Doe v. Reg'l Sch. Unit 21

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MR. AND MS. DOE, both individually and on behalf of their minor daughter, JANE DOE, Plaintiffs, v. REGIONAL SCHOOL UNIT 21, DR. TERRI COOPER, and ANITA BERNHARDT, Defendants.

No. 2:23-cv-00466-JAW

United States District Court, D. Maine

September 6, 2024

ORDER ON MOTION TO DISMISS AND MOTION FOR PRELIMINARY INJUNCTION

JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

Parents move the Court to preliminarily enjoin the school district their daughter attends to grant her a telepresence robot as an accommodation so that she can remotely access her classes and better acclimatize to the school environment given her anxiety disorder. The parents contend that the school district's denial of this accommodation is intentional discrimination on the basis of disability in contravention of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq., and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 et seq., and is retaliation for the parents' criticisms of the district in violation of their First Amendment rights to free speech and petition. Meanwhile, the superintendent and assistant superintendent of the school district move to dismiss the retaliation claim against them, contending that the parents have failed to plausibly allege they acted with retaliatory animus. The Court dismisses both motions.

I. PROCEDURAL HISTORY

On December 28, 2023, Mr. and Ms. Doe, both individually and on behalf of their minor daughter Jane Doe, filed a complaint against Regional School Unit 21 (RSU 21 or District), Dr Terri Cooper, the District Superintendent, and Anita Bernhardt, the Assistant Superintendent, Compl. (ECF No. 1), asserting claims under § 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act, and the First Amendment to the United States Constitution. Id. ¶¶ 167-82. That same day, Mr. and Ms. Doe filed a motion for preliminary injunction. Mot. for Prelim. Inj. (ECF No. 5) (Pls.' Mot.). On January 26, 2024, RSU 21 answered the Complaint, Answer (ECF No. 21) and opposed the Does' motion. Resp. (ECF No. 23) (Defs.' Opp'n). On February 2, 2024, the Does replied to RSU 21's opposition to their motion for preliminary injunction. Reply (ECF No. 24).

Also on January 26, 2024, Dr. Cooper and Ms. Bernhardt filed a motion to dismiss for failure to state a claim. Mot. to Dismiss for Failure to State a Claim (ECF No. 22) (Defs.' Mot.). On February 16, 2024, the Does opposed Dr. Cooper and Ms. Bernhardt's motion to dismiss Resp. in Opp'n (ECF No. 26) (Pls.' Opp'n), and on March 1, 2024, Dr. Cooper and Ms. Bernhardt replied. Reply Mem. of Law in Supp. of Mot. of Defs. Terri Cooper and Anita Bernhardt to Dismiss (ECF No. 27) (Defs.' Reply).

II. FACTUAL BACKGROUND

A. The Preliminary Injunction Record

The Does attached to their motion for preliminary injunction a sworn declaration of Ms. Doe, essentially tracking the factual allegations in the Complaint. Pls.' Mot., Attach. 1, Decl. of Ms. Doe in Support of Pls.' Mot. for Prelim. Inj. (Ms. Doe Decl.). To their opposition to the motion for preliminary injunction, the Defendants attached three sworn declarations: (1) Marty Bouchard, Principal of the Middle School of the Kennebunks (MSK), (2) Rachel Bratter, Director of Special Services for the District, and (3) Gregory Hesse-Stromberg, a Licensed Clinical Social Worker employed by the District. Defs.' Opp'n, Attach. 1, Decl. of Marty Bouchard in Support of Defs.' Opp'n to Pls.' Mot. for Prelim. Inj. (Bouchard Decl.); Attach. 2, Decl. of Rachel Bratter in Support of Defs.' Opp'n to Pls.' Mot. for Prelim. Inj. (Bratter Decl.); Attach. 3, Decl. of Gregory Hesse-Stromberg in Support of Defs.' Opp'n to Pls.' Mot. for Prelim. Inj. (Hesse-Stromberg Decl.). The Plaintiffs attached to their reply a second sworn declaration of Ms. Doe. Reply, Attach. 1, Reply Decl. of Ms. Doe in Support of Pls.' Mot. for Prelim. Inj. (Ms. Doe Reply Decl.). In considering the motion for preliminary injunction, the Court has relied on the contents of these sworn declarations. In addition, for some undisputed facts that do not appear in the sworn declarations, the Court has included factual allegations in the Complaint that the District admitted in its Answer.

B. Ms. Doe's Sworn Declaration

1. The Does

Mr. and Ms. Doe and their minor daughter, Jane Doe, moved from Somerville, Massachusetts to Kennebunk, Maine in September 2021, as Jane was starting fourth grade. Ms. Doe Decl. ¶ 7. They remain residents of Kennebunk, Maine, where Jane is currently^[1] an eleven-year-old student enrolled in sixth grade at MSK. Id. ¶¶ 1, 2.

For her entire life, Jane has exhibited social anxiety, which has especially hindered her in new situations, such as meeting new people and trying new things. Id. ¶ 3. In 2021, Jane's pediatrician diagnosed her with social anxiety disorder (social phobia). Id. ¶ 4. Thanks to efforts by her parents to prepare and guide her through new situations, along with encouragement from friends, Jane was able to manage her social anxiety through elementary school, id. ¶ 5, including participating in softball, one of her passions. Id. ¶ 6.

2. The Does and the Sea Road School

In 2021, at the start of fourth grade, the Does enrolled Jane at Sea Road School in Kennebunk (Sea Road). Id. ¶ 8. Regional School Unit 21 is the local education agency responsible for providing a public education to age-eligible residents of Arundel, Kennebunk, and Kennebunkport, Maine. Compl. ¶ 2; Answer ¶ 2. Dr. Terri Cooper is the Superintendent of RSU 21, and Anita Bernhardt, the Assistant Superintendent. Compl. ¶ 3; Answer ¶ 3.

Jane's parents notified the District of her social anxiety diagnosis. Compl. ¶ 12; Answer ¶ 12. Jane's parents prepared her for fourth grade by arranging a private tour of Sea Road before the first day of school. Ms. Doe Decl. ¶ 9. During the tour, Jane met the principal, Cory Steere, who offered to assign a teacher who would work well with Jane given her anxiety disorder. Id. The Does believe that largely due to this advanced preparation, Jane loved going to school and thrived at Sea Road during fourth and fifth grade, making many friends and enjoying her interactions with her teachers. Id. ¶ 10.

3. The District's Curriculum Change and the Does' Reaction

During the summer of 2023, Ms. Doe learned that RSU 21 planned to move the time slot for elementary school band to recess or morning meeting, thereby cutting band instruction from 45 to 30 minutes. Id. ¶ 11. RSU 21 claimed that this reduction would “protect core classes” without compromising “instructional time.” Id.

Mr. Doe grew up playing in band, and in school Ms. Doe also had a major interest in the arts. Id. ¶ 12. Ms. Doe felt strongly that the District was making a mistake by cutting band time and moving band instruction to the only unstructured time that students would otherwise have. Id. Ms. Doe learned that some other parents, teachers, and staff in the district felt the same way about the proposed cuts to band. Id. ¶ 13.

On August 8, 2023, the Portland Press Herald published an opinion column written by Ms. Doe, in which she argued against the band cuts. Id. ¶ 14. She urged her fellow citizens to “hold the administration and [school] board accountable.” Id. A modified version of the Press Herald piece appeared in the Kennebunk Post on September 6, 2023. Id. In her column, Ms. Doe encouraged students and former students to protest the proposed band time cut:

Maybe kids will be heard. TikTok kids get stuff done. Write letters. Get involved. Students and former students who want to say something about education and the immeasurable impact arts have on them - get your bucket. Say it now, as loud and confidently as you can.

Id. ¶ 15.

In addition to her newspaper column, Ms. Doe sent five emails to the school board about the band issue but received no responses that addressed her concerns. Id. ¶ 16. In July and August 2023, Ms. Doe attended two school board meetings to request a response, but neither the school board nor the superintendent answered her concerns. Id. ¶ 17.

4. The Does' First Experiences with the Middle School of the Kennebunks

In August 2023, Jane was preparing to begin sixth grade at a new school, MSK. Id. ¶ 18. Aware of Jane's social anxiety, her parents sought to prepare her for MSK, as they had successfully done when she started at Sea Road. Id. ¶ 19.

During the summer of 2023, MSK went through a period of disorganization. Id. ¶ 20. MSK was unable to provide correct schedules to its incoming students. Id. Twice in August, MSK's principal emailed parents to apologize for scheduling glitches and explained that the school was training new staff members in the scheduling department. Id. Because of this, when the first day of school arrived, Jane's parents had no idea what to expect. Id. ¶ 21. They did not know the identity of Jane's teachers, other than the name of her homeroom teacher, or where she should go. Id.

Jane took the bus to and from MSK on the first day of school, August 28, 2023. Id. ¶ 22. After returning home, her parents observed that she was uncharacteristically quiet and becoming increasingly anxious. Id. ¶ 23.

The following morning, Jane exhibited anxiety about taking the bus to school, which Ms. Doe observed was preventing her from leaving the house. Id. ¶ 24. Ms. Doe believed that if she could get Jane to school to see her best friend, a fellow student in Jane's homeroom, Jane would feel better and be able to get through the school day. Id. ¶ 25. Ms. Doe proposed that Jane take the bus and promised to follow the bus in her car and meet Jane at the school. Id. ¶ 26. Jane reluctantly agreed and got on the bus. Id.

Ms. Doe arrived at the school before Jane's bus, entered the building, and...