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Rosario v. Nashoba Regional School District

United States District Court, D. Massachusetts

December 5, 2019

MARIA del ROSARIO, on behalf of and as Guardian and Parent of GWENDOLYN BURKE, Plaintiff,




         Maria del Rosario, on behalf of and as Guardian and Parent of Gwendolyn Burke (“Plaintiff”) has filed a Complaint against Nashoba Regional School District (“Nashoba”) and the Bureau of Special Education Appeals (“BSEA”): (1) appealing the BSEA's decision as against the weight of the evidence; (2) appealing the hearing officers BSEA decision on the grounds that it was invalidated by procedural, statutory, constitutionals; (3) seeking reimbursement of attorney's fees and costs from Nashoba; (4) asserting a claim for damages against Nashoba for discrimination in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C, § 794; (5) asserting a claim for damages under the federal civil rights act, 42 U.S.C § 1983 against Nashoba for violation of Gwendolyn Burke's due process rights; and (VI) seeking equitable relief in the form of an injunction enforcing the outstanding portion of the BSEA decision by ordering Nashoba to arrange for an immediate, independent vocational and daily living evaluation of Gwendolyn Burke at the “LABBB Collaborative.”

         This Memorandum and Order addresses Plaintiff's Motion For A Preliminary Injunction Enforcing An Order Of The Bureau Special Education Appeals Against Defendant Nashoba Regional School District (Docket No. 4).

         Standard of Review

         It is well-settled law that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Voice Of The Arab World, Inc. v. MDTV Medical News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011). While all four factors must be weighed, the moving party's likelihood of success on the merits is “the touchstone of the preliminary injunction inquiry.” Philip Morris, Inc. v. Harshbarger, 159 F.3d 670, 674 (1st Cir. 1998). “[I]f the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.” Maine Educ. Ass'n, 695 F.3d at 152 (quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)) (emphasis added).

         The moving party bears the burden of proof for each of these four factors. Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003). Where all parties agree as to the basic facts of a dispute, a court “is free to accept as true well-pleaded allegations in the complaint and uncontroverted affidavits filed in support of the motion for a preliminary injunction.” Avaya v. Ali, Civ.Act. No. 12-10660-DJC, 2012 WL 2888474 (D.Mass. Jul. 13, 2012) (citing Rohm & Haas Elec. Materials, LLC v. Elec. Circuits Supplies, Inc., 759 F.Supp.2d 110, 114 n. 2 (D.Mass. 2010)) (internal quotations omitted). However, where there is significant dispute as to the underlying facts, “the propriety of injunctive relief hinges on determinations of credibility.” Id. (internal quotations omitted). In support of their relative positions, the parties relied on their written submissions and examination/cross-examination of the lone witness, Mr. Kelly, affidavits, exhibits and proffer of counsel.

         The Legal Landscape: Nashoba's duty to provide Gwendolyn with transition level skills, training, and vocational opportunities suited to her potential.

         Plaintiff is the court-appointed guardian of Gwendolyn Maria Burke. Nashoba is a duly chartered regional school district with a principal location in Bolton, Massachusetts. The “BSEA” is part of the Massachusetts Division of Administrative Law Appeals.

         Gwendolyn is a highly functioning twenty-two-year-old on the autism spectrum with a documented diagnosis of learning disability. Gwendolyn is disabled as defined by one of more of the subsections of the Individuals with Disability in Education Act (“IDEA”), 20 U.S.C. §1400 et seq., in accordance with federal and state law. As a result of her disabilities and because she and Plaintiff were residents of the school district encompassed and serviced by Nashoba, for almost two decades, Gwendolyn received special education services from Nashoba pursuant to federal and state statutes and regulations.

         Under applicable federal and state statutes and regulations in effect, the school district where a child with a disability resides has financial and programmatic responsibility for providing that student's special education until the child reaches the age of twenty-two. Moreover, school districts are required to provide that student with a Free Appropriate Public Education (“FAPE”) in the Least Restrictive Environment (“LRE”) with meaningful parent involvement in designing the student's individualized education program (“IEP”)[1], including placement options and other important procedural safeguards. Additionally, federal regulations require Nashoba to provide older disabled students such as Gwendolyn with a coordinated set of services designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. These mandated transition services must be based on the individual child's needs, taking into account the child's strengths, preferences, and interests; and includes:

(i) Instruction;
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment and other post-school adult living objectives; and
(v) If appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.

         Massachusetts regulation also require Nashoba to provide programs for older students to ensure that options are available for them, particularly those eligible students of ages eighteen through twenty-one years. Such options include continuing education; developing skills to access community services; developing independent living skills; developing skills for self-management of medical needs; and developing skills necessary for seeking, obtaining, and maintaining jobs; developing skills to access community services; developing independent living skills; developing skills for self-management of medical needs; and developing skills necessary for seeking, obtaining, and maintaining jobs.

         Under applicable federal and state law, a Massachusetts school district that is unable to provide a reasonably adequate FAPE in the LRE, including mandated transition services, is required to offer the student with a free out of district placement at another school that will provide them with such reasonably appropriate services.

         Background Facts[2]

         Gwendolyn's Placement in Nashoba's Transition Program

         From May of 2016, when she received a Certificate of Completion until she turned twenty-two in July of this year, Gwendolyn received special education services from Nashoba in its transitions program at the Nashoba Regional High School (“NRHS”) in Bolton, Massachusetts. Nashoba's transition classroom is the place where its in-district special education students are placed after they turn eighteen until they reach the age of twenty-two. There were no other non-special education students (typical peers) in the transitions classroom during Gwendolyn's placement.

         Gwendolyn has demonstrated ability in and enthusiasm for baking and cooking and has a career objective of employment as a chef in a commercial bakery or restaurant. While she was a student in its transitions program, Nashoba provided Gwendolyn with routine opportunities for developing her culinary skills and her vocational goals. More specifically, Nashoba provided Gwendolyn with special education services for developing her skills in cooking and baking in a home-style kitchen, with an ordinary stove and limited baking equipment, that is, a noncommercial setting. During the entire time Gwendolyn was in its transitions program, Nashoba failed to find employment for Gwendolyn, or any other post eligible transition special education students in commercial bakeries or restaurants performing baking or cooking. Instead, Nashoba placed Gwendolyn at a local business's cafeteria where she performed routine food preparation. In such settings, Gwendolyn was assigned menial tasks that she and Plaintiff felt were below her abilities and did not develop her transition level skills to her potential.

         Since before 2016 and though the spring of 2018, Plaintiff met with the faculty and staff of Nashoba on an almost monthly basis to learn about Gwendolyn's progress, and she frequently expressed her strongly felt concern that Gwendolyn was not receiving adequate vocational training and off-site job opportunities in her chosen field of baking and cooking.

         Alternative out of district placement to which Gwendolyn was entitled in order to provide her a FAPE in the LRE

         During the relevant time period, the Minuteman Regional Vocational Technical School District (“Minuteman”) offered a vocational education to high school students in its educational facility located in Lexington, Massachusetts, a half an hour's drive from Gwendolyn's home. Minuteman offered culinary arts vocational training in its classroom shops with commercial baking equipment and restaurant grade facilities. Gwendolyn could not be directly enrolled at Minuteman.

         The “LABBB Collaborative” is a collaborative of Massachusetts municipal school districts, including Lexington, Arlington, Burlington, Bedford, and Belmont that was created to serve students with special education needs from the aforementioned base districts and approximately seventy sending districts. It services a wide range of students with disabilities from the age of three up to the age of twenty-two. The LABBB Collaborative also accepted out of district students at Minuteman who were entitled to take advantage of both that collaborative and that school district's vocational and academic programming when the referring school district paid a tuition for that student. Students in the LABBB Collaborative programming at Minuteman are offered vocational training and access to the same shop classroom facilities offered to Minuteman's directly enrolled students. The LABBB Collaborative programming at Minuteman offered vocational internships and off-site job training in commercial bakeries and restaurants performing actual cooking and baking. Upon completion of its enrolled students' programming at Minuteman, LABBB Collaborative students were provided with job placement services and opportunities in the culinary arts in commercial bakeries and restaurants, performing actual cooking and baking. The LABBB Collaborative also provided academic services to enrolled special education students, including, where appropriate, preparation for taking the Commonwealth's MCAS tests so that said students could earn a high school diploma.

         Nashoba could have referred and placed Gwendolyn in the LABBB Collaborative programming at Minuteman, but refused to do so. From November of 2016 through September of 2018, Nashoba refused to even grant permission to Plaintiff and Gwendolyn to tour the LABBB Collaborative programing at Minuteman due to alleged restrictions contained in federal and state statutes and regulations. Starting in May of 2017, Plaintiff requested to refer Gwendolyn for placement at another school where she could receive a FAPE which was reasonably suitable for her potential in the LRE, including the LABBB Collaborative programming at Minuteman. Nashoba failed to respond to such requests.

         Gwendolyn's BSEA Appeal[3]

         Pursuant to Massachusetts law, disputes between school districts and students and/or their parents regarding FAPE's in the LRE, including placement determinations, are submitted for resolution to the BSEA. On June 22, 2018, Gwendolyn and Plaintiff filed an appeal with the BSEA because Nashoba had refused to refer Gwendolyn for a publicly funded placement at the LABBB Collaborative programming at Minuteman (“BSEA Appeal”). The specific relief requested in the BSEA Appeal was placement in the LABBB Collaborative programming at Minuteman, transportation to that programming (as she was currently receiving to NRHS), and an award of ...

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