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Monday, August 22, 2016

Mass. Special Education Attorney Obtains Groundbreaking Ruling - Text Messages Are Discoverable at the BSEA

From The Law Office of Lillian E. Wong

August 18, 2016

Topsfield, MA Attorney Lillian E. Wong recently prevailed in an important discovery dispute at the Massachusetts Bureau of Special Education Appeals ("BSEA").

While the BSEA does not always publish its rulings, this one was published, and can be read here - In Re: Student v. Arlington Public Schools, BSEA # 16-11465 (Figueroa, 2016). This is the first published ruling in Massachusetts regarding the relevance of text messages in special education disputes.

It was issued in response to the District's request for a protective order (the District did not want to provide Parents with all the documents requested via discovery). The District, citing another BSEA Ruling (In Re: Grafton Public Schools and Logan, BSEA #1506275, 21 MSER 131, 132-133 (2015), claimed they only had to provide Parents with documents placed in the student record, but did not need to provide teacher meeting notes or text messages.

Attorney Wong successfully argued that documents not located in the student's educational file, including text messages, are in fact discoverable.

As Hearing Officer Rosa Figueroa explained,

"At times, information shared informally between teachers/service providers and parents/ students or between school personnel may not be maintained in the ordinary course because the communication occurs via a private telephone, or computer, and is discarded or may be kept in a private device. This is particularly so with information shared via emails or text messages.

While much of this information may be inconsequential, some may be relevant as to the student’s academic and/or emotional functioning, and or a staff’s impressions or concerns regarding the student. These snapshots may bear direct relevance to the appropriateness of a student’s program and placement, as they may provide insightful information as to what works or not with a student, and therefore, should be part of the student’s record.

However, because of the private nature of the device used for communicating, there may be a false sense of privacy regarding those communications; while the device may be private, the communications are not. As such, the communications are discoverable whether or not they are contained in the student record."

This ruling is important, not only because it was a case of first impression regarding text messages, but also because it stands in opposition to the previously cited Grafton ruling. Grafton greatly restricted Parents' access to information about their child's program. This Ruling counters Grafton with a broader discovery standard that will help Parents meet their burden of persuasion.

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