was not familiar with the details of the “contract” requirement. Mr. Abraham noted, however, that a tutorial room is open regularly after the school day, with a teacher assigned to that room, and he opined that the teacher was paid out of a particular account or fund that would allow for the teacher to work outside of the normal school day.

Keefe Bangert testified that he obtained his masters of education degree in 1997 and is certified as an elementary teacher and as a teacher of visually impaired students. He explained that he worked at Perkins as a teacher in 1997 and then left to work at WPS as a teacher of visually impaired students for the 1997-1998 school year, continuing through the present. He further explained that as a teacher of visually impaired students at WPS, he is responsible for making sure that visually impaired students have access to the complete curriculum in the least restrictive alternative, with the goal that a student experiences no differences (from a typical student) regarding his education at WPS.

Mr. Bangert testified that he has a case load of five, including Student. He explained that over the course of this academic year, he has consulted with Mother every other week, and has consulted with Student’s teachers for forty-five minutes each week. He noted that he has had minimal direct contact with Student – only when he happens to see Student in the hallway. He further explained that if Student were to receive instruction in Braille, he would be the teacher to provide that instruction.

Mr. Bangert testified that he attended a meeting early in this academic year that included Student and his teachers, in which Student read a prepared statement regarding his disability and answered several questions from teachers. Mr. Bangert stated that, in his opinion, Student is capable of working with his teachers regarding his needs, but that Student still “has room to grow” in this area.

Mr. Bangert testified that it was agreed by members of Student’s Team that he (Mr. Bangert) assess Student’s social skills. Mr. Bangert explained that he did this assessment by collecting information from October 1999 through January 2000 by observing Student moving though the hallways as well as in the lunch room, by speaking with teachers and others who see Student during the school day, and by asking four of Student’s current teachers and Mother to complete a questionnaire that rated Student in the following four skill areas: cooperation, assertion, self-control and responsibility. He explained that the skill area “cooperation” refers to Student’s ability to help and get along with others for the purpose of reaching a goal; the skill area “assertion” refers to speaking up or standing up for himself; and the skill area “self-control” refers to ability to control one’s behavior (both external and internal behaviors were rated). Mr. Bangert stated that Student was rated by all five persons as average regarding cooperation; he was rated by two persons as average regarding assertion and by three as having fewer than average skills regarding assertion; he was rated by all five persons as average regarding behavior (self-control) except for one person who rated him as having fewer than average skills regarding his ability to internalize behavior; and he was rated by Mother as having fewer than average skills regarding responsibility (Mother was the only person asked to review this area).

Mr. Bangert testified that he concluded from his assessment that different people perceive Student differently, depending on the situation. He also concluded that, in his opinion, Student, in general, has weaknesses in his socialization skills, and needs assistance making connections with his peers, but Mr. Bangert believes that this can occur through more opportunities for social connections in areas of interest to Student, such as extracurricular activities. Mr. Bangert also stated that Student knows how to act appropriately with others and fits in relatively well with others.

Mr. Bangert testified that Student, as any 10 th grader, would benefit from physical education; and physical education would be one way of addressing Student’s need for greater opportunities to develop his social skills. He also stated that for Student, further instruction in Braille does not have an educational purpose because Student is doing well in school with the skills he presently has (using the print medium) and Student can address the issue of eye fatigue through taped texts. He also stated that Student needs to work on his advocacy skills.

FINDINGS AND CONCLUSIONS

A. Introduction.

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. s. 1400 et seq ., and the state special education law, M.G.L. c. 71B. Neither his status nor his entitlement is in dispute. It is also not disputed that Student is protected from handicap discrimination under Section 504 of the federal Rehabilitation Act, 29 USC 794.

The issue presented is whether Student should have been provided special education services of Braille and self-advocacy instruction outside of the regular school day during this and last academic years (9 th and 10 th grades). Although this issue is simply stated, it presents a complicated question that not only challenges the practice of WPS in this particular matter but also implicitly brings into question WPS’ general practices. I have not found (nor has either party identified) any judicial decision addressing the precise issue in dispute.

Although there is nothing within the special education laws or regulations that explicitly precludes special education services from being provided outside of the regular school day, it has generally been WPS’ practice to provide special education services only during the regular school day. This has been accomplished typically by finding room in a student’s schedule (for example, a study hall), delaying a required course (for example, physical education) or pulling the student out of his/her regular schedule to take the special education course(s). Testimony of Abraham.

Consistent with this general practice, Student was offered the opportunity to make room in his schedule to take his special education services during the regular school day – for example, it was suggested that he delay his required physical education courses and/or his required health course to his 11 th and/or 12 th grades, or that he not take elective computer courses or the second health course. Testimony of Abraham. Student (and his Mother) declined to accept these proposals, instead choosing to take a full academic course load, including electives, health and physical education, with the result that Student’s schedule had no space within it during the regular school day for his special education service of Braille and self-advocacy instruction. Testimony of Student, Mother. Because Student’s IEPs for this and last academic years provide for Braille and self-advocacy instruction only during the regular school day, WPS did not provide these special education services to Student. Testimony of Abraham, Mother; exhibits # 1, 3.

This case presents the question of whether, under these circumstances, WPS was justified in proposing IEPs that did not provide for the special education services to be delivered at a time outside of the regular school day. The basic premise of WPS’ argument is that Student, just as any other child attending the WPS High School, must make certain choices regarding courses in order to fit within the prescribed schedule. WPS takes the position that Student has no absolute right to take an elective computer course or to take physical education or health in 9 th or 10 th grade. WPS believes that just as any other High School student must make decisions regarding what courses to take, choosing from the selection of courses that are offered to him, so too Student must make choices not to take either computer, physical education, health or his special education instruction since there is not room in his schedule for all of them. Student, on the other hand, argues that this case is not about curriculum selection, but rather whether Student may be forced to choose between the special education courses (described in his IEPs) and the full selection of courses that are normally available to a 9 th or 10 th grade typical student at the WPS High School.

After reviewing the courses that are in dispute (Braille, self-advocacy, physical education, health and computers) and making certain findings of fact, I seek to resolve this dispute first pursuant to the federal and state special education laws and then under Section 504 of the federal Rehabilitation Act.

B. Findings of Fact.

1. Braille and Self-Advocacy Instruction.

WPS argues that neither Braille instruction nor self-advocacy instruction is necessary for Student. WPS witnesses testified that Student is not now nor ever was a person for whom Braille is an essential medium because Student is reading at the average rate of a 9 th grade student. WPS notes that Student has been making effective progress in school without being Braille literate, and he can use taped books (rather than Braille) if his eyes become fatigued. The WPS staff who testified did not recommend that Braille instruction be offered to Student. Testimony of Lawler, Bangert. Similarly, WPS witnesses note Student’s abilities to present his needs to his teachers and therefore question his need for self-advocacy instruction. Testimony of Bangert, Abraham.

The arguments of WPS are not persuasive in light of the fact that Braille and self-advocacy instruction have been proposed (by WPS) and accepted (by Mother) as part of the two IEPs that are the subject of this dispute.2 Once certain educational services become part of an accepted IEP, it is too late in the day for WPS to argue that such services are not needed by Student and therefore WPS had no obligation to provide them.3 The fact that these services were offered by WPS in the IEPs only during the regular school day does not alter this principle.

For these reasons, I find that Student had the right to receive the special education services of Braille and self-advocacy instruction that are described in his IEPs for his 9 th and 10 th grade years. I further find that it was necessary that Student receive these special education services in the 9 th and 10 th grade years in order to assure Student’s maximum possible educational development in the least restrictive environment consistent with that goal.

2. Social Skills and Self-Esteem.

During his 9 th and 10 th grade years, Student, like many other blind adolescents, had significant difficulties regarding his social skills. A blind student, particularly someone like Student who has been blind since birth, has not been able to see the visual system of social cues and has therefore not been able to gather all of information necessary to learn and develop adequate social skills. As a result, in countless social situations, Student was observed to be at a loss as to how to engage and interact with his peers. Testimony of Student, Mother, Miller.

In a letter dated July 6, 1998 (i.e., at the end of Student’s 8 th grade), Student’s 8 th grade vision teacher (Jenna Coady) wrote that “[Student] has very poor social skills and an inability to interact successfully with peers.” Exhibit # 17. In 9 th grade, Student was socially isolated, he was never invited to go places with a peer, and he was not successful in inviting a peer to go some place with him after school – for example, he would go to movies by himself. Although Student made some progress that year, by the end of 9 th grade, he had only one friend, would have only limited conversations with peers, and would not go out with peers outside of school. Testimony of Student, Mother.

Dr. Janice Ely, a neuropsychologist who evaluated Student, was persuasive in her testimony that Student is deficient regarding social interaction skills and self-esteem. She interviewed Student and reviewed the Achenbach questionnaires (exhibit # 7) which were completed by four of Student’s teachers and his guidance counselor. What was most striking to Dr. Ely was that Student’s social deficits were scored as most highly significant and Student was described as being teased, not getting along with others, keeping to himself and being withdrawn. She found a consistency in response between Student (on his questionnaire) and three WPS teachers (on their questionnaires).4 Testimony of Ely.

Two WPS witnesses testified that they did not view Student as having a significant deficit regarding social skills and self-esteem although they recognized that Student has certain weaknesses or difficulties in these areas. Testimony of Abraham, Bangert. I discount their testimony for several reasons.

The Achenbach questionnaires (exhibit # 7) indicate that three WPS teachers view Student’s difficulties regarding social skills as significantly more serious than the guidance counselor (Mr. Abraham) views them. Although Mr. Abraham knows Student better than most of the other 230 students for whom he is guidance counselor, his contact with Student is through individual meetings which are sporadic and sometimes infrequent (contact depends on Student’s asking to see Mr. Abraham), and Mr. Abraham’s contact with Student is significantly less in time than that of the teachers who completed the questionnaires. In addition, Mr. Abraham’s principal contact with Student is through individual meetings, and Student typically feels more comfortable socially with an adult than with his peers. Testimony of Abraham.

Mr. Bangert has had almost no personal contact with Student; his views were formed principally as a result of an assessment5</a he did of Student. Although relevant, this assessment does not reflect precisely what WPS had a responsibility to address through its IEPs for two reasons. First, the assessment addressed four areas: cooperation, self-control, responsibility and assertion, none of which describes the range of issues and concerns that make up Student’s weaknesses regarding social skills. Second, the information was collected for the assessment during a time period from October 1999 through January 2000, while the most recent IEP in question was prepared at a meeting on May 5, 1999. Testimony of Bangert, exhibit # 1. Student made gains in social skills during the 1999-2000 academic year which likely impacted the information gathered for the assessment but are not relevant to what WPS had a responsibility to address when it developed its IEPs – in other words, Student’s deficits that the IEPs needed to address are different than Student’s deficits that were observed as part of the later assessment, thereby undermining the assessment’s relevance to the appropriateness of the IEPs. Testimony of Student, Mother.

For these reasons, I find that during his 9 th and 10 th grade years, Student had significant deficits regarding social skills and self-esteem, and that these deficits are attributable to his blindness.

3. Physical Education and Health Classes.

As one way of making room in his schedule for Braille and self-advocacy instruction, WPS proposed that Student delay taking physical education until the 11 th and/or 12 th grades. Since two years of physical education are required in order for Student to graduate from High School, WPS does not suggest that Student should forego entirely his physical education classes. Rather, WPS argues that they could be delayed, allowing room in Student’s schedule during 9 th and 10 th grades, as other students at WPS have done. Approximately 15% of students (or approximately two out of a class of twenty-five students) delay taking physical education at the WPS High School until 11 th and/or 12 th grade because of scheduling or other conflicts. Similarly, WPS proposed that Student take the one required course on health, and not the second health course which is recommended but not required, and that he delay one or both health courses until the 11 th or 12 th grade. As with physical education, approximately 15% of students delay taking health until the 11 th or 12 th grade. Testimony of Abraham.

The issue of whether Student should take both health courses and the issue of the timing of physical education and health must be looked at within the context of Student’s individual needs. Student has significant deficits regarding social skills and self-esteem. See discussion above in part B2 of this Decision.

Credible evidence indicates that the parts of the WPS High School curriculum that are most likely to address these deficits are physical education and health. Credible evidence further indicates that delay in taking these courses to his 11 th or 12 th grade years (that is, to take the courses one or two years after 85% of his peers would have taken them), would not only result in Student’s not receiving important educational instruction at a time when he needed it, but would further isolate him from his classmates, likely resulting in feelings of inferiority and further difficulties regarding the development of social skills and self-esteem. Testimony of Cataruzolo, Mother.

Physical education is particularly important to Student since a major part of the goals of physical education is to develop socialization and interpersonal skills, as compared to the other parts of Student’s curriculum which do not include a significant focus on these issues. A noteworthy component of physical education is being part of a group through team participation. Participation within the group helps develop emotional stability, self-esteem and confidence. Student would likely benefit significantly from this opportunity.6 Testimony of Miller, Mother, Ely, Cataruzolo.7 See also description of physical education in exhibit # 11 (“[s]ocially interactive development and awareness will [be] developed . . . .”). When Student was pulled out from and not able to participate in physical education during 8 th grade, he found that it negatively impacted his ability to relate socially to his peers in other settings. Testimony of Student.8

Health classes offer similarly important educational opportunities for Student. These health classes address social relations and self-esteem issues that are important to Student generally and specifically address areas of weakness for him. Moreover, it is important to Student that he be part of a peer group when health issues and concerns are discussed. Separation of Student from his peers when they are learning the topics covered in health class would place him further outside of his peer group and add to the experience of separation which he already feels. Testimony of Ely, Miller. See also the Massachusetts Comprehensive health Curriculum Framework, Social and Emotional Health Strand (October 1999) (“The purpose of this Strand is to provide students with the opportunity to develop a positive sense of self and to understand their place in relationships with peers, family, and community members.”) (exhibit # 13). Student does not otherwise have the opportunity to discuss health-related issues with his peers. Testimony of Student.

A further difficulty in delaying either physical education or health to Student’s 11 th grade year is that Student expects to have a full schedule, including an elective of a journalism course (in order to improve his writing), during 11 th grade. Testimony of Student, Mother.

For these reasons, I find that the physical education and (both) health courses are appropriate for Student, and that he had a substantial educational need to take these courses in the 9 th and 10 th grades in order to address his significant deficits regarding social skills and self-esteem, which are attributable to his blindness. I therefore find that in order to address his special education needs regarding social skills and self-esteem, it was necessary that Student take these courses in his 9 th and 10 th grade years in order to assure Student’s maximum possible educational development in the least restrictive environment consistent with that goal.

4. Computer Courses.

The WPS general curriculum for High School students includes the opportunity to take elective courses during the 9 th and 10 th grades. WPS has proposed that one way for Student to receive Braille and self-advocacy instruction during the regular school day would have been for Student to take this instruction in lieu of the elective computer course which Student took each year. Testimony of Abraham.

WPS dose not dispute that the computer courses are important to Student’s education. During 9 th grade, he was participating in a computer magnet program at the High School, reflecting a significant and continuing interest in this area of study, and he was taking the 9 th grade computer course as part of that magnet program. Consistent with this interest, Student took a second computer course in 10 th grade although there was conflicting testimony as to whether Student was part of the computer magnet program during the 10 th grade. Testimony of Student, Abraham. Elective courses, such as the computer courses chosen by Student, not only provide an opportunity to study those areas of academic and perhaps professional interest, but also provide an opportunity for Student to meet and learn with peers with like interests. Testimony of Miller.

For these reasons, I find, in general, that the elective computer courses were an important part of Student’s academic High School curriculum, and I find, more specifically, that the computer courses were appropriate for Student and that he had a substantial educational interest in taking them.

C. Right to an Extended Day Pursuant to State and Federal Special Education Laws.

1. Introduction and Legal Standard.

Massachusetts special education regulations address the issue of extended day services by providing that the “daily duration” of a child’s program shall be equal to that of the “regular school day” unless the TEAM9 determines that a different duration is necessary to provide a “free appropriate public education” (hereafter, FAPE) to the child. 603 CMR 28.502.12(g).10

The issue under Massachusetts special education law therefore becomes what educational and related services are necessary to provide Student with FAPE, and whether the provision of such services requires that they be provided outside of the regular school day. To answer these questions, I will review the educational services that are contested in this case – Braille instruction, self-advocacy instruction, physical education, health education, and the elective computer courses.

2. Braille Instruction, Self-advocacy Instruction, Physical Education and Health.

In Massachusetts, FAPE includes special education and related services which are reasonably calculated to assure Student’s maximum possible educational development in the least restrictive environment consistent with that goal. David D. v. Dartmouth School Committee , 775 F.2d 411, 423 (1 st Cir. 1985).

I have found, in parts B1 and B3 of this Decision, that the provision of Braille instruction, self-advocacy instruction, physical education and health education in the 9 th and 10 th grade years was necessary in order to assure Student’s maximum possible educational development in the least restrictive environment consistent with that goal. (Although physical education and health were not special education services per se, they were necessary to address Student’s special education needs. See part B3 of this Decision.) Student therefore was entitled, under FAPE, to receive all of these educational services during his 9 th and 10 th grade years.

3. The Elective Computer Courses.

FAPE also includes the federal special education requirements regarding the content of an IEP.11 The federal special education statute (IDEA) and regulations thereunder describe the required contents of an IEP, including that a special needs child “be involved and progress in [his or her school’s] general curriculum.” 20 USC s. 1414(d)(1)(A)(iii); 34 CFR 300.347(a)(2)(i) and (a)(3)(ii). The phrase “general curriculum” is defined in the federal regulations to mean “the same curriculum as for nondisabled children.” 34 CFR 300.347(a)(2)(i).

The federal Department of Education’s Analysis of Comments and Changes in the federal regulations includes language from both the Senate and House Committee Reports on Pub. L. 105-17 indicating that the statutory language (to enable special education students to participate in the general curriculum) should “strengthen” the “connection between a child’s special education and related services and the child’s opportunity to experience and benefit from the general education curriculum.” 64 Fed. Reg. No. 48, page 12594, column 3.

The DOE Analysis of the federal regulations addressing participation in the general curriculum explains that the intent of the IDEA is “full participation of each child with a disability in the general curriculum to the maximum extent appropriate to the needs of the child.” 64 Fed. Reg. No. 48, page 12595, column 1.12

In other words, the state regulations require an extended day when necessary to provide FAPE (603 CMR 28.502.12(g)), and FAPE includes the federal standard of “full participation of [Student] in the general curriculum to the maximum extent appropriate to [his] needs” (64 Fed. Reg. No. 48, page 12595, column 1).

As discussed in part B4 of this Decision, the WPS High School general education curriculum typically includes the opportunity for students in the 9 th and 10 th grades to take one or more elective courses. These elective courses are an opportunity for students to pursue academic interests beyond what is included in required courses, and, in general, elective courses are an important part of a student’s High School education. In particular, the elective computer courses chosen by Student were appropriate for him, and Student had a substantial educational interest in taking them. In short, these elective computer courses were an important part of Student’s participation in the general academic curriculum at the WPS High School.

Applying these facts to the above-stated legal standard, I conclude that Student had the right to take the elective computer courses pursuant to his right to fully participate in the WPS High School general curriculum, as provided by 20 USC s. 1414(d)(1)(A)(iii) and 34 CFR 300.347(a)(2)(i) and (a)(3)(ii). He was therefore entitled, under FAPE, to receive these educational services during his 9 th and 10 th grade years.

4. Conclusion.

I have found that Student was entitled, under FAPE, to receive all of the contested educational services in this case — Braille instruction, self-advocacy instruction, physical education, health education, and the elective computer courses. Yet, it is agreed that there was not room within the regular school day for Student to take all of these courses.

This is precisely the circumstance contemplated by the state regulatory requirement that a student is entitled to an extended school day when a “different duration [than the regular school day] is necessary to provide a free appropriate public education [FAPE] to the child.” 603 CMR 28.502.12(g).13 I conclude that these state regulations required WPS to modify its general scheduling of classes so as to offer Braille and self-advocacy instruction to Student at a time outside of the regular school day during Student’s 9 th and 10 th grade years.14

The subject of the current dispute is the two IEPs for the last two academic years (1998-1999 and 1999-2000). However, because both parties may rely on this decision for purposes of resolving any disputes regarding future IEP(s), I take the unusual step of making an additional, brief observation regarding the law in this area. Amended state special education regulations go into effect September 1, 2000. The relevant standard (within these new regulations) has been modified in ways that will change the analysis of a student’s right to extended day services.15

D. Section 504 of the Federal Rehabilitation Act.

1. Introduction and Legal Standard.

Section 504 of the federal Rehabilitation Act prohibits a program receiving federal financial assistance from discriminating, on the basis of handicap, against an otherwise qualified individual with a handicap. 29 USC 794. It is not disputed that WPS is a program that receives federal financial assistance and that Student is protected from discrimination on the basis of handicap under this statute. Rather, the issue in dispute is whether the principles of handicap discrimination require WPS to offer Braille and self-advocacy instruction at a time outside of the regular school day.

Although the statutory language of Section 504 offers little assistance in addressing this issue, the regulations promulgated by the federal Department of Education pursuant to Section 504 and the court decisions interpreting Section 504 provide authoritative guidance as to the meaning of Section 504 within the context of secondary education.

The federal Section 504 regulations require WPS to offer Student a “free appropriate public education” and then define an “appropriate education” to mean:
provision of regular or special education and related services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met . . . .

34 CFR 104.33(a) and (b).

In order for Student to receive educational services that meet his needs “as adequately as the needs of nonhandicapped persons are met” (34 CFR 104.33(a) and (b)), Student would need to be given full access to the general educational curriculum that is available to nonhandicapped students.

I have found in part B4 of this Decision that Student had the ability and a substantial educational interest in participating in the computer elective courses offered as part of the general educational curriculum during 9 th and 10 th grade. Section 504 therefore protects the right of Student to do so. I have also found in parts B1, B3 and C2 of this Decision, that Student has the right to receive other educational services (Braille instruction, self-advocacy instruction, physical education and health education) to meet his special education needs.

For Student to take all of these courses during his 9 th and 10 th grades, WPS would have to make an accommodation to Student – that is, a modification in its normal scheduling of classes so that the special education instruction is provided outside of the regular school day. However, pursuant to Section 504, WPS is required to make such an accommodation only if the accommodation is considered “reasonable” and not an “undue hardship” on the school district.16 The issue of the reasonableness of the proposed accommodation will therefore be addressed below in parts D2 and D3

WPS argues that Student is not being discriminated by his having to fit Braille and self-advocacy instruction into his regular school day because he is not being treated any differently than a typical student. In other words, just as a typical student participating in the general educational curriculum would have to fit all of his/her courses into the regular school day, Student must also make space within his regular school day for his special education instruction.

The flaw in WPS’ argument is that Section 504, as a discrimination statute, does not allow a school district simply to disregard a student’s disability and treat the disabled student the same as all other students if, as a result, the educational services are “not as effective as those provided to others” who do not have a disability. 34 CFR 104.4(b)(1)(iii) That is, Section 504 looks to see whether the impact of WPS’ practice is to reduce Student’s opportunity, as a result of his disability, to access the regular or special education (and related) services.

2. Reasonable Accommodation Standard in General.

The federal courts in general, and the First Circuit Court of Appeals in particular, have analyzed reasonable accommodation in terms of what it is not – that is, an accommodation is reasonable if it does not impose an “undue hardship” on the recipient of federal funds, which in this case is WPS. In general, an accommodation would be considered to impose too much of a hardship on a school if the accommodation would require the school to make “substantial modifications” of its programs or if the accommodation would otherwise impose “an undue (and injurious) hardship on the academic program.” Bercovitch v. Baldwin School, Inc ., 133 F.3d 141, 152 and 154 (1 st Cir. 1998);17 Wynne v. Tufts University School of Medicine , 976 F.2d 791, 795 (1 st Cir. 1992). 18

A determination of what is reasonable (or conversely what would impose an undue hardship on a school system) involves a process of sifting through the unique facts in the particular case, and balancing both the extent of the requested accommodation and the burden placed on the school if it were to provide the accommodation. The First Circuit Court of Appeals has articulated the nature of this factual analysis.

Reasonableness is not a constant. To the contrary what is reasonable in a particular situation may not be reasonable in a different situation – even if the situation and differences are relatively slight. [Citations omitted.] Ultimately, what is reasonable depends on a variable mix of factors.

Wynne v. Tufts University School of Medicine , 976 F.2d 791, 795 (1 st Cir. 1992).

The First Circuit has further described the obligation of the school or other academic institution to engage in a process “to consider available ways of accommodating a handicapped student.” The institution’s effort “must be sincerely conceived and conscientiously implemented.” Wynne v. Tufts University School of Medicine , 976 F.2d 791, 796 (1 st Cir. 1992). If the process is done correctly, the educational institution may resolve, to a court’s satisfaction, the question of whether an accommodation to a student’s disability should be provided.

[If the institution] considered alternative means, their feasibility, cost and effect on the academic program, and came to a rationally justifiable conclusion that the available alternative would result either in lowering academic standards or requiring substantial program alteration, the court could rule as a matter of law that the institution had met its duty of seeking reasonable accommodation.

Wynne v. Tufts University School of Medicine , 932 F.2d 19, 26 (1 st Cir. 1991). But, the Court cautioned that the institution may not rely on the “simple averment of the head of an institution” and may not “simply embrace what was most convenient for faculty and administration.” Id . at 28.

3. Is the Accommodation Requested Reasonable in this Case?

WPS takes the position (with which I agree) that even though the terms of the Collective Bargaining Agreement may not be dispositive of this case (see discussion below in part D4), the Agreement (together with the testimony of its witnesses and the applicable state special education regulations (603 CMR 28.502.12(g))) establishes a general practice and preference within the WPS school district of providing educational services only during the regular school day. Student’s requested accommodation would require WPS to make individual or special arrangements – the vision teacher who would normally provide Braille instruction to Student would be prohibited from doing so after the regular school day because he is governed by the Collective Bargaining Agreement. Testimony of Lawler.

As discussed above, in determining whether an accommodation would be reasonable and therefore required of a school system, a court (and therefore this Hearing Officer) must consider the unique factual context in order to identify possible accommodations that would allow a student to participate fully in the academic program (including special education services) and to determine whether the accommodation(s) would likely impose such a burden on the school system as to result in an undue hardship.

Through the testimony of WPS witnesses, Student has demonstrated that his requested accommodation could be made by the school district.

The WPS witness who testified most directly as to the prohibitions contained within the Collective Bargaining Agreement explained that an exception has been made to allow the teaching of orientation and mobility skills outside of the school day because the nature of the skills being taught require that the teaching occur at times other than during the regular school day. She further agreed, upon cross examination, that WPS could contract with a teacher from another school district (and thereby avoid the limitations contained in the WPS Collective Bargaining Agreement) to teach Braille to Student at a time other than during the regular school day. Testimony of Lawler.

A WPS witness testified that a tutorial room is open regularly after the school day, with a teacher assigned to that room. He understood that the teacher for the after-hours tutorial was paid out of an account or fund that would allow for the teacher to work outside of the normal school day. Testimony of Abraham.

The implications of this testimony are that WPS very occasionally determines in particular situations that instruction should occur after school hours and then makes the necessary fiscal or contractual arrangements for this to occur. None of the WPS witnesses indicated that these kinds of arrangements could not or should not be made in this case, absent the Collective Bargaining Agreement (which is discussed below).

WPS has argued that an accommodation would result in a substantial program modification, and the Courts have sometimes used this language to conclude that an accommodation would impose an undue hardship. E.g. Bercovitch v. Baldwin School, Inc ., 133 F.3d 141, 152 (1 st Cir. 1998). However, WPS has introduced no evidence regarding the specific costs or other burden of actually accommodating Student. Instead, WPS has taken the position that its general practice and preference of providing education within the regular school day is sufficient to establish the unreasonableness of the requested accommodation. This approach fails for several reasons.

As discussed in more detail in part D2 of this Decision above, the school system must engage in a process of considering whether to provide an accommodation, and this process must carefully and conscientiously consider possible accommodations and weigh their likely impact on the school system. The school district may not “simply embrace what was most convenient for faculty and administration” but instead must consider “alternative means, their feasibility, cost and effect on the academic program.” Wynne v. Tufts University School of Medicine , 932 F.2d 19, 26 and 28 (1 st Cir. 1991). I find that WPS has not engaged in such a process. In particular, WPS has not specifically evaluated (and presented evidence regarding) possible ways of accommodating Student through instruction to him outside of the regular school day, and the consequent costs or other burdens of doing so.

Similarly, I find that since WPS introduced no evidence regarding the costs or other burden of accommodating Student, I have no basis for determining that the accommodation imposes an undue hardship on the school system in this particular case. The unreasonableness of an accommodation may not be concluded simply from a recitation by the school system that the accommodation would result in a substantial program alteration. Rather, whether the accommodation is so substantial a modification as to impose an undue hardship must be determined on the basis of facts regarding the particular student and school. Wynne v. Tufts University School of Medicine , 976 F.2d 791, 795 (1 st Cir. 1992).

In a recent decision by the First Circuit Court of Appeals under the Americans Disabilities Act (ADA),19 the employer sought to rely on a per-se rule that the accommodation would require an exception to its standard medical leave policy without analyzing the actual hardship in the particular case. the Court rejected this approach, finding that the employer had not met its burden of demonstrating undue hardship:

The employer presented the court with no evidence of any hardship, much less undue hardship. On this record, we see no basis for the court to do other than enter judgement for Garcia [the plaintiff-employee]. . . .

These are difficult, fact intensive, case-by case analyses, ill-served by per se rules or stereotypes.

Garcia-Ayala v. Lederle Parenterals, Inc. , No. 98-2291 (1 st Cir. 5/18/00) (slip opinion at pages 20, 23). Since Student has shown that he needs an accommodation and that such an accommodation can be provided, the school district then had the burden of demonstrating that the accommodation would impose an undue hardship. WPS has not met this burden. I therefore find that the requested accommodation was reasonable and would not have imposed on WPS an undue hardship.20

4 . The Collective Bargaining Agreement.

Finally, I address the subject of the Collective Bargaining Agreement which WPS has argued as a defense. WPS witnesses testified that the reason that WPS had declined to provide the requisite accommodation (i.e., instruction outside of the regular school day) was the Collective Bargaining Agreement (exhibit A). Testimony of Lawler, Abraham. Although only parts of the Collective Bargaining Agreement were submitted into evidence and although the parts of the Agreement before me are somewhat difficult to interpret with any sense of certainty, I will assume, for purposes of this Decision, that the Agreement is as a WPS witness represented it to be – that is, the Agreement prohibits a WPS teacher who is covered by the Agreement from teaching Student either Braille or self-advocacy instruction outside of the regular school day. Testimony of Lawler.

WPS argues that the Collective Bargaining Agreement therefore limits its responsibility to provide instruction outside of the regular school day and that by seeking after-hours instruction, Student is requesting a fundamental change in the way that educational services are provided. However, WPS does not argue that the Agreement would bar the provision of after-hours instruction for a particular student if so mandated by an IEP.21

This presents the issue of whether a school system may voluntarily enter into and implement an agreement which limits its ability to provide what would otherwise be a reasonable accommodation to which a student with a disability has a legal entitlement pursuant to Section 504 of the federal Rehabilitation Act.

Based on an OCR ruling22 and an OSEP inquiry and response,23 I conclude that WPS may not voluntarily enter into and implement a Collective Bargaining Agreement that precludes Student from receiving the educational services to which he would otherwise be entitled by law – in this case, Section 504 of the Rehabilitation Act. Just as the Massachusetts Supreme Judicial Court has found that a union does not have the ability to bargain away, through a collective bargaining agreement, the personal, legal rights of an employee to his/her discrimination protections under MGL c. 151B ( Blanchette v. Westwood School Committee , 427 Mass. 176, 183, 692 NE2d 21, 27 (1998)), I conclude that a public school district may not bargain away the personal, legal rights of one of its students to his/her discrimination protections under Section 504. Nor, may a school district, through a collective bargaining agreement, otherwise absolve itself of its federal and state statutory and regulatory responsibilities to a special needs child.

5. Conclusion.

For the above-stated reasons, I find that WPS’ practice of limiting Student’s education to the regular school day negatively impacted Student’s access to regular and special education services as a result of his disability. Further, I find that WPS could have accommodated Student by providing instruction outside of the regular school day, and that WPS has failed to establish that the accommodation would have imposed on it an undue hardship. Accordingly, I conclude that such an accommodation to Student should have been provided by WPS in order to comply with Section 504 and the regulations thereunder.

E. Compensatory Services.

Considering the evidence as a whole, I find that Student was entitled to receive Braille and self-advocacy instruction outside of the regular school day pursuant to special education law and Section 504 of the federal Rehabilitation Act. I find that he did not receive this instruction during either the 1998-1999 or the 1999-2000 school years. I further find that WPS’ failure to provide these services was a significant deprivation of educationally-necessary services. As a result, Student is entitled to receive compensatory education services. Pihl v. Massachusetts Department of Education , 9 F.3d 184 (1 st Cir. 1993).

ORDER

The IEPs (exhibits # 1, 3) proposed by WPS for the 1998-1999 and the 1999-2000 academic years were not consistent with special education law, and were not consistent with Section 504 of the federal Rehabilitation Act in that they required the special education instruction (Braille and self-advocacy) to be provided only during the regular school day.

As compensatory services, WPS shall provide to Student the Braille and self-advocacy instruction that is described in Student’s IEPs for the 1998-1999 and 1999-2000 academic years. Exhibits # 1, 3. The Braille and self-advocacy instruction shall be provided to Student at a time that does not interfere or otherwise conflict with Student’s access to and full participation in the general education curriculum.

By the Hearing Officer,

William Crane

Dated: June 30, 2000

COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF EDUCATION

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

EFFECT OF DECISION AND RIGHTS OF APPEAL

The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Under G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay; rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program,” 20 U.S.C. s. 1415(j). Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings, must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).

RECORD OF THE HEARING

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to M.G.L. c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.

COMPLIANCE

A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 C.M.R. s. 28.00, par. 407.0.

In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.

CONFIDENTIALITY

In order to preserve the confidentiality of the child involved in these proceedings, when an appeal is taken to Superior Court or to Federal District Court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See, Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

NOTICE OF REVISED BUREAU PROCEDURES

ON RECONSIDERATION/REHEARING

The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.

In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline, 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.


1

Documents 1 through 6 and document 9 were submitted by Student as documents to be offered into evidence by both parties.


2

Also, the IDEA explicitly provides that in the case of a child who is visually impaired, the IEP Team shall provide for instruction in Braille unless the Team determines, “after an evaluation of the child’s reading and writing skills, needs, and appropriate reading and writing media . . . , that instruction in Braille is not appropriate for the child.” 20 USC s. 1414(d)(3)(B)(iii). No testimony was presented that the IEP Team has made such a determination. To the contrary, the IEPs reflect a decision by the TEAM that Braille instruction be provided. Exhibits # 1, 3.


3

I further note that the WPS witnesses addressed the question of whether Student needs Braille (and self-advocacy) instruction in order to progress effectively in school, but did not address the applicable legal standard of what educational and related services are necessary to assure Student’s maximum possible educational development. Testimony of Lawler, Bangert. Compare the testimony of Charlson, Miller, Student.


4

It is noteworthy that the three teachers responded to the question “What concerns you the most about this pupil?” with the identical answer of “social interactions with peers.” The fourth teacher and the guidance counselor did not respond to this question. Exhibit # 7.


5

The assessment performed by Mr. Bangert was not submitted into evidence.


6

Also, there is an important recreational aspect to physical education that promotes interpersonal relations and how to socialize and relate to a group, thus helping to develop Student as a whole person. And, there are important skills learned and related benefits in physical education that would help Student – fitness (which leads to feeling better about oneself generally and enhances the ability to advocate for oneself), leadership, movement (which promotes independent mobility of a blind person), problem solving, team activity and role play. Testimony of Cataruzolo. These aspects of physical education would address, in part, several of the goals and objectives of Student’s IEPs. Exhibits # 1, 3.


7

Mr. Cataruzolo has significant expertise specifically regarding physical education and adolescents who are visually impaired. See description of qualifications in testimony of Cataruzolo. Although other witnesses testified regarding the relevance of physical education for Student (testimony of Abraham, Bangert), no other witness has expertise in the area of physical education. I find Mr. Cataruzolo’s testimony to be both credible and persuasive.


8

The federal regulations also emphasize the importance of physical education. The regulations provide that “[e]ach child with a disability must be afforded the opportunity to participate in the regular physical education program available to nondisabled children unless . . . .” 34 CFR 300.307 (the exceptions to the quoted rule are not relevant to this case).


9

The TEAM makes the initial determination regarding this matter. The issue has been appropriately appealed to and therefore is now to be decided by the Bureau of Special Education Appeals. 603 CMR 28.402.0.


10

A variety of cases have addressed the issue of extending services beyond the regular school day. An obvious example of special education services being provided outside of the regular school day is a residential placement that may be ordered when continual training and reinforcement of skills is needed. Abrahamson v. Hershman , 701 F.2d 223, 228 (1 st Cir. 1983). I also note that the Massachusetts Student Learning Time Regulations state that school committees are encouraged to offer extended day programs that expand student learning opportunities. 613 CMR 27.03(4).


11

Massachusetts regulations define FAPE to include “special education and related services which . . . are provided in conformity with an individualized educational plan which meets the requirements of these regulations . . . .” 603 CMR 28.110.0. The parts of the state regulations addressing individual education plans (IEPs) have been deleted, with the purpose of deferring to the parts of the federal special education regulations that address IEPs. See Statement of the Massachusetts Department of Education accompanying this regulatory change (“Massachusetts will abide by the federal regulations [regarding IEPs] found primarily at 34 CFR ss. 300.346 and 300.347”). I therefore consider the federal IEP standards to be a necessary component of the provision of FAPE, as that term is used in the Massachusetts regulations.


12

This requirement is similar to and is reinforced by the right of a child 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”). 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.


13

I note, by way of additional, general support for this conclusion, that the federal Office of Special Education Programs has explained that “the provision of special education services should not operate to preclude disabled students from participation in optional, school-related programs or activities in which nondisabled students regularly take part.” OSEP Inquiry and Response , 23 IDELR 646, 647 (1994). Also cf. 64 Fed. Reg. No. 48, page 12595, column 1 (“extra help” may be required outside of the regular school day).


14

At the Hearing, WPS witnesses testified that the WPS Collective Bargaining Agreement (exhibit A) precludes WPS from providing special education (or other services) to Student outside of the regular school day. Testimony of Lawler, Abraham. But, in its closing written argument, WPS states that “Worcester acknowledges that should extended day services be required in order to implement a student’s IEP, the district would be obligated to provide the service notwithstanding the collective bargaining agreement.” WPS’ Closing Argument, at page 9 (emphasis in original). For the reasons explained below in part D4 of this Decision, I agree with WPS’ stated position. Because I find that extended day services are required to implement properly Student’s IEPs consistent with special education law, I conclude that the WPS Collective Bargaining Agreement is not a bar to the provision of instruction to Student at times outside of the regular school day.


15

The regulations (that go into effect on September 1, 2000) read in relevant part: “ An extended day or year program may be identified if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.” 603 CMR 28.05(4)(d)1.


16

Although the federal Department of Education regulations do not recognize a reasonable accommodation standard within its regulatory framework, the United States Supreme Court applied this principle within the post-secondary education context ( Southeastern Community College v . Davis, 442 U.S. 397 (1979)), and more recently, the First Circuit Court of Appeals has found the reasonable accommodation doctrine applicable to the school context in determining whether a student, because of his disability, should be exempt from a private school’s disciplinary code ( Bercovitch v. Baldwin School, Inc ., 133 F.3d 141 (1 st Cir. 1998)).


17

Bercovitch was decided under the Americans with Disabilities Act (ADA) since the Court was not sure whether the school received federal funds, but the Court noted that “we treat the ADA and the Rehabilitation Act as imposing parallel requirements.” Section 504 is interpreted “substantially identically to the ADA [citations omitted].” Bercovitch at 151, n. 13.


18

Note that this is the second of two Wynne decisions by the First Circuit involving the same parties and the same issues. The first decision is referenced infra .


19

This case involved the ADA, rather than Section 504. But, the First Circuit has noted that “we treat the ADA and the Rehabilitation Act as imposing parallel requirements.” Section 504 is interpreted “substantially identically to the ADA [citations omitted].” Bercovitch at 151, n. 13.


20

In reaching this conclusion, I draw no inference as to whether WPS could demonstrate an undue hardship in a similar case.


21

WPS explains: “Worcester acknowledges that should extended day services be required in order to implement a student’s IEP, the district would be obligated to provide the service notwithstanding the collective bargaining agreement.” WPS’ Closing Argument, at page 9 (emphasis in original).


22

In 1988, the federal Office for Civil Rights (hereafter, OCR) issued a ruling in Tamalpais (CA) Union High School District (FAPE) , 353:126 (June 15, 1988) in response to a complaint that Tamalpais Union High School District was excluding handicapped students from placement in regular classes based solely on their handicap. Pursuant to a collective bargaining agreement between the High School District and the Tamalpais District Teachers Association, the High School District was prohibited from placing more than a limited number of handicapped students into each regular academic class. As a consequence, the complaint alleged that the High School District was not providing certain handicapped students with FAPE in the least restrictive environment and was thereby violating Section 504 of the federal Rehabilitation Act.

OCR first found that applicable federal Department of Education regulations under Section 504 require that handicapped students be provided with FAPE which meets their individual educational needs as adequately as the needs of nonhandicapped students are met, and that the regulations further require that handicapped students be placed in regular educational environment to the maximum extent appropriate to their individual needs. OCR then concluded that
any implementation of the provisions of a collective bargaining agreement which has the effect of excluding a handicapped child, for whom mainstreaming has been determined to be appropriate, from participation in a regular classroom setting, or limiting his or her participation, would be a violation of Section 504 and the regulation provisions cited.

Tamalpais (CA) Union High School District (FAPE) , 353:126 (June 15, 1988). When faced with this decision that its collective bargaining agreement violated Section 504, the school district informed OCR that it would not comply with those provisions of the agreement, presumably under the theory that it is under no obligation to implement the parts of an agreement which violate federal law. Id.


23

OSEP Inquiry and Response , 21 IDELR 73, 79 (1994) (“[i]mplementation of any collective bargaining agreement . . . that would have the effect of limiting the participation of children with disabilities in the regular educational environment . . . would constitute a violation of Section 504 and its implementing regulations”).

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