Marrero v. Puerto Rico

• Decision Date: 09 October 2020
• Docket Number: CIVIL NO. 18-1286(RAM)
• Parties: JOSE VALENTÍN MARRERO, EMERITA MERCADO ROMAN, PERSONALLY, AS MEMBERS OF THEIR CONJUGAL PARTNERSHIP AND ON BEHALF OF THEIR SON GAJVM Plaintiffs v. COMMONWEALTH OF PUERTO RICO; DEPARTMENT OF EDUCATION OF THE COMMONWEALTH OF P.R. Defendants
• Court: U.S. District Court — District of Puerto Rico

JOSE VALENTÍN MARRERO, EMERITA MERCADO ROMAN,
PERSONALLY, AS MEMBERS OF THEIR CONJUGAL PARTNERSHIP
AND ON BEHALF OF THEIR SON GAJVM Plaintiffs
v.
COMMONWEALTH OF PUERTO RICO;
DEPARTMENT OF EDUCATION OF THE COMMONWEALTH OF P.R. Defendants

CIVIL NO. 18-1286(RAM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

October 9, 2020

AMENDED OPINION AND ORDER
(NUNC PRO TUNC)

RAÚL M. ARIAS-MARXUACH, U.S. District Judge

Pending before the Court are (1) José Valentín-Marrero and Emerita Mercado-Roman's, (collectively, "Plaintiffs" or "Parents") Motion for Summary Judgment and (2) the Commonwealth of Puerto Rico and the Department of Education of the Commonwealth of Puerto Rico, ("collectively, Defendants") Cross-Motion for Summary Judgment (Docket Nos. 167 and 184 respectively). Having considered the parties' briefs, the evidence on the record and the applicable law, the Court hereby DENIES in part Plaintiffs' Motion for Summary Judgment at Docket No. 167 and GRANTS in part Defendants' Motion for Summary Judgment at Docket No. 184.

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I. PROCEDURAL BACKGROUND

On May 11, 2018, Plaintiffs brought the present action against the Commonwealth of Puerto Rico and the Department of Education of the Commonwealth of Puerto Rico ("DOE") on behalf of their son GAJVM. They sought injunctive relief, reimbursement of costs, and attorney's fees for alleged violations of the Individuals with Disabilities Education Act ("IDEA" or "Act"), 20 U.S.C. §§ 100 et seq. (Docket No. 1). Particularly, Plaintiffs requested an injunction ordering the DOE to prepare a 2018-2019 Individualized Education Program ("IEP") for GAJVM, a minor registered with the DOE as a student with disabilities, that incorporates Applied Behavior Analysis ("ABA") services.¹ Id. at 3, 11-13. That same day, Plaintiffs filed a Motion for Preliminary Injunction reiterating this request. (Docket No. 2).

Defendants filed two motions to dismiss for failure to exhaust administrative remedies before filing their Complaint and lack of jurisdiction. (Docket Nos. 11 and 35). The then presiding District Judge rejected DOE's arguments and denied both motions. (Docket No. 63).

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Following a Preliminary Injunction Hearing held on September 13, 2018, a Magistrate Judge issued a Report and Recommendation ("R&R") granting in part Plaintiffs' request for injunctive relief. (Docket No. 55). Plaintiffs timely objected to the R&R. (Docket No. 58). On November 13, 2018, the Court issued an Order adopting the R&R's background and conclusion but setting aside its conclusion and granting Plaintiffs' Motion for Preliminary Injunction. (Docket No. 62). Specifically, the Court ordered the parties to "convene a COMPU meeting on or before December 14, 2018 and prepare a new IEP for the remainder of the 2018-2019 school year designed by an ABA-certified provider that applies ABA services throughout the educational process." Id. at 7.

On December 19, 2018, Plaintiffs filed a Motion in Compliance with Order and Request for Finding of Contempt, in which they alleged that the DOE did not comply with the Court's November 13, 2018 order and requested that Defendants be found in contempt of Court. (Docket No. 66). Additionally, Plaintiffs presented an Urgent Motion Requesting Order seeking that GAJVM be placed at the Government's expense at Starbright Academy, a private school in Ponce, Puerto Rico. (Docket No. 69).

On January 28, 2019, the Court issued an order (1) holding in abeyance Plaintiffs' request for contempt and (2) denying Plaintiffs' request that GAJVM be placed at Starbright Academy. (Docket No. 80). The Court ordered the parties to convene another

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COMPU meeting by February 25, 2019 and prepare a new IEP for the remainder of the 2018-2019 school year. Id. Subsequently, both parties filed separate motions notifying the Court of the DOE's compliance, or lack thereof, with the Order at Docket No. 80. (Docket Nos. 88 and 90). On May 30, 2019, Plaintiffs filed an Urgent Motion Requesting Order requesting that the Court order the DOE to fully implement the 2017-2018 IEP prior to drafting an IEP for 2019-2020 or to design a new IEP (for either 2018-2019 or 2019-2020) under the Court's supervision and in compliance with previous orders. (Docket No. 101 at 8).

This case was reassigned to the undersigned on June 20, 2019. (Docket No. 103). Pursuant to this Court's order, Plaintiffs filed an Amended Complaint on September 6, 2019 (Docket No. 115) and Defendants filed their Answer to the same on December 24, 2019 (Docket No. 138). The Court held various settlement conferences with the parties hoping that an agreement could be reached and GAJVM could receive an academic placement for the remainder of the 2019-2020 academic year. (Docket Nos. 142; 143). The Court also cautioned the parties that a reasonable settlement was the most expedient and efficient way to resolve the dispute. The settlement negotiations proved to be unsuccessful. Accordingly, the Court set a bench trial date for July 15, 2020, to resolve the case at bar prior to the commencement of the 2020-2021 academic year. (Docket

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No. 183). That trial date was rescheduled for the month of August 5, 2020 at Plaintiffs' request. (Docket No. 202).

On June 15, 2020, Plaintiffs filed their Motion for Summary Judgment. (Docket No. 167). Defendants filed a Response in Opposition (Docket No. 187) on June 29, 2020 and Plaintiffs filed a Reply to Defendants' Response in Opposition (Docket No. 206). Subsequently, Plaintiffs filed a Motion Supplementing Request for Relief, clarifying their request for compensatory services to be extended under IDEA until GAJVM is 22 years old. (Docket No. 243).

Defendants in turn filed their own Motion for Summary Judgment on June 29, 2020. (Docket No. 184). In response, Plaintiffs filed an Opposition (Docket No. 221) and a Motion Supplementing Response in Opposition (Docket No. 231). Defendants also filed a Reply to Plaintiff's [sic] Response Statements of Uncontested Material Facts and Response to Additional Statements of Uncontested Material Facts (Docket No. 239) and Plaintiffs filed a Sur-Reply (Docket No. 250).

The Court ultimately vacated the bench trial due to the dispositive motions and the parties' view that a trial was not necessary. (Docket No. 248).

II. APPLICABLE LAW

A. The Individuals with Disabilities Education Act

The IDEA allocates federal funding to States in exchange for their commitment to provide a "'free appropriate public

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education'—more concisely known as a FAPE—to all children with certain physical or intellectual disabilities." Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 748 (2017) (citing 20 U.S.C.A. § 1412(a)(1)(A)). See also C.G. ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 284 (1st Cir. 2008) ("Five Town") ("Congress designed the IDEA as part of an effort to help states provide educational services to disabled children.").

The Act defines a FAPE as:

[S]pecial education and related services that--

(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required [...]

20 U.S.C.A. §§ 1401(9). In other words, a FAPE encompasses "both 'instruction' tailored to meet a child's 'unique needs' and sufficient 'supportive services' to permit the child to benefit from that instruction." Fry, 137 S. Ct. at 748-49 (quoting 20 U.S.C.A. §§ 1401(9), (26), (29)) (emphasis added).

"The primary vehicle for delivery of a FAPE is the child's [Individualized Education Plan or] IEP." Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008). States are tasked with "the obligatory creation of an IEP for each student, reviewed annually and revised when necessary." Nickerson-

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Reti v. Lexington Pub. Sch., 893 F. Supp. 2d 276, 285 (D. Mass. 2012), aff'd (June 19, 2013) (citing Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 181-82 (1982)). IEPs are "created by a team of individuals including the student's parents and teacher, designated specialists, and a representative of the school." Id. (citing 20 U.S.C.A. § 1414 (d)(1)(B). The Supreme Court has emphasized that the core of the IDEA is the cooperative and collaborative IEP process that it establishes between parents and schools. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005). Specifically, the IEP must include: (1) the child's levels of academic achievement and functional performance; (2) academic and functional goals; (3) a description of how the child's progress towards said goals will be measured; (4) the special education and related services that will be provided; and (5) any applicable accommodations. See 20 U.S.C.A. § 1414 (d)(1)(A).

If the parties cannot agree to a sufficient IEP, "the child's parents may challenge either the school system's handling of the IEP process or the substantive adequacy of the IEP itself by demanding an administrative due process hearing before a designated state educational agency." D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 35 (1st Cir. 2012) (citing 20 U.S.C. § 1415(f)(1)(A)). Likewise, the public-school system can "test the validity of a proposed IEP or [...] challenge an existing IEP as

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over-accommodating." Id. (citing Schaffer, 546 U.S. at 53). In either case, the burden of persuasion "lies with the party challenging the IEP." Id. (emphasis added).

While there is "no mechanical checklist by which an inquiring court can determine the proper content of an IEP [...] [o]ne thing is clear: the substance of an IEP must be something different than the normal school curriculum and something more than a generic, one-size-fits-all program for children with special needs." Lessard, 518 F.3d at 23. The First Circuit has...