K.S. v. Warwick Sch. Comm.

K.S. and C.S., Plaintiffs v. WARWICK SCHOOL COMMITTEE, by and through Jennifer Ahernsued in her capacity as Chairperson of the Warwick School Department and MARY LEONE,individually and in her capacity as Manager, chairperson and representative for Warwick Public Schoolsand HEIDI FANION, individually and in her capacity as SocialWorker for the Warwick Public Schools Defendants

No. 1:17-cv-00258-MSM-LDA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

August 4, 2020

MEMORANDUM AND ORDER

Mary S. McElroy, United States District Judge.

The saga behind this case began many years ago when K.S., twenty-seven (27) years old at the time of this writing, a student educated by the Warwick Public School System,¹ was first provided with an Individualized Educational Plan, known familiarly as an "IEP."² She has studied with the benefit of an IEP since at least2011. Her longtime energetic advocate, throughout this case and likely throughout her entire school life, has been her mother, C.S.

Although this case had its official beginning when filed on May 27, 2017 (ECF No. 1), its roots are embedded in the matter of K.S. et al v. Rhode Island Board of Education, et al, C.A. No. 14-cv-00077-MSM-LDA. That was a civil action brought by K.S. and another class representative to require Rhode Island to continue her free public education until she reached the age of twenty-two (22). Rhode Island's regulations at that time terminated educational services to the disabled when they reached twenty-one (21) years of age. On appeal, the First Circuit granted class relief and ordered the state to "provide a Free Appropriate Public Education ("FAPE") to students with disabilities up to the age of twenty-two (22). K.L. v. R.I. Bd of Educ., et al, 907 F.3d 639, 651 (1st Cir. 2018).³

In connection with the class action, K.S. was provided services to the age of twenty-two (22). In this lawsuit, which is completely distinct from the class action, she complains that those services were inadequate. She has exhausted administrative remedies and in Count I of her complaint she takes issue with the Department of Education administrative decision (hereinafter "Adm. Dec") (ECF No. 20-5). Counts II and III allege retaliation in violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12203 and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The Title II claim is brought on behalf of K.S. alone, whilethe § 504 claim is brought on behalf of both K.S. and her mother, C.S.⁴ Finally, Count IV alleges retaliation against both K.S. and C.S. in violation of the First Amendment to the United States Constitution.⁵

The case is before the court on the parties' cross-motions for partial summary judgment on Count I, the administrative appeal. (ECF Nos. 19 and 28) and the defendants' motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on the remaining Counts. (ECF No. 28). For the reasons that follow, I GRANT thedefendants' Motion for Summary Judgment as to Count I and defer decision on their Motion for Judgment on the Pleadings.

JURISDICTION

The Court has federal question jurisdiction under 28 U.S.C. § 1331, 1343(a) and 1343(a)(4) because the rights to education asserted, and to be protected from retaliation in that context, arise under federal statutes. With respect to the administrative appeal, it lies from the hearing officer's final decision. 20 U.S.C. § 1415(i)(2)(A). As to Count IV, 42 U.S.C. § 1983 gives the Court jurisdiction over a claim for direct violation of constitutional rights.

EDUCATIONAL RIGHTS

There are a number of federal statutes developing the right of persons with disabilities to education and to various protections within the context of educational services. Chief among them is the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq, which guarantees each student a Free Appropriate Public Education ("FAPE") tailored to his or her needs.⁶ A student is entitled to aFAPE "that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; ..." 20 U.S.C. § 1400(d). To effectuate that entitlement, the IDEA includes a right to an Individualized Education Program (IEP), to evaluations and to certain procedural safeguards. 20 U.S.C. § 1414 (b) and (d). "The 'primary vehicle' for delivery of a FAPE is an IEP." D.B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012). The IEP has been called the "centerpiece of the IDEA's system for delivering education to disabled children." D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010). An appropriate public education includes "instruction and support services sufficient 'to permit the child to benefit educationally from that instruction.'" Roland M. v. Concord School Committee, 910 F.2d 983, 987 (1st Cir. 1990).

But the educational landscape for persons with disabilities is broader than the IDEA:

Important as the IDEA is for children with disabilities, it is not the only federal statute protecting their interests. Of particular relevance to this case are two antidiscrimination laws - Title II of the Americans with Disabilities Act (ADA, 42 U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794 - which cover both adults and children with disabilities, in both public schools and other settings. Title II forbids any "public entity" from discriminating based on disability; Section 504 applies the same prohibition to any federally funded "program or activity." 42 U.S.C. §§ 12131-12132; 29 U.S.C. § 794(a). A regulation implementing Title II requires a public entity to make "reasonable modifications" to its "policies," practices, or procedures" when necessary to avoid such discrimination. 28 C.F.R. § 35.130(b)(7)(2016); see e.g., Alboniga v. School Bd. of Broward Cty., 87 F.Supp.3d 1319, 1345 (S.D.Fla. 2015) (requiring an accommodation to permit use of a service animal under Title II). In similar vein, courts have interpreted § 504 as demanding certain "reasonable" modifications to existing practices in order to "accommodate" persons with disabilities. Alexander v. Choate, 469 U.S. 287, 299-300, 105 S.Ct. 712, 83 L.Ed.2d661 (1985); see e.g., Sullivan v. Vallejo City Unified School Dist., 731 F. Supp. 947, 961-962 (E.D.Cal. 1990) (requiring an accommodation to permit use of a service animal under § 504). And both statutes authorize individuals to seek redress for violations of their substantive guarantees by bringing suits for injunctive relief or money damages. See 29 U.S.C. § 794a(a)(2); 42 U.S.C. § 12133.

Fry v. Napoleon Comm'y Sch., ___ U.S. ___, 137 S.Ct. 743, 749, 197 L.Ed.2d 46 (2017).

The IDEA contains a formal structure for resolving disputes, 20 U.S.C. § 1415(b) through (i), beginning with a due process hearing before an administrative agency and culminating in the right of an unhappy parent or child to seek redress via a civil action in a state or federal court. 20 U.S.C. § 1415(i)(2)(A). K.S.'s core complaint is that she was denied a meaningful FAPE both before and during the year between her 21^st and 22^nd birthdays when she aged out of her right to publicly-provided special education services. By filing a complaint and pursuing it through an administrative hearing, she has satisfied the exhaustion requirement of the IDEA.

Satisfying the IDEA's administrative procedures not only carries with it the right to seek judicial review of the IDEA cause of action, but also permits a plaintiff to complain of the identical lack of a FAPE under both "the ADA, the Rehabilitation Act, or similar laws ..." Fry, 137 S.Ct. at 750.⁷

I.

THE IDEA APPEAL

STANDARD OF REVIEW

Count I is an appeal by K.S. from the administrative decision following the due process hearing conducted by the Rhode Island Department of Education (RIDE) pursuant to the IDEA. On April 28, 2017, an administrative hearing officer at RIDE issued a decision that found in favor of the City. RIDE concluded that, based on a series of factual findings, there was no denial of a FAPE to K.S. K.S. had the burden of proof at the IDEA hearing, Schaffer v. Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005), and she continues to carry the burden of proof as the appellant here. Roland M. v. Concord School Committee, 910 F.2d 983, 991 (1st Cir. 1990).

The facts are largely undisputed, while the interpretation and significance of those facts are not.⁸ The Court's review is a "bounded, independent decision [ ] - bounded by the administrative record and additional evidence, and independent by virtue of being based on a preponderance of the evidence before the court." Roland M. v. Concord School Committee, 910 F.3d 983, 989 (1st Cir. 1990). The court is not bound by the findings of fact, but must be "deferential, recognizing 'the expertise of the administrative agency, ...consider[ing] the [agency's] findings carefully and endeavor[ing] to respond to the hearing officer's resolution of each material issue." Id. at 991. The First Circuit has explained that the applicable standard in reviewingan administrative decision under the IDEA "falls somewhere between the highly deferential clear-error standard and the non-deferential de novo standard." D.B. v. Esposito, 675 F.3d 26, 36 (1st Cir. 2012). See also, Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 25 (1st Cir. 2002) (describing review as "intermediate," requiring "a more critical appraisal of the agency determination than clear-error review entails, but which, nevertheless, falls well short of complete de novo review.").

In this case, the precise niceties of the above formulations need not overly concern us. After reviewing the decision, the memoranda, Statements of Disputed and Undisputed Facts filed by the parties, and the exhibits, and after holding a hearing on the pending motions, I am in agreement with the findings of fact made by the administrative hearing officer, with her interpretations of the...