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Pollack v. Regional School Unit 75

United States District Court, D. Maine

April 29, 2015

MATTHEW POLLACK and JANE QUIRION, individually and as next friends of B.P., Plaintiffs,
REGIONAL SCHOOL UNIT 75, et al., Defendants.


NANCY TORRESEN, Chief District Judge.

Plaintiffs Matthew Pollack and Jane Quirion (the "Parents") are the parents of B.P., a sixteen-year-old boy who suffers from disabilities that greatly limit his ability to communicate. The Defendant named in the counts at issue, Regional School Unit 75 ("RSU 75" or the "District"), is the local educational agency responsible for making a free appropriate public education available to B.P. under the Individual with Disabilities Education Act (the "IDEA"), 20 U.S.C. §§ 1401-1491o.

The Parents challenge two decisions reached by Maine due process hearing officers ("DPHOs") under the IDEA. In the first, Case No. 13.107H, the DPHO declined to grant the Parents additional relief from the District's refusal to turn over certain documents, including internal e-mails about B.P., and declined to grant the Parents any relief from the District's refusal to allow B.P. to attend school with an audio recording device. In the second, Case No. 14.035H, the DPHO found that the District committed procedural but not substantive violations when it offered to bring B.P. on weekly lunch outings individually rather than with his special education peers. The DPHO declined to grant an award of compensatory education.

For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the Parents' request for relief with respect to Case No. 13.107H and DENIES the Parents' request for relief with respect to Case No. 14.035H.


Congress enacted the IDEA to ensure that all children with disabilities are provided a "free appropriate public education" ("FAPE"), [1] and to protect the rights of disabled children and their parents. 20 U.S.C. §§ 1400(d)(1)(A)-(B), 1401(9); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 58 (1st Cir. 2002). The "primary vehicle for deliver[ing]" a free appropriate public education is a child's "individualized education program" ("IEP"). Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008). An IEP is a written statement that includes, among other things, measurable annual goals the child should be able to achieve and services the school will offer. 20 U.S.C. § 1414(d)(1)(A)-(B). The IEP must be developed by a team that includes the child's parents. Id.

In order to receive federal funding under the IDEA, a state must establish a due process hearing procedure to allow parents to challenge a child's special education programming. See 20 U.S.C. § 1415(b)(6), (f)(1)(A). A party "aggrieved" by the final state decision may bring a civil action challenging it in state court or federal district court. 20 U.S.C. § 1415(i)(1), (2).[2]

Legal Standard

Section 1415(f)(3)(E) of the IDEA sets forth the following limitations on an IDEA DPHO's decision:

(i) In general
Subject to clause (ii), a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education.
(ii) Procedural issues
In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-
(I) impeded the child's right to a free appropriate public education;
(II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or
(III) caused a deprivation of educational benefits.
(iii) Rule of construction
Nothing in this subparagraph shall be construed to preclude a hearing officer from ordering a local educational agency to comply with procedural requirements under this section.[3]

20 U.S.C. § 1415(f)(3)(E).

Clause (i) generally requires DPHOs to decide cases based on whether a school substantively denied a free appropriate public education. See 20 U.S.C. § 1401(9).[4] Under clause (ii), however, a DPHO may find that a procedural violation rises to the level of a denial of a free appropriate public education if it caused one of the types of harm laid out in roman numerals (I) through (III) of clause (ii).[5] The rule of construction found at clause (iii) appears to permit DPHOs to order local educational agencies to comply with IDEA's procedures even absent a finding that any violation rose to the level of a deprivation of a free appropriate public education.

Where a plaintiff has established a deprivation of a free appropriate public education, a DPHO may award compensatory education-monetary or injunctive relief to allow a disabled child to obtain services to make up for educational opportunities the local educational agency failed to provide. See Mr. I. ex rel. L.I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 25 (1st Cir. 2007); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 31 (1st Cir. 2006). Because compensatory education awards are equitable in nature, Murphy v. Timberlane Reg'l Sch. Dist., 973 F.2d 13, 16 (1st Cir. 1992), hearing officers and courts have substantial discretion to decide when they are necessary. Mr. I. ex rel. L.I., 480 F.3d at 25 (denial of compensatory award not abuse of discretion despite finding of substantive IDEA violation where DPHO concluded student's "pupil evaluation team" "could better assess what special education [the disabled child] needs at this point").

Standard of Review

When a court hears a challenge of a DPHO's decision under the IDEA, it must receive the entire administrative record, hear additional evidence at the request of a party, reach a decision based on the preponderance of the evidence, and grant "such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C). The First Circuit has characterized this standard of review as falling "somewhere between the highly deferential clear-error standard and the non-deferential de novo standard." Lessard, 518 F.3d at 24. The court "essentially conducts a bench trial based on a stipulated record, but must nevertheless give due deference to the findings of the administrative hearing officer." Sebastian M. v. King Philip Reg'l Sch. Dist., 685 F.3d 79, 85 (1st Cir. 2012) (internal citations, quotation marks, and brackets omitted). Deference is more likely warranted where a finding is based on educational policy judgments, see Lessard, 518 F.3d at 28-29, or credibility judgments. See Sebastian M., 685 F.3d at 86; Doe ex rel. Doe v. Attleboro Pub. Schs., 960 F.Supp.2d 286, 294-95 (D. Mass. 2013). Deference is less likely warranted where the disposition hinges on abstract questions of law. See Lessard, 518 F.3d at 24; Abrahamson v. Hershman, 701 F.2d 223, 231 (1st Cir. 1983).

CASE NO. 13.107H

Factual Background

I. B.P.'s Disability & Early Education

B.P. is diagnosed with autism and a variant of Landau-Kleffner Syndrome, a language disorder. R. 1040. He is nonverbal and has very limited expressive communication skills. R. 1040, 1077. He cannot communicate his experiences to others in detail or accurately answer questions about what has happened to him. R. 1040, 1077.

B.P. has been educated in the District since kindergarten. R. 1040. By the time B.P. began attending Mt. Ararat Middle School, the relationship between B.P.'s parents and District officials had grown tense. See, e.g., R. 619-26, 1170; Nov. 17, 2014 Aff. of Patrick Moore ¶¶ 18-20 ("Moore Decl.") (ECF No. 84). In particular, Quirion and Pollack grew dissatisfied with Teacher 1, [6] B.P.'s classroom teacher from the fall of 2010 through the spring of 2012. R. 619-26. At times, Quirion showed up unannounced at field trips led by Teacher 1, causing consternation among District staffers. R. 1042. The parties resolved one series of disputes in a settlement reached in January of 2012, under which Quirion and Pollack agreed to release RSU 75 from liability for incidents arising prior to the agreement's effective date. R. 600-03, 627.

II. The Underlying Incident

On the morning of February 10, 2012, Pollack was meeting with Patrick Moore, RSU 75's director of special education, and Kelly Allen, B.P.'s case manager. R. 1041-42. During the meeting, Moore or Allen told him that Quirion had been "spying" on a community field trip to a public library led by Teacher 1. R. 1041-42. Pollack called Quirion immediately. R. 1041-42. She insisted she had simply gotten caught behind the school bus on her way to the grocery store. R. 1042. Later that morning, Quirion e-mailed Moore and Allen a scanned copy of her time-stamped grocery receipt to refute the accusation. R. 127-28, 1042.

When Quirion arrived at the end of the school day to pick up B.P., he burst into tears as soon as he got in the car and continued to cry for about an hour. R. 1043, 1143-44. Pollack and Quirion sought an explanation for B.P.'s aberrant behavior, but the school was unable to provide one. R. 131-33, 609-11, 1043-44, 1132, 1214-15, 1220-26, 1238-39. None of the staff members who worked with B.P. that day reported noticing anything unusual. R. 609-11, 1132, 1214-15, 1220-26. Quirion came to suspect there might be a connection between the accusation that she had been "spying" on the field trip and B.P.'s crying spell. R. 1144.

Following this incident, Pollack and Quirion submitted a formal request that Teacher 1 be replaced as B.P.'s classroom teacher. R. 619-26, 1044. The request included an eight-page narrative describing past instances that the Parents claimed demonstrated Teacher 1's dishonesty, incompetence, and inability to communicate. R. 619-26, 1044. The District responded with a letter from their attorney denying the classroom reassignment request and accusing Quirion and Pollack of violating the terms of the January settlement agreement. R. 627-28. On March 5, 2012, Quirion wrote school officials a letter withdrawing the reassignment request but also accusing the school of being "more concerned with protecting a teacher with a history of lying and retaliation" than "protecting a completely vulnerable child from that teacher." R. 629.

At this point, Pollack and Quirion stepped up their efforts to glean more information about B.P.'s day-to-day experiences at school. Their efforts proceeded on two main tracks: (1) requests for the District to allow them to inspect certain records, including all internal e-mails between District employees about B.P.; and (2) requests that the District allow B.P. to attend school with an audio recording device. The Court discusses these efforts separately below, though their timelines overlap.

III. Requests for Records

On April 13, 2012, Pollack and Quirion sent the District a letter requesting that they be allowed to inspect all of B.P.'s "education records, " pursuant to the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, a law that protects the privacy and integrity of certain student records and grants parents the right to access and challenge their content. R. 588-89. The Parents asked that the District "be sure to include, " among other things, "[a]ll electronic or written communications between or among district employees or between a district employee or employees and another person or people, related in any way to [B.P.]." R. 588. An RSU 75 attorney responded that the internal e-mails and many of the other records the Parents sought were not "centrally maintained" and thus did not constitute "education records" under the FERPA. R. 668-69. The attorney wrote that the District would consider the Parents' letter as a request for "public records" under Maine's Freedom of Access Act, 1 M.R.S. §§ 400-414, and would not turn them over unless Quirion and Pollack paid the District $2, 600, the amount the attorney estimated it would cost to gather them. R. 668-69.

On June 13, 2012, Pollack sent the District another request for records, this time also invoking the IDEA and the Maine Unified Special Education Regulation ("MUSER"), 05-071-101 Me. Code. R. §§ I-XIX & app. 1, a set of rules promulgated by the Maine Department of Education to implement the IDEA. R. 590-92. Among the classes of documents Pollack sought were "[a]ll electronic or written communication between or among district employees or between a district employee or employees and another person or people, related in any way to [B.P.]." R. 591.

On June 22, 2012, RSU 75 Superintendent Bradley Smith sent Pollack a preliminary response. R. 694-96. With respect to the requested electronic communications, Smith wrote that Pollack was not entitled to internal e-mails unless they were maintained as part of B.P.'s central file. R. 695. He further informed Pollack that the District would not turn over any additional e-mails unless Pollack paid the District $2, 600, as RSU 75's attorney had earlier specified. R. 695. Smith also stressed that certain e-mails were "privileged and confidential communications between the District and [its] attorneys." R. 695.

In July of 2012, the District turned over some of the records Pollack had identified in his June 22, 2012 records request. R. 580, 697. A cover sheet attached to the documents listed each of Pollack's requests and explained how the District was complying or why the District was not complying. R. 697. With respect to Pollack's request for electronic communications, the cover sheet provided as follows:

OBJECTION: Electronic communications are not maintained in a centralized file/location or kept as part of a student's education records. Further, any attorney/client correspondence is privileged when made in anticipation of litigation as work product. Without waiving these objections, see attached correspondence between the district and its attorneys.

R. 697. The "attached correspondence" consisted of a handful of innocuous e-mails between the District and its attorneys about scheduling an IEP meeting. R. 418-21; see also Pls.' Mem. of Law on Merits of Count I of First Action 10 & n.7 ("Parents' Case 13.107H Br.") (ECF No. 89).

IV. Request to Make Audio Recordings

In the March 5, 2012 letter in which Quirion withdrew her classroom reassignment request, she also informed school officials that she planned to send B.P. to school with an audio recording device so she could "have a semblance of peace that he is safe...." R. 629. An RSU 75 attorney sent Quirion a letter the following day informing her that the District would not allow B.P. to attend school with a recording device. R. 634-36. The letter claimed that permitting B.P. to record at school would violate the District's personal electronics policies, a state wiretap statute, other students' personal privacy rights, and the school's collective bargaining agreement with its teachers. R. 634-36.[7]

On June 12, 2012, Quirion wrote a letter to Bill Zima, Mt. Ararat Middle School's principal, again requesting that B.P. be allowed to wear a recording device to school:

Given [B.P.'s] communication disability, I formally request pursuant to the Americans with Disabilities Act of 1990 that the school provide a reasonable accommodation for [B.P.'s] communication disability by allowing him to carry and use a voice recording device so that I can review it daily for announcements and other information that the students are expected to convey to their parents, as well as for [B.P.] to be able to "tell" me about his day at school.

R. 689.

Moore acknowledged this letter in a July 14, 2012 e-mail to Quirion, assuring her that he would review her ADA request and schedule a time to meet. R. 698. Quirion wrote back the next day to say she would be willing to attend such a meeting but wanted to know the agenda ahead of time. R. 699. "If the point of a meeting is to ask me to withdraw my request, I will not withdraw it, " she wrote. R. 699. It appears that no meeting took place. See R. 705-06.

On August 30, 2012, with a new school year about to start, Quirion e-mailed Moore and Zima to tell them that she would interpret their failure to respond as an implicit approval of her request. R. 705-06. Moore wrote back immediately to request that Quirion not send B.P. to school with a recording device. R. 705.[8] On September 1, 2012, Moore sent Quirion a letter reiterating the District's earlier objections. R. 710.

In the same letter, Moore offered to have B.P.'s educators include more information on a daily report the school provided the Parents each afternoon. R. 710.[9] Additionally, in December of 2012, the District agreed to add a term to B.P.'s IEP requiring RSU 75 employees who become aware of a problem with B.P. or a failure to comply with his IEP to inform Pollack and ...

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