Doe v. Newton Pub. Sch.

• Decision Date: 27 July 2020
• Docket Number: Civil Action No. 19-cv-12293-PBS
• Citation: 474 F.Supp.3d 434
• Parties: John DOE, Jane Doe, and David Doe, Plaintiffs, v. NEWTON PUBLIC SCHOOLS and the Bureau of Special Education Appeals of the Massachusetts Division of Administrative Law Appeals, Defendants.
• Court: U.S. District Court — District of Massachusetts

474 F.Supp.3d 434

John DOE, Jane Doe, and David Doe, Plaintiffs,

v.NEWTON PUBLIC SCHOOLS and the Bureau of Special Education Appeals of the Massachusetts Division of Administrative Law Appeals, Defendants.

Civil Action No. 19-cv-12293-PBS

United States District Court, D. Massachusetts.

Filed July 27, 2020

Eileen M. Hagerty, Kotin, Crabtree and Strong, LLP, Boston, MA, for Plaintiffs.

Jill M. Murray, Carolyn A. Weisman, City of Newton Law Department, Newton, MA, for Defendant Newton Public Schools.

Laronica K. Lightfoot, Office of the Attorney General, Boston, MA, for Defendant Bureau of Special Education Appeals.

MEMORANDUM AND ORDER

Saris, D.J.

This case involves a former student at Newton North High School ("NNHS") who is autistic and suffered from suicidal ideation after his sophomore year. The student (David Doe) and his parents (John and Jane Doe) contend that Newton Public Schools ("Newton") failed to reimburse them for a placement in a private school in violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 - 1482, and M. G. L. c. 71B. Newton took the position before the Bureau of Special Education Appeals of the Massachusetts Division of Administrative Law Appeals ("BSEA") that its proposed accommodations, including a program at the high school named "LINKS," met the student's needs. The student and his parents bring this action against Defendants Newton and the BSEA, seeking judicial review of a final decision and order rendered by the BSEA.

Now, the Does seek to supplement the record with: (1) an affidavit from Plaintiffs’ previous attorney who litigated before the BSEA; (2) redacted Individualized Education Programs ("IEPs") for other students in the LINKS program; (3) the complete July 6, 2017 letter from Mr. Doe to the Lurie Center, which was partially read at the administrative hearing; and (4) two Newton school calendars. Defendants have assented to the last request but oppose the others.

After hearing, the Court ALLOWS the admission of the attorney's affidavit only insofar as it recounts statements at unrecorded hearings; DENIES Plaintiffs’ request to compel production of peer IEPs and to submit related expert testimony; ALLOWS the admission of the Lurie Center letter only to the extent consistent with the doctrine of completeness; and ALLOWS the admission of the 2017-2018 Newton Public Schools Calendar and the 2017-2018 NNHS daily and weekly block schedule.

BACKGROUND

The following facts drawn from the voluminous administrative record are relevant to the present dispute over the request for additional discovery and supplementation of the record.

I. Newton North High School

In 2015, David Doe entered NNHS for ninth grade with a primary diagnosis of autism, demonstrating moderate need for support services. Newton provided David with an Individualized Education Program ("IEP") in order to provide him with a Free Accessible Public Education ("FAPE") under the IDEA. David's 2015-2016 IEP described David as a "very bright student" with "inconsistent cognitive skills [ranging] from borderline to high average." Administrative Record ("A.R.") IV: 1178. "Socially and emotionally, [David] present[ed] as a lonely [and] unhappy" person who "struggle[d] with interpersonal relationships" and self-esteem. A.R. IV: 1178. The IEP Team noted David was "vulnerable to acts of bullying." A.R. IV: 1190. He was placed in a "full inclusion" educational environment, where special education services "outside the general education classroom" would be given "less than 21% of the time." A.R. IV: 1191.

David's 2016-2017 IEP noted a low level of need for services for tenth grade, and he maintained his full inclusion placement. In March 2017, David's teachers noted that his performance had worsened over the year, despite his dedication to his studies. In response, David's parents requested that he be prevented from participating in honors-level courses in the next academic year. They also requested that NNHS terminate his special support services besides testing accommodations, as David had become "highly resistant" to receiving advice from professionals or admitting his need for them. A.R. IV: 1327.

On March 8, 2017, David's IEP Team convened for an annual review meeting to create his IEP for eleventh grade, 2017-2018. The resulting 2017-2018 IEP maintained David's "full inclusion" special education placement with a low level of need for services. David was to receive social pragmatics services at a frequency of one 30-minute session per month and one 15-minute session per five-day cycle.

On March 23, 2017, David was admitted to Riverside Community Care for an assessment related to suicidal ideation. On June 22, 2017, following a supplemental IEP Team meeting, Newton proposed a revised IEP and placement for 2017-2018. In addition to the social pragmatics sessions, Newton proposed adding one-hour academic support sessions with a special education teacher to occur four times a week, as well as a fifteen-minute consultation per month. David was assessed to be at a slightly higher level of need, requiring two to five hours of services per week. David's placement was kept as a full inclusion program at Newton.

On July 14, 2017, David presented to the Lurie Center for Autism at the Massachusetts General Hospital ("Lurie Center") for a psychiatric consultation related to his active suicidal ideation. On July 19, 2017, the Does informed Newton via email that David was receiving inpatient psychiatric care at the North Shore Medical Center. They reported that he had been suffering from bullying at NNHS. The Does also stated that David was "adamantly opposed to enrolling at NNHS this fall," and that they "foresee as quite unlikely [David]’s enrolling at NNHS for his junior year." A.R. IV: 1497. Dean Scott Heslin requested a meeting to discuss the bullying allegations and transfer, but the Does declined due to David's unstable condition. On August 3, 2017, the Does repeated their belief that David should not continue at NNHS, and they stated that they were considering alternative options such as transferring to Newton South High School ("NSHS").

On August 9, 2017, David was discharged from McLean Southeast Adolescent Residential Program ("McLean"), where he had been transferred a few weeks earlier. A summary letter from his McLean providers noted diagnoses of major depressive disorder, generalized anxiety disorder, and mixed obsessional thoughts and acts. David had made "[l]ittle progress" during his inpatient stay due to "serious emotional difficulties and thought rigidity," particularly concerning school performance and suicide. A.R. IV: 1505 (emphasis omitted). David's providers at McLean assessed that he would "require extensive therapeutic support in order to be able to access the academic curriculum at any level." Id. They recommended that David be "considered for services offered at a therapeutic school" that could provide "intensive interventions," such as "a program with experience in working with teens with high functioning Autism spectrum disorder and ongoing mood crises." Id.

On August 18, 2017, the Does rejected the 2017-2018 IEP and placement proposal and requested a meeting to discuss the rejection, stating that "[David] has been hospitalized in pediatric psychiatric facilities this summer. We believe that his needs require an appropriate therapeutic placement for his continued schooling." A.R. IV: 1382-83, 1483-84. Newton and the Does scheduled a meeting to review the rejected IEP on August 31, 2017.

On August 29, 217, a letter from Franklin Academy informed the Does that David had been accepted into its residential program. An invoice for the year's tuition was issued on August 30, 2017. According to the academic calendar, school was scheduled to begin on September 4, 2017.

On August 31, 2017, the Does and educational advocate Teresa Sauro met with the Newton IEP team. Newton proposed that David participate in the LINKS program ("LINKS") at NNHS for the 2017-2018 school year. During the meeting, Newton provided the Does with two handouts describing the LINKS program. One handout describes LINKS as providing a "highly supportive and flexible environment to support students with emotional disabilities." A.R. IV: 1567. The other states that LINKS "supports students with chronic attendance problems." A.R. IV: 1568. The Does later informed their attorney, Lillian Wong, that they were skeptical of LINKS because "the program is a big pullout, [David] has been stigmatized by past pullouts ... in [David]’s mind, this stigmatization is what causes him to be bullied and is thus what causes his consideration of suicide." A.R. IV: 1565. The Does believed LINKS would likely intensify David's suicidal thoughts. At the August 31, 2017 team meeting, the Does and Sauro stated their intent to place David at Franklin Academy.

On September 7, 2017, Newton informed the Does that it did not intend to support their request for reimbursement or funding associated with David's unilateral placement at Franklin Academy. Newton furthermore advised that, as a result of the "recent changes in [David]’s school presentation, and in an effort to gain further information regarding [David]’s current educational profile and needs, the district is also proposing to conduct an extended evaluation of [David] in a 45-day assessment day program." A.R. IV: 1573. Newton requested that the Does sign a release to accept referral packets to potential 45-day assessment programs.

On September 8, 2017, Newton forwarded a new IEP proposal which included "counseling support in the LINKS program, increased Speech and Language service and Academic Support." A.R. IV: 1588-90. Counseling was to take place twice a week, academic support classes four times per week, and social pragmatics sessions once a week. David would otherwise "remain in classes at his academic level." A.R. IV: 1589. Dean Heslin later clarified at the BSEA hearing that David was to...