United States District Court, D. Massachusetts
MEMORANDUM AND ORDER GRANTING MOTION TO
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
action commenced in January 2015. Plaintiffs filed Part One
of the Bifurcated Complaint on November 13, 2015, and Part
Two on December 22, 2015. [ECF Nos. 71, 93]. Part One
consisted of Plaintiffs' appeal of the decision by the
Bureau of Special Education Appeals (“BSEA”)
hearing officer, pursuant to the Individuals with
Disabilities Education Act (“IDEA”). [ECF No.
71]. Part Two alleges various claims under the Rehabilitation
Act of 1973, the Americans with Disabilities Act
(“ADA”), and constitutional violations. [ECF No.
93]. On August 17, 2016, the Court granted Defendant Boston
Public Schools' (“BPS”) Motion for Summary
Judgment on all counts of Part One of the Bifurcated
Complaint. [ECF No. 132]. On February 1, 2017, the Court
granted Defendant BSEA's motion to dismiss Part Two of
the Bifurcated Complaint, and denied Defendant BPS's
motion to dismiss. [ECF No. 149].
filed a second motion to dismiss Part Two of the Bifurcated
Complaint on March 13, 2017. [ECF No. 158]. The Court issued
an order on March 7, 2018 describing possible deficiencies in
Part Two of the Bifurcated Complaint which BPS had not
initially addressed. [ECF No. 168]. BPS filed a motion to
amend its motion to dismiss on March 20, 2018. [ECF No. 170].
Plaintiffs were required to submit any additional briefing on
the issues raised in the Court's March 7 order by March
23, 2018, but Plaintiffs have not filed any additional
motion to amend [ECF No. 170] and its second motion to
dismiss Part Two of the Bifurcated Complaint [ECF No. 158]
are both granted.
BPS argues that all counts in Part Two of the Bifurcated
Complaint must be dismissed because the factual findings made
by the BSEA hearing officer in the Administrative Record
indicate that Plaintiffs are not entitled to relief. Even
after the submission of BPS's additional briefing,
however, the Court is not persuaded that it may consider the
hearing officer's findings at the motion to dismiss
stage. BPS cites two new cases in support of its argument,
but neither clarifies the issue. In Clorox Co. P.R. v.
Proctor & Gamble Commercial Co., 228 F.3d 24, 32
(1st Cir. 2000), the court determined that it could consider
advertising copy text in evaluating a motion to dismiss,
which was key to the question of whether the plaintiff stated
a claim for false advertising, while in Cortec Indus.,
Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.
1991), the material at issue consisted of a stock purchase
agreement, an offering memorandum, and a warrant to purchase
shares. There is no indication in either Clorox or
Cortec that the parties disputed the validity or
accuracy of these documents. In contrast, here, Plaintiffs
object to the factfinding and conclusions made by the Hearing
Officer. Therefore, the Court will 127]. The Court dismissed
Defendants Chang and O'Brien on March 7, 2018. [ECF No.
168]. Thus, at this time, the remaining defendants are BPS,
Jeremiah Ford, and Marci Goldowsky (or Goldowski). not
consider the hearing officer's factual findings at this
BPS argues that all of the claims in Part Two of the
Bifurcated Complaint are subject to dismissal for lack of
exhaustion. The IDEA requires aggrieved individuals to
exhaust their administrative remedies prior to filing a
lawsuit. Frazier v. Fairhaven Sch. Comm., 276 F.3d
52, 59 (1st Cir. 2002) (citing 20 U.S.C. § 1415(1)).
Moreover, this “exhaustion principle ‘applies
even when the suit is brought pursuant to a different statute
so long as the party is seeking relief that is available
under subchapter II of IDEA.'” Id.
(quoting Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir.
2000)). The statute explicitly notes that claims brought
pursuant to the ADA and the Rehabilitation Act seeking relief
available through the IDEA are subject to the exhaustion
requirement. 20 U.S.C. § 1415(1). Courts have
interpreted the exhaustion requirement to apply to §
1983 claims as well. See, e.g., Frazier,
276 F.3d at 59, 64; Doucette v. Jacobs, No. CV
15-13193-JGD, 2018 WL 457173, at *12-13 (D. Mass. Jan. 17,
2018), appeal docketed, No. 18-1160 (1st Cir. Mar.
2, 2018). Furthermore, exhaustion is required where
plaintiffs seek money damages, Frazier, 276 F.3d at
60-64, and where a parent alleges that a school retaliated
against her for advocating on behalf of her child. Weber
v. Cranston Sch. Comm., 212 F.3d 41, 47, 51- 52 (1st
exhaustion requirement only applies where a plaintiff seeks
relief from the denial of a free appropriate public education
(“FAPE”); claims that fall outside the scope of
the FAPE are not subject to the exhaustion requirement.
See Fry v. Napoleon Cmty. Sch., 137 S.Ct. 743, 752
(2017). If a lawsuit alleges the denial of a FAPE, “the
plaintiff cannot escape [the exhaustion requirement] merely
by bringing her suit under a statute other than the IDEA . .
. .” Id. at 754. To make this determination,
“a court should look to the substance, or gravamen, of
the plaintiff's complaint.” Id. at 752.
The Supreme Court has identified questions that can help
illuminate this issue. “First, could the plaintiff have
brought essentially the same claim if the alleged conduct had
occurred at a public facility that was not a school-say, a
public theater or library?” Id. at 756.
“[S]econd, could an adult at the school-say, an
employee or visitor-have pressed essentially the same
grievance?” Id. When the answer to one or both
of these questions is no, “then the complaint probably
does concern a FAPE, even if it does not explicitly say
so.” Id. In addition, “a court may
consider [whether] a plaintiff has previously invoked the
IDEA's formal procedures to handle the dispute-thus
starting to exhaust the Act's remedies before switching
midstream.” Id. at 757. “A
plaintiff's initial choice to pursue [administrative
procedures] may suggest that [he or] she is indeed seeking
relief for the denial of a FAPE-with the shift to judicial
proceedings prior to full exhaustion reflecting only
strategic calculations about how to maximize the prospects of
such a remedy.” Id.
all of the claims in Part Two of the Bifurcated Complaint are
subject to the administrative exhaustion requirement. None of
the claims in Part Two except Count VII (as discussed
infra) are framed as an appeal of the administrative
decision, and Plaintiffs have not asserted in the complaint
or in any other documents that they raised these claims
before the BSEA. Instead, Part One of the Bifurcated
Complaint encompassed Plaintiffs' appeal of the BSEA
decision. [ECF No. 71]. As the Court has already entered
summary judgment as to Part One [ECF No. 132], the Court only
considers the claims in Part Two to the extent that they do
not duplicate the claims already raised in Part One.
I-V of Part Two of the Bifurcated Complaint allege various
violations of the ADA and the Rehabilitation Act,
Counts VI-VII allege constitutional violations. First, Count
I asserts that BPS staff did not ensure that the FM system
called for in Student's Individualized Education Program
(“IEP”) was functioning properly, and Count V
asserts that BPS instructed Student in American Sign Language
(“ASL”), despite the fact that his IEP stated he
would be instructed in spoken English. In addition, Count VI
asserts that instructing Student in ASL, in contravention of
the terms of the IEP, was a violation of the mother's
Fourteenth Amendment rights. Since these counts challenge the
implementation of Student's IEP, they plainly seek relief
available through the IDEA and are thus subject to the
exhaustion requirement. 20 U.S.C. § 1415(1). To the
extent that these claims are not duplicative of claims
already raised in Part One of the Bifurcated Complaint, they
were not exhausted, and thus must be dismissed.
Count II alleges that BPS incorrectly mapped the processor in
Student's cochlear implant, and Count III asserts that
BPS discriminated against Student by failing to evaluate him
for mainstreaming, instead keeping him in a special education
setting. While neither of these counts explicitly mention
Student's IEP, they appear to be premised on the
requirements set forth in his IEP. Applying the test set
forth in Fry, 137 S.Ct. at 756, the Court concludes
that the claims concern the provision of a FAPE. First, as to
whether Plaintiffs could have brought the same claims if the
conduct occurred at another public facility, such as a
theater or library, Fry, 137 S.Ct. at 756, these
types of public facilities would not be required to correctly
map the processor in a visitor's cochlear implant, and
the concept of “mainstreaming” is not applicable
outside of the educational context. Second, as to whether an
adult at the school could press the same grievance,
id., again the answer is no, as the school is not
required to map an adult's processor, and mainstreaming
only applies to students. Further, Plaintiffs previously
invoked the IDEA's formal procedures to handle disputes
concerning Student's processor and their request that
Student be mainstreamed. See [ECF No. 132 at 3-15].
The Court already granted summary judgment where those claims
were properly raised before the BSEA and appealed. To the
extent that the claims in Count II and III of Part Two of the
Bifurcated Complaint do not duplicate matters raised in Part
One, they were not exhausted, and must be dismissed.
Count IV, Plaintiffs assert that BPS staff retaliated against
the mother for advocating on behalf of Student. As set forth
in Weber, 212 F.3d at 47, 51-52, this type of claim
is also subject to IDEA's exhaustion requirement. Count
VII asserts that the BSEA hearing officer made an adverse
credibility determination against the mother due to the
mother's political beliefs, in violation of her First
Amendment rights. Since this claim is based on conduct that
took place in the administrative hearing, and a similar claim
was asserted in Part One of the Bifurcated Complaint [ECF No.
71 at 5], as an appeal of the agency decision, Count VII is
duplicative of an issue that already was, or should have
been, raised in the administrative proceeding and subsequent
appeal. Furthermore, BSEA has been dismissed as a defendant,
and there is no apparent basis to assert this claim against
BPS where the only allegation pertaining to BPS is that the
hearing officer acted “at the instigation” of
BPS's attorney. Thus, Count VII is also dismissed for
failure to state a claim against BPS.
Count VI is subject to dismissal for two reasons in addition
to the failure to exhaust the claim. Count VI alleges that
BPS violated the mother's Fourteenth Amendment right to
“raise her child as she see[s] fit” because BPS
instructed Student in sign language, despite the mother's
objections. Plaintiffs do not assert that this decision was
made according to a policy or practice established by BPS.
Under the rule articulated in Monell v. Dep't of Soc.
Servs. of City of New York, 436 U.S. 658 (1978),
“a municipality may not be held liable under a theory
of respondeat superior for an employee's
constitutional violation, ” but “it may be held
liable when ‘execution of [the municipality's]
policy or custom . . . inflicts the injury' and is the
‘moving force' behind the employee's
constitutional violation.” Saldivar v. Racine,
818 F.3d 14, 20 (1st Cir. 2016) (quoting Monell, 436
U.S. at 694). Although the complaint alleges that Defendants
Ford and Chang are “policy makers for the City, ”
and asserts that they “should be compelled to develop
an institutional policy . . . for parents who are concerned
about the language or mode of instruction, ” this is a
request for relief, not a factual allegation. Furthermore,
even if the complaint had alleged that the decision to
instruct Student in sign language was made pursuant to a
policy or custom of BPS, the Fourteenth Amendment right
“to direct the upbringing and education” of
one's children does not “include the right to
dictate the curriculum at the public school to which parents
have chosen to send their children.” Pisacane v.
Desjardins, 115 F. App'x 446, 450 (1st Cir.