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D.Z. v. Bethlehem Area School Dist.

July 27, 2010


The opinion of the court was delivered by: Judge Simpson

Submitted: December 11, 2009



In these consolidated appeals, D.Z. seeks review of two orders of a Special Education Hearing Officer (Hearing Officer). Through those orders, the Hearing Officer: (i) granted Bethlehem Area School District (School District) permission to reevaluate D.Z.'s son, M.Z. (Student), concerning his status as both a gifted student and a special education student under Pennsylvania and federal law; and, (ii) denied D.Z.'s complaint challenging the School District's implementation and appropriate design of Student's individualized education plan (IEP)*fn2 and gifted individualized education plan (GIEP)*fn3 for three school years.

In these appeals, D.Z., whose native language is Mandarin Chinese, and who proceeded without counsel below, but is now represented, raises a host of procedural issues. Specifically, she argues the Hearing Officer erred in: prohibiting her from speaking English during the proceedings; failing to appoint a certified interpreter or "otherwise qualified interpreter" and failing to replace an ineffective interpreter; denying her due process by failing to address all the issues raised and by excluding relevant evidence; denying her continuance request; and, imposing unreasonable time constraints on the proceedings. Upon review, we affirm.

The matters between these parties have a complicated and convoluted history. We summarize the relevant portions of this history as follows.

At the time of the proceedings before the Hearing Officer, Student was a seventh grade student, residing within the School District. Student was identified as a child with a disability under federal and Pennsylvania special education legislation. Additionally, Student qualified as a gifted student under Pennsylvania educational legislation.

The School District sought permission to reevaluate (PTRE) Student with regard to both his special education and gifted education. The School District last fully evaluated Student when he was in first grade. D.Z. opposed the School District's reevaluation request.

In December 2008, the School District filed for a due process hearing with the Pennsylvania Department of Education, Office of Dispute Resolution, seeking permission to reevaluate Student.

Shortly thereafter, D.Z. filed a complaint seeking a due process hearing, asserting, among other things, the School District inappropriately designed and implemented Student's IEP and his GIEP for all or parts of the 2006-2007 (5th grade), 2007-2008 (6th grade), and 2008-2009 (7th grade) school years. D.Z. also voiced her concern that Student's disability was masking his gifted ability. The School District filed a motion to consolidate D.Z.'s complaint with its complaint. The Hearing Officer granted this request.

At the outset of the proceedings, the Hearing Officer granted D.Z.'s request for the services of an interpreter. Two different interpreters were used in the multiple hearings at issue here. Specifically, for the February 24, March 5, and May 19, 2009 hearings, Ms. Danmeng Lin served as the interpreter. For the April 1 and 2, 2009 proceedings, Ms. Jing Chen served as the interpreter.

Although D.Z. requested partial translation on an as-needed basis for clarification purposes during the proceedings, the Hearing Officer determined partial translation, if provided only as needed by D.Z., would be confusing and problematic. Thus, the Hearing Officer required that D.Z. speak only her native language during the proceedings, and that all spoken English by any hearing participant or official be interpreted into D.Z.'s native language.

The interpreters appointed by the Hearing Officer were not officially certified under Pennsylvania law. Among other factors, the ordered translation procedure resulted in protracted proceedings before the Hearing Officer.

After participating in several of the spirited hearings, but prior to their completion, the School District sought to de-consolidate the cases. The Hearing Officer granted de-consolidation in his decision on the School District's complaint (Hearing Officer Decision I), explaining:

It was the intention of the parties and this hearing officer to render an interim decision on the re-evaluation issue [within the School District's complaint]. Because [the School District's complaint] requires a final decision and this case has been consolidated with [D.Z.'s complaint] at a separate complaint number, however, a final decision could not be rendered; in effect, the "interim" decision would have been a final decision in this matter, and the consolidation of the cases would not allow for that.

On May 12, 2009, the District filed a motion to "de-consolidate" the two cases. [D.Z.], wishing to receive a final decision on the re-evaluation, did not object.

Hearing Officer Decision I at 3-4.

As a result, the Hearing Officer held hearings on the School District's complaint on February 24, March 5, April 1, and April 2, 2009.*fn4 At the initial hearing, D.Z. asserted she was seeking an Independent Educational Evaluation (IEE) of Student based on her belief that the School District's prior "assessments" were inappropriate or inaccurate because they did not accommodate Student's disabilities.*fn5

Additionally, throughout the proceedings, D.Z. repeatedly objected to the Hearing Officer's preclusion of her communication in English when she was able to do so. The Hearing Officer overruled the objections. Thereafter, the Hearing Officer issued Decision I, granting the School District's request for PTRE and ordering that Student undergo a broad reevaluation in order to update and inform his IEP and GIEP planning.

Also, as the 2008-2009 school year drew closer to an end, the Hearing Officer issued a separate May 14, 2009, ruling defining the scope of the upcoming proceedings on D.Z.'s complaint. That ruling excluded certain of the 23 witnesses (mostly School District employees) D.Z. sought to present on relevance grounds, and it placed time restrictions on both parties for the presentation of evidence for the remaining hearing dates on D.Z.'s complaint. See Reproduced Record (R.R.) at 215a-216a. Specifically, the ruling limited D.Z.'s challenge solely to the implementation of Student's IEP and GIEP, excluded issues regarding the appropriateness of the IEP and GIEP based upon prior adjudications addressing these issues, and excluded issues relating to the need for an audiological assessment and an autism specialist for Student. Id.

The Hearing Officer conducted hearings on D.Z.'s complaint on February 24 (prior to de-consolidation) and May 19, 2009 (following de-consolidation). At the outset of the May 19 hearing, D.Z. objected to the Hearing Officer's May 14 ruling limiting the scope of the proceedings and asserted that given those limitations she was unable to proceed.*fn6 R.R. at 94a. D.Z. argued the relevant issues the Hearing Officer identified were different from the issues she presented in her complaint, and, as a result, she was unprepared to question the limited witnesses allowed by the Hearing Officer. R.R. at 94a-95a.

D.Z. repeatedly and unsuccessfully renewed her objections, and she again expressed her inability to present her case, as well as her intention not to continue her participation in the hearing. R.R. at 95a.

The Hearing Officer cautioned D.Z. that her refusal to participate would result in termination of the proceedings. He further informed D.Z. that at that point she had not met her burden of proving the allegations in her complaint. Id. The Hearing Officer also instructed D.Z. that if the proceedings were terminated based on her refusal to participate, the issues presented within her complaint would not be heard again in any future due process proceedings. Id. D.Z. reiterated her inability to participate, at which point the Hearing Officer informed her that he considered her case concluded and ended the hearing. Id.

The Hearing Officer subsequently issued a decision dismissing D.Z.'s complaint, with prejudice, on the ground that D.Z. did not meet her burden of proof (Hearing Officer Decision II).

Representing herself, D.Z. appealed to this Court from both of the Hearing Officer's orders. This Court consolidated the appeals. D.Z. then retained counsel, who filed a brief on her behalf.

On appeal,*fn7 D.Z. raises six issues, with numerous sub-issues. Essentially, D.Z. asserts the Hearing Officer: (i) denied her due process by prohibiting her from speaking English during the hearing; (ii) erred in failing to appoint a certified interpreter or "otherwise qualified interpreter" and failing to replace an ineffective interpreter; (iii) denied her due process by failing to address all the issues she raised and by excluding relevant evidence and testimony; (iv) denied her due process by refusing her request for a continuance; and, (v) denied her due process by imposing unreasonable time constraints on the hearing. D.Z. also questions whether the combination of errors that occurred below resulted in a denial of due process.

Because the assignments of error advanced by D.Z. are primarily procedural in nature, we note that "the mere demonstration of a potential procedural error, without also alleging a resulting harm, is not sufficient reason to disturb an agency adjudication." Seltzer v. Dep't of Educ., 782 A.2d 48, 53 (Pa. Cmwlth. 2001). Thus, with regard to alleged procedural errors, the question is not merely whether such an error occurred, but rather whether any such error was prejudicial or caused harm to the complaining party. See, e.g., Capital BlueCross v. Ins. Dep't, 937 A.2d 552 (Pa. Cmwlth. 2007), appeal denied sub nom.,Sklaroff v. Ario, 600 Pa. 106, 963 A. 2d 906 (2009).

Further, as explained above, D.Z. proceeded without counsel for the duration of the proceedings before the Hearing Officer. Thus, in considering D.Z.'s assertions, we remain mindful of our Supreme Court's statement that "any layperson choosing to represent [herself] in a legal proceeding must, to some reasonable extent, assume the risk that [her] lack of expertise and legal training will prove [her] undoing." Vann v. Unemployment Comp. Bd. of Review, 508 Pa. 139, 148, 494 A.2d 1081, 1086 (1985); see also Barber v. Tax Review Bd., 850 A.2d 866 (Pa. Cmwlth. 2004).

I. Use of Interpreters

D.Z. first argues the Hearing Officer denied her due process in the proceedings on both complaints by prohibiting her from speaking English, and by requiring her to speak only her native language with translation provided by the appointed interpreters. D.Z. asserts she requested an interpreter only for a limited range of translation, and the interpreters were consistently unable to accurately translate language that D.Z. proficiently understood, both in Chinese and in English. D.Z. concedes, both implicitly in her initial request for interpretive services, and expressly to this Court, that she needed interpretive services for certain words and phrases, including, certain educational and legal terms of art, and for certain colloquialisms used during the proceedings. D.Z. also contends the Hearing Officer erred in barring her from correcting translations she felt the interpreters incorrectly expressed.

The School District responds that D.Z.'s argument that she was denied due process on the ground the Hearing Officer required her to use interpreters, which she herself requested, is disingenuous. The School District asserts the Hearing Officer maintained the right to place reasonable restrictions on D.Z.'s use of interpreters in order to advance the proceedings. The School District further argues D.Z. cannot show prejudice resulting from the Hearing Officer's instructions regarding the use of the interpreters and, absent a showing of prejudice, D.Z. cannot successfully show a denial of due process. The School District emphasizes that the Hearing Officer's requirements in using the interpreters enabled a full and fair hearing in which D.Z. could, and did, in fact, participate. The School District asserts the Hearing Officer did not deny D.Z. an opportunity to understand or fully participate in the proceedings. The School District also points to the Hearing Officer's explanation for his decision regarding the full use of the interpreters, which, he explained, was to avoid confusion, create an understandable record and ensure D.Z.'s full understanding and participation.

Due process principles apply to administrative proceedings, and require an opportunity, among other things, to hear the evidence adduced by the opposing party, cross-examine witnesses, introduce evidence on one's own behalf, and present argument. Kowenhoven v. Cnty. of Allegheny, 587 Pa. 545, 901 A.2d 1003 (2006). As our Supreme Court explained, "there must be notice, an opportunity to present one's cause, a proceeding appropriate to the character of the particular case, and an adjudication of the same nature as is present in other cases. Where these things are present there is due process of law." Petition of Kariher, 284 Pa. 455, 470, 131 A. 265, 270 (1925).

Further, "[t]he constitutionally protected rights afforded by due process, which apply to administrative proceedings . includes the right to be heard which, in certain circumstances, include the right to assistance from an interpreter during the proceedings itself." Bethlehem Area Sch. Dist. v. Zhou, 976 A.2d 1284, 1286 (Pa. Cmwlth. 2009).

The concept of due process is a flexible one and imposes only such procedural safeguards as the situation warrants. LaFarge Corp. v. Ins. Dep't, 557 Pa. 544, 735 A.2d 74 (1999); Fountain Capital Fund, Inc. v. Pa. Secs. Comm'n, 948 A.2d 208 (Pa. Cmwlth. 2008), appeal denied, 600 Pa. 765, 967 A.2d 961 (2009). Demonstrable prejudice is a key factor in assessing whether procedural due process was denied. State Dental Council & Examining Bd. v. Pollock, 457 Pa. 264, 318 A.2d 910 (1974); Messina v. E. Penn Twp., 995 A.2d 517 (Pa. Cmwlth. 2010) (en banc); In re McGlynn, 974 A.2d 525 (Pa. Cmwlth. 2009).

With certain exceptions not applicable here, in proceedings before administrative agencies, the General Assembly expressly authorized the provision and control of interpretive services for persons in need of such services. See 2 Pa. C.S. §§561-568 (Administrative Proceeding Interpreters for Persons with Limited English Proficiency). While our courts limited their address of the impact of interpretive services upon a party's due process rights to criminal defendants,*fn8 a logical reading of the due process right to be heard in administrative proceedings can be read to encompass the General Assembly's legislative scheme for the employment of interpretive services when needed.

The statutory provisions regarding appointment of an interpreter for an administrative proceeding fully protected D.Z.'s right to due process by ensuring her an opportunity to be heard. D.Z. does not challenge the constitutionality of the statutory scheme governing appointment or replacement of interpreters for administrative proceedings. Allied Mech. & Elec., Inc. v. Pa. Prevailing Wage Appeals Bd., 923 A.2d 1220 (Pa. Cmwlth. 2007) (statutes are presumed constitutional, and a party challenging the constitutionality of a statute has a heavy burden of persuasion); Shapiro v. State Bd. of Accountancy, 856 A.2d 864 (Pa. Cmwlth. 2004) (same). As such, D.Z.'s due process rights were protected by the statutory provisions affording her access to an interpreter for the proceedings here, which are presumed constitutional in the absence of any challenge to those statutory provisions.

Further, once the Hearing Officer afforded D.Z. her right to an interpreter, the Hearing Officer's decision regarding the specific procedures for utilizing that interpreter was purely a matter of discretion. Indeed, Section 35.187 of the General Rules of Administrative Practice and Procedure vests the presiding officer of an administrative tribunal with authority to regulate the course of the proceedings, including the disposition of procedural matters. 1 Pa. Code §35.187. Here, the Hearing Officer in no way limited D.Z.'s access to an interpreter through any of his procedural rulings. D.Z.'s preference for a lesser grant of her right to an interpreter amounts to little more than an attempt to infringe on the Hearing Officer's authority to regulate the course of the proceedings. Clearly, D.Z. cannot do so.

As to our review of the Hearing Officer's discretionary decision in using the interpreters, we review such decision-making for abuse of discretion. See Slawek v. State Bd. of Med. Educ. & Licensure, 526 Pa. 316, 586 A.2d 362 (1991). This is a high standard, requiring this Court to abide by the agency's decision absent "bad faith, fraud, capricious action or abuse of power." Id. at 321, 586 A.2d at 365. "The fact that [a] reviewing court may have a different opinion is not sufficient to interfere with the agency's action and judicial discretion may not be substituted for administrative discretion." Giant Food Stores, LLC v. Dep't of Health, 808 A.2d 299, 304 (Pa. Cmwlth. 2002).

Here, D.Z. does not assert the Hearing Officer's exercise of discretion was the product of fraud or bad faith. Moreover, we disagree with D.Z. that the Hearing Officer abused his power through the procedural arrangement for translation. Regardless of D.Z.'s preferred arrangement for interpretative services, it is clear that, in requiring complete interpretation during the hearings, the Hearing Officer afforded D.Z. a full opportunity to be heard in accordance with applicable statutory provisions governing interpretative services. Stated otherwise, in requiring complete interpretation throughout the proceedings, the Hearing Officer granted D.Z. a full opportunity to be heard.

Moreover, while D.Z. generally asserts the Hearing Officer's decision requiring the full use of the interpreters hindered her ability to effectively present her case or examine witnesses, she does not specifically identify how the Hearing Officer's ruling resulted in prejudice. Because demonstrable prejudice is a "key factor" in determining whether a denial of procedural due process occurred, Pollock, and because D.Z. does not clearly explain how she suffered prejudice, no procedural due process violation is apparent.

II. Appointment of Interpreters

A. Certified or "Otherwise Qualified" Interpreters

D.Z. next challenges the Hearing Officer's appointment of the two interpreters employed in the multiple proceedings here. Specifically, she asserts the Hearing Officer erred in failing to appoint a certified or otherwise qualified interpreter.

As noted above, the General Assembly provided for the appointment of interpreters in administrative proceedings. See 2 Pa. C.S. §§561-568. The relevant provisions of that statute state:

§563. Appointment of interpreter

(a) Appointment of certified interpreter.--Upon request or sua sponte, a presiding officer shall appoint a certified interpreter, unless a certified interpreter is unavailable as provided in subsection (b).

(b) Appointment of otherwise qualified interpreter when certified interpreter is unavailable.-

(1) An otherwise qualified interpreter shall be appointed by the presiding officer if a good faith effort was made to obtain a certified interpreter and a certified interpreter was not reasonably available, as determined by the presiding officer.

(2) Prior to the appointment of an otherwise qualified interpreter, the presiding officer shall state on the record that the otherwise qualified interpreter:

(i) is readily able to interpret; and

(ii) has read, understands and agrees to abide by the code of professional conduct for administrative proceeding interpreters for persons with limited English proficiency, as established by [the Department of Labor and Industry].

2 Pa. C.S. §563. Additionally, 2 Pa. C.S. §101 sets forth the following pertinent definitions of "certified" and "otherwise qualified interpreters":

"Certified interpreter." A person who:

(1) is readily able to interpret; and

(2) either:

(i) is certified by the Department of Labor and Industry in accordance with Subchapter C of Chapter 5 (relating to administrative proceeding interpreters for persons with limited English proficiency); or

(ii) is certified by the Department of Labor and Industry in accordance with Subchapter D of Chapter 5 (relating to administrative proceeding interpreters for persons who are deaf) or is registered with the department pursuant to the act of July 2, 2004 (P.L. 492, No. 57), known as the Sign Language Interpreter and Transliterator State Registration Act.

"Otherwise qualified interpreter." A person who:

(1) For purposes of Subchapter C of Chapter 5 (relating to administrative proceeding interpreters for persons with limited English proficiency):

(i) is readily able to interpret; and

(ii) has read, understands and agrees to abide by the code of professional conduct for administrative proceeding interpreters for persons with limited English proficiency as established by the Department of Labor and Industry in accordance with Subchapter C of Chapter 5.

2 Pa. C.S. §101.

D.Z. correctly asserts, and the School District does not dispute, that the record here contains no indication that either interpreter used in the proceedings below was certified pursuant to the above-cited statutory provisions.*fn9

The Hearing Officer made no reference to either of the applicable subsections as authority for, or clarification of, his ...

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