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Kewley v. Department of Elementary and Secondary Education

Appeals Court of Massachusetts, Suffolk

August 22, 2014

Barbara Kewley
v.
Department of Elementary and Secondary Education & others. [1]

Argued December 11, 2013

Civil action commenced in the Superior Court Department on August 6, 2009.

Page 155

The case was heard by Heidi E. Brieger, J., on motions for summary judgment.

Daniel O'Connor ( Laura Elkayam with him) for the plaintiff.

John M. Stephan, Assistant Attorney General, for the Department of Elementary & Secondary Education.

Thomas A. Mullen for the Wachusett Regional School Committee.

Present: Green, Sikora, & Milkey, JJ.

OPINION

[15 N.E.3d 225] Sikora, J.

In 2009 the plaintiff, Barbara Kewley, brought suit in Superior Court against three governmental defendants: the Department of Elementary and Secondary Education (DESE); the Board of Registration in Speech-Language Pathology and Audiology (board); and the Wachusett Regional School Committee (school committee) [15 N.E.3d 226] (collectively, defendants). She sought a judgment declaring her eligibility to practice speech and language therapy in public schools under the authority of her licensure from the DESE and without licensure from the board, and an affirmative injunction compelling the school committee to grant her a teacher's contract as a speech therapist. The defendants contested those entitlements. At the conclusion of discovery, the parties composed a statement of agreed material facts and submitted cross motions for summary judgment. By memorandum of decision and a conforming order, a judge of the Superior Court granted full summary judgment in favor of all defendants. Kewley has appealed. For the following reasons, we now affirm.

Background .

1. Early biography .

In 1981 Kewley earned a bachelor of science degree in the field of speech, language, and hearing disorders. Also in 1981, she earned a license from the Department of Education certifying her as an " educator" in " all levels" of " speech," " language," and " hearing disorders" (DESE license). The life of the license originally was indefinite. The Legislature subsequently renamed the Department of Education as DESE. Pursuant to the Education Reform Act of 1993, DESE has required renewal of licensure at five-year intervals. G. L. c. 71, § 38G. Kewley has continuously maintained her DESE license.

During the school year of 1981-1982, Kewley worked for the Wachusett Regional School District (Wachusett)[2] as a speech assistant providing speech and language services to its public school children. During the 1982-1983 academic year, she remained with Wachusett at the higher position of speech therapist

Page 156

performing similar services and overseeing an aide. In September of 1983, she resigned from that position and relocated to New Hampshire. She later returned to Massachusetts, and in 1991 sought reemployment with Wachusett.

2. Legislation .

Meanwhile by St. 1982, c. 666, the Legislature on January 6, 1983, introduced a system for " the licensing of persons engaged in the practice of speech-language pathology and audiology" (act), effective immediately. The legislation created the board, with authority to set and to enforce standards for professional qualification, see G. L. c. 13, § § 85-87, and G. L. c. 112, § 139; and to exercise the power of licensure, G. L. c. 112, § 140.

The act itself prescribed, among other requirements for a license applicant, (1) a bachelor's degree and a master's degree in the area of speech-language pathology and audiology from a certified institution; (2) completion of a period of supervised professional practice; and (3) passage of an examination approved by the board. G. L. c. 112, § 144. The act mandated that " [a]ll persons" then " actively engaged in the practice of speech-language pathology and audiology in the commonwealth shall apply for a license" from the board within one year from its effective date. St. 1982, c. 666, § 4. The act prohibited any person to " hold himself out as a speech-language ...


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