Mr. and Mrs. Doe, as parents and next friends of Student P. Doe v. South Kingstown School Committee

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

COMMISSIONER OF EDUCATION

DECISION AND ORDER

Held: Superintendent’s findings: (1) that the cost of providing daily transportation to enable a middle school student gifted in mathematics to continue attending a math class at the high school after her parents became unable to do so; and (2) that there were adequate alternative learning opportunities available at the student’s middle school, were supported by credible evidence that was not effectively rebutted; therefore, the parent’s appeal of the school committee’s decision to uphold the superintendent’s denial of the request for special transportation was denied and dismissed and the school committee’s decision was affirmed.

Date: June 8, 2018

Petitioners, MR. AND MRS. DOE, as parents and next friends of their daughter, Student P. Doe, have appealed the April 10, 2018 decision of Respondent, SOUTH KINGSTOWN SCHOOL COMMITTEE (the “School Committee”), denying their request for transportation to enable their daughter – a mathematically gifted student who is enrolled in the seventh grade at the Curtis Corner Middle School (the “Middle School”) in South Kingstown – to continue to attend a math class at the South Kingstown High School (the “”High School”).

The Commissioner has jurisdiction under RIGL § 16-39-2 and the applicable standard of review is de novo. See Alba v. Cranston School Committee, 90 A.3d 174, 184-85 (R.I. 2014), citing Slattery v. School Committee of Cranston, 116 R.I. 252, 262, 354 A.2d 741, 746 (1976).

I. UNDISPUTED FACTS

The following undisputed facts were deduced from the documents and testimony entered into evidence at a hearing before the undersigned hearing officer on April 13, 2018. The witnesses included Mrs. Doe, who appeared pro se, as well as the Superintendent of the South Kingstown School Department (the “Superintendent” and the “School Department,” respectively).

1. P. Doe is a high-achieving mathematics student who was enrolled in the seventh grade at the Middle School during the 2016-17 school year.

2. She tested in the 99th percentile on the STAR MATH assessment test and maintained an A-plus grade in advanced seventh grade mathematics. Thus, in October of 2016 she was transferred to an eighth grade accelerated math class, where she also maintained an A-plus grade average.

3. Although diagnosed with an anxiety disorder, P. Doe has not been considered a student with a disability under the federal Individuals with Disabilities Education Act (the “IDEA”) and thus has no individualized education plan (“IEP”).

4. According to Mrs. Doe, P. Doe’s math teacher at the Middle School stated that she could no longer challenge P. Doe academically, and thus on March 30, 2017, the math teacher and the Middle School’s Principal and Vice Principal met with P. Doe’s parents to consider how to best meet P. Doe’s educational needs. Following the meeting, three options were presented to P. Doe and her parents for the 2017-18 school year. P. Doe was offered the option of either:

(a) attending a ninth grade geometry class at the South Kingstown High School (the “High School”), provided that P. Doe’s parents could provide transportation from the Middle School;

(b) receiving differentiated instruction within her current eight grade math class;^[1] or

(c) taking an on-line math course at the Middle School.

5. According to P. Doe’s mother, the Middle School Principal and others agreed that the best option for P. Doe would be for her to attend class at the High School, and so at the outset of the 2017-18 school year, she began attending a ninth grade geometry class, along with an Italian class, at the High School. She has maintained an A-plus average in both classes.

6. Both of the High School classes P. Doe has been attending are held in the afternoon, and so at noon each day one of her parents, usually her father, drove her from the Middle School to the High School, a distance of some 2.1 miles. A regular school bus then returned her to the Middle School in the afternoon and from there, she took the usual school bus home.

7. On September 20, 2017, Mr. and Mrs. Doe wrote the Superintendent and informed her that they could no longer transport P. Doe to the High School since Mr. Doe’s work schedule had changed and Mrs. Doe had exhausted all of her personal days at her job as a teacher in another school district. They requested that the School District provide her with the needed transportation. See Petitioner’s Ex. 5 at 4.

8. On September 22, 2017, the Superintendent denied the request for transportation, noting that it was “beyond what [the District] was able to provide,” and suggested that Mr. and Mrs. Doe “connect with CARES, an organization that volunteers for [South Kingstown] schools.” See id. at 4-5. She also denied Mr. and Mrs. Doe’s requests either to permit P. Doe to ride her bicycle the 2.1 miles from the Middle School to the High School, to hire a driver, or to allow an assistant of the Middle School’s Principal to drive P. Doe each day (which the assistant offered to do without having been asked).

9. According to the Superintendent, it would cost the School Department approximately $144 per day to provide the requested transportation. See April 13, 2018 Hearing Transcript (“Tr.”) at 70.

10. Mr. and Mrs. Doe, while somehow continuing to provide their daughter with the needed transportation, appealed the Superintendent’s decision to the School Committee, which held a special meeting on April 3 to consider the appeal.

11. On April 10, 2018, the School Committee denied the appeal in writing, noting that:

(a) School Committee Policy No. 8120 made clear that “the Superintended was primarily responsible for decisions related to student transportation, subject to controlling state law, and her primary responsibility is the ‘health, safety and welfare of all pupils;’”

(b) “equity requires that the School District ‘not provide to one what cannot be provided to all’ and “responding to every request for transportation during the school day would be prohibitively expensive;”

(c) the Rhode Island Board of Education Regulations for Dual Enrollment (the “Dual Enrollment Regs.”) make it clear that secondary students wishing to earn post-secondary credit must take responsibility for ‘scheduling and transportation;’” and

(d) School Committee Policy No. 844 “while not controlling, does specifically state that the “District will not provide transportation to postsecondary institutions.”

See Petitioner’s Ex. 1.

II. POSITIONS OF THE PARTIES

1. P. Doe

Mrs. Doe, while admitting that she and Mr. Doe had initially agreed to provide the needed transportation, emphasized that it was the School Department, and not she or Mr. Doe, that had concluded that it was in P. Doe’s best interest to take geometry at the High School. Moreover, Mrs. Doe argued that neither of the other two alternatives that were presented by the School Department were feasible since:

(a) the teacher in the Middle School math class where P. Doe would either receive differentiated instruction or take an on-line course was not certified to teach high school math;

(b) her older daughter’s past experience with differentiated instruction at the Middle School had not been successful; and

(c) taking an online course is no substitute for taking a live class at the High School.

Mrs. Doe also argued that the Superintendent’s denial of her request violated her daughter’s legal rights as a gifted student and was in other respects contrary to both the BEP as well as the School Committee’s stated priority to provide accelerated opportunities, as reflected in its strategic plans for 2015 and 2020. As for the BEP, Mrs. Doe argued that the Department had violated BEP sections:

(a) G-12-4.1, which mandates that “student learning be the primary reference point for decision making, responsive policy development, resource allocation, and personnel assignment and evaluation.” Id.;

(b) G-13-1.3, which mandates that the Department “develop specific curricula and programming that address the learning needs of . . . students in need of advanced academic opportunities.” Id.; and

(c) G-14-2.3, which mandates that the Department develop “[a]cademic enrichment opportunities” and “address diverse learning needs and capabilities” including “strategies that differ from those in the regular program either in use of material, instructional strategies or concentration of time on skills.” Id.

Moreover, because Mr. and Mrs. Doe’s inability to continue providing the needed transportation to their daughter was based upon their employment schedules and their financial inability to reimburse the District for the cost of transportation, Mrs. Doe argued that the Department’s failure to do so was a violation of both:

(a) BEP § G-14-2.1.1, which mandates that the Department shall “identify and remove barriers to students and adults that are based on their . . . economic status . . .” Id.; as well as

(b) School Committee Student Equity Policy No. 1260, which provides that “student success will not be predicted nor predetermined by . . . family economics . . .” Id.

In addition, Mrs. Doe argued that the Dual Enrollment Regs. cited by the School Committee apply exclusively to postsecondary courses and thus neither the Regs. nor School Committee Policy No. 844 are relevant. Finally, it should be noted that Mrs. Doe made no mention of her daughter’s ability with respect to foreign languages and did not argue that P. Doe had any right to continue her study of Italian at the High School.

2. The School Department

The School Department, while emphasizing that it went to great lengths to accommodate P. Doe and that its agreement to allow her to attend classes at the High School was a first of its kind in the District, also stressed that the agreement was expressly condition upon her parent’s ability to provide the necessary transportation.

The Superintendent testified that she had denied the request for transportation pursuant to the discretion provided her under School Committee Policy No. 2135, concerning assignment of pupils, see Respondent’s Ex. 1, and Policy No. 8120, concerning student transportation. See Petitioner’s Ex. 2. She testified that it was her practice to grant requests for special transportation only “if it’s consistent with practice for all children . . . and . . . if it’s available and not cost prohibitive.” See Tr. at 52. The Superintendent testified that her decision was based upon her findings that:

(a) there was no precedent for granting such a request. See id. at 53;

(b) the cost would have been “prohibitive.” See id. at 70; and

(c) the other options available to P. Doe – i.e., differentiated instruction within her current eighth grade math class or taking an on-line course in the Middle School – were sufficient to meet her educational needs, and pledged to provide a teacher with the requisite credentials in order to implement whichever alternative option was selected. See id. at 90.

Although it was not addressed by the School Department, it is reasonable to assume that the Superintendent’s refusal to allow P. Doe to ride her bicycle to the High School, to hire a private driver or to allow a member of the Middle School staff to drive P. Doe was due to concern about the District’s potentially uninsured liability in the event of an accident or injury of some kind. Finally, the Superintendent alleged that while P. Doe was “high-achieving,” there was “no evidence” that she was “gifted.” See id. at 50.

III. DECISION

It is well established that there is no constitutionally protected right to an education under the federal constitution, see Plyler v. Doe, 457 U.S. 202, 223 (1982), and that neither the federal Every Student Succeeds Act (“ESSA”) nor the IDEA extends any specific protection to gifted students unless, in the case of the IDEA, they also are classified with a disability. See Kautz, No “Gift” Giving Here: The Inadequate Gifted Education Programs in New York State and the Need for Gifted Education Reform, 25 J. L. & Pol’y 687, 697 (2017). Here, there is no right to the requested transportation under the IDEA since, as noted, it has not been determined that P. Doe suffers from a disability, and thus she has no IEP.

Moreover, although the Rhode Island Supreme Court has held that there is a constitutional right to education in this state, see Woonsocket Sch. Comm. v. Chafee, 89 A.3d 778, 789 (R.I. 2013), it also has made clear that it is not a “fundamental right” under the equal protection clauses of either the federal or state constitutions. See Pawtucket v. Sundlun, 662 A.2d 40, 56, 60 (R.I. 1995). Thus, the denial of a gifted student’s request for special transportation would not likely be a violation of Equal Protection under either the federal or state constitution. See, e.g., Broadley v. Board of Education of the City of Meriden, 639 A.2d 502, 506-09 (Conn. 1994) (holding that Connecticut legislature did not intend to create a right to especial education for gifted children and that this failure did not constitute a violation of equal protection). In short, in contrast to students with disabilities, gifted students have only those special legal rights and protections that have been conferred by state statute or regulation, or at the local level.

Yet, in Rhode Island and in many other states, statutes and/or regulations pertaining to gifted students are either vague or simply do not exist. See generally, No “Gift” Giving Here, supra and Ferrick, The Wicked Smaht Kids: Seeking an Adequate Public Education for Gifted Elementary and Secondary Students in Massachusetts, 10 U.Mass.L.Rev. 464 (2015). Thus, RIGL § 16-42-1(a) provides that school committees “may provide the type of educational program that will satisfy the needs of the gifted or talented child in grades pre-kindergarten through twelve (12),” id. (emphasis added), and goes on in subsection (b) to provide that such programs:

(1) Requires educational program and/or service which is different from that normally provided in the standard school program and which is educationally, personally, and socially beneficial; and

(2) Requires that programs developed serve students who demonstrate unique talents and/or superior capabilities in areas such as specific academic aptitude, creative thinking, intelligence, visual, performing and industrial arts, and leadership. Id. Yet, there is no state definition of the term “gifted student.”^[2]

Perhaps more significantly, although the Legislature directed the former Board of Regents “to establish regulations for the purpose of carrying out the intent of this chapter” – including: (1) criteria for “the identification of gifted and talented students,” “education programming,” “monitoring and evaluating of educational programs,” as well as (2) “[d]efinitions of responsibilities of local school committees and the department of elementary and secondary education,” RIGL 16-42-2 (1) – (4) – no such rules and regulations are currently in place. Thus, although, as noted by Mrs. Doe, the BEP contains various mandates relating to the needs of gifted students – see supra at 6, quoting BEP § G-12-4.1, G-13-1.3 and G-14-2.3 – there is no specific guidance concerning how this is to be accomplished.

Thus, in Rhode Island, whether a gifted student is legally entitled to a particular accommodation is for the most part a decision for the local school district, which is not to say that districts are free to act as if gifted students had no special legal rights. While the General Assembly did employ the permissive term “may” in RIGL § 16-42-1(a) (quoted supra), the importance of making necessary accommodations to gifted students was subsequently made clear in the BEP, as noted. Thus, although the extent and nature of a gifted student’s rights in Rhode Island may be less than crystal clear, the relevant statutory provisions and BEP cannot fairly be construed together to mean that such students have no rights different from those of other students.

Indeed here, the lengths the School Committee went to meet the needs of P. Doe, as well as the Superintendent’s pledge to provide a properly certified teacher to implement either of the two alternative options that were made available to P. Doe at the Middle School, are both implicit recognitions by the School Department not only that P. Doe was “gifted,” but also that it had some affirmative obligation to make special accommodations for such students.^[3]

That being said, the findings upon which the Superintendent based her decision to deny the request, i.e.: (1) that the cost of providing daily transportation to the High School was prohibitive, and (2) that either differentiated instruction or an on-line course at the Middle School would satisfactorily meet P. Doe’s educational needs in lieu of attending geometry at the High School, were within her area of expertise^[4] and authorized discretion under School Committee Policy Nos. 2135 and 8120, concerning, respectively, the assignment of pupils and transportation. In addition, the findings were supported by credible evidence – i.e., evidence pertaining to the actual per diem cost to the District of providing the special transportation as well as the Superintendent’s informed opinion as to the adequacy of alternative options at the Middle School – that was not effectively rebutted by P. Doe.

In addition, although Mrs. Doe was correct that the Dual Enrollment Regs. were inapplicable, her claim that the failure to grant the request for special transportation violated BEP § G-14-2.1.1 and School Committee Student Equity Policy No. 1260 (both quoted supra at 6), which are designed to remove barriers based upon a family’s economic status, is not persuasive. The mere fact that any given accommodation may not be financially possible does not mean that its denial is ipso facto, a violation of the cited provisions, and there is no evidence of unequal treatment since, as noted, the agreement to allow P. Doe to attend classes at the High School was the first of its kind in the District.

Finally, it should be noted that although Mrs. Doe did not argue that P. Doe had any right to continue her study of Italian at the High School, some meaningful and effective accommodation must be made so that P. Doe can complete her course of study in Italian as well as in geometry at the Middle School if she elects to do so.

IV. ORDER

For all the above reasons, the April 10 decision of the School Committee is hereby affirmed and Mr. and Mrs. Doe’s appeal on behalf of P. Doe is hereby denied and dismissed.

Footnotes

[1] The former Board of Regent’s Basic Education Program Regulations (the “BEP”) provides that: To differentiate instruction is to recognize that students have varying background knowledge, readiness, learning styles, interests and abilities in the same class. The model requires teachers to be flexible in their approach to teaching by adjusting the format and presentation of information to learners so that they can access the same curriculum. It requires a blend of whole class, group, and individual instruction. See BEP Definitions.

[2] There is, however, a widely-cited federal definition under the Elementary and Secondary Education Act, which while not providing any specific rights to gifted students, defines them as: Students, children, or youth who give evidence of high achievement capability in areas such as intellectual, creative, artistic, or leadership capacity, or in specific academic fields, and who need services and activities not ordinarily provided by the school in order to fully develop those capabilities. See Wicked Smaht, supra, quoting the Act; see also Renzulli, What is this Thing Called Giftedness, and How do We Develop It? A Twenty-Five Year Perspective, 23 Journal for the Education of the Gifted, 3-54 (1999). (discussing Renzulli's commonly-used, three-ring conception of giftedness, which focuses on the interaction among above average ability, creativity, and task commitment).

[3] At the same time, the statements by both the School Committee and the Superintendent to the effect that “equity requires that the School District ‘not provide to one what cannot be provided to all,’” see supra at 4-5 (quoting the School Committee’s written denial of the appeal), suggest the opposite. However, since, as will be discussed, there were other valid reasons to deny P. Doe’s request, the quoted comments and rationale – although inaccurately suggesting that gifted students have no greater legal rights than any other student – are effectively moot.

[4] The Superintendent – who also is currently a professor of finance at Providence College – has served not only as the principal and a teacher, but also as the Director of a Gifted and Talented program, and as a Title I Director. Moreover, she has served as the Assistant Superintendent in the Scituate School Department and as the Assistant Superintendent in the East Providence School Department, and was a professor of communications at the MBA program at Johnson & Wales University and a mathematics professor at New England Tech. See Tr. at 42-43.

ANTHONY F. COTTONE, ESQ.,

as Hearing Officer for the Commissioner

KEN WAGNER, Ph.D.,

Commissioner

Dated: June 8, 2018