United States Court of Appeals
`For the First Circuit
`
`
`
`
`Nos. 21-1882, 21-1887
`
`FALMOUTH SCHOOL DEPARTMENT,
`
`Plaintiff, Counter-Defendant, Appellant, Cross-Appellee,
`
`v.
`
`MR. AND MRS. DOE, on their own behalf and on behalf of their
`minor son, JOHN DOE,
`
`Defendants, Counter-Plaintiffs, Appellees, Cross-Appellants,
`
`GENE KUCINKAS,
`
`Counter-Defendant, Cross-Appellee.
`
`
`APPEALS FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MAINE
`
`[Hon. George Z. Singal, U.S. District Judge]
`
`
`
`Before
`
`Barron, Chief Judge,
`Lynch and Gelpí, Circuit Judges.
`
`
`
`
`
`
`
`
`
`Eric R. Herlan, with whom Drummond Woodsum & MacMahon was on
`brief, for appellant and cross-appellees.
`Richard L. O'Meara, with whom Murray, Plumb & Murray was on
`brief, for appellees.
`
`
`
`
`
`August 9, 2022
`
`
`
`
`
`For the First Circuit
`
`
`
`
`Nos. 21-1882, 21-1887
`
`FALMOUTH SCHOOL DEPARTMENT,
`
`Plaintiff, Counter-Defendant, Appellant, Cross-Appellee,
`
`v.
`
`MR. AND MRS. DOE, on their own behalf and on behalf of their
`minor son, JOHN DOE,
`
`Defendants, Counter-Plaintiffs, Appellees, Cross-Appellants,
`
`GENE KUCINKAS,
`
`Counter-Defendant, Cross-Appellee.
`
`
`APPEALS FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MAINE
`
`[Hon. George Z. Singal, U.S. District Judge]
`
`
`
`Before
`
`Barron, Chief Judge,
`Lynch and Gelpí, Circuit Judges.
`
`
`
`
`
`
`
`
`
`Eric R. Herlan, with whom Drummond Woodsum & MacMahon was on
`brief, for appellant and cross-appellees.
`Richard L. O'Meara, with whom Murray, Plumb & Murray was on
`brief, for appellees.
`
`
`
`
`
`August 9, 2022
`
`
`
`
`
`
`BARRON, Chief Judge. The Falmouth School Department
`
`("Falmouth") appeals from an order of the United States District
`
`Court for the District of Maine that concerns the Individuals with
`
`Disabilities Education Act (the "IDEA"). The order rejects a
`
`challenge to a ruling by a Maine Department of Education due
`
`process hearing officer (the "hearing officer") that Falmouth
`
`violated the IDEA and that Falmouth was therefore required to
`
`reimburse Mr. and Mrs. Doe (the "Does"), the appellees here, for
`
`the cost of their son John's tuition at a private school in which
`
`they had placed him. Separately, the Does bring a cross-appeal
`
`that challenges the District Court's order that dismisses their
`
`counterclaims in Falmouth's IDEA action, which the Does bring
`
`against Falmouth under the Americans with Disabilities Act (the
`
`"ADA") and Section 504 of the Rehabilitation Act (the "RHA"), and
`
`against Gene Kucinkas, Falmouth's Director of Special Education,
`
`under 42 U.S.C. § 1983. We affirm.
`
`I.
`
`A.
`
`To receive federal funds under the IDEA, states are
`
`generally required to make a "free appropriate public education"
`
`(a "FAPE") "available to all children with disabilities residing
`
`in the State." 20 U.S.C. § 1412(a)(1)(A). Maine has accepted
`
`funds under the IDEA and required local educational agencies such
`
`- 2 -
`
`
`
`as Falmouth to provide a FAPE to eligible children within their
`
`jurisdictions. Me. Stat. tit. 20A, §§ 7006, 7202.
`
`"[T]he centerpiece of the [IDEA's] education delivery
`
`system for disabled children" is the Individualized Education
`
`Program ("IEP"). Endrew F. ex rel. Joseph F. v. Douglas Cnty.
`
`Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017) (quoting Honig v. Doe,
`
`484 U.S. 305, 311 (1988)). The child's "IEP team" develops the
`
`IEP, which is "a written statement for each child with a
`
`disability" that must, among other requirements, detail the
`
`child's academic achievement and functional performance, provide
`
`measurable annual goals for the child, describe how the child's
`
`progress towards those goals will be measured, and describe what
`
`services the child will receive. 20 U.S.C. § 1414(d)(1)(A). The
`
`"IEP team" that develops the IEP must include the child's parents,
`
`their regular and special education teachers, and a
`
`"representative of the local education agency." Id.
`
`§ 1414(d)(1)(B), (d)(3), (d)(4).
`
`An IEP must be "reasonably calculated to enable a child
`
`to make progress appropriate in light of the child's
`
`circumstances." Endrew F., 137 S. Ct. at 999. An IEP must also
`
`ensure that the child is educated "in the '[l]east restrictive
`
`environment' appropriate for" that child. C.D. ex rel. M.D. v.
`
`Natick Pub. Sch. Dist., 924 F.3d 621, 625 (1st Cir. 2019)
`
`(alteration in original) (quoting 20 U.S.C. § 1412(a)(5)).
`
`- 3 -
`
`
`
`The "least restrictive environment" ("LRE") requirement
`
`"embod[ies] a 'preference' for 'mainstreaming' students with
`
`disabilities in 'the regular classrooms of a public school
`
`system.'" Id. (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 202-
`
`03 (1982)). The IEP team, in designing an IEP to ensure that the
`
`child receives a FAPE, must "choos[e] a placement" in which the
`
`child will receive educational instruction "that strikes an
`
`appropriate balance between the restrictiveness of the placement
`
`and educational progress." Id. at 631. Under our precedent, we
`
`"'weigh[]' this preference for mainstreaming 'in concert with the'
`
`FAPE mandate." Id. (quoting Roland M. v. Concord Sch. Comm., 910
`
`F.2d 983, 992-93 (1st Cir. 1990)).
`
`If the parents of a child who is eligible to receive
`
`services under the IDEA believe that the child has been denied a
`
`FAPE, then they may bring a complaint to a state or local
`
`educational agency, as determined by the law of the relevant state.
`
`20 U.S.C. § 1415(f)(1)(A); see also G.D. ex rel. Jeffrey D. v.
`
`Swampscott Pub. Schs., 27 F.4th 1, 5 (1st Cir. 2022). If the
`
`complaint is not resolved informally, the parents are entitled to
`
`a "due process hearing" in front of that agency at which their
`
`complaint can be adjudicated. 20 U.S.C. § 1415(f)(1)(B). Maine
`
`provides that such due process hearings occur in front of a hearing
`
`- 4 -
`
`
`
`officer appointed by the Maine Commissioner of Education. Me.
`
`Stat. tit. 20-A, § 7207-B(2)(A); see also id. § 1(4).
`
`Under the IDEA, "[a]ny party aggrieved by the findings
`
`and decision made" in the administrative proceeding before the
`
`state or local educational agency may bring a civil action in state
`
`or federal court. 20 U.S.C. § 1415(i)(2)(A). A District Court
`
`that entertains such a civil action must undertake what we have
`
`called "'involved oversight' of the agency's factual findings and
`
`conclusions." G.D., 27 F.4th at 6 (quoting S. Kingstown Sch. Comm.
`
`v. Joanna S., 773 F.3d 344, 349 (1st Cir. 2014)). A District Court
`
`that conducts this oversight must review the administrative record
`
`and, at the request of a party to the action, additional evidence,
`
`while "accord[ing] 'due weight' to the agency's administrative
`
`proceedings." Id. (quoting Lenn v. Portland Sch. Comm., 998 F.2d
`
`1083, 1087 (1st Cir. 1993)); see also 20 U.S.C. § 1415(i)(2)(C).
`
`The District Court must base its decision on "the
`
`preponderance of the evidence" and "grant such relief as [it]
`
`determines is appropriate." 20 U.S.C. § 1415(i)(2)(C)(iii). That
`
`relief may, in some circumstances, include a requirement to
`
`reimburse parents who "unilaterally change their child's placement
`
`during the pendency of review proceedings" to a private placement
`
`for the costs that the parents incur for that placement. Florence
`
`Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 15
`
`(1993).
`
`- 5 -
`
`
`
`B.
`
`We describe "the background facts as supportably found
`
`by the district court," Sebastian M. v. King Philip Reg'l Sch.
`
`Dist., 685 F.3d 79, 82 (1st Cir. 2012); see Falmouth Sch. Dep't v.
`
`Doe, No. 20-cv-00214, 2021 WL 4476939 (D. Me. Sept. 29, 2021). We
`
`focus here on the facts that pertain to Falmouth's appeal of the
`
`District Court's rejection of Falmouth's challenge to the hearing
`
`officer's decision that Falmouth denied John a FAPE and the hearing
`
`officer's determination that, in consequence, Falmouth must
`
`reimburse the Does for the cost that they incurred by placing John
`
`in a private school. In Part V, infra, we recount the allegations
`
`that are relevant to the Does' cross-appeal of the District Court's
`
`order that dismissed their counterclaims.
`
`The hearing officer found that John had been denied a
`
`FAPE during two periods: January 2018 to March 2019, and September
`
`2019 to February 2020. Those months span a period in which
`
`Falmouth had proposed four separate IEPs for John. We will refer
`
`to these IEPs as the January 2018 IEP, the January 2019 IEP, the
`
`September 2019 IEP, and the November 2019 IEP.
`
`Before turning to the facts that concern those periods
`
`of time and those IEPs, however, we first review the events from
`
`an even earlier period. That is the period during which John
`
`received services from Falmouth for the first time under an IEP.
`
`That initial IEP is not at issue in the IDEA suit that underlies
`
`- 6 -
`
`
`
`this appeal, but it provides useful context for our consideration
`
`of the IEPs that are. We will refer to this first IEP as the
`
`January 2017 IEP.
`
`1.
`
`John enrolled at Falmouth Elementary School for first
`
`grade in the fall of 2016. He did so after having attended a
`
`private preschool and kindergarten. Soon after, Falmouth became
`
`aware that John's literacy skills were "at the pre-K level." And
`
`then, in November, Falmouth convened an IEP team and the Does
`
`consented to John receiving special education services from
`
`Falmouth. The January 2017 IEP for John followed thereafter.
`
`According to Robin Seeker, John's special education
`
`teacher, when John started this specialized instruction under this
`
`IEP, in late January 2017, he was a "nonreader." More
`
`specifically, he was reading at or below instructional level A on
`
`the Benchmark Assessment System (the "BAS"), which classifies
`
`students based on their ability to read independently and with the
`
`support of an instructor.
`
`Level A is the lowest level on the BAS. A child meets
`
`progress expectations under the BAS if the child is at level D at
`
`the end of kindergarten or the beginning of first grade and if the
`
`child is at level J by the end of first grade.
`
`The January 2017 IEP included a goal that John would
`
`reach instructional level D on the BAS by February 2018, which is
`
`- 7 -
`
`
`
`a level that corresponds to "an end of kindergarten reading level."
`
`This IEP provided that John would receive ninety minutes of daily
`
`instruction from Seeker, with that time split evenly between
`
`reading, writing, and math.
`
`The reading instruction that John received while this
`
`IEP was in place was initially based on the Wilson "Fundations"
`
`program. However, Seeker soon began using the "SPIRE" program
`
`instead.
`
`Falmouth and the Does agreed to amend the January 2017
`
`IEP in April 2017 to add summer programming. Following a
`
`psychological evaluation that diagnosed John with ADHD, the IEP
`
`team met again in May 2017 to review the evaluation. Notes from
`
`that meeting indicate that John was "reading at the instructional
`
`level C on the [BAS]" and "working on learning his basic sight
`
`words," which the hearing officer defined as words "that 'can't be
`
`sounded out.'"
`
`2.
`
`The January 2017 IEP was set to expire in late January
`
`2018. By that time, John had completed approximately half of
`
`second grade. He was still "reading instructional levels C and D
`
`books," and "writing at an end of kindergarten level." John had
`
`increased, however, to spelling 50 words on a list of 100 "high
`
`frequency sight words."
`
`- 8 -
`
`
`
`In January 2018, Seeker identified John's "biggest
`
`challenge" as being "in the orthographic area." Seeker was
`
`referring to orthographic processing, which the District Court
`
`explained "refers to the skills necessary 'to store and recall the
`
`visual forms of letters and words.'" John also "struggled with
`
`. . . phonological processing," which "refers to 'the ability to
`
`perceive, order and manipulate the sounds within words.'"
`
`John's IEP team met on January 23, 2018 to revise John's
`
`January 2017 IEP. The result was the January 2018 IEP.
`
`This IEP increased the amount of daily specialized
`
`instruction that John would receive in reading and writing from
`
`thirty minutes each to one hour of reading and forty-five minutes
`
`of writing. It did not change, however, the type of reading
`
`instruction that John would receive; it continued to provide for
`
`John to receive SPIRE programming.
`
`The January 2018 IEP also did not include a specific BAS
`
`level as a measurable goal. The IEP did define as a goal, however,
`
`that John be able to read the list of 100 "high frequency sight
`
`words" that was mentioned above with 70% accuracy by February 2019.
`
`By June 2018, John was still reading "somewhere between
`
`a BAS level C and D." He had progressed to the second level of
`
`the SPIRE program, but he had taken longer to complete the first
`
`level than any other student Seeker could recall. John could spell
`
`56 out of the 100 listed "high frequency sight words."
`
`- 9 -
`
`
`
`That summer, Falmouth again offered John summer
`
`programming. However, the Does declined the offer and elected to
`
`have John tutored at the Children's Dyslexia Center during the
`
`summer.
`
`When John began third grade in fall 2018, John's mother
`
`emailed his new special education teacher, Karen Dunn, to express
`
`concern about John's lack of progress and to ask about other
`
`potential programming options. Dunn, too, was concerned about
`
`John's lack of progress and had observed "some apparent regression
`
`in his reading skills" over the summer.
`
`Dunn shared those concerns with Kucinkas, Falmouth's
`
`Director of Special Education. Kucinkas proposed using Lindamood
`
`Bell ("LMB") programming, which is, like SPIRE, a reading
`
`instruction methodology. LMB programming includes the "Lindamood
`
`Phoneme Processing System" ("LiPS") and "Seeing Stars." This
`
`proposal was not communicated to the Does.
`
`At a meeting of John's IEP team in September 2018, John's
`
`mother raised the concerns that she had raised to Kucinkas. No
`
`one on the IEP team, however, suggested any alternative reading
`
`programming for John apart from SPIRE. Nonetheless, the January
`
`2018 IEP was amended at that meeting to add the use of audio books
`
`to the services that he would receive.
`
`When John returned to school for third grade, Dunn used
`
`Wilson "Fundations" materials in instructing John, although the
`
`- 10 -
`
`
`
`use of these materials to instruct John was not expressly
`
`referenced in the January 2018 IEP. Dunn used them to address
`
`John's apparent reading regression over the summer.
`
`Later in the fall, however, Dunn switched back to using
`
`SPIRE to instruct John. By November, John had mastered only twelve
`
`new sight words.
`
`Approximately two and a half months before the January
`
`2018 IEP expired, the Does obtained, on December 9, 2018, a private
`
`reading evaluation from Lisa Murphy and Barbara Melnick of the
`
`Aucocisco School, which is a private special education school in
`
`Maine. The evaluation "suggested that John . . . struggled with
`
`both orthographic processing and phonological processing" and
`
`"assessed some core reading skills to be at the 'pre-k to
`
`kindergarten levels.'"
`
`The evaluation recommended "intensive and one on one"
`
`"intervention." The evaluation specifically recommended "[t]he
`
`Lindamood-Bell curriculum of LiPS followed by/overlaid with the
`
`Seeing Stars Program" to better enable John to make progress.
`
`The Does provided this evaluation to Falmouth in January
`
`2019, before the January 2018 IEP had expired. By then, John had
`
`added only three more sight words and progressed only to "BAS
`
`instructional level E (early first grade)."
`
`- 11 -
`
`
`
`3.
`
`John's IEP team reconvened for his second annual review
`
`in January 2019. The Does submitted a statement of concern in
`
`advance that discussed what they referred to as the "substantial
`
`unrecognized orthographic processing deficits" that John had
`
`according to the Aucocisco evaluation. They asked that John's
`
`reading instruction include the "Lindamood-Bell curriculum of
`
`[LiPS] followed by/overlaid with the Seeing Stars Program," based
`
`on the Aucocisco evaluation.
`
`Falmouth thereafter proposed the January 2019 IEP. The
`
`January 2019 IEP increased the time John would spend in specialized
`
`programming at Falmouth Elementary School, such that he would spend
`
`59% of his time in a regular classroom (as opposed to the 63% he
`
`had spent in the second IEP year and 77% in his first IEP year).
`
`The January 2019 IEP also included "some instruction using the
`
`Lindamood Bell Seeing Stars program."
`
`Under the January 2019 IEP, John would receive nine hours
`
`of weekly instruction using the Seeing Stars methodology delivered
`
`by Shar Mahoney, who had not previously taught John. Mahoney would
`
`consult with a trainer certified in LMB programming every other
`
`week for fifty minutes. Falmouth reintroduced a BAS goal for John,
`
`namely that John achieve BAS level I-J by February 2020.
`
`At the January 22 meeting of the IEP team and in a letter
`
`sent two days later, the Does stated that they would remove John
`
`- 12 -
`
`
`
`from Falmouth Elementary School each afternoon so that he could
`
`receive intensive reading programming at Aucocisco using LiPS and
`
`Seeing Stars. Aucocisco proposed to provide John one-on-one
`
`instruction for two hours daily.
`
`In the email enclosing the letter, the Does requested
`
`that Falmouth adjust John's schedule so that he could remain in
`
`his mainstream classroom during the mornings while he was receiving
`
`instruction at Falmouth before leaving to receive instruction at
`
`Aucocisco in the afternoons. Kucinkas responded in a letter that
`
`Falmouth would continue to provide John with specialized
`
`instruction during his mornings at Falmouth Elementary School,
`
`with no change in light of his daily early dismissal.
`
`4.
`
`The Does revoked their consent for services under John's
`
`January 2019 IEP on March 12, 2019. They requested a plan for
`
`accommodations under Section 504 of the RHA.1
`
`Falmouth implemented such a plan (a "504 plan") later
`
`that month. John continued to spend his mornings in a mainstream
`
`Falmouth Elementary classroom and his afternoons at Aucocisco.
`
`John also received a daily hour of tutoring from Aucocisco staff
`
`for three weeks during the summer.
`
`
`1 A plan offered under Section 504 of the Rehabilitation Act
`provides accommodations for students with disabilities to
`participate in public school education but does not provide
`specialized instruction.
`
`- 13 -
`
`
`
`John received several evaluations and assessments during
`
`the spring and summer of 2019. These included a neuropsychological
`
`evaluation performed by Dr. Marcia Hunter in February and March
`
`2019 that recommended LMB programming; multiple assessments that
`
`Falmouth proposed and to which the Does consented in June; an
`
`evaluation by Aucocisco in July to determine John's progress after
`
`100 hours of Seeing Stars instruction; and a reading evaluation in
`
`August by Dr. Jayne Boulos, to whom Falmouth had referred the Does.
`
`The evaluation of John by Aucocisco concluded that he
`
`was still reading at a first-grade level but noted gains in his
`
`ability to read sight words. Dr. Boulos's evaluation concluded
`
`that John's reading skills were "well-below average . . . across
`
`all core domains" and recommended another evaluation from the
`
`Children's Dyslexia Center, where John had received tutoring the
`
`previous summer.
`
`5.
`
`John began fourth grade in fall 2019 and continued to
`
`split his school days between Falmouth Elementary School and
`
`Aucocisco. He was not then receiving services under the IDEA from
`
`Falmouth.
`
`Falmouth and the Does continued to discuss restarting
`
`those services. Falmouth proposed a new IEP that would increase
`
`John's weekly literacy instruction, but Falmouth indicated that it
`
`- 14 -
`
`
`
`would not offer any LMB programming in the new IEP. We will refer
`
`to this IEP as the September 2019 IEP.
`
`In October 2019, Falmouth assessed John to be at BAS
`
`instructional level E, an early first grade reading level and the
`
`same level that he had achieved as of January 2019. A math
`
`assessment showed that John had below-grade-level math skills.
`
`In November 2019, John's IEP team met again. The Does,
`
`in advance of this meeting, communicated to Falmouth that John
`
`required a full-day placement at Aucocisco and that Aucocisco's
`
`instruction was helping John develop literacy skills. Falmouth
`
`proposed an updated IEP that would increase the proposed special
`
`education in math and add behavioral intervention efforts but would
`
`not offer any LMB programming. We will refer to this IEP as the
`
`November 2019 IEP.
`
`The Does rejected the proposed IEP and placed John at
`
`Aucocisco full-time starting on November 4, 2019. Then Falmouth
`
`proposed a new IEP in February 2020 -- the February 2020 IEP --
`
`that the Does do not challenge.
`
`In March 2020, according to Melnick, the Aucocisco
`
`director, John was reading at a mid-second grade to early third
`
`grade level. In fall 2020, John's report card noted that he was
`
`practicing reading at a third-grade level.
`
`- 15 -
`
`
`
`C.
`
`The Does submitted a hearing request to the Maine
`
`Department of Education on January 15, 2020.2 They argued that
`
`John had not been provided a FAPE from January 2018 until February
`
`2020, with the exception of the period from March 2019 to the start
`
`of John's fourth grade year that fall when he was not receiving
`
`services under the IDEA from Falmouth because the Does had
`
`withdrawn their consent to his receipt of them.
`
`After a five-day hearing in early March 2020, the hearing
`
`officer concluded that Falmouth had denied John a FAPE from January
`
`2018 to March 2019 and from September 2019 through February 2020.
`
`In explaining why, the hearing officer addressed the January 2018,
`
`January 2019, and September 2019 IEPs.3
`
`First, the hearing officer determined that the January
`
`2018 IEP was not "reasonably calculated to provide [John] with a
`
`FAPE" because of its reliance on SPIRE. The hearing officer
`
`explained that, starting in January 2018, Falmouth had "failed to
`
`take . . . meaningful steps to address [John's] unique
`
`circumstances and challenges with regard to his orthographic
`
`
`2 The Does had initially filed for a hearing in October 2019,
`but they withdrew that request before the hearing.
`
` 3
`
` Although the November 2019 IEP was proposed within the
`period that the hearing officer determined John was denied a FAPE,
`neither the hearing officer nor the District Court based any legal
`conclusions on this IEP and the parties make no arguments
`concerning it.
`
`- 16 -
`
`
`
`processing disability, which by this time was known by [Falmouth]."
`
`The hearing officer pointed to Falmouth's failure to request
`
`additional evaluations focused on John's orthographic processing
`
`and its continued reliance on SPIRE programming, rather than
`
`"consider[ing] a change in the methodology being used for [John's]
`
`programming." The hearing officer, quoting Dunn, specifically
`
`identified "the Seeing Stars program that Ms. Dunn, Ms. Melnick,
`
`and others testified was 'specifically designed for children who
`
`have orthographic dyslexia'" as an alternative methodology.
`
`Next, the hearing officer turned to the January 2019
`
`IEP, which the Does rejected. The hearing officer called that IEP
`
`"a step in the right direction," but "too little, too late," given
`
`Falmouth's "reluctance to conduct further evaluations" and its
`
`staff's lack of "experience[] in delivering" LMB programs.
`
`Finally, the hearing officer addressed the September
`
`2019 IEP, and concluded that it "was not reasonably calculated and
`
`reasonably ambitious to enable [John] to make appropriate progress
`
`in light of his circumstances." In support of that conclusion,
`
`the hearing officer found it "incongruous that [Falmouth] seemed
`
`to hold out hope that the SPIRE program would work for [John] after
`
`two years of limited progress," even as it "offer[ed] and then
`
`abruptly remove[d] the LiPS program, declaring that it was
`
`'ineffective' after [John] had only incorporated it into his
`
`learning for a period of six months."
`
`- 17 -
`
`
`
`The hearing officer then determined that "the Aucocisco
`
`School is an appropriate placement" for John. And, based on that
`
`determination, the hearing officer ordered Falmouth to reimburse
`
`the Does for the cost of John's Aucocisco tuition from January 28,
`
`2019 to September 2019, and the 2019-2020 school year, along with
`
`certain other expenses.
`
`D.
`
`Falmouth brought an action under the IDEA in the District
`
`of Maine in which it challenged the hearing officer's ruling that
`
`John had been denied a FAPE for the periods in question. Falmouth
`
`also challenged the remedial order on separate grounds.
`
`The Does answered and brought counterclaims against
`
`Falmouth under Section 504 of the RHA and Title II of the ADA.
`
`The Does also brought a counterclaim against Kucinkas under 42
`
`U.S.C. § 1983 alleging retaliation against them in violation of
`
`their rights under the First Amendment. Falmouth moved to dismiss
`
`the counterclaims under Federal Rule of Civil Procedure 12(b)(6).
`
`Falmouth moved for summary judgment, as did the Does, as
`
`to Falmouth's civil action under the IDEA in which it challenged
`
`the hearing officer's orders in favor of the Does. See Sebastian
`
`M., 685 F.3d at 84-85 ("[A] motion for summary judgment in an IDEA
`
`case is simply a vehicle for deciding the relevant issues."). The
`
`District Court granted judgment to the Does, sustaining the hearing
`
`officer's order finding that John was denied a FAPE during the
`
`- 18 -
`
`
`
`periods of time in question and holding that the hearing officer's
`
`order of reimbursement was "an appropriate remedy" for Falmouth
`
`having denied John a FAPE under those IEPs.
`
`Falmouth and Kucinkas moved to dismiss the Does'
`
`counterclaims against each of them under Federal Rule of Civil
`
`Procedure 12(b)(6). In an order issued contemporaneously to its
`
`order affirming the hearing officer's decision, the District Court
`
`granted the motion and dismissed the counterclaims. Falmouth
`
`timely filed a notice of appeal of the District Court's rulings
`
`against it and the Does cross-appealed from the dismissal of their
`
`counterclaims against Falmouth and Kucinkas.
`
`II.
`
`Falmouth brings various challenges that apply to the
`
`District Court's ruling with respect to both of the periods of
`
`time in which the hearing officer found that Falmouth denied John
`
`a FAPE. In some of them, Falmouth does so without focusing on any
`
`ruling by the District Court that concerns only a specific period
`
`within that overall time span rather than the time span as a whole.
`
`In those broadly applicable challenges, Falmouth alleges that the
`
`District Court's assessments of the specific IEPs that Falmouth
`
`had proposed for John during that overall time span were plagued
`
`by flaws that apply equally to each of those assessments. We thus
`
`begin our analysis by examining this set of contentions, before
`
`then turning to the more time-period-specific challenges that
`
`- 19 -
`
`
`
`Falmouth also brings to the District Court's ruling that John was
`
`denied a FAPE and that direct our attention to the District Court's
`
`assessments of certain ones of the IEPs at issue.
`
`"We review the district court's determinations of law de
`
`novo, and its findings of fact for clear error. 'Where the case
`
`raises mixed questions of law and fact, we employ a "degree-of-
`
`deference continuum," providing "non-deferential plenary review
`
`for law-dominated questions" and "deferential review for fact-
`
`dominated questions."'" Johnson v. Bos. Pub. Schs., 906 F.3d 183,
`
`191 (1st Cir. 2018) (internal citation omitted) (quoting Doe v.
`
`Cape Elizabeth Sch. Dist., 832 F.3d 69, 76 (1st Cir. 2016)). In
`
`an IDEA case such as this one, we do not employ the typical
`
`presumptions that accompany summary judgment motions. Sebastian
`
`M., 685 F.3d at 85.
`
`A.
`
`Falmouth first contends that the District Court erred in
`
`concluding that John had been denied a FAPE during the time periods
`
`in question because the District Court based that conclusion on
`
`the finding that SPIRE does not "address" orthographic processing.
`
`Falmouth contends that the record compels the conclusion that SPIRE
`
`does "specifically address[] . . . orthographic processing
`
`issues." For that reason, Falmouth contends that the District
`
`Court wrongly concluded that none of the IEPs that were either
`
`implemented or proposed during the time periods in question was
`
`- 20 -
`
`
`
`"reasonably calculated" to ensure that John would receive a FAPE,
`
`Endrew F., 137 S. Ct. at 999. And so, Falmouth contends, for this
`
`reason alone the District Court's ruling that Falmouth denied John
`
`a FAPE during this time cannot stand.
`
`But, the District Court did not base the ruling that
`
`Falmouth denied John a FAPE during the periods at issue on the
`
`mistaken finding about SPIRE that Falmouth attributes to it.
`
`Rather, we understand the District Court to have concluded only
`
`that the preponderance of the evidence supported the hearing
`
`officer's conclusion that none of the IEPs at issue were
`
`"reasonably calculated," id., to ensure that John would receive a
`
`FAPE, because none used Seeing Stars or a similar program and so
`
`none was "specially designed," id., to address John's specific
`
`orthographic processing deficit, given both what the record showed
`
`about the acuity of that deficit and the way that Seeing Stars
`
`would be "specially designed" to address it while SPIRE would not
`
`be. Thus, this aspect of Falmouth's challenge fails for the simple
`
`reason that it takes aim at a supposedly absolute finding about
`
`the limits on the type of instruction that SPIRE could provide
`
`that the District Court did not make.
`
`Falmouth appears to advance a related contention,
`
`however. Here, Falmouth argues that the District Court erred in
`
`ruling that Falmouth denied John a FAPE during the time in question
`
`because it erred in assessing whether an IEP that relied on Seeing
`
`- 21 -
`
`
`
`Stars would be "reasonably calculated" to ensure that John would
`
`make appropriate progress relative to whether an IEP that relied
`
`on SPIRE would be. We see no merit to this contention either.
`
`Falmouth does not dispute that, as the District Court
`
`pointed out, the record contains an evaluation from Lisa Melnick
`
`and Barbara Murphy of Aucocisco that specifically recommended
`
`using Seeing Stars programming to address John's specific
`
`"orthographic processing deficits."4 Nonetheless, Falmouth
`
`contends, the District Court still erred in ruling based on that
`
`evidence that John had been denied a FAPE because of the
`
`contradictory testimony that Falmouth asserts is in the record.
`
`Here, Falmouth points solely to the testimony from the expert whom
`
`Falmouth proposed to hire to consult with its own teacher for the
`
`delivery of Seeing Stars to John under the proposed January 2019
`
`IEP. But, the testimony from that expert, Ann Binder, does not
`
`demonstrate that the District Court's ruling must be overturned.
`
`The record does show that Binder testified "that SPIRE
`
`. . . specifically addresses both orthographic processing issues
`
`
`4 We understand Murphy, Melnick, and Binder to have each
`testified based on both their personal knowledge of the case and
`in an expert capacity. The parties, hearing officer, and District
`Court appear to have proceeded on the assumption that the expert
`knowledge to which these witnesses testified was knowable to
`Falmouth at all relevant times. No party challenges this
`assumption, so we adopt the same premise.
`
`
`- 22 -
`
`
`
`and phonological processing issues."5 But, as we have just
`
`explained, the District Court did not dispute that SPIRE
`
`"address[es] orthographic processing." So, this portion of
`
`Binder's testimony does not aid Falmouth's argument on appeal, as
`
`nothing in it purports to assess SPIRE's ability to address John's
`
`unique needs relative to Seeing Stars, given the acuity of his
`
`orthographic processing deficit.
`
`Moreover, the other portion of Binder's testimony to
`
`which Falmouth directs our attention also is of no assistance to
`
`Falmouth. That portion is the one in which Binder claimed that
`
`programs like SPIRE address orthography "in a much deeper way than
`
`Seeing Stars" because "each lesson [of SPIRE] is narrower." But,
`
`in this portion of Binder's testimony, she was clearly discussing
`
`"orthography," which she later clarified is not the same as
`
`"orthographic processing" and "is not something on its own that
`
`can be taught."
`
`Falmouth has one last related line of challenge. It
`
`appears to be contending that, even if the more record-based
`
`contentions that we have just considered are not persuasive, our
`
`decision in Lessard v. Wilton Lyndeborough Cooperative School
`
`District, 518 F.3d 18 (1st Cir. 2008), and the Supreme Court's
`
`decision in Endrew F. require us to conclude that the District
`
`
`5 We note that Seeker, too, claimed that "SPIRE tackles in an
`explicit way the orthographic component."
`
`- 23 -
`
`
`
`Court erred in ruling that the IEPs at i
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
