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Doe v. Boston Public Schools

United States District Court, D. Massachusetts

January 23, 2015

JORDAN DOE, by and through his next Friend and Parents, Plaintiff,

For Jordan Doe, by and through his next Friend and Parents, Plaintiff: Thomas I. Elkind, LEAD ATTORNEY, Foley & Lardner, LLP, Boston, MA.

For Boston Public Schools, Defendant: Andrea C. Alves Thomas, Cty of Boston, Office of Legal Advisor BPS, Boston, MA; Colleen Deasy, City of Boston, Boston Public Schoos Office of Legal Advisor, Boston, MA.



Plaintiff Jordan Doe (" Doe" ), through his parents, brings this action to recover attorneys' fees arising from an administrative proceeding in which he prevailed before the Massachusetts Division of Administrative Law Appeals, Bureau of Special Education Appeals (" BSEA" ), pursuant to the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § 1400 et seq. and Mass. Gen. Laws ch. 71B.[1] The defendant Boston Public Schools (" Boston" ) filed a motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a cause of action upon which relief may be granted. Specifically, Boston maintains that Doe's request for attorneys' fees was required to be filed within 30 days of the conclusion of the underlying proceedings and - since it was not - is consequently time-barred. Doe opposed Boston's motion, arguing that the proper statute of limitations period is three years. After reconsidering my earlier adoption of the position taken by Boston, I informed the parties at the Scheduling Conference in this matter that I am now of the view that a three-year limitations period is appropriate and accordingly denied Boston's motion. This Memorandum provides a detailed discussion of my decision.


Congress passed the IDEA in 1975 in order to address the concern that children with disabilities in the United States " were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to 'drop out.'" H.R. Rep. No. 94-332, p. 2 (1975), quoted in Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. et al. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Under the Act, States receive federal financial assistance to implement programs which " ensure that all children with disabilities have available to them a free appropriate public education [" FAPE" ] that emphasizes special education . . . designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A).

Each child with a disability is to have his own individualized educational program (" IEP" ), a written evaluation, statement of objectives, and description of the educational services to be provided to the child, " prepared at a meeting between a qualified representative of the local educational agency, the child's teacher, the child's parents or guardian, and, where appropriate, the child." Rowley, 458 U.S. at 182. If there is a proposed change to the " identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child," it must be communicated to child's parents or guardian. 20 U.S.C. § 1415(b)(3)(B).

The parents or guardian may seek a hearing by the state educational agency regarding these findings, id. at § 1415(f)(1)(A), and judicial review of the agency's decision is available. Id. at § 1415(i)(2)(A). Under the Handicapped Children's Protection Act of 1986, a court is permitted to " award reasonable attorneys' fees as part of the costs to a prevailing party who is the parent of a child with a disability." 20 U.S.C. § 1415(i)(3)(B).[2] It is this provision which is in controversy through the motion before me.


A. Facts

As recounted in the July 23, 2013 Order (" July 23, 2013 Order" ) issued by the BSEA, the state educational agency ruling which is the predicate for Doe's status here as a prevailing party, Doe was a seven-year-old autistic child who lives with his parents and siblings in Boston, MA. He attends Lee Academy, a Boston public school, where he has received special education services since he was three years old. " Consistent with his diagnosis of autism, [he] has difficulty with communication, attention, and social interaction . . . tend[ing] to be self-directed and . . . usually not able to engage in age-appropriate reciprocal play with other children." (July 23, 2013 Order at 6). Boston does not dispute that these disabilities qualify Doe for special education under the IDEA. Id.

In January 2009, Boston issued its first IEP for Doe, recommending that he be placed in a " substantially separate early childhood classroom . . ., together with pullout services in speech/language and occupation therapy and 60 minutes/day, 4 days per week of individual ABA [Applied Behavioral Analysis] services." Id. at 7. Doe's parents were satisfied with the proffered services and did not object at that time.

Over the next several years, there were successive iterations of the IEP for Doe. The IEP revisions involved interactions between Boston and Doe's parents during which various experts were engaged. This history is recounted fully in the BSEA's July 23, 2013 Order. As pertinent to the motion before me, on April 11, 25, 26, May 7 and 8, 2013, an administrative hearing requested by Doe's parents took place at the office of the BSEA in Boston, MA. Id. at 3. Doe's parents requested that Boston fund their child's placement at Confidence Connection, a clinic and school for autistic children in Needham, Massachusetts, or, in the alternative, increase the number of Doe's ABA hours from fifteen to twenty or thirty per week. Id. Boston contended that placement at Confidence Connection or an increase in ABA hours was unnecessary, insofar as Doe was making sufficient progress in his current program at Lee Academy. Id.

In the July 24, 2013 Order, Sara Berman, the Hearing Officer at the BSEA, granted the alternative request of Doe's parents that Doe be provided with thirty hours of ABA services per week beginning the next academic year. Id. at 18. She also instructed Boston to " ensure close coordination between the ABA providers and classroom teachers, facilitation of social interactions, appropriate ...

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