E.T. v. Bureau of Special Educ. Appeals of the Div. of Admin. Law Appeals

• Decision Date: 09 March 2015
• Docket Number: Civil Action No. 14–11892–FDS.
• Citation: 91 F.Supp.3d 38
• Parties: E.T., a minor, by his parents, Jane DOE and John Doe, and on their own behalf, Plaintiffs, v. BUREAU OF SPECIAL EDUCATION APPEALS OF THE DIVISION OF ADMINISTRATIVE LAW APPEALS, Massachusetts Department of Elementary Education; Andover School District; Patrick Bucco, Individually and in his capacity as Principal of Wood Hill Middle School ; Linda Croteau, individually and in her capacity as Former Special Ed Program Head for Wood Hill Middle School; Marinel McGrath, Superintendent, in her Official Capacity; and Annie Gilbert, School Committee Chair, in her Official Capacity, Defendants.
• Court: U.S. District Court — District of Massachusetts

91 F.Supp.3d 38

E.T., a minor, by his parents, Jane DOE and John Doe, and on their own behalf, Plaintiffs
v.
BUREAU OF SPECIAL EDUCATION APPEALS OF THE DIVISION OF ADMINISTRATIVE LAW APPEALS, Massachusetts Department of Elementary Education; Andover School District; Patrick Bucco, Individually and in his capacity as Principal of Wood Hill Middle School ; Linda Croteau, individually and in her capacity as Former Special Ed Program Head for Wood Hill Middle School; Marinel McGrath, Superintendent, in her Official Capacity; and Annie Gilbert, School Committee Chair, in her Official Capacity, Defendants.

Civil Action No. 14–11892–FDS.

United States District Court, D. Massachusetts.

Signed March 9, 2015.

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Lei Z. Reilley, Newton, MA, for Plaintiffs.

Judy A. Levenson, Leonard H. Kesten, Brody, Hardoon, Perkins & Kesten, Iraida J. Alvarez, Attorney General's Office, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS COUNTS TWO THROUGH FOUR

SAYLOR IV, District Judge.

This is an appeal of an administrative decision by the Bureau of Special Education Appeals (“BSEA”) denying tuition reimbursement for a disabled student. Plaintiffs E.T. and his parents, proceeding under the pseudonyms Jane Doe and John Doe, have brought suit against defendants

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BSEA, Massachusetts Department of Elementary Education, and Andover School District and various school administrators.

On June 16, 2014, plaintiffs amended the complaint to add three counts based on alleged civil rights violations arising from the seizure by the school of notebooks belonging to E.T. that contained comic drawings. Defendants have moved to dismiss Counts Two through Four of the amended complaint. For the following reasons, the motion will be granted in part and denied in part.

I. The Statutory Framework

The Individuals with Disabilities Education Act (“IDEA”) conditions the provision of federal funds to state schools on compliance with a requirement to provide all disabled children with a “free appropriate public education” (“FAPE”). Roland M. v. Concord Sch. Comm., 910 F.2d 983, 987 (1st Cir.1990) (quoting 20 U.S.C. §§ 1400(c), 1414(b)(2)(A), 1416 ). “Substantively, the ‘free appropriate public education’ ordained by the Act requires participating states to provide, at public expense, instruction and support services sufficient ‘to permit the child to benefit educationally from that instruction.’ ” Id. (quoting Board of Educ. v. Rowley, 458 U.S. 176, 203, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ).

A. Individualized Education Programs

The IEP is the statute's primary safeguard for assuring the provision of FAPE to disabled children. IEPs are formulated through the participation of a team that includes the student's parents, at least one of the student's regular education teachers (if any), at least one special education teacher, a representative of the local education agency, and an individual who can interpret the instructional implications of evaluation results. North Reading Sch. Comm. v. BSEA, 480 F.Supp.2d 479, 482 n. 5 (D.Mass.2007). “Each IEP must include an assessment of the child's current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) ; see Roland M., 910 F.2d at 987 (citing 20 U.S.C. § 1401(19) ; 34 C.F.R. § 300.346 ).

There is no mechanical checklist by which an inquiring court can determine the proper content of an IEP; IEPs are by their very nature idiosyncratic. One 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 v. Wilton–Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir.2008) (citations omitted) (internal quotation marks omitted). IEPs must be reviewed annually and revised when necessary. Roland M., 910 F.2d at 988.

B. Appropriateness and Adequacy

The IDEA requires an “appropriate” education and an adequate IEP; it does not require perfection.

The IDEA does not promise perfect solutions to the vexing problems posed by the existence of learning disabilities in children and adolescents. The Act sets more modest goals: it emphasizes an appropriate, rather than an ideal, education; it requires an adequate, rather than an optimal, IEP. Appropriateness and adequacy are terms of moderation. It follows that, although an IEP must afford some educational benefit to the handicapped child, the benefit conferred need not reach the highest attainable

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level or even the level needed to maximize the child's potential.

Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir.1993) (citing Rowley, 458 U.S. at 198, 102 S.Ct. 3034 ; Roland M., 910 F.2d at 992 ).¹

A school system has met this obligation as long as the program that it offers to a disabled student is ‘reasonably calculated’ to deliver ‘educational benefits.’ At bottom, this obligation is an obligation to provide an adequate and appropriate education. The IDEA does not place school systems under a compulsion to afford a disabled child an ideal or an optimal education.

C.G. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 284 (1st Cir.2008) (citations omitted).

C. Least Restrictive Environment

“The IDEA ... articulates a preference for mainstreaming,” that is, educating disabled students with non-disabled students as much as possible. Lenn, 998 F.2d at 1086 (citing 20 U.S.C. § 1412(5) (requiring states to educate disabled and non-disabled children together “to the maximum extent appropriate”)). “Translated into practical application, this preference signifies that a student ‘who would make educational progress in a day program’ is not entitled to a residential placement even if the latter ‘would more nearly enable the child to reach his or her full potential.’ ” Id. (quoting Abrahamson v. Hershman, 701 F.2d 223, 227 (1st Cir.1983) ).

D. Administrative Hearings

Should the parents of a disabled child wish to contest an IEP, the state is required to convene an impartial hearing. 20 U.S.C. § 1415(f)(1)(A). In Massachusetts, these hearings are conducted by the BSEA in accordance with rules that it has promulgated pursuant to Massachusetts law. Mass. Gen. Laws ch. 71B § 3 ; 603 Mass.Code Regs. 28.08(5)(a) ; see Roland M., 910 F.2d at 988. Under Massachusetts law, the BSEA has jurisdiction to hear disputes

between and among parents, school districts, private schools and state agencies concerning: (i) any matter relating to the identification, evaluation, education program or educational placement of a child with a disability or the provision of a free and appropriate public education to the child arising under this chapter and regulations promulgated hereunder or under the Individuals with Disabilities Act, 20 U.S.C. section 1400 et seq., and its regulations; or (ii) a student's rights under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. section 794, and its regulations.

Mass. Gen. Laws. Ch. 71B § 2A(a). The decision of the BSEA is reviewable in either state or federal court, and the reviewing tribunal has broad discretion to grant such relief it determines is appropriate. 20 U.S.C. § 1415(i)(2)(A), (i)(2)(C)(iii) ; Roland M., 910 F.2d at 987–88. However, before such an action is brought, the party seeking review must exhaust all administrative procedures under the IDEA. 20 U.S.C. § 1415(l ).

II. Background

A. Factual Background

Unless otherwise noted, the facts are presented as stated in the amended complaint.

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E.T. is a 17–year–old “highly intelligent” student with Asperger's Syndrome. (Am.Compl. ¶¶ 1, 11–12). From 2009 to 2012, he attended Wood Hill Middle School in the Andover School District. (Id. ¶¶ 1, 14). During that time, he operated under an IEP. (Id. ¶¶ 1, 14). According to the complaint, the Andover School District was obligated to provide E.T. with special-education services under the IDEA. (Id. ¶¶ 1, 4, 6).

Patrick Bucco is the principal of Wood Hill Middle School. (Id. ¶ 7). Linda Croteau is currently the assistant principal of the middle school. (Id. ¶ 8). From 2009 to 2012, Croteau served as the head of the special-education program at the school. (Id. ¶ 8). The complaint alleges that Bucco and Croteau are responsible for ensuring that the school does not discriminate against disabled students. (Id. ¶¶ 7–8). Marinel McGrath is the Superintendent of the Andover School District, and Annie Gilbert is the chairperson of the school committee for the School District. (Id. ¶¶ 9–10).

The complaint alleges that the School District...