Bercovitch v. Baldwin School, Inc.
| Decision Date | 03 November 1997 |
| Docket Number | No. 97-1739,97-1739 |
| Parties | 123 Ed. Law Rep. 1067, 8 A.D. Cases 259, 11 NDLR P 273 Jason BERCOVITCH, et al., Plaintiffs, Appellees, v. BALDWIN SCHOOL, INC., et al., Defendants, Appellants. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
William Ramirez-Hernandez, with whom Nora Vargas-Acosta and Vargas & Ramirez, Rio Piedras, PR, were on brief, for appellees.
Alfredo Fernandez-Martinez, with whom Maria Eugenia Rodriguez-Lopez and Martinez Alvarez, Menendez Cortada & Lefranc Romero, San Juan, PR, were on brief, for appellants.
Before TORRUELLA, Chief Judge, LYNCH, Circuit Judge, and DICLERICO, * District Judge.
This appeal arises out of a dispute between a private non-special needs school, and a student with Attention Deficit-Hyperactivity Disorder (ADHD) and his parents. It requires us to decide, as a matter of first impression in this circuit, whether a plaintiff may be compelled to arbitrate claims under the Americans with Disabilities Act (ADA) where the plaintiff had voluntarily signed an agreement requiring arbitration. Because the district court denied arbitration and issued a preliminary injunction requiring the school to keep a student whom it had suspended, this case also raises questions, again of first impression, about the extent to which a private independent school must accommodate a student with ADHD whose behavior repeatedly violates school codes of discipline and proper behavior.
After Jason Bercovitch committed a series of offenses resulting in several suspensions and repeated warnings in sixth grade (and earlier), the Baldwin School indefinitely suspended him in January of 1997. The school gave no indication as to when he might be able to return. Jason and his parents brought suit in federal court against the school, its Headmaster, and Principal, 1 seeking declaratory and injunctive relief under the ADA, 42 U.S.C. § 12182 (1994), the Rehabilitation Act, 29 U.S.C. § 794 (1994), and a Puerto Rican civil rights statute. The Bercovitches claimed that the school had failed properly to accommodate Jason's affliction with ADHD 2 (although they had not previously had him diagnosed or invoked the ADA), and therefore unlawfully discriminated against Jason on the basis of a disability.
The school moved to dismiss the case and to compel arbitration, based on an arbitration agreement between the school and the Bercovitches. The district court denied the motion and maintained jurisdiction over the case. The court granted a preliminary injunction, ordering the school to readmit Jason. When Jason's disruptive behavior continued, the school notified the Bercovitches that the contract of enrollment ended with the sixth grade and the school was unwilling to reenroll him for seventh grade. The Bercovitches filed a contempt motion against the school. The court did not grant the contempt motion but extended its preliminary injunction, ordered the school to enroll Jason in the seventh grade, and ordered that various alterations be made in the school's normal procedures.
We reverse and hold, on the facts here, that the parties are required to arbitrate the merits of this dispute and that the district court erred in granting preliminary injunctive relief. As described later, we vacate the injunction and refer the matter to arbitration.
At the beginning of this lawsuit, Jason Bercovitch was eleven years old and in the sixth grade at the Baldwin School. Jason is currently in the seventh grade. The Baldwin School is an independent, non-profit, non-sectarian, English language school located in Bayamon, Puerto Rico. It does not have any special education programs. Jason has attended the school since pre-kindergarten. Over the years Jason has performed extremely well academically, but has had consistent behavioral problems, which the school made efforts to accommodate. 3
In the fifth grade, Jason was placed on probation for misconduct. Jason's parents met with the school Principal, Jason's psychologist, and Jason's teachers to discuss strategies for accommodating Jason's behavioral problems. The psychologist recommended strategies for dealing with Jason, such as extra positive reinforcement, declining to argue with Jason, providing Jason with time-outs or allowing him to go for walks, and disregarding minor violations. As a result of this meeting, the school made efforts to implement these suggestions and to attend to Jason in an individualized manner. Jason's parents came in for monthly meetings to discuss his progress.
In Jason's sixth grade year, a new principal entered the school. Jason was still on disciplinary probation at this time. In the fall of his sixth grade year, Jason's behavioral problems became more severe; he received various disciplinary referrals and two suspensions. Jason's behavior included the use of disrespectful language, persistent violations of classroom rules, and defiance of teachers' requests. Frequently Jason would refuse to settle down at the beginning of class, making it impossible for the teacher to begin lessons. He often interrupted class inappropriately, and drew attention to himself. On numerous occasions he made derogatory comments towards other students and teachers, including swearing at other students and teachers, and calling his teachers liars.
The new principal, Nancy Pagan, met with the Bercovitches and took several steps to accommodate Jason's individual needs. 4 Ms. Pagan, on her own initiative, contacted Jason's therapist to discuss his behavioral problems. She was concerned that the efforts to accommodate Jason were not succeeding, and his behavior was getting worse.
Jason's disruptive and disrespectful antics reached a zenith on January 15, 1997, when his behavior became so extreme and incorrigible that the school suspended him indefinitely. This particular event started with Jason calling a teacher unacceptable names 5 in front of other children, after the teacher had asked Jason to keep quiet. Jason was brought to the Principal's office, and he denied ever saying anything wrong. The Principal tried to discuss the matter with Jason, but his anger grew and he began kicking the principal's desk, screaming at the teacher in the room, and saying he did nothing wrong. When the Principal phoned Mrs. Bercovitch, Jason stormed out of the office, kicked the door, stormed down the corridor, ripped everything off of a bulletin board, kicked a lost and found box, and finally, at the Principal's pleading, returned to the Principal's office. The Principal felt the situation was completely out of control, and contacted the Headmaster to come and meet with her and Mrs. Bercovitch. The Headmaster told Mrs. Bercovitch that the school felt that it had tried everything with Jason and had no other option but to suspend him.
Jason's parents urged the school to reconsider its decision to suspend Jason. They told the Headmaster, Dr. Austen, that they suspected that Jason had ADHD, and that they were presently having him evaluated. This was the first time the parents asserted that their son might have a recognized disorder. The school had earlier recommended that the parents take Jason to be evaluated. The parents did not do so until Jason was suspended. The school refused to reconsider its position.
In early February of 1997, Jason's psychologist diagnosed him with ADHD, as well as with Oppositional Defiant Disorder (ODD), and Childhood Depression. Jason was then referred to a psychiatrist, Dr. Camino, who recommended reinstatement to school, medication, and family therapy. His written report mentioned only ADHD, and not ODD or Childhood Depression.
The school refused to reinstate Jason, asserting that all of the psychiatrist's suggestions for accommodating Jason had been utilized in the past, unsuccessfully. The school also maintained that having Jason in school was too disruptive for the staff and other students.
On March 10, 1997, the Bercovitches filed this action in the United States District Court for the District of Puerto Rico. They sought declaratory, injunctive, and compensatory relief under the ADA, the Rehabilitation Act, and Puerto Rican civil rights laws. The Bercovitches asserted that ADHD was a disability under those laws, and that the school's failure to properly accommodate Jason constituted unlawful discriminatory behavior. The district court held a five-day hearing beginning on March 25 which was limited to the issue of the preliminary injunction. During the preliminary injunction hearing, the school moved to dismiss the action for lack of subject matter jurisdiction. The school argued that plaintiffs failed to exhaust their administrative remedies, which it says is required by the ADA and the Rehabilitation Act, 6 and that the contract between the parties required arbitration of the matter. The school also moved to compel arbitration and to dismiss the action upon arbitration.
On April 4, the district court, in a ruling from the bench, denied the motion to dismiss and the motion to compel arbitration, and granted the preliminary injunction. A written memorandum and order was issued on April 11. The court found that in order for Jason's behavioral problems to improve, his ADHD needed to be treated in a school setting. The court ordered the school to reinstate Jason immediately, and ordered the parties to work together to arrive at a suitable accommodation plan for Jason. The injunction required that once Jason returned to school, the Bercovitches would enroll in family therapy, and Jason would begin taking medication to control his hyperactivity. The court's order stated that Bercovitch v. Baldwin Sch., 964 F.Supp. 597, 603 (D.P.R.1997). The court also stated:
[A]lthough ...
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