Duxbury P.S. BSEA #09-1986
COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Ishmael[1]
& Duxbury Public School BSEA #09-1986
Ruling on Parent Motion to Recuse
This matter comes before the Hearing Officer on the Motion of the Mother, the appealing party, for Recusal. The Mother filed the instant appeal on September 16, 2008, alleging that the Duxbury Public Schools was not complying with her son’s last accepted IEP. The hearing was set for October 20, 2008. During a conference call held on October 3, 2008, the Parent requested an alternate date due to her unavailability on October 20th. The parties agreed to proceed on November 6, 2008. On October 16, 2008, the Mother wrote to the Hearing Officer:
I file a Motion for Recusal and request that you be removed as the Hearing Officer for this case. Due to my experience with you in our previous two BSEA hearings, I do not believe that you are capable of conducting a fair, procedural and legal hearing.
The Mother is pro se. I construe her correspondence as a Motion for Recusal. On October 22, 2008, the School’s attorney submitted an Opposition to the Parent’s Motion to Recuse noting that the Mother failed to assert any factual foundation for her Motion and requesting oral argument. Oral argument on the Mother’s Motion to Recuse and the School’s Motion to Quash Subpoenae requested by the Mother was held on November 3, 2008.
1. Legal Standards
There are a number of statutory requirements, judicial opinions and ethical codes that either apply directly to, or provide useful guidance on, the issue of recusal by a BSEA Hearing Officer. Recusal has been the subject of two excellent, comprehensive Rulings by two different BSEA Hearing Officers and I need not repeat their analysis here See: Marblehead Public Schools, BSEA# 02-2828, 3/19/02 (Crane); 8 MSER 84; and Malden Public Schools, BSEA# 05-4355, 04/05/05 (Beron)[2]
The standards for qualification as a BSEA Hearing Officer are set out in the federal special education regulations implementing the IDEA 2004 (20 u.s.c. 7400 et seq.) and the state regulations implementing the state special education statute (MGL c. 71B). 20 U.S.C. §1415 (f) (3) states:
A hearing officer conducting a hearing pursuant to paragraph (1)(A) shall, at a minimum-
(i) not be-
(I) an employee of the State educational agency or the local educational agency
involved in the education or care of the child; or
(II) a person having a personal or professional interest that conflicts with the
person’s objectivity in the hearing;
(ii) possess knowledge of, and the ability to understand, the provisions of this title
[20 USCS §§ 1400 et seq.), and legal interpretations of this title [20 USCS §§
1400 et seq.] by Federal and State courts;
(iii) possess the knowledge and ability to conduct hearings in accordance with
appropriate, standard legal practice; and
(iv) possess the knowledge and ability to render and write decisions in accordance
with appropriate, standard legal practice.
See also: 34 CFR 300.511 (c). Similarly, Massachusetts special education regulations provide:
Mediations and hearings shall be conducted by impartial mediators and hearing officers who do not have personal or professional interests that would conflict with their objectivity in the hearing or mediation and who are employed to conduct those proceedings.
603 CMR 28.08 (3). These standards require that a hearing officer possess a certain unspecified degree of professional competence, along with an “objectivity” necessary to act on and decide impartially each particular matter presented.
Considerations of “impartiality” in the context of a motion to disqualify a hearing officer have both a purely factual component and an objective “reasonable person” component. While it is the responsibility of the moving party to set out the facts underlying the request for recusal, it is the duty of the Hearing Officer, when evaluating such a request to fairly examine the facts alleged and her own conscience, as well as to attempt to view her actions from the perspective of the litigants and the public.[3] While it is clear that a personal or professional interest in the outcome of a matter would be ample grounds for recusal, it is more difficult to assess the impact of litigant “perception” and thwarted expectations on the potential fairness of a due process proceeding. And that is the bottom line. As lawyers and as part of the “administration of justice” Hearing Officers must ensure not only that the hearings they conduct are actually fair, but that they are perceived to be fair. Furthermore, arguments in opposition to recusal such as prevention of “judge shopping”, promotion of efficiency in case management and conservation of scarce administrative resources while legitimate, and in some instances compelling, do not override the need for close and thoughtful examination of possible factors supporting recusal.[4] This is particularly true when the motion is advanced by a person unfamiliar with, or traditionally disadvantaged by, a complicated administrative due process system. Therefore I will discuss each consideration in turn.
2. Discussion
A.) Professional Qualifications
There is no allegation by the Mother that I do not possess the minimum qualifications necessary for employment as a specialized Hearing Officer pursuant to 20 U.S.C.: § 1415 (f) (3). Having served as a special education hearing officer for more than 24 years I believe I have the training and experience contemplated by the drafters of IDEA 2004.[5] Therefore, disqualification on the basis of professional qualifications is not warranted.
B.) Objective Bars to Service as a Hearing Officer
Hearing Officers routinely recuse themselves from any matter in which they have a personal or professional interest which might reasonably compromise their ability to impartially conduct a hearing or to render a fair decision. These factors include but are not limited to: potential relationship-based bias due to a familial tie with a participant; residence within the school district, a financial interest in the outcome of the matter, or a prior association with counsel.[6] In this matter the moving party has not alleged, nor is there any reasonable support for finding, the existence of any objective factor that would require recusal. I have no current or historical familial, professional or financial connection to any party, potential witness, public entity or counsel in this matter. Therefore I find that recusal is not warranted on the basis of objective factors.
C.) Subjective Factors
The Hearing Officer must also examine her own emotions and conscience to determine whether she is truly capable of conducting an unbiased, impartial due process proceeding.[7] I have made this examination. Indeed I make this examination with each ruling or event in all matters before me. I have concluded that I do not have any impermissible bias or prejudgment, that I am capable of fairly presiding over this matter without prejudice to either party and of rendering a decision based solely on the evidence presented and the applicable law.
D.) Appearances
The final level of inquiry is whether the Hearing Officer’s impartiality might reasonably be questioned. Here, recusal standards seek to uphold the “appearance of impartiality”, not actual impartiality, in order to promote public confidence in the justice system. When considering whether recusal is appropriate the Hearing Officer must consider the perspective of the public outside of the actual controversy, as well as the views of the litigants. A Hearing Officer’s impartiality might reasonably be questioned by the public due to circumstances occurring outside the hearing room, such as public comments about the matter or related issues, or hearing officer actions inconsistent with neutrality. In Re: Boston’s Children First, 244 F. 3d 164 (1st Cir. 2001). A Hearing Officer’s impartiality might reasonably be questioned by the litigants if there is a pattern of hostile or abusive behavior targeting one party. The facts offered to support recusal must show “what an objective knowledgeable member of the public would find to be a reasonable basis.” 28 U.S.C. § 455.
The Mother offers no objective facts to support her request for recusal in this matter. I have made no public or private comments about this matter, about participants in the hearing(s), or about the issues in dispute. This matter is following a course and schedule typical of parent-request’s for hearing. There has been nothing at all out of the ordinary here. I believe the Mother is generally and genuinely unhappy to see me again in this forum. During the last two years I have been the Hearing Officer for the three pervious hearings between these same parties, all of which resulted in decisions adverse to the Mother’s position.[8] Unfavorable rulings however, even a series of them, do not in themselves indicate partiality or bias on the part of the decision-maker, and do not, without more, provide sufficient support for recusal. I am certain that an “objective, knowledgeable member of the public” understands that legal decisions based on facts established in an adversarial hearing and consistent with applicable laws, do not indicate bias. While reasonable people may disagree on the substantive merits of any decision, reasonable people do not usually leap to the conclusion that the decision-maker is impermissibly partial to the “winning” party. I cannot find on this record that a reasonable member of the public could point to any factor or circumstance causing doubt as to my impartiality. Therefore I find that recusal is not warranted on the basis of appearance of partiality.
E.) Reassignment
While there is no reasonable basis for granting Mother’s Motion for Recusal, there remains, nonetheless, the duty to assist pro se litigants to the extent possible to present their claims. Parties proceeding pro se in the special education hearing process do so facing uniquely challenging hurdles. The specialized knowledge required is significant, the time and energy demands are substantial, and the emotional, physical and at time financial drains can become overwhelming. Providing technical support, ensuring equal access to the procedures and infrastructures of the mediation and hearing systems, and working to promote public confidence in and awareness of the neutrality, transparency and responsiveness of the BSEA, are critical to the proper functioning of the special education dispute resolution system for all interested members, but particularly for the pro se appellant.
While it is expected that lawyers and lay people reasonably familiar with the adversarial system will understand that adverse legal rulings do not reflect bias or partiality on the part of the decision-maker, the ability to dispassionately accept undesirable outcomes is not universal. It is particularly difficult for pro se litigants whose advocacy is often inextricably woven into all aspects of their lives and viewpoints. For pro se parties, all other things being equal, a new face or fresh set of ears may be necessary to restore confidence in the responsiveness of the BSEA due process system to parental complaints. Where the pro se litigant offers some persuasive facts demonstrating a genuinely held belief that an alternate Hearing Officer will improve her ability to effectively advocate, and where assignment of a new Hearing Officer will not unduly interfere with the efficiency or efficacy of the BSEA process for other pending matters, there is little reason not to accommodate a request for reassignment
In this matter I find that the Mother is likely to be more comfortable presenting her concerns to a Hearing Officer less familiar with her and with the history of conflict between the parties. Under some circumstances the School’s arguments that substitution of a new hearing officer is administratively inefficient and “rewards” the parent for prior noncompliance might be persuasive. Here, however, the Mother has identified only one extremely limited, discrete, non-compliance issue for hearing. A new hearing officer will have no difficulty understanding the current issue presented, managing the evidence, or conducting the brief hearing required, even on very short notice. The potential inconvenience to the school and to the BSEA of late reassignment is outweighed here by the need to maintain confidence in the unbiased administration of justice.
I will therefore on the Mother’s behalf request the administrative reassignment of this matter to another Hearing Officer. Reassignment of active matters is an administrative decision made by the Director or Assistant Director of the BSEA based on multiple factors extrinsic to the individual case, including Hearing Officer availability, work flow management, conflicts, etc. There is no guarantee at this late date that reassignment will be possible.
order
The Mother’s Motion for Recusal is DENIED. This matter is, however, referred for administrative reassignment.
Date: November 4, 2008 Lindsay Byrne, Hearing Officer
Footnotes
[1] “Ishmael” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in documents available to the public.
[2] Additional resources addressing ethical expectations for judges, hearing officers and other lawyers functioning in a quasi-judicial role have recently been made more available to the general public. See: U.S. Judicial Conference, [www.uscourts.gove/guide/vol12/ch1.html](http://www.uscourts.gove/guide/vol12/ch1.html); American Judicature Society (2008a), [www.ajs.org/ethics](http://www.ajs.org/ethics); ABA Model Judicial Code, [www.abanet.org/](http://www.abanet.org/) judicial ethics/approved_MCJC.html; Massachusetts Committee on Judicial Ethics, [www.mass.gov/courts/rule 309](http://www.mass.gov/courts/rule%20309), see in particular Canon 3, Section E concerning disqualification.
[3] See discussions at: Litkey v. U.S., 510 U.S. 540 (1994); Comfort v. Lynn School Committee, 418 F3d 1 (1st Cir. 2005); In Re: Boston’s Children First, 244 F.3d 164 (1st Cir 2001); U.S. v. Snyder, 235 F.3d 42 (1st Cir 2000).
[4] Helpful discussion of these issues can be found at Marblehead and Malden supra.
[5] The effect of 20 U.S.C. § 1415 (f) (3) (I) on the status of special education Hearing Officers in Massachusetts is a perennial topic of discussion. Thus far, however, the current state employee arrangement has met with the approval of federal regulators.
[6] See e.g. SJC Rule 3:09, Canon 3A, Section 3 (c) (1).
[7] Lena v. Commonwealth, 369 Mass. 575 (1976).
[8] Ishmael and Duxbury Public Schools, BSEA # 08-3479 and 08-4805, 10/30/08 (Byrne)_MSER __ (2008); Ishmael and Duxbury Public Schools, BSEA # 07-2419C, 09/25/07 (Byrne); 13 MSER 337; Duxbury Public Schools and Ishmael, BSEA #07-7419, 06/13/07 (Byrne), 13 MSER 223 (2007).