Doucette v. Georgetown Pub. Sch.

Decision Date26 August 2019
Docket NumberNo. 18-1160,18-1160
Citation936 F.3d 16
Parties Rachel DOUCETTE, for herself and Minor Son B.D.; Michael Doucette, for Himself and Minor Son B.D., Plaintiffs, Appellants, v. GEORGETOWN PUBLIC SCHOOLS; Town of Georgetown; et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Carol Ann Kelly, with whom Phillip E. Murray, Jr. and Murray, Kelly, & Bertrand, P.C., Woburn, MA, were on brief, for appellants.

Alexandra R. Hassel, with whom Regina M. Ryan and Louison, Costello, Condon & Pfaff, LLP, Boston, MA, were on brief, for appellees.

Before Thompson, Selya, and Lipez, Circuit Judges.

LIPEZ, Circuit Judge.

Rachel and Michael Doucette sued Georgetown Public Schools, the school committee, the town, and certain school district employees (collectively, "the school district") on behalf of their severely disabled child, B.D. The Doucettes alleged that the school district deprived B.D. of his service animal and subjected him to a dangerous environment in violation of federal and state law, thereby causing B.D. to experience seizures and hospitalization. They sought money damages for alleged permanent physical and emotional harm to B.D., as well as for loss of consortium to the parents.

The school district moved for judgment on the pleadings, arguing that the Doucettes had failed to exhaust their federal claims -- a Rehabilitation Act claim and a substantive due process claim under 42 U.S.C. § 1983 -- through the administrative procedures prescribed by the Individuals with Disabilities Education Act ("IDEA"). See 20 U.S.C. §§ 1400 – 1491o ; 1415(l ). The IDEA requires exhaustion -- i.e., resort to the administrative process -- before a plaintiff may bring a civil action pursuant to other federal laws protecting the rights of disabled children if the relief sought is from the denial of a free appropriate public education. See 20 U.S.C. § 1415(l ). The administrative process culminates in an impartial due process hearing conducted by the state educational agency or the local educational agency, as determined by the state. See 20 U.S.C. § 1415(f).1

Agreeing that the Doucettes' federal claims were subject to the IDEA's exhaustion requirement, the district court2 granted the school district's motion as to those claims and remanded the Doucettes' state law claims to state court. We vacate that decision. Guided by the Supreme Court's decision in Fry v. Napoleon Community Schools, ––– U.S. ––––, 137 S. Ct. 743, 197 L.Ed.2d 46 (2017), and principles of exhaustion, we conclude that the gravamen of the Doucettes' Rehabilitation Act claim does not involve the denial of a free appropriate public education. As to the Doucettes' § 1983 claim, we conclude that it either was exhausted or that continued engagement with the IDEA's administrative scheme would have been futile. Hence, no further administrative pursuit was required for the § 1983 claim.

I.B.D. has Isodicentric Chromosome

15q Duplication Syndrome ("15q Duplication Syndrome"), a rare genetic disorder, which manifests differently among affected persons.3 In B.D.'s case, the syndrome manifests as developmental delay, frequent choking, vision problems, difficulties in balance, aggression, cognitive impairment, communication deficits, autistic spectrum disorder, epilepsy, and anxiety disorder, among other problems. In addition to causing these symptoms, B.D.'s disorder increases his risk of sudden unexpected death -- a risk correlated with seizure activity in children with 15q Duplication Syndrome.

B.D. attended Perley Elementary School ("Perley") from July 2009 until August 2012, when he was between the ages of three and six years old. Given his disabilities, he had an individualized education program ("IEP"),4 which required, among other things, that he receive a consistent routine, a seizure plan, and one-on-one assistance, and that he participate in an extended-school year ("ESY") program.5

B.D.'s parents were dissatisfied with the services provided to B.D. at Perley. Within months of his arrival, they began complaining to administrators, teachers, and the superintendent. In the spring, they met with his IEP team to formally request a change to B.D.'s IEP, which was denied. In the weeks that followed, they continued to convey concerns, noting that B.D. was at times unsupervised, was bolting from class, and, on one occasion, fell and hit his head. Due to these concerns, the Doucettes removed B.D. from Perley, and he remained out of school from May to September 2010.

In July 2010, while B.D. was out of school, the Doucettes requested a hearing before the Massachusetts Bureau of Special Education Appeals ("BSEA"), seeking an amendment to B.D.'s IEP and an out-of-district placement for him. The hearing was held at the end of August, and, a month later, the BSEA hearing officer issued a decision. Although the hearing officer found that B.D.'s IEP was inadequate, the officer found that an out-of-district placement was unwarranted, and ordered a new IEP for B.D. B.D. then returned to Perley in the fall of 2010 with an amended IEP.

During the 2010-2011 school year, the Doucettes continued to be dissatisfied with the implementation of B.D.'s IEP. B.D. began having "staring spells with eye rolling," symptomatic of potential seizure activity. And, although B.D.'s amended IEP included a safety and seizure plan, one of B.D.'s teachers indicated to B.D.'s mother that she was unaware of the plan.

In the fall of 2011, B.D. began working with a certified service dog that assisted him with his anxiety and balance, and alerted his caretakers to an impending seizure.6 In November of that year, the Doucettes requested that the school district permit the dog to accompany B.D. at school as a disability accommodation. The school district refused. When B.D.'s staring spells and anxiety increased, however, the school district offered him at-school access to the service animal if the Doucettes agreed to a school policy regarding the dog's handling. The Doucettes refused to sign this agreement, which they claim violated the Americans with Disabilities Act ("ADA"). They demanded that the district comply with the ADA. The school district then denied B.D. access to the dog but ordered a behavioral assessment, to take place the next fall (i.e., fall of 2012), to determine whether B.D.'s IEP should be amended to include the service dog.

That summer, as part of the school district's ESY program, B.D. was placed in an unfamiliar building, with unfamiliar equipment, teachers, and sounds, including "gushing sounds from exposed pipes," and "the barking of the Guidance Counselor's pet dog." At this time, he experienced his first tonic-clonic seizure,7 lasting over twenty minutes and requiring hospitalization. After the seizure, the Doucettes demanded an immediate amendment to B.D.'s IEP to grant him access to his service dog at school. Their request for an IEP amendment to include the service animal was denied, but the school district granted B.D. permission to use the dog at school if his mother would act as its handler.

The Doucettes contest the adequacy of that arrangement to fulfill the school district's obligation to accommodate B.D. under section 504 of the Rehabilitation Act. Although not specifically stated in the complaint, we infer that the service dog did not then begin accompanying B.D. at school -- at least not on a regular basis. The Doucettes' section 504 claim is premised on B.D.'s denial of access to his service animal, which they say caused B.D. to "sustain five seizures in July, August, and September of 2012." The school district does not argue that the service animal accompanied B.D. at school during these seizures, but that "four of the five seizures suffered by B.D. occurred after he was permitted to bring his service dog to school."

The Doucettes' complaint likewise provides no specific details as to why the Doucettes felt that the school's handling policy violated the ADA. As a rule, the ADA requires a public entity to "modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability." 28 C.F.R. § 35.136(a). In addition, a public school may, in some instances, violate disability laws by requiring a student to provide an outside adult handler to accompany the student and her service animal at school. See, e.g., Alboniga v. Sch. Bd., 87 F. Supp. 3d 1319, 1342 (S.D. Fla. 2015). In a sentence in its brief, the school district states, "[T]he [Doucettes'] [c]omplaint does not sufficiently plead that the District outright denied B.D. access to his service dog; instead, the facts establish that the District had developed a policy ... regarding the handler for the service dog ... which the Parents refused to sign." The school district does not further develop this argument.8

In addition to demanding that the school grant B.D. access to his service animal at school, B.D.'s mother also complained to the school district about the changes in her son's program and requested a meeting with his IEP team. Two weeks later, B.D. experienced a second tonic-clonic seizure while in an unfamiliar environment and under the supervision of a substitute teacher. After this second seizure, the Doucettes requested an alternative school placement for B.D. Their request was denied.

In the following weeks, B.D. suffered two more tonic-clonic seizures, each requiring a hospital stay. After the fourth seizure, the Doucettes removed B.D. from school and again requested an alternative school placement. They explained that "B.D. had had four [tonic-clonic] seizures in his lifetime, all of which happened in school [in the last month]," and that B.D.'s placement was "not only inappropriate but unsafe." They also presented the school district with a letter from B.D.'s doctor stating that the current placement was "inadequate in terms of managing [B.D.'s] seizures," expressing concerns regarding the "school's ability to handle [B.D.'s] health and safety," and recommending, "...

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