HILLMAN, District Judge.
DMP has filed a Complaint against The Fay School, by and through its Board of Trustees ("Fay") alleging claims for violation of Title III the American with Disabilities Act, 42 U.S.C. §§ 12181-12189 ("ADA") (Count I); and breach of contract (Count II). DMP seeks monetary and injunctive relief. This Memorandum of Decision And Order addresses Defendant's Motion for Summary Judgment (Docket No. 20) ("Fay's Sum. J.Mot.").
Fay is a private co-educational school located in Southborough, Massachusetts, which has approximately 450 students in pre-kindergarten through ninth grade. Students in grades six through nine can board at the school. Fay's boarding students come from throughout the United States and the world.
Fay's educational philosophy is based on the following five core values which are the foundation for all activity at the school: Academic Excellence, Earnest Effort, Honorable Conduct, Dedicated Service, and "Wellness of Mind, Body, and Spirit (collectively, "Core Values"). The core values are made known to faculty, students, staff and parents; all students are expected to adhere to the Core Values in all actions at the school. The essential nature of the school's Core Values are reflected in the 2010-2011 Parent and Student Handbook. See sealed Exhibits to Fay's Sum.J.Mot. (Docket No. 24-11) ("Handbook"). A copy of the Handbook was sent to all school families and all parents and students were required to acknowledge receiving it. DMP and his family received a copy of the Handbook prior to DMP attending Fay.
The Core Values are listed in the Handbook followed by this statement:
Handbook, at p. 4.
Beginning in grade 3, in addition to academic grades, all students are given effort grades (on a scale of 1-9) every two weeks. The effort grades reflect, among other things, a student's disciplinary violations.
The Handbook also lists "major school rules"; students who violate a major school rule are subject to discipline, including probation, suspension, and dismissal. The first major school rule is "intellectual integrity" — cheating is considered a very serious offense. Additionally, Fay students are required to adhere to "a high standard of conduct, based upon concern and respect for all members of the Fay Community," — including being "kind, courteous, respectful, honest, and friendly" — and to "respect rights of other and to behave appropriately at all times."
Fay has two levels of probation for students who have been found to have violated school rules: social probation and final probation. Final probation is the more serious of the two; it is the last step before expulsion. A period of final probation usually ends with the end of the academic
Over the past few years, several students have either withdrawn from Fay or been expelled for committing major rules violations. To the knowledge of the Head of School, every Fay student who has been on final probation who committed an act of academic dishonesty has either been expelled or withdrawn from the school in lieu of expulsion.
DMP's first year at Fay was the 2009-2010 academic year; he was in eighth grade and was a boarding student. That first year, Fay strongly suggested to DMP's parents that he be professionally evaluated to determine if he had a learning disability. DMP was evaluated and was diagnosed as suffering from Attention Deficit Hyperactivity Disorder ("ADHD"). Fay advised DMP's parents that on advice of its physician, it would not administer the medication Amantadine to DMP because it was not approved by the Federal Drug Administration for treatment of ADHD. Consequently, Fay agreed to let DMP become a day student for the 2010 spring term so he could live with his father nearby and his father could administer his Amantadine.
During the 2009-2010 academic year, DMP had frequent disciplinary problems, including being late for classes, dormitory room violations, disrupting classes and failing to fulfill school obligations. In total, for his first year at the Fay School, DMP had approximately 60 disciplinary violations. Consequently, he was first placed on social probation and then final probation. The school day violations, i.e., violations which occurred during school hours, broke down as follows
During the 2010 summer break, Fay changed its school physician; the new school physician approved the dispensing of Amantadine by the school's nurses. For that reason, DMP enrolled as a boarding student for the 2010-2011 academic year. Within a few days of returning to school in September 2010, DMP began to accumulate disciplinary violations. Fay officials met with DMP to discuss the need to improve and had him serve detentions in order to encourage him to improve his behavior. By early November 2010, DMP had so many disciplinary violations that the DC formally met with him and his advisor to review his conduct. He was placed on final probation for the remainder of the 2010-2011 academic year. On or about November 4, 2010, Matt Evans, the head of Fay's Upper School ("Evans") notified DMP's parents that he had been placed on final probation. DMP also understood that he had been placed on final probation. Nonetheless, DMP continued to incur frequent disciplinary violations. By March 2011, he had 62 disciplinary violations and nine detentions. The violations included skipping classes, not being where he was supposed to be, destroying property that did not belong to him (a pumpkin), disrupting classes, chewing gum in chapel, and taking gummy bear vitamin
In late January or early February 2010, DMP wrote Evans a letter thanking him for the chances and opportunities Evans had given him; he apologized for letting Evans down each time and stated that he had probably been the "highest maintenance" student at Fay during the past year and a half. He stated that he had gotten so used to breaking rules that he was going to have a hard time changing his attitude at Fay. He then stated that "[e]xpulsion" is on the table. This was written during a period when DMP was getting written up while on final probation. No meeting of the DC was scheduled during this period; Evans, who set the agenda for the DC, was gathering input from Fay faculty on whether further disciplinary action might be warranted.
On February 28, 2011, DMP cheated on a quiz in biology class during which students were allowed to access their notes on their computers to answer questions. DMP looked at another student's computer and DMP's quiz answers were almost identical to the other students. When confronted, DMP admitted to cheating. A couple of days later, DMP skipped a meeting with his advisor and lied to his advisor about where he had been. Both the cheating and the lying to his advisor are major rules violations under the Handbook and at the time, DMP was on final probation.
During the school year, DMP frequently did not appear at the nursing office to receive his medications as scheduled; for a student on medication, failure to go to the nurses' station to receive the medication is a violation of school rules. Instead, as an accommodation, school nurses brought DMP's medication to him, including summoning him from class or other school locations. Fay's medication logs show that from February 4, through and including February 28, 2011, DMP skipped his twice daily Amantadine medication four times, while he took the medication thirty-eight times; he was in his parent's custody and control for the remaining eight doses.
As of spring of 2011, Fay had nine students, excluding DMP, diagnosed with ADHD, including one who was a boarding student. Two of these students, one a boarding student and one a day student, received medication daily while at the Fay school to treat their ADHD; the boarding student received medication twice a day and the day student once a day. Both of these students came to the nursing office for their medication on a consistent and timely basis.
From February 17-21, 2011, DMP visited his family in California. On the morning of February 22, 2011, DMP went to the school health center and slept for three hours; he claimed to be exhausted.
According to Dr. William Singer (DMP's treating physician for his ADHD), cheating on a test or lying are not side effects of the medicine which DMP was taking. DMP's ADHD might make him more impulsive.
DMP's father was visiting the school on March 4th and was informed of the expulsion decision. DMP's father requested that the school not inform DMP of his expulsion until after he had completed his final term exam on March 10, 2011. On March 9, 2011, DMP's parents asked that he be permitted to withdraw from school for medical reasons rather than being expelled. Fay's head of school agreed. DMP's parents also requested that he be permitted to return to Fay for the Spring term, but as a day student. Fay's Head of School denied the request that DMP be allowed to return as a day student. On March 26, 2011, his father formally withdrew him for medical reasons. The school accepted his withdrawal the following day.
While attending the ninth grade at Fay, DMP was also applying to high schools in the Northeast and California. Even before he was expelled by Fay, his parents intended that DMP, who was had been the youngest in his class at Fay, repeat ninth grade at his new high school. None of the schools which DMP applied to withdrew its acceptance or denied acceptance to DMP as the result of his having withdrawn from Fay. DMP accepted an offer to attend the Woodside Priory School in California beginning in August 2011.
Additional facts necessary to the Court's decision will be included as in the relevant discussion.
When ruling on a motion for summary judgment, the Court must construe the facts in a light most favorable to the non-moving party. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003). Summary judgment is appropriate when "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" when the evidence is such that a reasonable fact-finder could resolve the point in favor of the non-moving party, and a fact is "material" when it might affect the outcome of the suit under the applicable law. Morris v. Gov't Dev. Bank, 27 F.3d 746, 748 (1st Cir.1994). The non-moving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material
DMP has sued Fay under Title III of the ADA alleging that Fay failed to reasonably accommodate his disability, i.e., his ADHD, by refusing his parents' request to allow him to spend his last trimester of the academic year as a day student. Plaintiff asserts that he seeks monetary damages and injunctive relief. Fay argues that since DMP already began attending ninth grade in another school in August 2011 and would not be able to return to Fay (Fay only goes through the ninth grade), his request for injunctive relief is moot and therefore, Fay is entitled to summary judgment on his ADA claim. In response, to the mootness argument, DMP argues that he continues to be harmed because his Fay transcript reflects that he withdrew from Fay for medical reasons; this notation could have a negative connotation which could cause him future harm if applies to attend college.
"[I]n federal court, justiciability requires the existence of an actual case or controversy. The `case or controversy' requirement persists at all stages of the litigation and not merely at the time suit is instituted." Goodwin v. C.N.J., Inc., 436 F.3d 44, 48 (1st Cir.2006) (internal citations omitted). Thus, if after suit events transpire which would make it impossible for the Court to provide effective relief with respect to any claim, that is, where the parties no longer have a "legally cognizable stake in the outcome," the claim is moot. See Id.
In his Complaint, the only injunctive relief sought be DMP is that he be allowed to return to Fay to complete the term as a day student; no mention is made of the notation on his transcript that he withdrew for medical reasons and no mention is made as to any possible stigma which might attach to any such notation. This is not surprising given that DMP's parents expressly bargained that he be allowed to withdraw for medical reasons to avoid the possible stigma which would attach should his transcript instead reflect that he was expelled for cheating and/or lying to his advisor. More to the point, DMP did not graduate from Fay and therefore, his transcript cannot reflect that he did. The only other alternatives are to have the transcript reflect, 1) that he was expelled; or 2) that he withdrew without providing any reason. DMP suggests that the latter would be preferable to "withdrawn for medical reasons." However, he has failed to establish that such modification is a viable or meaningful alternative to the status quo — which simply serves to underscores the fact his ADA claim under Title III is moot. Even if DMP's ADA claim were not found to be moot, for the reasons set forth below, I would find that Fay is entitled to summary judgment on this claim.
Under Title III of the ADA, "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation...." See 42 U.S.C. § 12182(a). Fay is a place of public accommodation to which Title III applies. See Bercovitch v. Baldwin School, 133 F.3d 141, 153 (1st Cir.1998). To prevail on his ADA Title III claim, DMP must show: (1) he is disabled within the meaning of the ADA; (2) he was otherwise qualified for participation in the Fay's program; (3) he made a request for a reasonable accommodation from Fay; and (4) Fay denied the request. Axelrod v. Phillips Acad., 46 F.Supp.2d 72, 83 (D.Mass.1999) and cases cited therein. I assume for purposes of this discussion that DMP was disabled
Cheating and lying are behaviors which are unacceptable at an institution of learning, regardless of whether Plaintiff can attribute such behavior to his disability or not. It is undisputed that Fay places great emphasis on its core values, including "Honorable Conduct." Furthermore, it is undisputed that cheating is a major rules violation under the Handbook. In this case, DMP committed a major rules violation while on final probation and after having amassed over one hundred and twenty disciplinary violations in less than two academic years. Simply put, Fay is not required to compromise the integrity of the school's policies, values and/or academic requirements in order to "accommodate" a student's disability. Accord generally Axelrod, 46 F.Supp.2d at 72.
Additionally, the "reasonable accommodations which DMP's parents requested were that he be permitted to attend Fay as a day student and that Fay take greater steps to ensure that he took his medication. However, during a prior term, DMP had continued to accrue disciplinary violations while on his medication and attending Fay as a day student — albeit at a slightly lesser pace. Thus, the "reasonable accommodations" requested by DMP's parents had demonstrably failed to alleviate his disciplinary problems. Therefore, DMP was not qualified to attend Fay. Cf. Bercovitch v. Baldwin School, Inc., 133 F.3d 141 (1st Cir.1998) (school's code of conduct is not superfluous to its proper operation, it is integral aspect of productive learning environment; student who cannot be "otherwise qualified" unless with reasonable accommodation he can meet disciplinary requirements). Under the circumstances, Fay is entitled to summary judgment on DMP's ADA claim, as a matter of law.
"[A]bsent a contractual commitment to the contrary, schools `have wide discretion in school discipline matters.'" Driscoll v. Bd. of Trustees of Milton Academy, 70 Mass.App.Ct. 285, 292, 873 N.E.2d 1177 (2007) (citation to quoted case omitted). "A private ... school may not arbitrarily or capriciously dismiss a student. If school officials act in good faith and on reasonable grounds, however, their decision to suspend or expel a student will not be subject to successful challenge in the courts. Violations of reasonable rules and regulations of a school are a recognized ground for dismissal of a student." Coveny v. President & Trustees of College of Holy Cross, 388 Mass. 16, 19,
As to the latter, private schools are given broad discretion to meet their educational and doctrinal responsibilities and unless the school clearly abuses its discretion in enforcing it policies and regulations, courts will not interfere in the manner in which the school carries out such policies and regulations. DMP has failed to adduce any evidence that Fay abused its discretion in expelling him. On the contrary, given that DMP had amassed over 120 disciplinary violations in a relative short period of time and that he admitted to cheating while on final probation, and then lying to an advisor (concerning his whereabouts when he missed a scheduled appointment), the Head of School's decision to expel DMP was neither arbitrary nor capricious — indeed, he acted well within the proper discretion when he expelled DMP. The question thus becomes whether Fay violated a contractual right by expelling DMP.
DMP alleges that the Handbook created a binding contract which Fay breached when the Head of School expelled him without holding a meeting of the DC at which he could appear with an advocate. Fay argues first, that the Handbook does not create a binding contract. If the Court finds that the Handbook creates a binding contract between Fay and DMP's parents (who signed on behalf of themselves and DMP), Fay argues that the Handbook gives the Head of School the discretion to refer serious misconduct, such as a major rules violation, to the DC to hold a hearing before imposing punishment — however, it does not mandate that he do so. Fay further argues that the provision which provides for referrals of more serious misconduct to a DC does not apply when the offending student is already on final probation; in such a case, the determination of any punishment to be imposed rests solely with the Head of School.
The Court need not spend much time on this issue of whether the Handbook is a binding contract between Fay and its students. Massachusetts law has long recognized that in the context of private education, there is a contractual relationship between the school and student, the terms of which may include reciprocal rights and oblations set forth in the student handbook. In this case, Fay requires each student and their parents to sign an acknowledgment that they have received the Handbook for the current academic year. The policies, regulations and procedures contained in the Handbook are contractual in nature and binding on Fay and its students.
When "interpreting contract claims based on school handbooks[,] ... [the court] employ[s] `the standard of "reasonable expectation — what meaning the party making the manifestation, the [school], should reasonably expect the other party to give it."'" Driscoll, 70 Mass. App.Ct. at 293, 873 N.E.2d 1177 (internal citations and citation to quoted case omitted). The interpretation of the contract and whether the contract is ambiguous are questions of law for the court.
As to the former, I find that there exists an ambiguity in the provisions of the Handbook governing the procedures which Fay was required to follow in connection with expelling DMP. Specifically, the Handbook provisions governing the imposition of discipline provide as follows:
Handbook, at p. 34. The Handbook also provides that "Fay School reserves the right to alter, amend, or modify the policies and procedures in this handbook at any time." Id., at p. 2. Finally, the Handbook provides that "[s]tudents who violate major school rules are subject to disciplinary consequences including probation, suspension and dismissal." Id., at p. 31.
DMP's parents signed an enrollment contract for the 2010-2011 academic year which provided in relevant part as follows:
See sealed Exhibits to Fay's Sum.J.Mot. (Docket No. 24-10) ("Enrollment Contract").
Fay asserts that in accordance with the above provisions, the Head of School has the right to unilaterally impose discipline on students who commit major rules violations, including expulsion, but that he may, at his discretion, first refer the matter to the DC. Fay further asserts that the provision requiring that students being placed on probation following disciplinary action before the DC bolsters its argument that the Head of School has the unilateral authority to expel a student. DMP, on the other hand, argues that when a student is charged with a major rules violation, the procedures outlined above require the holding of a hearing before the DC at which s/he can present his/her side with the assistance of an advisor or advocate; the DC then makes a recommendation to the Head of School, at which point the Head of School can make a final decision.
While at the end of the day, there can be no question that DMP's misconduct warranted his dismissal from Fay, there is a genuine issue of material fact as to whether Fay adhered to its own policies and procedures in reaching the decision to expel DMP. Therefore, Fay's motion for summary judgment on DMP's claim for breach of contract is denied.
Defendant's Motion for Summary Judgment (Docket No. 20) is
