A Norfolk Superior Court judge on Thursday issued a ruling denying a 14-year-old special education student the right to return to her previous, private school — a decision that leaves the girl’s educational future uncertain.
Judge Catherine Ham sided with Braintree Public Schools in denying Samantha Frechon’s right under special education laws to return to either of her last two schools, including a Hingham private school where last year she had been thriving academically and socially. Her order instead could result in Samantha having to attend a large traditional public school, something she has not done since early elementary school. The move could be detrimental to Samantha, who has multiple disabilities, including autism, and struggles to learn in a typical classroom setting. Samantha has not been able to attend school this academic year.
Collins Fay-Martin, an attorney representing Samantha, said the decision would leave the eighth-grader “in a worse position than she was in.”
The girl, who also has ADHD, generalized anxiety disorder, and post-traumatic stress disorder, has been out of school pending a dispute between the district and her mother over her special education placement, as the Globe previously reported. Samantha’s special education team, which includes administrators, teachers, and her parent, previously decided her disabilities couldn’t be properly accommodated in a regular school setting.
Fay-Martin earlier this month filed for an injunction ordering Braintree to reenroll Samantha at the school she attended last year, the private Fusion Academy in Hingham. Braintree, in the midst of a budget crisis, had refused to pay the roughly $90,000 annual tuition for the private school, saying the placement at Fusion, which does not employ special educators, was only temporary. (Superintendent Jim Lee said last week that Braintree’s current budget difficulties “had no impact on any educational decisions” in Samantha’s case.)
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Instead, Braintree offered daily tutoring at the town library — away from school, classmates, or any enrichment activities — or at the district’s 1,700-student high school, an overwhelming environment for Samantha.
Representatives of the Braintree school district did not immediately respond on Thursday to a request for comment on the judge’s decision. Lee said last week that the district could not address specific questions about Samantha’s case because of her privacy rights as a student, but said the district “has at all times acted consistent with its legal obligations and has made available many educational opportunities during the course of the 2023-2024 school year.”
In the court documents, Samantha’s mother, Alicja Frechon, had alleged Braintree violated the girl’s “stay put” rights, a key tenet of both federal and state special education law. Under the provision, special education students have the right to stay in their current placement while administrators, teachers, therapists, and their parents sort out a disagreement over a potential change.
“The judge assumes, without finding, that the student can access that ill-defined educational placement in a manner that won’t result in hospitalization or further emotional dysregulation and instability,” Fay-Martin said. “The stay put provision of the [Individuals with Disabilities Act] recognizes that children with disabilities are not yo-yos, they are not crash test dummies, and they are not lab rats. The court’s order this week fails to recognize the same.”
In her ruling, Ham said “dire irreparable harm” is being done to Samantha by her staying out of school entirely, and pointed blame at Frechon for creating “hindrances and roadblocks for [Samantha] to be placed at an appropriate setting.”
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Frechon said the judge’s ruling left her in “disbelief.”
“If we do what the judge say, we’re going to harm Samantha even more,” said Frechon, whose native language is Polish. “I don’t want to harm Samantha and push her now to the public school. That will be devastating to her and her mental health, so what I do? I cannot go against the judge.”
Federal special education law requires school districts to provide every special education student with a “free and appropriate public education.” What education services the child receives depends on the student’s disabilities and necessary accommodations, among other things. If a district does not have the means to provide such an education itself, it must pay the cost to educate the student elsewhere.
Ham’s order does not appear to comply with Samantha’s accommodations, but instead laid out two plans for Samantha, depending on whether she received special education services prior to 2019.
If she had not, Ham’s decision would have used the “broad discretion” of the court to order Samantha to attend virtual or in-person tutoring from April 22 through the remainder of the school year. Samantha, however, did have special education services in Braintree prior to 2019. Therefore, according to the order, Samantha must return to the placement she was in prior to her last two schools. That placement is the regular school setting, where she last attended in early grade school.
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Explaining her decision to deny Samantha’s return to Fusion, Ham said Fusion was not an appropriate placement because it cannot accommodate the needs laid out in the girl’s special education plan, also known as an Individualized Education Program, or IEP. Ham cited correspondence provided by the district that showed the former Fusion head of school stating in a July 2023 email that “Samantha needs a higher level of care” than what he thought the school could provide.
Fay-Martin said the judge’s reliance on that documentation, and other exhibits provided by the district, was problematic.
For example, Braintree did not include in its exhibits follow-up emails from the new and current head of school, Paul Bowen. Those emails, viewed by the Globe, show Bowen expressing support for Samantha to return to Fusion and confidence the school could meet her educational needs.
In her order, Ham also repeats the district’s assertion that Samantha was regularly arriving to school late. Fay-Martin said Samantha’s IEP provided for a shortened day. The IEP, agreed to by the district, said Samantha would arrive to school by 10 a.m. daily, according to records reviewed by the Globe.
Samantha is one of roughly 9,500 Massachusetts special education students who were enrolled in separate public or private day schools at public expense in 2022, while about 800 more were educated at residential facilities, federal data show. That figure is large, in comparison with other states. In 2022-23, federal data show Massachusetts placed 6 percent of its special education students in out-of-district settings compared with 2 percent in California and less than 1 percent in Texas.
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For the students in Massachusetts who attend those day schools, roughly one-third have a primary disability of emotional disturbance and another one-third have autism.
Frechon said she is not sure what to do come Monday, when Braintree’s students return from April vacation. The judge’s decision “goes against Samantha’s diagnosis and needs,” she said.
“It’s like you tell the judge, ‘My child has nut allergy,’ and the judge says, ‘Give her nuts on Monday and eat.’ ”
The Great Divide team explores educational inequality in Boston and statewide. Sign up to receive our newsletter, and send ideas and tips to thegreatdivide@globe.com.
Mandy McLaren can be reached at mandy.mclaren@globe.com. Follow her @mandy_mclaren.