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D.Z. v. Bethlehem Area School Dist.

July 27, 2010

D.Z., PETITIONER
v.
BETHLEHEM AREA SCHOOL DISTRICT, RESPONDENT



The opinion of the court was delivered by: Judge Simpson

Submitted: December 4, 2009

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge*fn1, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

In this appeal, D.Z. asks whether a Special Education Hearing Officer (Hearing Officer) erred in determining that Bethlehem Area School District (School District) properly implemented a Gifted Individualized Education Program (GIEP)*fn2 for her son, J.Z. (Student), with regard to his status as a gifted student under Pennsylvania law for Student's 2007-2008 (3rd grade) and 2008-2009 (4th grade) school years.

D.Z. represented herself during the hearings discussed below, although she retained counsel after appealing to this Court. She raises several issues, most of which concern the Hearing Officer's procedural rulings during the course of the hearings. In D.Z. v. Bethlehem Area School District (D.Z. I), ___A.2d ___ (Pa. Cmwlth., Dkt. Nos. 1263, 1264 C.D. 2009, filed July, 27, 2010), a case concerning another of D.Z.'s children, we addressed similar challenges to procedural rulings by the same Hearing Officer. As in D.Z. I, we discern no reversible error in the Hearing Officer's procedural rulings here. Therefore, we affirm.

As noted in D.Z. I, the matters between these parties have a complicated and convoluted history. The relevant portions of that history may be summarized as follows.

At the time of the proceedings before the Hearing Officer, Student was a 4th grade student residing within the School District. Student was identified as a gifted student under Pennsylvania educational legislation.

In a prior dispute over Student's gifted educational programming that also resulted in a due process hearing, a different hearing officer determined the School District appropriately designed and properly implemented Student's GIEP for the 2006-2007 school year, when Student was in 2nd grade (2007 GIEP Decision). Reproduced Record (R.R.) at 70a-79a. The hearing officer also ordered the School District to slightly modify and implement the GIEP for Student's 3rd grade year. Specifically, the hearing officer recognized the School District agreed to place Student in 4th grade for mathematics instruction during the 3rd grade year, and she ordered that it do so. R.R. at 77a, 79a. Based on the evidence presented, however, the hearing officer determined acceleration in areas such as reading and written expression was not required. R.R. at 77a-78a. Thus, the hearing officer denied all other requests by D.Z. for modification of the GIEP. The hearing officer also determined a GIEP meeting should be held more frequently to determine if appropriate educational progress was made and if additional enrichment was needed. R.R. at 78a. After incorporation of the ordered modification for acceleration in mathematics, the School District issued another GIEP on July 30, 2007, for Student's 3rd grade school year.

Thereafter, the School District proposed a GIEP for the 2008-2009 school year, when Student was in 4th grade, but the parties could not reach an agreement. As a result, the GIEP for Student's 3rd grade year remained in effect. See 22 Pa. Code §16.63(a) (prior GIEP in effect at the time of rejection of, and/or subsequent challenge to, newly proposed GIEP remains in effect for a student during the pendency of any such rejection and/or challenge). Thus, the GIEP for Student's 3rd grade year, which the prior hearing officer specifically deemed appropriate (with acceleration in mathematics), was the pendent GIEP during the course of the proceedings at issue here.

In December 2008, D.Z., representing herself, filed a due process complaint with the Pennsylvania Department of Education, Office of Dispute Resolution.*fn3 The Hearing Officer held hearings on D.Z.'s complaint on February 6 and May 29, 2009.

D.Z., whose native language is Mandarin Chinese, requested the services of an interpreter at the hearing. The Hearing Officer granted this request. Ms. Danmeng Lin served as an interpreter for the proceedings.

Although D.Z. requested only partial translation on an as-needed basis for clarification purposes during the hearings, the Hearing Officer determined this arrangement would be confusing and problematic. Thus, the Hearing Officer required D.Z. to speak only her native language, and required all spoken English by any hearing participant or official be interpreted into D.Z.'s native language. D.Z. repeatedly objected to the Hearing Officer's "all-or-nothing" translation requirement and to his repeated exclusions of her participation in English.

At the outset of the February 6, 2009 hearing, the Hearing Officer instructed the School District's counsel to qualify the interpreter as to her experience and expertise. After that voir dire, the School District offered the interpreter as an expert interpreter. The Hearing Officer accepted that offer, recognizing the interpreter for purposes of translating the proceedings. D.Z. did not object. The interpreter appointed by the Hearing Officer was not officially certified under Pennsylvania law. Notes of Testimony (N.T.) at 6-7.*fn4

The Hearing Officer then requested that each party, during their consecutive opening statements, state their positions on the issues presented and their requested result. D.Z. stated her issues concerned: Student's present level of educational performance; her objections to the School District's assessments and/or evaluations of Student; and, the appropriateness of the proposed GIEP for Student's 4th grade year. N.T. at 25-31. D.Z. also articulated issues regarding the goals of the GIEP, evaluative and measurement criteria, Student's enrichment opportunities, the School District's delays in assessing and updating the GIEP, Student's lack of improvement in English in his 3rd grade year, and communication difficulty with the School District. Id.

The School District responded that: it proposed a GIEP for Student's 4th grade year which was responsive to his needs and complied with applicable regulations; and, the Hearing Officer did not have jurisdiction over the issue of Student's progress in English because it was not a subject within Student's GIEP. N.T. at 31-35. The School District emphasized the sole issue before the Hearing Officer was whether the GIEP for Student's 4th grade year responded to the areas in which Student was identified as gifted. N.T. at 33-34.

After the parties' opening statements, the Hearing Officer identified two issues: whether the GIEP for Student's 4th grade school year was appropriate; and, whether Student made adequate progress under the GIEP for his 3rd grade year in English/reading/writing. N.T. at 35-41.

After identifying the issues, the Hearing Officer began to hear testimony from Student's 4th grade teacher, prior to the conclusion of the hearing. After a lengthy delay in the proceedings, to which the parties agreed in order to allow for hearings concerning another of D.Z.'s children, the next hearing in this matter occurred on May 29, 2009.

At the outset of the May 29 hearing, the School District announced its intention to formally withdraw the proposed GIEP for Student's 4th grade school year, and it moved to dismiss the matter as moot based on its assertion that the current school year was near an end. The School District also requested that the Hearing Officer issue an order requiring that a GIEP team convene to develop a GIEP for the 2009-2010 school year, Student's 5th grade year.

In response, the Hearing Officer determined that, because the pendent GIEP for Student's 3rd grade year remained in effect for his 4th grade year, and because a different hearing officer determined that GIEP was appropriate, it was, as a matter of law, appropriate for Student's 4th grade year. N.T. at 97-101.

Based on the School District's invitation to D.Z. to participate in a GIEP meeting for Student's 5th grade year, along with the impending completion of Student's 4th grade year, the Hearing Officer focused the remaining proceeding on the "implementation, or teaching, of [Student] in the [3rd] and [4th grade] school years, in English and math."*fn5 N.T. at 101.

The Hearing Officer heard continued testimony from Student's 4th grade teacher, as well as testimony from Student's 3rd grade teacher, the School District's mathematics specialist who instructed Student during a portion of his 3rd grade year, and Student's mathematics teacher for his 4th grade year. After the conclusion of testimony from these witnesses, D.Z., for the first time, informed the Hearing Officer she needed to leave the hearing immediately for a pre-scheduled appointment, despite the Hearing Officer's desire to hear testimony from D.Z. The Hearing Officer then indicated he did not intend to reconvene the hearings and considered the matter concluded.

Shortly thereafter, the Hearing Officer issued a decision in which he determined the School District properly implemented Student's GIEP in math and English for Student's 3rd and 4th grade years. D.Z. now appeals to this Court.

On appeal and now assisted by counsel,*fn6 D.Z. raises several issues. Specifically, she 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) erred in dismissing as moot her challenge to Student's GIEP for his 4th grade year; (iv) erred in barring her from challenging the appropriateness of Student's GIEP for Student's 3rd and 4th grade years; and, (v) improperly excluded evidence relevant to the implementation of the GIEP. D.Z. also questions whether the combination of errors that occurred below resulted in a denial of due process. We consolidate our discussion and analysis of these issues where appropriate.

I. Use of Interpreter

A. "All-or-Nothing" Approach

D.Z. first maintains the Hearing Officer erred in insisting on an "allor-nothing" approach to her use of the interpreter in these proceedings, which impaired her ability to effectively question witnesses, present evidence and fully participate in the hearing. Specifically, she contends the Hearing Officer denied her due process by prohibiting her from speaking English, and by ...


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