D.Z. v. Bethlehem Area Sch. Dist.

Decision Date27 July 2010
Citation2 A.3d 712
PartiesD.Z., Petitioner v. BETHLEHEM AREA SCHOOL DISTRICT, Respondent.
CourtPennsylvania Commonwealth Court





Kathryn E. Potalivo, Philadelphia, for petitioner.

Glenna M. Hazeltine, Bethlehem, for respondent.

BEFORE: COHN JUBELIRER, Judge, SIMPSON, Judge, 1 and KELLEY, Senior Judge.


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) 2 and gifted individualized education plan (GIEP) 3 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. 4 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. 5

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. 6 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, 7 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...

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