NANCY TORRESEN, Chief District Judge.
This matter comes before the Court on the Plaintiffs' motion for partial summary judgment (ECF No. 158), and the Defendants' motion for summary judgment. ECF No. 160. For the reasons stated below, the Plaintiffs' motion is
The Plaintiffs in this case are Matthew Pollack and Jane Quirion (the "
The parties cross-move for summary judgment on the Plaintiffs' claims that the District violated the Americans with Disabilities Act (the "
Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). On cross-motions for summary judgment, courts "view each motion separately and draw all reasonable inferences in favor of the respective nonmoving party." Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013). Faced with cross-motions, courts must "decide `whether either of the parties deserves judgment as a matter of law on the facts that are not disputed.'" Fid. Co-op Bank v. Nova Cas. Co., 726 F.3d 31, 36 (1st Cir. 2013) (quoting Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004)).
The Plaintiffs claim that B.P. has the right to wear an audio recording device throughout his school day under the ADA, Section 504, and the First Amendment. Second Am. Compl. ¶¶ 185-98 (Count IV), 206-18 (Count VI) (ECF No. 51).
As explained in a previous order, the IDEA has both a savings clause and an exhaustion clause. See Order on Defs.' Mot. to Dismiss 12 (ECF No. 33). It instructs as follows:
20 U.S.C. § 1415(l). In other words, the IDEA does not displace other federal laws that protect disabled children, but it does require that plaintiffs seeking relief available under the IDEA first use its administrative processes to resolve their disputes. This requirement gives education professionals with specialized knowledge and those who interact with the child on a daily basis the opportunity to find a solution, and if that fails, to create a record of their process, which will aid any laterreviewing court. See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 60-61 (1st Cir. 2002).
Here, B.P. bypassed the IDEA process for his request to wear a recording device and therefore did not administratively exhaust.
Quirion renewed the recording device request in June of 2012, this time as a reasonable accommodation for B.P. under the ADA. SJR 6406. Moore responded that he and Zima would "look into the ADA request and schedule a time to meet with you and discuss the matter." SJR 6408. Quirion responded that she would be willing to meet, but wanted to know the agenda ahead of time. SJR 6409. She also informed Moore that "[i]f the point of a meeting is to ask me to withdraw my request, I will not withdraw it." SJR 6409. The record does not indicate that any meeting took place after Quirion's June 2012 request.
On August 30, 2012, days before the start of the new school year, Quirion again wrote to Moore and Zima regarding the recording device matter. SJR 6413-14. She informed these school administrators that she interpreted their silence on her earlier request as approval, and would "be sending [B.P.] to school on Tuesday (and every day) with a recording device." SJR 6414. Moore wrote back apologizing for the delay and indicating as follows:
SJR 6413. Quirion declined the offer of an IEP meeting. SJR 6415. To Quirion, the request for the recording device as an ADA accommodation was different from an educational accommodation under the IDEA. SJR 6415. Moore sent Quirion a letter on September 1, 2012, reiterating the District's objections to the recording device and proposing some alternative ways to address her concerns. SJR 6418.
The request that B.P. wear a recording device at school is relief that would be available under the IDEA. See 20 U.S.C. §§ 1401(33), 1414(d)(1)(A)(i)(IV);
As evidenced by my previous order on the Plaintiffs' IDEA appeals, record evidence from IEP meetings—where teachers, administrators, specialists, and parents work collaboratively to figure out what is best for the child—provide valuable information for me when called upon to review the matter. See, e.g., Order on Pls.' IDEA Appeals 24-27, 31-34 (ECF No. 128); see also Frazier, 276 F.3d at 61 ("Allowing plaintiffs to bypass the IDEA's administrative process en route to state or federal court disrupts this carefully calibrated balance and shifts the burden of factfinding from the educational specialists to the judiciary."). Because the Plaintiffs did not pursue this relief first under the IDEA, there is no evidentiary record from the administrative process that would allow me to determine whether B.P. should be allowed to wear a recording device at school under the ADA, Section 504, or the First Amendment. Because the Parents would not participate in the IDEA's procedures, they have not properly exhausted. Therefore, B.P.'s claims under the ADA, Section 504, and the First Amendment to wear a recording device at school are dismissed.
The District also moves for summary judgment on the Parents' First Amendment right-to-record claim.
After the Defendants moved for summary judgment on the Plaintiffs' claim that the District and Allen violated the Fourth Amendment by "searching" B.P., the Plaintiffs decided not to oppose this aspect of the Defendants' motion. Pls.' Resp. to Defs.' Mot. for Summ. J. 1. Accordingly, the Fourth Amendment claims against the District and Allen are dismissed.
Together the Plaintiffs' two complaints make out First Amendment retaliation claims under 42 U.S.C. § 1983 against all Defendants, Second Am. Compl. ¶¶ 171-78 (Count II); Compl. ¶¶ 112-19 (Count II) (2:14-cv-215-NT) (ECF No. 1), and Section 504 and ADA retaliation claims against the District. Second Am. Compl. ¶¶ 179-84 (Count III-Section 504); Compl. ¶¶ 120-25 (Count III-Section 504) (2:14-cv-215-NT), 126-33 (Count IV-ADA) (2:14-cv-215-NT).
State actors, including school districts and individual school officials, "offend the First Amendment when they retaliate against an individual for constitutionally protected speech." González-Droz v. González-Colón, 660 F.3d 1, 16 (1st Cir. 2011); see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280-81 (1977). In order to establish a prima facie case of First Amendment retaliation, a plaintiff must show: (1) that "he or she engaged in constitutionally protected conduct"; (2) that "he or she was subjected to an adverse action by the defendant"; and (3) that "the protected conduct was a substantial or motivating factor in the adverse action." D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 41 (1st Cir. 2012). On the second element, an adverse action is one that "viewed objectively . . . would have a chilling effect on [the plaintiff's] exercise of First Amendment rights," Barton v. Clancy, 632 F.3d 9, 29 (1st Cir. 2011), or that "would deter a reasonably hardy person from exercising his or her constitutional rights." D.B., 675 F.3d at 43 n.11.
The elements of retaliation claims under Section 504 and the ADA are identical to each other. Id. at 41. To make out a prima facie case of retaliation under either statute, a plaintiff must establish that: "(1) he or she engaged in protected conduct, (2) he or she was subjected to an adverse action by the defendant, and (3) there was a causal connection between the protected conduct and the adverse action." Id. On the second element, an adverse action is "one that might well dissuade a reasonable person from making or supporting a charge of discrimination." Id.
The Plaintiffs press First Amendment retaliation claims against the four individual Defendants. The Defendants maintain that these individual Defendants are entitled to qualified immunity. Defs.' Mot. for Summ J. 45-49 (ECF No. 160). The First Circuit prescribes a two-step process to determine whether an official is entitled to qualified immunity. Mosher v. Nelson, 589 F.3d 488, 492 (1st Cir. 2009). First, the Court must determine "whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right." Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). Second, the Court must determine "whether the right was `clearly established' at the time of the defendant's alleged violation." Id.
Completing the "clearly established" step of the qualified immunity analysis requires answering two additional questions. First, the court must "must focus `on the clarity of the law at the time of the alleged civil rights violation.'" Matalon v. Hynnes, 806 F.3d 627, 633 (1st Cir. 2015) (quoting Maldonado, 568 F.3d at 269). This "assessment `turns on whether the contours of the relevant right were clear enough to signal to a reasonable official that his conduct would infringe that right.'" Matalon, 806 F.3d at 633 (quoting MacDonald v. Town of Eastham, 745 F.3d 8, 12 (1st Cir. 2014)). Second, courts "must appraise the facts of the case to determine `whether a reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights.'" Id. (quoting Maldonado, 568 F.3d at 269).
The First Circuit's decision in Barton v. Clancy, 632 F.3d 9 (1st Cir. 2011), sheds light on the "clearly established" inquiry in the First Amendment retaliation context.
As to the first prong of the "clearly established" inquiry—the clarity of the law at the time of the alleged violations—the First Circuit found that it was clearly established that "even relatively minor events can give rise to liability for retaliation under § 1983 and that a campaign of harassment can support a First Amendment retaliation claim if the harassment would deter a reasonably hardy individual in the exercise of his or her First Amendment rights." Id. at 30 (internal citations and quotations omitted).
The court then turned to the second prong of the "clearly established" inquiry, and, focusing on Mayor Clancy's actions, evaluated whether a reasonable official in his shoes would have understood that his conduct violated Barton's constitutional rights. Id. Answering this question in the negative, the court explained that
Id. Clancy "lacked `fair warning that his particular conduct was unconstitutional,'" and he was thus entitled to qualified immunity. Id. (quoting Maldonado, 568 F.3d at 269).
In the case at bar, the Defendants concede that "the right to petition the government for a redress of grievances under the First Amendment" is clearly established. Defs.' Mot. for Summ. J. 46. But, the Defendants maintain that "no reasonable defendant could have understood that the conduct which Plaintiffs describe as retaliatory in their complaints violated Plaintiffs' constitutional rights." Defs.' Mot. for Summ. J. 46.
Kelly Allen has worked with B.P. since kindergarten. SF ¶ 9. At different times she has served as his classroom teacher, case manager, and autism consultant. SF ¶¶ 9-11. The Plaintiffs claim that Allen committed retaliation in violation of the First Amendment when, on the first day of the 2012-2013 school year, she opened a zipped pouch on B.P.'s shoe, removed "a tan stick with a note attached to it," read the note, and returned the items to the pouch. Second Am. Compl. ¶¶ 171-78 (Count II); SJR 4483-84. I previously held that Allen is entitled to qualified immunity on the sinceabandoned claim that this conduct was a "search" that violated the Fourth Amendment. Order on Defs.' Mot. to Dismiss 31-34. That is because a reasonable person in Allen's position would not have understood her conduct as violating the Fourth Amendment. Order on Defs.' Mot. to Dismiss 31-34. Nor would a reasonable person in Allen's position have understood that this same conduct amounted to unconstitutional retaliation. See Barton, 632 F.3d at 30-31. To commit retaliation based on the exercise of First Amendment rights, Allen would have had to have taken actions that were "sufficiently oppressive to chill the speech of a reasonably hardy individual."
Tanji Johnston is Mt. Ararat Middle School's Special Education Coordinator. SF ¶ 6. As mentioned above, Patrick Moore is the District's Director of Special Services. SF ¶ 7. The Plaintiffs claim that Johnston and Moore committed retaliation in violation of the First Amendment when they participated in the IEP team decision to provide B.P. with individualized lunch outings. Compl. ¶¶ 112-19 (Count II) (2:14cv-215-NT). Johnston and Moore are entitled to qualified immunity if a reasonable person in each of their positions would not have understood that this conduct amounted to unconstitutional retaliation. See Barton, 632 F.3d at 30-31. The question is whether these administrators would have understood their participation in this portion of the IEP process as "sufficiently oppressive to chill the speech of a reasonably hardy individual." Id. at 30.
I previously provided a detailed account of the IEP process for the lunch outing dispute. Order on Pls.' IDEA Appeals 21-28. As described in that order, Moore and Johnston attempted to provide B.P. with the benefit of the school's "Community Experiential Program" (the lunch outings), while navigating challenging interpersonal dynamics. Order on Pls.' IDEA Appeals 21-28. For example, the Parents had previously insisted that the teacher for this program only interact with B.P. in emergency situations. SF ¶ 51. Further, parents of other children who participated in the outings expressed concern to Johnston about Quirion's participation. SJR 4951-52. Moore and Johnston could not have understood that helping to find a way for B.P. to participate in lunch outings, albeit separately from other students, could have constituted behavior that was sufficiently oppressive to chill a reasonably hardy person's exercise of First Amendment rights. See Barton, 632 F.3d at 30-31. Moore and Johnston are entitled to qualified immunity.
Bradley Smith is the Superintendent of RSU 75. SF ¶ 184. The Plaintiffs claim that Smith committed retaliation in violation of the First Amendment through his involvement in responding to the Parents' record requests.
In the Spring of 2011, the Parents requested all of B.P.'s "education records" pursuant to the Family Educational Rights and Privacy Act ("
The Defendants also argue that the scope of parental access under statutes like FERPA and the IDEA is far from clear, and thus "no reasonable defendant would understand that providing a student's centrally-maintained education records in response to a request for documents made under FERPA and the IDEA would violate the Constitutional rights of the person making the request." Defs.' Mot. for Summ J. 47. I am sympathetic to the Defendants' point that these statutes are difficult to interpret.
The Defendants also argue that there is no evidence that Smith acted with a retaliatory motive. Defs.' Mot. for Summ. J. 47. The Plaintiffs assert that there are issues of fact as to whether Smith acted with a retaliatory motive and that these factual issues preclude summary judgment based on qualified immunity. Pls.' Resp. to Defs.' Mot. for Summ. J. 44.
The First Circuit has held that a factual dispute on motive may preclude summary judgment on qualified immunity for a First Amendment retaliation claim. In Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40, 45 (1st Cir. 1988), a government employee claimed, in part, that he had been fired because of his political affiliation, while the government maintained he had been fired for cause, including for misrepresentations in his employment application. "If," the First Circuit reasoned, "plaintiff were fired because of his political affiliation, the question of whether or not the law then existing clearly permitted this is an altogether different question from whether the law allowed him to be fired because he had misrepresented his qualifications in his initial employment application." Id. at 47. Accordingly, the reason why he was fired had to be "settled by further factfinding before, or in conjunction with, the qualified immunity issue." Id.
Smith's intent in charging for records is relevant to whether he is entitled to qualified immunity. Whether the law is clearly established here depends on whether Smith was motivated by a desire to chill the Plaintiffs' protected conduct or to simply preserve the District's resources. See SF ¶ 189. A reasonable district superintendent would understand that charging thousands of dollars for records because parents asked for a due process hearing would infringe on those parents' constitutional rights. Because further fact-finding is required, Smith is not entitled to qualified immunity.
The Plaintiffs press retaliation claims against the District under the First Amendment, Section 504, and the ADA. Second Am. Compl. ¶¶ 171-78 (Count II), 179-84 (Count III); Compl. ¶¶ 112-19 (Count II) (2:14-cv-215-NT), 120-125 (Count III) (2:14-cv-215-NT), 126-33 (Count IV) (2:14-cv-215-NT). Material issues of fact remain as to whether the District's changed response to the Plaintiffs' record requests constituted an adverse action under the First Amendment, Section 504, and the ADA. Material issues of fact likewise persist as to the causal connection between the Plaintiffs' protected activity and the changed response from the District. Because the Plaintiffs' retaliation claims against the District survive under at least one of the adverse actions the Plaintiffs have set forth, the Defendants' motion for summary judgment on these retaliation claims against the District is denied.
The District moves for summary judgment on its counterclaim against the Plaintiffs for an alleged breach of the parties' January 26, 2012 settlement agreement. Defs.' Mot. for Summ. J. 50; Def. SAD 75's Answer to Pls.' Am. Compl., Counterclaim, and Demand for a Jury Trial 35-36 (Count I) (ECF No. 34). The District's argument as to why it should prevail on its counterclaim is not sufficiently developed, and thus I consider it waived for purposes of summary judgment. See Lebron v. Commonwealth of P.R., 770 F.3d 25, 31 (1st Cir. 2014).
For the reasons stated above, the Defendants' motion for summary judgment (ECF No. 160) is
The Plaintiffs' motion for partial summary judgment (ECF No. 158) is
SO ORDERED.
Second, after school on April 29, 2013, Quirion noticed bruising on B.P.'s arms. SJR 6440. The District hired an attorney to investigate the matter, but he did not uncover the source of B.P.'s bruising. SJR 6447-49. The investigator summarized his findings as follows:
SJR 6449. The potential sources of accidental impact included the swinging and "clunking" of B.P.'s Vantage machine (a touch-screen communication device) as he used it that day and an unannounced fire drill that required B.P. and other students to leave the building through a single side door in an unusually-congested manner. SJR 6449.
20 U.S.C. § 1414(d)(1)(A)(i)(IV). "The term `supplementary aids and services' means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate. . . ." 20 U.S.C. § 1401(33).