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

• Decision Date: 11 March 2016
• Docket Number: Civil Action No. 14-11892-FDS
• Citation: 169 F.Supp.3d 221
• 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 Education 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

169 F.Supp.3d 221

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 Education 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 11, 2016

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

Judy A. Levenson, Leonard H. Kesten, Brody, Hardoon, Perkins & Kesten, LLP, Iraida J. Alvarez, Kirk G. Hanson, Office of the Massachusetts Attorney General, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

Saylor, United States District Judge

This dispute arises out of an administrative decision by the Massachusetts Bureau of Special Education Appeals (“BSEA”) denying tuition reimbursement under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq ., for a student with Asperger's Syndrome. Plaintiffs E.T. and his parents, proceeding under the pseudonyms Jane Doe and John Doe, have brought suit against defendants BSEA, the Andover school district, and four school administrators.¹ Count One of the amended complaint is an appeal of the BSEA's decision denying tuition reimbursement for E.T.'s attendance at a private school that did not offer special-education services. Counts Two through Four allege civil rights violations arising from the school administrators' searches and seizures of E.T.'s notebooks that contained comic drawings.

The Court previously dismissed Counts Two through Four against the Andover school district, Count Four against the school administrators in their official capacities, and Count Four against Patrick Bucco. Accordingly, the remaining claims are an appeal of the BSEA's denial of tuition reimbursement (Count One), a Fourth Amendment claim brought pursuant to 42 U.S.C. § 1983 against Bucco and Croteau (Count Two), a First Amendment claim brought pursuant to 42 U.S.C. § 1983 against the four administrators (Count Three), and a state-law privacy claim against Croteau in her individual capacity (Count Four).

Plaintiffs have moved for summary judgment on Count One. Defendants have moved for summary judgment on Counts Two through Four. For the following reasons, plaintiffs' motion will be denied and defendants' motion will be granted.

I. Background

A. Statutory Background

The Individuals with Disabilities Education Act (“IDEA”) conditions the provision of federal funds to public 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 ).² “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) ).

1. Individualized Education Programs

The individualized education program (“IEP”) is the IDEA's primary means for assuring the provision of a 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) (citing 20 U.S.C. § 1414(d)(1)(B) ). “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 also Roland M. , 910 F.2d at 987.

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 and internal quotation marks omitted). IEPs must be reviewed annually and revised when necessary. Roland M. , 910 F.2d at 988.

2. 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 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 ).³

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) (quoting Rowley , 458 U.S. at 207, 102 S.Ct. 3034 ).

Where a state fails to provide a FAPE in a timely manner, the parents of a disabled child have the right to seek reimbursement where appropriate for private school tuition. See Burlington v. Department of Educ. , 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). The Supreme Court has made clear, however, that parents who unilaterally change their child's placement without the consent of state or local school officials “do so at their own financial risk,” see Burlington , 471 U.S. at 374, 105 S.Ct. 1996, and are entitled to reimbursement “only if a federal court concludes both that the public placement violated IDEA and that the private school placement was proper under the Act.” Florence Cty. Sch. Dist. Four v. Carter , 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (emphasis in original). A school district that is “unable to furnish a disabled child with a FAPE through a public school placement” is “responsible for the reasonable costs incident to [a proper] private placement,” including tuition reimbursement. Five Town , 513 F.3d at 284–85.

3. Administrative Hearings

Should the parents of a disabled child or a school district wish to contest an IEP, the IDEA requires the state to convene an impartial hearing. 20 U.S.C. § 1415(f)(1)(A). In Massachusetts, those hearings are conducted by the BSEA in accordance with rules that it has promulgated pursuant to Massachusetts law. See Mass. Gen. Laws ch. 71B, § 3 ; 603 Mass. Code Regs. 28.08(5) ; see also 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. § 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. § 794, and its regulations.

Mass. Gen. Laws. Ch. 71B, § 2A(a). The BSEA's administrative decision is reviewable in either state or federal court. See 20 U.S.C. § 1415(i)(2)(A), (i)(2)(C)(iii) ; see also 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).

To provide stability and consistency in the education of a disabled student during administrative review, the IDEA's “stay put” provision states that “during the pendency of any proceedings ..., unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child.” 20 U.S.C. § 1415(j). Although not defined by the statute, courts have interpreted a student's “then-current educational placement” to mean “(1) typically the placement described in the child's most recently implemented IEP; (2) the operative placement actually functioning at the time ... when the stay put provision of the IDEA was invoked; and (3) [the placement at the time of] the previously implemented IEP.” Mackey v. Board of Educ. , 386 F.3d 158, 163 (2d Cir.2004) (collecting cases) (citations and internal quotation marks omitted); see also Gabel ex rel. L.G. v. Board of Educ. of Hyde Park Cent. Sch. Dist. , 368 F.Supp.2d 313, 324 (S.D.N.Y.2005) (“[T]he phrase ‘then-current placement’ has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced.”).

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