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E.T. v. Bureau of Special Education Appeals of Division of Administrative Law Appeals

United States District Court, D. Massachusetts

March 11, 2016

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 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.


F. Dennis Saylor IV 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 (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 (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; 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).

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 (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, 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 (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.”).

B. Factual Background

The following undisputed facts are drawn from the administrative records of the September 11, 2012 BSEA hearing (“2012 A.R.”) and the January 21, 2014 BSEA hearing (“2014 A.R.”).

1. The Parties

E.T. is an eighteen-year-old “highly intelligent” student with Asperger’s Syndrome. (2014 A.R. 163). From 2009 to 2012, he attended Wood Hill Middle School in Andover. (Id. at 163-65). “His eligibility for special education services from Andover is not in dispute.” (Id. at 163).

For the relevant time period, the individual defendants were administrators at Wood Hill or in the Andover Public Schools.[4] Patrick Bucco was the principal of Wood Hill. (Am. Compl. ¶ 7). Linda Croteau was the head of special education at the school. (Id. at ¶ 8). Marinel McGrath was the Superintendent of the Andover Public Schools, and Annie Gilbert was the chairperson of the School Committee for Andover. (Id. at ¶¶ 9-10).

2. E.T.’s Educational Background

In 2003, E.T. entered kindergarten in a school district neighboring Andover. (2014 A.R. 163). He exhibited “significant behavioral issues, ” including physical aggression, oppositional behavior, rigidity, and inattention. (Id.). While in first grade, E.T. was diagnosed with Asperger’s Syndrome. (Id.). That school district developed an IEP that involved occupational therapy and a one-on-one aide. (Id.). In second grade, E.T. exhibited “several major episodes of physical outbursts to staff and peers, or attempts to flee or hurt himself, all when he was asked to do something [that] he did not want to do.” (Id.).

In 2006, E.T. entered the Andover Public Schools in third grade. (Id.). E.T. “became less physically aggressive, ” but continued to exhibit behavioral problems “when asked to do something [that] he did not want to do.” (Id.). Between third and fifth grade, E.T. was suspended multiple times for “several incidents of threatening behavior or gestures towards [school] staff and [his] peers.” (Id.).

In 2009, E.T. began sixth grade at Wood Hill Middle School in Andover. (Id.). He frequently drew cartoons instead of doing classwork, and made “loud noises or verbal demands when he was redirected” from drawing. (Id.). In November 2009, Andover conducted a re-evaluation of E.T.’s IEP. (Id.). His “performance on both cognitive and achievement testing was all in the average to superior range but his behavior was problematic.” (Id.). Andover developed an IEP for E.T. that “called for full inclusion [in] all classes, with special education or paraprofessional support, and regular access to the school adjustment counselor . . . written models or examples of completed assignments, as well as communication with [his] parents.” (Id. at 164). E.T.’s parents accepted the new IEP in February 2010. (Id.).

E.T. “continued to struggle in sixth grade with severe inflexibility, aggressive verbal outbursts, one verbal threat to an adult, violent/inappropriate drawings including those of his peers, and nine incidents leading to suspensions.” (Id.).[5] He demonstrated himself to be a “very talented cartoonist, ” but his drawings “often featured guns or bombs.” (Id. at 163). After meeting and observing E.T. during the 2009-10 school year, Dr. Jeff Bostic, a child psychologist employed by Andover, concluded that while E.T. was “not someone [who] is aggressive [or a threat] to go harm people, ” he was disconnected socially and did not like adults imposing requests or expectations on him. (2012 A.R. 696-97). In December 2009, after multiple meetings between Andover administrators, E.T.’s parents, and psychiatrists and psychologists, Andover recommended that E.T. undergo a 45-day extended evaluation at the North Shore Education Consortium (“NEC”), a school that supports member districts with special-education programs. (2014 A.R. 164). E.T.’s parents rejected the recommendation. (Id.).

When E.T. entered seventh grade, his behavioral problems “continued and escalated.” (Id.). In December 2010, his parents agreed for E.T. to undergo an extended evaluation at the Northshore Prep program, an educational program operated by NEC. (Id.). E.T. attended that program for about a month and was “very successful, ” seemingly “motivated by [his] desire to return to [Wood Hill].” (Id.). Although E.T. continued to draw cartoons during school, “[t]he themes of [his] drawings were not inappropriate while he was at Northshore.” (Id.). At the end of the evaluation period, Northshore Prep recommended a “small, structured, predictable therapeutic placement with staff trained to understand and manage [E.T.’s] complex profile.” (Id.). Andover offered to permanently place E.T. at Northshore Prep or at the Gifford School, a private school in Weston that provides special-education services. (Id.). E.T.’s parents rejected that offer, and he returned to Wood Hill. (Id. at 165).

In February 2011, Andover conducted a Functional Behavioral Assessment (“FBA”) for E.T. consisting of a “review of past testing, classroom observations, interviews with teachers and parents, and consultations with the school psychologist and Dr. [ ] Bostic.” (Id.). The FBA report recommended a behavior plan with, among other things, more consistent and immediate feedback, communication, and support. (Id.).

In January 2012, while E.T. was in eighth grade, Linda Croteau, the special-education program head, informed principal Patrick Bucco that an adult had overheard E.T. making a comment in the cafeteria about a “surprise type of action to alter the school.” (Id. at 165; 2012 A.R. 801, 1094-95). Around that time, E.T. wrote an essay for his language arts class that discussed conflicts with teachers and “plans to prove the teachers wrong.” (2014 A.R. 165; 2012 A.R. 801). Croteau and Bucco interpreted the two events to be disturbing and threatening, and they suspended E.T. while Andover conducted a risk assessment. (2014 A.R. 165; 2012 A.R. 801, 1098).

As part of the risk assessment, Dr. Bostic conducted interviews with E.T., his mother, and his teachers. (2014 A.R. 165-66). Dr. Bostic concluded that E.T. was a “low risk of harming himself or others, ” but noted that E.T.’s disengagement and “violent themes in [his] drawings or statements” would “tend to further isolate him from peers, even if they do not indicate actual, imminent risk.” (Id. at 166). Dr. Bostic recommended “a small educational environment where [E.T.] could learn to develop trust, and where therapeutic interventions could be infused throughout the school day.” (Id.). On January 27, 2012, E.T.’s parents and Andover entered into a mediation agreement, stipulating that his parents would consent to Andover sending referrals to three private schools, including Gifford, to assess E.T.’s suitability for an out-of-district placement. (Id.). E.T.’s parents agreed to visit the schools and Andover agreed to fund his placement into any of the three schools that accepted him. (Id.).

Of the three, Gifford was the only school to accept E.T. (Id.). E.T. and his parents visited the school twice, but deemed it inappropriate, in part, because they believed that the academics were not sufficiently challenging and that the peer group was not appropriate. (Id.).

3. The Notebook Incidents

After his suspension and risk assessment, E.T. returned to Wood Hill. (Id.). Administrators assigned an assistant to shadow him during the school day to gather behavioral data, redirect him from drawing objectionable pictures, and monitor safety issues. (Id.; 2012 A.R. 806-07). E.T. reportedly felt that people were spying on him. (2014 A.R. 166).

In March 2012, the shadowing assistant asked E.T. to give him his drawing notebook because he had it “out” during an assembly. (2012 A.R. 810-11). When E.T. refused to hand over the notebook, the assistant sent him to Bucco’s office. (Id.). The complaint alleges that Bucco asked E.T. for his notebook so that he could look at it, and E.T. “reluctantly” handed it over. (Am. Compl. ¶ 78). Bucco and Croteau retained and reviewed the notebook, and they later called E.T.’s parents because, according to Croteau, “[t]here were some incidents in the book that were very graphically violent, and it seemed to be thematically [E.T.] against the school.” (2012 A.R. 811-12). The notebook contained drawings depicting a battle between “cartoons” and “teachers, ” and narration stating that the cartoon character is “threatened by the teachers” and that he “vanquishes the enemy.” (Id. at 308, 813-14). Another drawing in the notebook contained a narration stating “[t]he teachers took everything from us. Let’s take all of it back, ” and “[t]hey took our pride, our hope, dignity, and our souls. They crush us, beat us, and left us defeated. Now we have a chance to make things right.” (Id. at 335). On that page, the leader of the cartoons, a worm-like creature, appoints a human-like character named E.T. to be the new leader. (Id.). On the next page, a character states “Let’s make this count!!!” while another character holds two guns during a battle. (Id. at 336). Another drawing is titled “E.T. vs. school” and contains multiple guns. (Id. at 353). Another drawing contains a character stating “there it is, the place where this war began” next to a drawing titled “Wood Hill . . . LOL”, which depicts a school building and a character standing outside with a gun with the words “To be cont . . . .” (Id. at 357).

Croteau believed that the pictures described “thoughts that were threatening to the school.” (Id. at 814-15). As a ...

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