Attorneys for the Andover School Committee say Fusion Academy tried to compare “apples to oranges” in its latest filing in its ongoing, $4 million lawsuit alleging the company was the victim of bias when it twice had applications to open a private school in Andover rejected.
The decision of Andover Public Schools “to reimburse a single family who elected to send their child to Fusion Burlington, is not the same as the decision of the Andover School Committee to approve Fusion’s application to operate a private high school in the Town of Andover,” the school committee said in a response to a motion filed in U.S. District Court in Boston on Monday. “These are apples to oranges. Likewise, Fusion’s claim that they were denied the ‘right to an unbiased decision maker,’ is, as a matter of law, wrong.”
Last month, Fusion filed documents showing APS had paid $54,000 in 2023-24 for tuition and legal fees to send a student to Fusion’s school in Burlington. The private school said the documents show the defendants have, “in effect, admitted that the special needs student would get an appropriate education at Fusion.”
In the response to Fusion’s motion, lawyers for the school committee fired back that decisions like the one made in 2023-24 fall under the Individuals with Disabilities Education Act and do not fall under the school committee’s purview.
“Specifically, as a matter of law, any such determinations must be individualized in nature, made by a specified and statutorily mandated group of individuals. Hence, the title of the applicable federal statue: the Individuals with Disabilities Education Act (IDEA) and the title of the primary mandated document reflecting those determinations: the individualized educational program,” Monday’s filing said. “A school district’s school committee simply has no role in the individualized educational decisions of students with disabilities: the school committee is not part of a student’s IEP team; it does not make IEP decisions; and it may not ‘veto’ an IEP team’s determinations.”
School districts are required to place special needs students in schools if the district cannot provide an appropriate education. Those placements are often expensive, and often disputed by the districts. The school committee’s brief noted that such settlements are often reached to avoid costly litigation with the parents of special education students.
Fusion in seeking $4 million in expenses, lost revenue, interest and attorney fees in a lawsuit filed in U.S. District Court in Boston after having applications to open a private school in Andover denied by the school committee in 2019 and 2021.
Fusion is accusing the school committee of violating the Massachusetts Open Meeting law, the Americans With Disabilities, and its First Amendment rights when it denied its applications to open a private school in Andover. The company, which runs schools for students in grades 6-12 who struggle in normal school settings, is seeking $2.6 million for the 10-year lease it signed at 3 Dundee Park Drive in September 2018 and $1.4 million for its build out of the site.
Fusion has also accused APS of withholding evidence during the discovery process, and said the documents showing payments to Fusion the district released last month should have been turned over in the initial discovery phase.