United States District Court, D. Massachusetts
MARIA ROGES, for herself, and as Parent and Next Friend of N.H.; KENNETH HAWKES, for himself and as Parent and Next Friend of N.H.; and N.H., a minor disabled child, by his parents Maria Roges and Kenneth Hawkes
BOSTON PUBLIC SCHOOLS, JOHN MCDONOUGH, Superintendant; SCHOOL COMMITTEE, MICHAEL O'NEIL, chairperson; OFFICE OF SPECIAL EDUCATION AND STUDENT SERVICES, CATHERINE CONSTANT, Executive Director; and BUREAU OF SPECIAL EDUCATION APPEALS
MEMORANDUM AND ORDER ON DEFENDANT BOSTON PUBLIC SCHOOLS' MOTION TO DISMISS
RICHARD G. STEARNS, District Judge.
Maria Roges, whose son N.H. is autistic, has, along with her husband, Kenneth Hawkes, waged a protracted campaign to persuade the Boston Public Schools (BPS) to provide an appropriate educational placement for N.H. The campaign began when N.H. was 14 years old. He has now turned 18. Since age 14, N.H. has been tutored at home at the expense of BPS. The parents and BPS agree that this is not the appropriate educational placement for N.H. They agree on little else. The court became involved in September of 2014, when Roges and Hawkes, proceeding pro se, brought suit against the named defendants. Before the court is a motion brought by BPS to dismiss the individual defendants and certain of the damages claims.
In the Board of Special Education Appeals (BSEA) decision, affirming the position of BPS, N.H. "is described as a likeable teenager who enjoys many interests, including riding his bicycle and scooter, building with Legos, reading history books, and using a computer or hand-held device for many activities including games, e-books, educational programs, Internet research and social media." BSEA Decision #1308779 (BSEA Dec.) at 5 ¶ 2. N.H. was diagnosed with autism at age three and has been attending BPS schools since that time. Id. at 5 ¶¶ 1 & 3. N.H. was placed in a mainstream classroom for first grade and continued in integrated classrooms through the seventh grade. Id. at 5 ¶ 5.
Seventh grade (the 2010-2011 school year) was N.H.'s last in-school placement. During that year, N.H. attended classes at Harbor Pilot Middle School. Am. Compl. ¶ 23 and BSEA Dec. at 5 ¶ 6. According to the Amended Complaint, beginning in December of 2010, the staff of Harbor School "isolated N.H. for most of each afternoon... physically removing him from his classroom, during which time the school provided no educational services to N.H." Am. Compl. ¶ 23. As a result of this isolation, N.H.'s behavior began to deteriorate. Id. ¶ 24. On March 31, 2011, N.H. was forcefully restrained, in violation of his behavior plan, by the staff at Harbor School. Id. ¶ 25. As a result, N.H.'s behavior further degenerated. Id. ¶ 28. In April of 2011, N.H. "was involved in one incident of aggression towards another student" and, a few days later, "a teacher alleged that N.H. had physically assaulted him." N.H. received a 1-2 day suspension, which was later rescinded. BSEA Dec. at 7 ¶ 14 and Am. Compl. ¶ 29. Following the alleged assault, N.H.'s parents withdrew him from Harbor School, and at the parents' request, N.H. was granted a 45-day transitional placement. Am. Compl. ¶ 29.
The Amended Complaint offers no details of N.H.'s schooling since 2011, but the essentials can be gleaned from the BSEA decision. In the summer of 2011, BPS provided home instruction to N.H. through a personal tutor and, later, the services of an Applied Behavior Analysis (ABA) therapist. BSEA Dec. at 8 ¶¶ 18-20. In the fall of 2011, N.H. was tested by his providers and by a neuropsychologist selected by his parents. Id. at 8 ¶ 21. Following this testing, in December of 2011, BPS proposed a new Individualized Education Plan (IEP) entailing placement of N.H. at the Community Academy of Science and Health (CASH). While CASH is housed at Harbor School, it is not an integrated setting. Id. at 11 ¶ 33. N.H.'s parents partially rejected the new IEP in March of 2012. Id. at 11 ¶ 34. In early 2012, BPS proposed an alternative placement at West Roxbury Academy (WRA). The parents indicated that they would approve the placement if N.H. reacted favorably to a visit to WRA. In a twist of circular logic, BPS responded that N.H. could visit WRA only if the parents first agreed to the placement. A standoff ensued, and the parents ultimately rejected the placement. Id. at 11 ¶ 35.
By the fall of 2012, N.H. still lacked an acceptable placement. Id. at 11 ¶ 37. In November of 2012, BPS refloated the proposal to place N.H. at CASH, but his parents refused it as too restrictive. Id. at 12 ¶ 38. For the remainder of the 2012-2013 school year, the parents and BPS discussed alternative placements for N.H. without reaching an agreement. Id. at 12 ¶ 39.
On May 31, 2013, the parents filed a Request for Hearing with the BSEA. The hearing was postponed several times as BPS and the parents attempted to resolve their differences. In January of 2013, BPS conducted a psychological evaluation of N.H. as well as an assistive technology assessment. Id. at 12 ¶ 42. In January and February of 2014, N.H.'s IEP team met to develop a new IEP for N.H. "BPS indicated that it would be proposing a substantially separate program. Parents stated that they were seeking a full inclusion placement." Id. at 13 ¶ 47. In March of 2014, BPS proposed a "final" IEP that involved placing N.H. at the Boston Community Leadership Academy in a dedicated classroom. Id. at 13-14 ¶¶ 49-56. On June 13, 2014, BSEA, in a formal opinion, found that the March 2014 IEP satisfied BPS's obligation to provide N.H. with a Free and Appropriate Public Education (FAPE).
On September 9, 2014, the parents filed a Complaint in this court on behalf of N.H. (later amended on September 29, 2014) seeking the reversal of the BSEA decision and the ordering of compensatory occupational, speech, and Adaptive Physical Education services for N.H. The parents also ask the court to enjoin BPS from requiring liability waivers as a condition of providing N.H. with the educational services, to award monetary damages for the alleged physical and psychological harm caused to N.H. and to them personally, and to order BPS to offer transitional and vocational services to N.H. The City of Boston, on behalf of the individually named defendants, as well as the BPS, the School Committee, and the Office of Special Education and Student Services, seeks dismissal of any claims arising prior to May 31, 2011, all claims against the individually named defendants, and any claims for monetary compensation.
STANDARD OF REVIEW
To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted). Dismissal of a claim is appropriate when a complaint fails to set forth "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (citation and internal question marks omitted). In evaluating the factual allegations of a complaint, the court "must accept all well-pleaded facts alleged in the [c]omplaint as true and draw all reasonable inferences in favor of the plaintiff." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). The court may also consider "facts and documents that are part of or incorporated into the complaint." Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008).
I will address the City's several arguments for ...