Albert and Boston Public Schools – BSEA # 06-6508 3

<br /> Albert and Boston Public Schools – BSEA # 06-6508<br />



In Re: Albert1 and Boston Public Schools

BSEA # 06-6508


On February 28, 2007, Boston Public Schools (Boston) filed with the Bureau of Special Education Appeals (BSEA) a Motion to Dismiss , seeking to preclude any consideration of Student’s claims for compensatory damages. On March 7, 2007, Student filed his opposition. Neither party requested a motion hearing. I find that it is appropriate for this matter to be decided on the papers.

BSEA Rules and the Standard Adjudicatory Rules of Practice and Procedure governing BSEA proceedings both provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted.2 Similarly, the federal courts have concluded that a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be allowed if the court finds “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”3

Consistent with the legal standards applied by federal courts with respect to a motion to dismiss, I am required to deny Boston’s Motion if the Hearing Request would support relief on any theory of law. For the purpose of ruling on the Motion , I consider the allegations in the Hearing Request to be true, as well as all reasonable inferences in the Student’s favor.4

The following facts are taken from the amended Hearing Request . Student is sixteen years old. He has Crohn’s disease and, as a secondary disability, depression and anxiety. Student’s disabilities caused him to be unable to complete successfully his 9 th grade at the Boston Latin School (Boston Latin), initially during the 2004-2005 school year and again during the 2005-2006 school year. As a result of a grant of partial summary judgment in the instant dispute, Student is attending Boston Latin in the 9 th grade during the current school year.

In June 2006, Boston determined Student to be eligible under Section 504 of the Rehabilitation Act (Section 504) but not eligible for special education services. Boston proposed a Section 504 plan for purposes of accommodating Student’s disabilities.

All of Student’s claims in the instant dispute are made under Section 504; no claims are made under state or federal special education law.

Through its Motion to Dismiss , Boston asks the BSEA to dismiss what Boston refers to as “Claim # 2 of Student’s Amended Complaint.” Boston’s reference is to the “Issues in Dispute” section of the amended Hearing Request , in which the second issue is described as follows:

Should the Boston Public Schools be ordered to pay compensatory damages to the Student as a result of the intentional acts of discrimination by officials of the Boston Latin School and the Boston Public Schools during the school years 2004-2005, 2005-2006 and 2006-2007?5

Within its Motion to Dismiss , Boston makes clear that its objection is to an award of monetary damages by the BSEA. Boston appears to take the position that “Claim # 2” is focused entirely on monetary damages and argues that since the BSEA lacks authority to grant monetary damages under Section 504, “Claim # 2” of Student’s amended Hearing Request , in its entirety, must be dismissed.

In a previous ruling ( In Re: Natick Public Schools6 ), a BSEA Hearing Officer explicitly determined that the BSEA lacks authority to award monetary damages under Section 504. The Hearing Officer reasoned that the authority of a court to award monetary damages derives from the court’s inherent authority to do so, and the BSEA is noticeably lacking this authority. In addition, the Hearing Officer relied on several federal Circuit Court decisions that explicitly or implicitly concluded that monetary damages under Section 504 are unavailable in administrative due process proceedings.7

Acknowledging the Natick ruling, Student, in his opposition to the Motion to Dismiss , submits that Natick’s analysis of this issue is no longer valid. Student points out, for example, that subsequent to the BSEA ruling, the First Circuit made clear that compensatory damages may be awarded by a court for intentional violations of Section 504.8 Also, BSEA’s jurisdiction has been broadened to include a determination of responsibility of certain state agencies to provide services in addition to those that are the responsibility of a school district.9 Student further notes the general grants of authority contained within the state Department of Education (DOE) regulations establishing the BSEA and its jurisdiction – for example, language granting jurisdiction to the BSEA regarding “any issue” involving denial of appropriate education under section 504,10 as well as language granting jurisdiction “to ensure that the rights of all parties are protected.”11 From all of this, Student argues that BSEA’s authority to award monetary damages under Section 504 should now be recognized as co-extensive with the authority of the federal court.

Student’s arguments (and the legal authorities relied upon) are not persuasive. Student is correct that state statute and regulations have broadened the BSEA’s jurisdiction in certain respects since Natick , but these additional grants of jurisdiction are not relevant to the award of monetary damages.12 The general grants of authority within state regulations, which are relied upon by Student, are substantially the same grants of authority that existed at the time of the Natick ruling in 2000. Subsequent to the issuance of the Natick ruling, DOE has amended its regulations on several occasions without adding language to address the issue of damages, and the current statutory and regulatory grants of authority to the BSEA make no reference to damages.13

I am not aware of a single judicial or administrative decision that has concluded, either explicitly or implicitly, that Section 504 monetary damages may be allowed in an administrative due process proceeding, in contrast to the several judicial decisions reaching the opposite conclusion, as discussed in the Natick ruling. I also note that subsequent to the Natick decision, the First Circuit, within a special education dispute, acknowledged that the BSEA does not provide monetary damages.14

Student also has argued that he would be placed in a dilemma were the BSEA to dismiss Student’s monetary damages claim because dismissal would preclude what the First Circuit in Frazier requires – that is, exhaustion of BSEA proceedings with respect to any claim for monetary damages.15 In Frazier , the Court understood that the BSEA does not offer monetary damages as a form of relief yet required exhaustion of BSEA proceedings with respect to this issue. Presumably, the Court intended the BSEA to conduct fact-finding relevant to the damage claims, without making a determination of monetary liability. A dismissal of Student’s monetary damages claim need not preclude the BSEA from conducting this necessary fact-finding.

Having reviewed the Natick ruling within this context of statutory, regulatory, and decisional developments since the ruling was issued in 2000, I find Natick’s analysis and conclusion to be correct that the BSEA lacks the authority to award monetary damages under Section 504. I therefore agree with Boston that any claim that the BSEA award monetary damages in the instant dispute must be dismissed.

On the basis of this conclusion, Boston seeks dismissal of Student’s entire “Claim # 2,” which generally refers to the payment of “compensatory damages.” For the following reasons, Boston’s request for dismissal goes too far.

As the Natick ruling correctly noted, the BSEA may order other forms of relief under Section 504.16 As with special education disputes under the Individuals with Disabilities Education Act, the BSEA has authority to award equitable remedies that involve the payment of money as reimbursement for expenses that would have been borne by Boston in the first instance had it properly complied with Section 504. In addition, the BSEA has the authority to award non-monetary compensation, such as services or accommodations necessary to put Student in the same position he would have occupied but for the Section 504 violation.17

Within the context of a ruling on Boston’s Motion to Dismiss , I must make all reasonable inferences in Student’s favor when seeking to understand the relief sought within his amended Hearing Request .18 The phrase “compensatory damages” is a term of art used by courts to include a wide variety of relief.19 Accordingly, Student’s “compensatory damages” claim is understood to include monetary damages, as well as the above-referenced permissible forms of relief under Section 504.

For these reasons, Boston’s Motion to Dismiss is allowed with respect to Student’s request that the BSEA award monetary damages, and is denied in all other respects. Student retains his right to have the BSEA make factual findings relevant to the monetary damages claim.

By the Hearing Officer,


William Crane

Date: March 9, 2007


“Albert” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.


BSEA Rule 17B; 801 CMR 1.01(7)(g)3.


Judge v. City of Lowell , 160 F.3d 67, 72 (1st Cir. 1998) (quoting Conley v.Gibson , 355 U.S. 41, 45-46 (1957)).


See Caleron-Ortiz v. LaBoy-Alvarado , 300 F.3d 60 (1st Cir. 2002) (“accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff’s favor” a motion to dismiss will be denied if recovery can be justified under any applicable legal theory).


Similarly under the Relief Requested section of the amended Hearing Request , Student asks the BSEA to “order Boston Public Schools to pay compensatory damages for its intentional discrimination.”


In Re: Natick Pub. Schs., 6 Mass. Spec. Educ. Rep. 48 (BSEA 99-3852) (2000).


Id. at 52-54.


Nieves-Marquez v. Puerto Rico , 353 F.3d 108, 126-127 (1 st Cir. 2003).


MGL c. 71B, s.3. See also 603 CMR 28.08(3).


603 CMR 28.08(3)(a).


603 CMR 28.08(5)(c).


MGL c. 71B, s.3; 603 CMR 28.08(3).


Cf. United States v. Rutherford, 442 U.S. 544, 554 n. 10 (1979) (if, after agency’s statutory construction has been brought to its attention, the Congress “has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned”).


Frazier v. Fairhaven School Committee , 276 F.3d 52, 61 (1st Cir. 2002) (“exhaustion of administrative remedies is advantageous even though the administrative process does not offer the specific form of relief [of monetary damages] sought by the plaintiff”).


Frazier v. Fairhaven School Committee , 276 F.3d 52 (1st Cir. 2002).


In Re: Natick Pub. Schs., 6 Mass. Spec. Educ. Rep. 48, 53 (BSEA 99-3852) (2000) (“BSEA has the authority to determine parties’ rights and obligations under Section 504, and may order prospective and compensatory relief.”).


See Nieves-Marquez v. Puerto Rico , 353 F.3d 108 (1 st Cir. 2003) (discussing the scope of compensatory damages under Section 504); 603 CMR 28.08(3)(a); 603 CMR 28.08(5)(c).


See Caleron-Ortiz v. LaBoy-Alvarado , 300 F.3d 60 (1st Cir. 2002) (“accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff’s favor” a motion to dismiss will be denied if recovery can be justified under any applicable legal theory).


See Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d 13 (1 st Cir. 2006) (discussing compensatory damages within the context of a special education dispute).