United States District Court, D. Maine
MATTHEW POLLACK and JANE QUIRION, individually and as next friends of B.P., Plaintiffs,
REGIONAL SCHOOL UNIT 75, et al., Defendants.
ORDER ON PARTIES' CROSS MOTIONS FOR SUMMARY
Torresen United States Chief District Judge
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.
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
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.
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.
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.
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. DSF ¶ 49.
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. DSF ¶ 81.
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.
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.
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.
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
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.
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
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. 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. 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.
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.
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.
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.
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 ¶¶
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. 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 ¶¶
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.
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.
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.
ADA and Section 504 of the Rehabilitation Act
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.
Overview of the Law
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.
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)).
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 ...