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Pollack v. Regional School Unit 75

United States Court of Appeals, First Circuit

March 26, 2018

MATTHEW E. POLLACK, as next friend of B.P.; JANE QUIRION, as next friend of B.P., Plaintiffs, Appellants,
v.
REGIONAL SCHOOL UNIT 75, Defendant, Appellee, KELLY ALLEN; TANJI JOHNSTON; PATRICK MOORE; BRADLEY
v.
SMITH, Defendants.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Nancy Torresen, U.S. District Judge]

          Richard L. O'Meara, with whom Rachel W. Sears and Murray, Plumb & Murray were on brief, for appellants.

          Nathaniel A. Bessey, with whom Daniel A. Nuzzi and Brann & Isaacson were on brief, for appellee.

          Before Kayatta, Stahl, and Barron, Circuit Judges.

          KAYATTA, Circuit Judge.

         B.P. is a 19-year-old public school student in Regional School Unit 75 (the "district") in Topsham, Maine. He has been diagnosed with several disabilities, including autism, cognitive impairment, and a variant of Landau-Kleffner Syndrome. B.P. is nonverbal and unable to communicate with his parents about his experiences at school. His parents want him to carry an audio recording device at school to record pretty much everything said in his presence. The school district's refusal to permit the device prompted B.P.'s parents ("plaintiffs") to file this lawsuit on his behalf under, among other things, the Americans with Disabilities Act ("ADA"). They also commenced an administrative proceeding under the Individuals with Disabilities Education Act ("IDEA"). As we will explain, because the administrative tribunal found that carrying the recording device would provide B.P. no demonstrable benefit, plaintiffs are precluded from proving an element necessary for them to prevail on their ADA claim. We therefore affirm the judgment for the district.

         I.

         We begin by describing the basic framework of the two principal statutes at issue in this case: the IDEA, under which the plaintiffs' administrative claim was adjudicated, and the ADA, under which the claim relevant to this appeal arises.[1]

         A.

         The purpose of the IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(d)(1)(A). A free appropriate public education, commonly referred to as a FAPE, is defined to include "special education and related services that . . . are provided in conformity with [a student's] individualized education program." Id. § 1401(9)(D). "Special education" is further defined as "specially designed instruction . . . to meet the unique needs of a child with a disability." Id. § 1401(29). "Related services" include supportive services, such as audiology and interpreting services, "as may be required to assist a child with a disability to benefit from special education." Id. § 1401(26)(A). "Supplementary aids and services" can also be included in a student's individualized education program ("IEP"), see id. § 1414(d)(1)(A)(i)(IV), and are defined as "aids, services, and other supports that are provided in regular education classes . . . to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate, " id. § 1401(33).

         If parents are concerned that their child is not receiving a FAPE, they can file a complaint with the local educational agency. See id. § 1415(b)(6)(A). The agency then has the opportunity to resolve the complaint at a preliminary meeting with the parents and the relevant members of the IEP team. See id. § 1415(f)(1)(B)(i). If that meeting fails to resolve the complaint "to the satisfaction of the parents" within a certain time period, id. § 1415(f)(1)(B)(ii), the parents are entitled to have the issue decided in an impartial due process hearing, see id. § 1415(f)(1)(A). There are two types of arguments available to the parents at a due process hearing, both of which center on the denial of a FAPE. They can argue that their child is being denied a FAPE substantively, on the grounds that his or her IEP lacks certain special education or related services. See id. § 1415(f)(3)(E)(i). And they can argue that their child is being denied a FAPE due to procedural violations that, for example, "significantly impede[] the parents' opportunity to participate in the [IDEA] decisionmaking process." Id. § 1415(f)(3)(E)(ii)(II).

         B.

         Casting a much wider net than the IDEA, the ADA seeks to eliminate discrimination against all individuals with disabilities. See 42 U.S.C. § 12101(b)(1). Title II of the statute mandates that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."[2] Id. § 12132. This protection "is characterized as a guarantee of 'meaningful access' to government benefits and programs." Theriault v. Flynn, 162 F.3d 46, 48 (1st Cir. 1998) (quoting Alexander v. Choate, 469 U.S. 287, 301 (1985)); see also Iverson v. City of Boston, 452 F.3d 94, 99 (1st Cir. 2006) ("The clear purport of Title II is to guarantee that qualified disabled persons enjoy meaningful access to public services, programs, and activities.").

         It is undisputed that B.P. is a qualified individual under the ADA. And for purposes of our review of the district court's summary judgment ruling, the school district does not dispute that to the extent B.P. did not obtain access to (or the benefits of) the district's services, it was by reason of his disability. Therefore, the only contested ADA issue for purposes of this appeal is whether, by rejecting plaintiffs' requests to equip B.P. with a recording device, the district denied him "the benefits of [its] services, programs, or activities" or otherwise discriminated against him.

         Such an unlawful denial occurs if a public entity refuses to "make reasonable modifications . . . when . . . necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7)(i). As noted in Nunes v. Massachusetts Department of Correction, 766 F.3d 136 (1st Cir. 2014), required modifications, or what we more customarily call "accommodations, "[3] include those reasonably necessary "to provide meaningful access to a public service." Id. at 145 (internal quotation marks omitted).

         In considering failure-to-accommodate claims under the ADA, we are also guided by duly enacted regulations implementing the statute's anti-discrimination mandate. See A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016). One such regulation promulgated by the Department of Justice is relevant here. The so-called effective communications regulation requires public entities "to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others." 28 C.F.R. § 35.160(a)(1). To achieve this, "public entit[ies] shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity." Id. § 35.160(b)(1); see also K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013) (noting that "we are guided by the specific standards of the Title II effective communications regulation" because "the 'meaningful access' standard incorporates rather than supersedes applicable interpretive regulations").

         A plaintiff pursuing an accommodation-based claim of discrimination under the ADA must in the first instance make several showings, one of which is the "effectiveness" of the proposed accommodation. Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001) (explaining that the plaintiff has the burden to show that the proposed accommodation is effective and reasonable). In other words, the accommodation must provide a benefit in the form of increased access to a public service. See Nunes, 766 F.3d at 145. Nothing in the effective communications regulation obviates the need to show that a requested accommodation will provide some such benefit. To the contrary, the regulation only requires public entities to provide auxiliary communication aids and services "where necessary to afford individuals with disabilities . . . an equal opportunity to participate in, and enjoy the benefits of, [the entity's] service, program, or activity." 28 C.F.R. § 35.160(b)(1) (emphasis added). And although the regulation directs that "[i]n determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities, " id. § 35.160(b)(2), the requested aid or service must still be beneficial in the first instance. See United States Dep'ts of Educ. and Justice, Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities in Public Elementary and Secondary Schools 8- 9, https://www2.ed.gov/about/offices/list/ocr/docs/dcl-faqs-effective-communication-201411.pdf.

         II.

         We next recite the relevant travel of plaintiffs' multi-track pursuit of their claims under the ADA and IDEA. Plaintiffs sued the district and several school officials in March 2013, alleging violations of the First Amendment, the ADA, the Rehabilitation Act, and the IDEA. In May 2014, plaintiffs filed a second suit against the district and several other school officials, alleging that the district had "continued the pattern" of violating their rights under those statutes. The two cases were consolidated in the district court and in due course the parties filed cross-motions for summary judgment.

         The district argued that plaintiffs had failed to exhaust their administrative remedies under the IDEA, which barred their claims under the First Amendment, the ADA, and the Rehabilitation Act. In response, while the parties were awaiting a decision on the summary judgment motions, plaintiffs began the process of exhausting their IDEA remedies by requesting a due process hearing from the Maine Department of Education in early January 2016.[4] In that request, plaintiffs asserted numerous ...


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