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

United States District Court, D. Massachusetts

March 9, 2015

E.T., a minor, by his parents, JANE DOE and JOHN DOE, and on their own behalf, Plaintiffs,
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

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For Jane Doe, John Doe, Plaintiffs: Lei Z. Reilley, Newton, MA.

For Andover School District, Marinel McGrath, Superintendent, Annie Gilbert, School Committee Chair, 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 Middle School, Defendants: Judy A. Levenson, LEAD ATTORNEY, Brody, Hardoon, Perkins & Kesten, LLP, Boston, MA; Leonard H. Kesten, Brody, Hardoon, Perkins & Kesten, Boston, MA.

For Bureau of Special Education Appeals of the Division of Administrative Law Appeals, Massachusetts Department of Elementary Education, Defendant: Iraida J. Alvarez, LEAD ATTORNEY, Attorney General's Office, Boston, MA.

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F. Dennis Saylor IV, United States 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; 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. ยง 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 ...

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