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Pollack v. Regional School Unit No 75

United States District Court, D. Maine

April 28, 2017

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


          Nancy Torresen United States Chief District Judge

         Before me are the Plaintiffs' motion for partial summary judgment, the Defendant's motion for summary judgment, and the Defendant's supplemental motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF Nos. 158, 160, 258). For the reasons stated below, the Plaintiffs' motion is DENIED and the District's motions are GRANTED IN PART and DENIED IN PART.


         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 non-moving 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 in this case are Matthew Pollack and Jane Quirion (the “Parents”), as the parents and next friends of their eighteen-year-old son B.P. Unified Statement of Facts Submissions for Defs.' Mot. for Summ. J. with Citations to Joint Summ. J. R. ¶ 3 (“DSF”) (ECF No. 213). The remaining Defendant is Regional School Unit 75 (“RSU 75” or the “District”), which has been B.P.'s school district since kindergarten. DSF ¶ 5.

         B.P. is diagnosed with autism and a language disorder that is a variant of Landau-Kleffner Syndrome. DSF ¶ 3. He is nonverbal and has very limited expressive communication skills. DSF ¶ 3. B.P. is happy, loves school, and has made some progress toward his educational goals. DSF ¶ 5. By the time B.P. began attending Mt. Ararat Middle School, however, the relationship between his Parents and District officials had grown tense. DSF ¶ 21.

         Although the Parents and District officials have butted heads numerous times over the years, an incident that occurred in February of 2012 is of particular relevance for purposes of this motion. On the morning of February 10, 2012, Pollack met with Patrick Moore, RSU 75's director of special education, and Kelly Allen, B.P.'s case manager. DSF ¶¶ 7-11, 40. During the meeting:

Pollack was informed that Quirion had been “spying” on a community field trip to a public library. Pollack called Quirion immediately who insisted that she had simply gotten caught behind the school bus on her way to the grocery store. Later that morning, Quirion e-mailed Moore and Allen a scanned copy of her time-stamped grocery receipt to refute the accusation.

DSF ¶ 40. Moore later apologized for the misunderstanding. DSF ¶ 41.

         When Quirion picked up B.P. at the end of school that day, he acted uncharacteristically upset and cried for approximately an hour and a half. DSF ¶ 42. Pollack and Quirion sought an explanation for B.P.'s aberrant behavior, but the school was unable to provide one. DSF ¶¶ 43-44, 47-48. None of the staff members who worked with B.P. that day reported noticing anything unusual. DSF ¶ 47. 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.[1] DSF ¶ 49.

         In March of 2012, Quirion first wrote a letter to school officials informing them 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.” DSF ¶ 78. 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. DSF ¶ 81. The letter stated 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.[2] DSF ¶ 81.

         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 “as an accommodation under the ADA.” DSF ¶ 83. Quirion specifically asked that the District “provide a reasonable accommodation for [B.P.]'s communication disability by allowing him to carry and use a voice recording device so that [she] 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' [her] about his day at school.” DSF ¶ 344. “On July 13, 2012, Patrick Moore acknowledged Quirion's June 12, 2012, letter, ‘assuring her that he would review her ADA request and schedule a time to meet.' ” DSF ¶ 84. 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. DSF ¶ 84. “If the point of a meeting is to ask me to withdraw my request, I will not withdraw it, ” she wrote. DSF ¶ 84.

         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. DSF ¶ 85. Moore wrote back immediately to request that Quirion not send B.P. to school with a recording device. DSF ¶ 86. Moore also wrote:

I would like the IEP team to review this accommodation request and have an IEP determination prior to any action on your part. If the IEP team decides that the accommodation is necessary and reasonable, request approved. If not, you have the opportunity for all your due process safeguards.

DSF ¶ 347. Quirion declined the offer of an IEP meeting. Summary Judgment Record (“SJR”) 6415 (ECF No. 199-7). To Quirion, the request for the recording device as an ADA accommodation was different from an educational accommodation under the IDEA. DSF ¶ 348. She explained that “[w]hether [B.P.] is entitled to use the device as an accommodation for his disability that prevents him from telling us what happened in school is a separate question from whether the device is necessary to further his education.” DSF ¶ 348.

         On September 1, 2012, Moore sent Quirion a letter reiterating the District's earlier objections, as outlined in the March 6, 2012 letter from District counsel. DSF ¶ 87. Moore's letter concluded by stating that the District “did not give permission for B.P. to attend school with a recording device . . . . If B.P. comes to school with such a device we will ask you to remove the device, and if you are not willing to remove the device, you will need to take B.P. home.” SJR 6418 (ECF No. 199-7); DSF ¶ 351.

         Two years later, in September of 2014, Pollack made “another ADA request to equip B.P. with a recording device or body camera to be able to tell Plaintiffs what happens to him in school.” DSF ¶ 91. The District responded by “requesting additional information, and reminding Plaintiffs of the concerns the District has expressed about the impact on the educational environment, and the problems the District faces in protecting the rights and confidentiality of other students and employees and requested proposals for addressing those concerns.” DSF ¶ 92.

         In November of 2014, Pollack provided Superintendent Smith with information regarding the body camera and recording device and disputed the District's “views concerning the impact on the educational environment, and confidentiality of staff and other students.” DSF ¶ 93. Smith responded in January of 2015, writing that “he disagreed with Pollack's assertion that the presence of audio and video recording devices on B.P. would have no impact on the educational environment, of the concerns about the impact that such devices have had and will have on the educators in the school, and indicated his willingness to meet with Pollack in early 2015 to discuss Pollack's request.” DSF ¶ 94. Smith did not receive a response from the Parents regarding his invitation to meet. DSF ¶ 95.

         In denying the Parents' requests for B.P. to wear a recording device, the District has consistently relied upon its written policy covering employee and student use of cellular telephones and other privately-owned electronic devices. SJR 6151 (ECF No. 199-6); DSF ¶ 332. The policy provides:

4. All students are prohibited from using privately-owned electronic devices, including but not limited to cellular telephones, Blackberries, IPhones, handheld computers, MP3 players and electronic games during classes, study halls, assemblies and other school activities.
a. During classes and school activities, all such devices must be turned off.
b. The only exception to this rule is when a teacher or staff member specifically authorizes students to use a personal electronic device for a specific school purpose (such as entering an assignment in a PDA).
c. If this rule is violated, the teacher may refer the student to administration, or immediately confiscate the device for the remainder of the school day, or both. Discipline may be imposed as provided below.

SJR 6151 (ECF No. 199-6). The District has disciplined students for unauthorized use of electronic devices. DSF ¶ 104.[3] The District has not permitted B.P. to use a recording device because it determined the recording was not for an instructional benefit and “the purpose of the policy is to support the teaching and learning environment.” DSF ¶ 101.[4] The District also had “concerns about the educational efficacy and necessity” of the recording device and its impact on staff and other students. DSF ¶ 102.[5]

         Students, however, have been permitted to make recordings for educational purposes, such as recording specific lessons with the permission of their teachers so that they can refer to the audio after class. DSF ¶¶ 103, 339. At least one student's IEP permitted and encouraged the use of a recording device in classes during school as an accommodation. DSF ¶ 341. B.P., too, was permitted to use two electronic devices at school. DSF ¶ 338. For many years, B.P. used an electronic expressive communication device (“Vantage”). DSF ¶ 333. The Vantage is used to assist B.P. to develop and utilize communication abilities. DSF ¶ 335. B.P. used the device often during his school day, and several of his IEP goals referenced his use of the Vantage. DSF ¶¶ 334-35. B.P. also carried a personally owned Amber Alert GPS device most days at school during the 2013-2014 school year. DSF ¶ 336.

         The Parents want B.P. to wear the recording device so that they can learn about his day, thus facilitating their ability to advocate on his behalf, and to “discover and identify any mistreatment or abuse by school personnel or other students.” DSF ¶¶ 355-57. Parents do not intend to listen to all of the recordings every day, but rather plan to store the recordings. They state they might listen to them to try to decipher what happened at school if and when they need to advocate for B.P. and his education or randomly to see what B.P.'s day is like. DSF ¶ 109.


         The Plaintiffs filed two suits in this Court, the first in March of 2013 and the second in May of 2014. The cases were consolidated on October 23, 2014. After a barrage of early motion practice, the parties filed cross-motions for summary judgment in September of 2015 on the Plaintiffs' claims that the District violated the Americans with Disabilities Act (the “ADA”), Section 504 of the Rehabilitation Act (“Section 504” or “the Rehabilitation Act”), and the First Amendment by refusing to allow B.P. to wear an audio recording device throughout his school day. I granted the District's motion on January 27, 2016, holding that the Plaintiffs failed to exhaust the Individuals with Disabilities Education Act (“IDEA”) administrative process as required by 20 U.S.C. § 1415(1). ECF No. 217. The Plaintiffs filed a notice of appeal in April of 2016.

         On January 5, 2016, before I ruled on the parties' cross-motions, Pollack filed a new due process complaint with the Maine Department of Education. In the hearing request, Pollack alleged that the District failed to permit B.P. to carry a recording device at school and sought an order requiring the District to allow B.P. to carry and use a recording device for his entire school day. Def.'s Supp. Statement of Facts ¶¶ 3-4 (“DSSF”) (ECF No. 271). Pollack claimed that the District was required under the IDEA, the Rehabilitation Act, the ADA, and the First Amendment to provide a reasonable accommodation of allowing B.P. to use a recording device. DSSF ¶¶ 5-6.

         In March of 2016, a three-day special education due process hearing was held. DSSF ¶ 13. At the hearing, the Maine Department of Education Hearing Officer (“DPHO”) stated that the issue “with respect to the recording device was ‘whether [B.P.'s] IEP should include the use of supplementary aids to properly protect him at school and allow him to effectively communicate and advocate for himself.' ” DSSF ¶ 14.[6] Eleven witnesses testified under oath at the hearing, including Pollack and Quirion. DSSF ¶ 18. Pollack “introduced evidence, testified, questioned witnesses, and made legal arguments with respect to the recording device claim.” DSSF ¶¶ 15- 17. In his written closing argument, Pollack stated that the recording device was necessary because B.P. “must be able to gather and communicate to [his parents] his own information about what happens to him at school” and that, because of B.P.'s “communication disabilities and his inability to answer questions about events that have happened to him, the only mechanism that [B.P.] has to protect himself and advocate for himself is to record his day at school so that he can ‘tell' us what happened.” DSSF ¶¶ 20-21.

         The DPHO issued her decision on May 31, 2016. DSSF ¶ 23. She held that B.P. was receiving FAPE. Underlying this conclusion were her findings that B.P. had been going to school for 12 years in the District “without a recording device, and throughout his entire educational career, he has been happy, has loved school, and has made continuous and significant progress.” DPHO Dec. 41 (ECF No. 254-1). She observed that the District had provided the Parents with the highest level of detail about a student's day that she had seen in 14 years presiding over due process disputes. DPHO Dec. 41. Noting that there had only been “a handful of incidents of concern to the Parents” and that the Parents stated under oath that they felt B.P. was safe at school, she determined that the recording device was not needed for B.P.'s safety. DPHO Dec. 41.

         Furthermore, the DPHO found that the recording device was not needed for B.P. to benefit educationally. To the contrary, she noted that “[t]here is a wealth of evidence from both educators and the parent of another child with autism . . . that the recording device actually would be disruptive and detrimental to the education of [B.P.] and would interfere with the learning process.” DPHO Dec. 42. Based on the evidence put forth at the hearing, she found that permitting B.P. to wear a recording device at school would “interfere with his ability to receive FAPE.” DPHO Dec. 42. She noted that Pollack was “unable to state how or whether the Parents would use the recordings.” DPHO Dec. 42. Thus, she found that there was “no demonstrable benefit” to the recording device, and “there is the potential for harm.” DPHO Dec. 42. The Plaintiffs did not appeal the DPHO's decision. DSSF ¶ 26.

         In September of 2016, the District notified the Court of Appeals for the First Circuit of the DPHO's decision. Accordingly, the First Circuit dismissed the appeal as moot, vacated the portion of my order granting the District summary judgment for failing to exhaust on the ADA, Section 504, and First Amendment claims, and remanded the case to me for determination of these claims on the merits. Pollack v. Reg'l Sch. Unit 75, 660 F. App'x 1, 3 (1st Cir. 2016).


         I. ADA and Section 504 of the Rehabilitation Act

         The Plaintiffs claim that the District's refusal to allow B.P. to wear the recording device violated the ADA and Section 504 of the Rehabilitation Act. The District contends that these claims are barred by res judicata.

         A. Overview of the Law

         Title II of the ADA, which applies to public schools, provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, § 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794. Although there are differences between Title II and § 504, the two statutes are interpreted consistently. See Theriault v. Flynn, 162 F.3d 46, 48 n.3 (1st Cir. 1998). Thus, like the parties, I analyze the statutes in tandem.

         The Plaintiffs assert a failure to modify theory of liability. To establish a failure to modify claim under Title II, a plaintiff must show:

(1) that he is a qualified individual with a disability; (2) that he was excluded from participating in, or denied the benefits of a public entity's services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of his disability.

Kiman v. N.H. Dep't of Corrs., 451 F.3d 274, 283 (1st Cir. 2006) (quoting Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000)). “An entity discriminates against a disabled individual when it fails to make reasonable modifications for that person.” Darian v. Univ. of Mass. Boston, 980 F.Supp. 77, 84 (D. Mass. 1997). “To recover compensatory damages under either Title II or Section 504, a plaintiff must demonstrate that the [public entity] intentionally discriminated against her and caused her economic harm.” Kelley v. Mayhew, 973 F.Supp.2d 31, 36 (D. Me. 2013) (citing Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 126 (1st Cir. 2003)).

         The duties of a public entity are outlined in the regulations promulgated by the U.S. Department of Justice under 42 U.S.C. § 12134(a). The regulations provide that:

A public entity, in providing any aid, benefit, or service, may not . . . [a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others . . . [or] [p]rovide a qualified individual with a disability with an aid, benefit, or service that ...

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