675 F.3d 26 (1st Cir. 2012), 10-2184, D.B. ex rel. Elizabeth B. v. Esposito

Docket Nº:10-2184.
Citation:675 F.3d 26
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:D.B., a minor, by his next friend and mother ELIZABETH B.; Elizabeth B.; David B., Plaintiffs, Appellants, v. Kirsten ESPOSITO, both individually and in her role as former Director of Special Education for the Sutton School District, f/k/a Kirsten Brunsell; Cecilia DiBella, both individually and in her role as Superintendent of Schools for the Sutt
Attorney:David R. Bohanan for appellant. David S. Lawless and Regina Williams Tate, with whom Nancy Frankel Pelletier, Robinson Donovan, P.C., and Murphy, Hesse, Toomey & Lehane, LLP were on brief, for appellees Kirsten Esposito, Cecilia DiBella, Sutton School District, and Sutton School Committee. Julie ...
Judge Panel:Before LYNCH, Chief Judge, LIPEZ and THOMPSON, Circuit Judges. LYNCH, Chief Judge, concurring.
Case Date:March 23, 2012
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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675 F.3d 26 (1st Cir. 2012)

D.B., a minor, by his next friend and mother ELIZABETH B.; Elizabeth B.; David B., Plaintiffs, Appellants,

v.

Kirsten ESPOSITO, both individually and in her role as former Director of Special Education for the Sutton School District, f/k/a Kirsten Brunsell; Cecilia DiBella, both individually and in her role as Superintendent of Schools for the Sutton School District; Sutton School District; Sutton School Committee; Massachusetts Department of Education, Defendants, Appellees.

No. 10-2184.

United States Court of Appeals, First Circuit.

March 23, 2012

Heard June 6, 2011.

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[Copyrighted Material Omitted]

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David R. Bohanan for appellant.

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David S. Lawless and Regina Williams Tate, with whom Nancy Frankel Pelletier, Robinson Donovan, P.C., and Murphy, Hesse, Toomey & Lehane, LLP were on brief, for appellees Kirsten Esposito, Cecilia DiBella, Sutton School District, and Sutton School Committee.

Julie B. Goldman, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee Massachusetts Department of Education.

Before LYNCH, Chief Judge, LIPEZ and THOMPSON, Circuit Judges.

LIPEZ, Circuit Judge.

This case requires us to examine the rights of a disabled child under the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. §§ 1400-1491, and to assess whether the child and his parents have raised triable discrimination or retaliation claims under other provisions of federal law.

D.B. is a disabled child who lives with his parents in Sutton, Massachusetts. From 1999 until 2005, D.B. was a student in the Sutton public school system, which each year developed an individualized education program (" IEP" ) for him, as required by the IDEA. In 2005, dissatisfied with the services D.B. was receiving and, in particular, with D.B.'s 2005 IEP, D.B.'s parents removed him from the Sutton school system and enrolled him in a private learning center. In response, the Sutton school system sought a determination from an independent hearing officer (" IHO" ) of the Massachusetts Bureau of Special Education Appeals (" BSEA" ) that D.B.'s 2005 IEP complied with the IDEA. D.B. and his parents sought the opposite determination, as well as reimbursement for the costs of D.B.'s private education.

After the IHO ruled for the Sutton school system, D.B. and his parents sought judicial review of the IHO's decision by filing a lawsuit in Massachusetts state court, which was later removed to the United States District Court for the District of Massachusetts. The district court upheld the IHO's decision in a summary judgment ruling. This timely appeal followed.

D.B. and his parents argue that the district court erred by affirming the ruling of the IHO that she could determine the compliance of D.B.'s 2005 IEP with the IDEA without first determining D.B.'s potential for learning and self-sufficiency. They also argue that they raised triable claims under the First Amendment, the Rehabilitation Act of 1973 (" Rehabilitation Act" ), Titles II and V of the Americans with Disabilities Act (" ADA" ), and 42 U.S.C. §§ 1983 and 1985. Appellees are the Sutton School District; the Sutton School Committee; Cecilia DiBella, the Sutton Superintendent of Schools; Kirsten Esposito, the former Sutton Director of Special Education; and the Massachusetts Department of Education.

Finding no error in the district court's entry of summary judgment against appellants, we affirm.

I.

A. Factual Background

D.B. was born in September 1996 and now is fifteen years old. As a result of violent seizures during his infancy, D.B. has experienced significant developmental delays. He has been diagnosed with verbal apraxia, which is a motor speech disorder, and with dysarthria, which is a weakening of the speech-producing muscles. There is no dispute that D.B. is disabled and that his disability affects not only his speech but also his expressive and receptive communication, reading, focus, and overall cognition.

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D.B. began receiving specialized services to address his disability during his infancy. These services continued after he entered the Sutton public school system in the fall of 1999, at which time he received his first annual IEP— a written document describing his development and laying out goals and services for him. Although D.B. was then three years old, his cognitive skills were equivalent to those of a twelve- to eighteen-month-old. He followed simple one-step directions and could imitate certain sounds, but he was essentially nonverbal and had difficulty sorting items. Despite making some developmental progress during the 1999-2000 school year, he remained nonverbal.

During the summer of 2000, D.B.'s parents enrolled him in an intensive, supplemental speech and language program. Encouraged by D.B.'s progress in the supplemental program, his parents pressed the Sutton school system to incorporate additional services into D.B.'s curriculum. As a result, during the 2000-2001 school year, D.B.'s speech therapy sessions became more frequent, he received a one-on-one aide, and he was introduced to sign language and the augmentative Picture Exchange Communication System (" PECS" ). D.B. learned to produce ten consonant sounds and some word approximations, sign and gesture with some effectiveness, and use the PECS to convey basic messages. Overall, his communication, motor skills, and social skills improved measurably.

During the 2001-2002 school year, D.B. was placed in a preschool classroom with fourteen children, one teacher, and one paraprofessional, as well as D.B.'s one-on-one aide. Every week, he received five speech therapy sessions, two occupational therapy sessions, and one physical therapy session. These sessions proved useful. An evaluation conducted by a speech pathologist in late 2001 reveals that D.B. could produce sounds approximating twelve words, sign about twenty-five words, gesture yes or no, and use the PECS to make choices but not to express feelings or call for attention. However, progress reports suggest that D.B. had trouble learning to operate the DynaMyte 3100, an augmentative communication device.1

D.B. entered kindergarten in the fall of 2002, when he was nearly six years old. In the mornings, pursuant to his 2002 IEP, he received one-on-one academic tutoring and attended various therapy sessions. In the afternoons, he rejoined his kindergarten classmates for lunch, recess, rest, and play. Despite making some developmental progress, D.B. still lagged far behind his classmates in important ways. For example, D.B. remained in diapers throughout his time in the Sutton school system. Carrying rubber gloves and pull-up diapers, his one-on-one aide always accompanied him to the bathroom past other children, who could deduce that D.B. was not toilet trained. D.B. also was unable to begin cultivating foreign language skills like his classmates.

A multidimensional evaluation conducted in the winter of 2002 revealed that D.B., then age six, displayed the neuropsychological development and linguistic abilities of a two- or three-year-old, and the gross motor skills of a three-or four-year-old. However, the evaluation also revealed that D.B.'s communication and focus had improved. He was using approximately eighty signs, could identify six capital letters and three written words, and appeared comfortable with his classmates.

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By June 2003, D.B. could follow two-step directions and could identify basic shapes, eight written words, and the letters in his name. He spent nine weeks during the summer of 2003 in supplemental speech therapy with a licensed therapist, Amy Kulcsar, and returned to kindergarten in the fall. Kulcsar continued to work with D.B. outside of school.

In January 2004, D.B.'s parents met with various representatives from the Sutton school system to discuss D.B.'s 2004 IEP, which was scheduled to be implemented in February 2004. D.B. could then identify all twenty-six capital letters and twenty-four lower case letters, albeit inconsistently, and could make most long vowel sounds and some consonant sounds. However, he often required prompting and still had difficulty focusing. Although the 2004 IEP did not recommend additional services, D.B.'s parents requested that the school system pay for D.B.'s ongoing supplemental speech therapy with Kulcsar. After an initial denial, an agreement was reached that provided for the school system's funding of Kulcsar's services during the upcoming summer, and the 2004 IEP went into effect.

In the summer of 2004, D.B.'s parents enrolled him in a six-week course at the Lindamood-Bell Learning Center, a private facility offering intensive language and literacy tutorials to disabled students. D.B.'s progress, however, was slow. Also in the summer of 2004, D.B.'s parents received a letter from Kirsten Esposito, who was then the Director of Special Education for the Sutton school system. The letter summarized D.B.'s 2004 IEP and described " how [D.B.'s] daily routines [would] be implemented" when school resumed in the fall. The letter instructed D.B.'s parents to " drop [D.B.] off in the main entrance of the [school] and pick him up in the auditorium with the other families." Previously, D.B.'s mother, Elizabeth, had accompanied D.B. to his classroom each morning.

In the fall of 2004, D.B. advanced to first grade. One morning early in the school year, D.B.'s one-on-one aide met Elizabeth and D.B. at the school's main entrance and reiterated the drop-off instructions in Esposito's letter. Not wishing to start a fight in front of D.B., Elizabeth returned to her car and observed other parents accompanying their children into the school. Shortly thereafter, D.B.'s father, David, responded to Esposito's letter, stating that he and Elizabeth felt " singled out" by Esposito's drop-off instructions. Esposito replied that she had...

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