Roe v. Healey

78 F.4th 11

Nancy ROE, as parent and natural guardian of A.R.,and individually; Amy Maranville,as parent and natural guardian of P.M.,and individually; Maria Popova,as parent and natural guardian of S.P.,and individually, Plaintiffs, Appellants, v. Maura Tracy HEALEY, in her official capacity as Governor;Massachusetts Department of Elementary and Secondary Education;Brookline Public Schools; Somerville Public Schools;Wellesley Public Schools; Jeffrey C. Riley,in his official capacity as Commissioner of Education;DR. Linus J. Guillory, Jr., in his official capacityas Superintendent of Brookline Public Schools;Mary E. Skipper, in her official capacity as Superintendent ofSomerville Public Schools; Dr. David Lussier,in his official capacity as Superintendent ofWellesley Public Schools, Defendants, Appellees.

No. 22-1740

United States Court of Appeals, First Circuit

August 14, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]

Rory J. Bellantoni, with whom Brain Injury Rights Group, Ltd. was on brief, for appellants.

Cassandra Bolaños, Assistant Attorney General, with whom Andrea Joy Campbell, Attorney General of Massachusetts, was on brief, for appellees Maura Tracy Healey, Massachusetts Department of Elementary and Secondary Education, and Jeffrey C. Riley.

Joshua R. Coleman, with whom Murphy, Lamere & Murphy, P.C., was on brief, for appellees Somerville Public Schools and Mary E. Skipper.

John M. Simon and Stoneman, Chandler & Miller, LLP on brief for appellees Brookline Public Schools and Dr. Linus J. Guillory, Jr.

Adam Simms and Pierce Davis & Perritano LLP on brief for appellees Wellesley Public Schools and Dr. David Lussier.

Francisco M. Negrón, Jr., John Foskett, and Valerio, Dominello & Hillman LLC, on brief for amici curiae National School Boards Association, Maine School Boards Association, Massachusetts Association of School Committees, and Rhode Island Association of School Committees.

Before Kayatta, Selya, and Howard, Circuit Judges.

KAYATTA, Circuit Judge.

Three children with disabilities and their parents sued the Governor of Massachusetts, the Commissioner of Schools for Massachusetts, the Massachusetts Department of Elementary and Secondary Education (DESE), and several school districts and their superintendents on behalf of a putative class, over the closure of in-person education due to the COVID-19 pandemic. Plaintiffs claim that the closure deprived the children of the free appropriate public education to which they are entitled, and deprived the parents of their right to participate in their children's education. They ask for various forms of compensatory and prospective relief. We conclude that none of their claims are cognizable in federal court at this time. Our reasoning follows.

I.

A.

We begin by providing some background on the federal legal landscape surrounding public education of children with disabilities. The Individuals with Disabilities Education Act (IDEA) "provides federal funds to assist states in educating children with disabilities 'and conditions such funding upon a State's compliance with extensive goals and procedures.' " Parent/Professional Advocacy League v. City of Springfield, 934 F.3d 13, 19 (1st Cir. 2019) (quoting Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 295, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006)). To receive such funding, states must agree to guarantee to all children with disabilities a free and appropriate public education (commonly referred to as a FAPE). 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A). A FAPE encompasses both "special education and related services." Id. § 1401(9). The delivery of a FAPE is primarily accomplished through the promulgation of individualized education programs (IEPs). Id. § 1414(d). A student's IEP is designed by an IEP team, which includes parents, teachers, and a representative of the local educational agency. Id. § 1414(d)(1)(B). The IDEA specifies the process for identifying qualified students and creating IEPs for those students. Id. § 1414(a)-(d).

The IDEA also requires states to establish certain procedural safeguards, which ensure that students and parents receive the rights guaranteed under the IDEA. Id. §§ 1412(a)(6), 1415. These procedures must include opportunities for parents to participate as part of the IEP team, written notice to parents when an educational agency proposes changes to the IEP, and procedures for complaints to be filed and due process hearings to take place. Id. § 1415(b). Under the IDEA's so-called "stay put" provision, a student must remain in his or her current placement pending resolution of administrative or judicial proceedings under the IDEA. Id. § 1415(j). Parents must exhaust their state-provided remedies before filing a lawsuit in federal court alleging a violation of the IDEA. Id. § 1415(i)(2)(A). Parents must also exhaust their administrative remedies before filing a lawsuit under other statutes that protect the rights of children with disabilities if the relief sought is available under the IDEA. Id. § 1415(l).

In Massachusetts, the DESE is responsible for overseeing local education authorities and ensuring compliance with the IDEA. The local education authorities directly responsible for the delivery of a FAPE are the school districts. Parents' procedural rights are protected through processes enumerated in 603 Mass. Code Regs. § 28.08. Parents may file a formal complaint and seek a due process hearing before the Bureau of Special Education Appeals (BSEA). Id. § 28.08(3). The final decision of a BSEA hearing officer is subject to judicial review. Id. § 28.08(6).

Certain remedies are available to redress violations of the IDEA. Courts and hearing officers may award relief including compensatory education and reimbursement of educational expenses, both of which are considered equitable remedies under the IDEA. See Pihl v. Mass. Dep't of Educ., 9 F.3d 184, 188-89 (1st Cir. 1993); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 19 (1st Cir. 2006). Compensatory education consists of "future special education and related services to ensure or remedy a past denial of a FAPE." Doucette v. Georgetown Pub. Schs., 936 F.3d 16, 32 (1st Cir. 2019). Reimbursement of educational expenses is limited to money spent by parents "for education-related expenditures that the state ought to have borne." Id. at 32. Such reimbursements are distinct from "damages." Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370-71, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); Doucette, 936 F.3d at 32. In contrast, tort-like general damages are not available under the IDEA. See Luna Perez v. Sturgis Pub. Schs., 598 U.S. 142, 143 S. Ct. 859, 864, 215 L.Ed.2d 95 (2023); Diaz-Fonseca, 451 F.3d at 19.

B.

1.

We turn now to the background of this particular lawsuit. In March 2020, COVID-19 upended nearly every aspect of life, including education. Schools across the country shuttered their doors and substituted virtual instruction for in-person learning. Massachusetts schools were no different. Governor Baker declared a state of emergency due to COVID-19 on March 10, 2020. He then ordered all public schools to close for in-person education on March 15, 2020. Subsequent orders extended the statewide school closures through the end of the 2019-2020 school year. While schools were physically closed, students attended school from home, receiving virtual instruction and services.

During the 2020-2021 school year, Massachusetts school districts offered a variety of remote and hybrid learning models, with hybrid and in-person options becoming available as the year went on. By May 2021, all public schools in the Commonwealth had returned to in-person instruction. On May 27, 2021, the DESE commissioner announced that for the 2021-2022 school year, schools would not "be able to offer remote learning as a standard model." The next day, on May 28, 2021, Governor Baker ended the state of emergency pursuant to which he had issued emergency COVID-19 orders.

2.

Parent plaintiffs Nancy Roe, Maria Popova, and Amy Maranville all have children who qualified for services under the IDEA. Each child had an IEP that outlined specific services and goals to meet the child's particular needs. Plaintiff A.R. has an emotional impairment and requires vocational skills consultations, academic support consultations, social-emotional support consultations, and direct academic support as part of her education.¹ Plaintiff P.M. has autism and requires direct, special academic instruction, speech-language therapy, and social skills services as part of his education.² Plaintiff S.P. has a health impairment and requires direct accommodations and special academic instruction as part of his education.³ Although each student plaintiff's IEP specified the services the student must receive, no IEP addressed whether those services must be provided in person or whether they could be provided remotely (even though at least one IEP for each student was created during the pandemic). Plaintiffs allege, however, that the students "necessitate in-person services including occupational therapy, speech therapy, social work services, and resource room services."

The complaint further alleges that each plaintiff received "virtual instruction and services" during the later months of the 2019-2020 school year, and for some part of the 2020-2021 school year. A.R. "attended school at home with virtual instruction and services until March of 2021," when she was able to access a hybrid option; P.M. attended school at home until April 2021, when he was able to access a hybrid option; and S.P. attended school at home until October 2020, when he was able to access a hybrid option. The complaint does not allege that any student plaintiff was still attending school at home when the suit was filed in October 2021.

3.

Plaintiffs assert that when Governor Baker,⁴ the DESE, and its commissioner (the state defend...