Pollack, et al v. Regional School Unit 75

Filing

OPINION issued by William J. Kayatta, Jr., Appellate Judge; Norman H. Stahl, Appellate Judge and David J. Barron, Appellate Judge. Published. [17-1700]

Case: 17-1700

Document: 00117270114

Page: 1

Date Filed: 03/26/2018

Entry ID: 6158926

United States Court of Appeals
For the First Circuit
No. 17-1700
MATTHEW E. POLLACK, as next friend of B.P.;
JANE QUIRION, as next friend of B.P.,
Plaintiffs, Appellants,
v.
REGIONAL SCHOOL UNIT 75,
Defendant, Appellee,
KELLY ALLEN; TANJI JOHNSTON;
PATRICK MOORE; BRADLEY V. SMITH,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]

Before
Kayatta, Stahl, and Barron,
Circuit Judges.

Richard L. O'Meara, with whom Rachel W. Sears and Murray,
Plumb & Murray were on brief, for appellants.
Nathaniel A. Bessey, with whom Daniel A. Nuzzi and Brann &
Isaacson were on brief, for appellee.

Case: 17-1700

Document: 00117270114

Page: 2

Date Filed: 03/26/2018

March 26, 2018

Entry ID: 6158926

Case: 17-1700

Document: 00117270114

Page: 3

KAYATTA, Circuit Judge.

Date Filed: 03/26/2018

Entry ID: 6158926

B.P. is a 19-year-old public

school student in Regional School Unit 75 (the "district") in
Topsham, Maine.

He has been diagnosed with several disabilities,

including autism, cognitive impairment, and a variant of LandauKleffner Syndrome.

B.P. is nonverbal and unable to communicate

with his parents about his experiences at school.

His parents

want him to carry an audio recording device at school to record
pretty much everything said in his presence. The school district's
refusal

to

permit

the

device

prompted

B.P.'s

parents

("plaintiffs") to file this lawsuit on his behalf under, among
other things, the Americans with Disabilities Act ("ADA").

They

also commenced an administrative proceeding under the Individuals
with Disabilities Education Act ("IDEA").
because

the

recording

administrative

device

would

tribunal

provide

B.P.

As we will explain,

found
no

that

carrying

demonstrable

the

benefit,

plaintiffs are precluded from proving an element necessary for
them to prevail on their ADA claim.

We therefore affirm the

judgment for the district.
I.
We begin by describing the basic framework of the two
principal statutes at issue in this case:

- 3 -

the IDEA, under which

Case: 17-1700

Document: 00117270114

Page: 4

Date Filed: 03/26/2018

Entry ID: 6158926

the plaintiffs' administrative claim was adjudicated, and the ADA,
under which the claim relevant to this appeal arises.1
A.
The purpose of the IDEA is "to ensure that all children
with disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs."

20 U.S.C. § 1400(d)(1)(A).

A free appropriate public education, commonly referred to as a
FAPE, is defined to include "special education and related services
that . . .

are

provided

in

conformity

individualized education program."
education"

is

further

with

[a

student's]

Id. § 1401(9)(D).

defined

as

"specially

"Special
designed

instruction . . . to meet the unique needs of a child with a
disability."

Id.

§ 1401(29).

"Related

services"

include

supportive services, such as audiology and interpreting services,
"as may be required to assist a child with a disability to benefit
from special education."

Id. § 1401(26)(A).

"Supplementary aids

and services" can also be included in a student's individualized
education program ("IEP"), see id. § 1414(d)(1)(A)(i)(IV), and are
defined as "aids, services, and other supports that are provided
in

regular

education

classes . . .

1

to

enable

children

with

Plaintiffs also assert a claim under the Rehabilitation Act.
See 29 U.S.C. § 794. As explained below, however, we treat that
claim as coextensive with the ADA claim. See infra note 2.

- 4 -

Case: 17-1700

Document: 00117270114

Page: 5

Date Filed: 03/26/2018

Entry ID: 6158926

disabilities to be educated with nondisabled children to the
maximum extent appropriate," id. § 1401(33).
If
receiving

parents

a

FAPE,

are

they

educational agency.

concerned
can

file

that

a

their

complaint

See id. § 1415(b)(6)(A).

child
with

is

the

not

local

The agency then has

the opportunity to resolve the complaint at a preliminary meeting
with the parents and the relevant members of the IEP team.
id. § 1415(f)(1)(B)(i).

See

If that meeting fails to resolve the

complaint "to the satisfaction of the parents" within a certain
time period, id. § 1415(f)(1)(B)(ii), the parents are entitled to
have the issue decided in an impartial due process hearing, see
id. § 1415(f)(1)(A).

There are two types of arguments available

to the parents at a due process hearing, both of which center on
the denial of a FAPE.

They can argue that their child is being

denied a FAPE substantively, on the grounds that his or her IEP
lacks certain special education or related services.
§ 1415(f)(3)(E)(i).

See id.

And they can argue that their child is being

denied a FAPE due to procedural violations that, for example,
"significantly impede[] the parents' opportunity to participate in
the [IDEA] decisionmaking process."

Id. § 1415(f)(3)(E)(ii)(II).

B.
Casting a much wider net than the IDEA, the ADA seeks to
eliminate

discrimination

disabilities.

against

all

See 42 U.S.C. § 12101(b)(1).

- 5 -

individuals

with

Title II of the

Case: 17-1700

Document: 00117270114

Page: 6

Date Filed: 03/26/2018

Entry ID: 6158926

statute mandates 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."2

Id.

§ 12132.

This

protection

"is

characterized as a guarantee of 'meaningful access' to government
benefits and programs."

Theriault v. Flynn, 162 F.3d 46, 48 (1st

Cir. 1998) (quoting Alexander v. Choate, 469 U.S. 287, 301 (1985));
see also Iverson v. City of Boston, 452 F.3d 94, 99 (1st Cir. 2006)
("The clear purport of Title II is to guarantee that qualified
disabled

persons

enjoy

meaningful

access

to

public

services,

programs, and activities.").
It is undisputed that B.P. is a qualified individual
under the ADA.

And for purposes of our review of the district

court's summary judgment ruling, the school district does not
dispute that to the extent B.P. did not obtain access to (or the
benefits of) the district's services, it was by reason of his

2

Title II of the ADA was modeled after Section 504 of the
Rehabilitation Act, which contains very similar language barring
discrimination against individuals with disabilities by any
program or activity receiving federal financial assistance.
Because courts have interpreted the relevant parts of the two
statutes consistently, see Theriault v. Flynn, 162 F.3d 46, 48 n.3
(1st Cir. 1998), and because plaintiffs make no argument that any
difference between the two statutes is relevant to this appeal, we
focus our analysis on the ADA, see Parker v. Universidad de Puerto
Rico, 225 F.3d 1, 4 (1st Cir. 2000) (noting that courts "rely
interchangeably on decisional law" of the two statutes).

- 6 -

Case: 17-1700

Document: 00117270114

disability.

Page: 7

Date Filed: 03/26/2018

Entry ID: 6158926

Therefore, the only contested ADA issue for purposes

of this appeal is whether, by rejecting plaintiffs' requests to
equip B.P. with a recording device, the district denied him "the
benefits of [its] services, programs, or activities" or otherwise
discriminated against him.
Such an unlawful denial occurs if a public entity refuses
to "make reasonable modifications . . . when . . . necessary to
avoid discrimination on the basis of disability, unless the public
entity

can

demonstrate

fundamentally
activity."

alter

the

that

making

nature

of

the
the

28 C.F.R. § 35.130(b)(7)(i).

modifications
service,

would

program,

or

As noted in Nunes v.

Massachusetts Department of Correction, 766 F.3d 136 (1st Cir.
2014), required modifications, or what we more customarily call
"accommodations,"3 include those reasonably necessary "to provide
meaningful access to a public service."

Id. at 145 (internal

quotation marks omitted).
In considering failure-to-accommodate claims under the
ADA, we are also guided by duly enacted regulations implementing
the statute's anti-discrimination mandate.

3

See A.G. v. Paradise

The parallel regulation under the Rehabilitation Act uses
the term "accommodation" rather than "modification," see 28 C.F.R.
§ 41.53, "but there is no material difference between the terms,"
Nunes v. Mass. Dep't of Corr., 766 F.3d 136, 145 n.6 (1st Cir.
2014). We use the term "accommodation," as we have done previously
in these types of cases. See Nunes, 766 F.3d at 145–46; Toledo v.
Sánchez, 454 F.3d 24, 32 (1st Cir. 2006); Kiman v. N.H. Dep't of
Corrs., 451 F.3d 274, 283 (1st Cir. 2006).

- 7 -

Case: 17-1700

Document: 00117270114

Page: 8

Date Filed: 03/26/2018

Entry ID: 6158926

Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir.
2016).

One such regulation promulgated by the Department of

Justice is relevant here.

The so-called effective communications

regulation requires public entities "to ensure that communications
with

applicants,

participants,

members

of

the

public,

and

companions with disabilities are as effective as communications
with others."

28 C.F.R. § 35.160(a)(1).

To achieve this, "public

entit[ies] shall furnish appropriate auxiliary aids and services
where necessary to afford individuals with disabilities . . . an
equal opportunity to participate in, and enjoy the benefits of, a
service,

program,

or

activity

of

a

public

entity."

Id.

§ 35.160(b)(1); see also K.M. ex rel. Bright v. Tustin Unified
Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013) (noting that "we
are guided by the specific standards of the Title II effective
communications
standard

regulation"

incorporates

because

rather

"the

than

'meaningful

supersedes

access'

applicable

interpretive regulations").
A plaintiff pursuing an accommodation-based claim of
discrimination under the ADA must in the first instance make
several showings, one of which is the "effectiveness" of the
proposed accommodation.

Reed v. LePage Bakeries, Inc., 244 F.3d

254, 259 (1st Cir. 2001) (explaining that the plaintiff has the
burden to show that the proposed accommodation is effective and
reasonable).

In other words, the accommodation must provide a

- 8 -

Case: 17-1700

Document: 00117270114

Page: 9

Date Filed: 03/26/2018

Entry ID: 6158926

benefit in the form of increased access to a public service.
Nunes, 766 F.3d at 145.

See

Nothing in the effective communications

regulation obviates the need to show that a requested accommodation
will provide some such benefit.

To the contrary, the regulation

only requires public entities to provide auxiliary communication
aids and services "where necessary to afford individuals with
disabilities . . . an equal opportunity to participate in, and
enjoy

the

activity."

benefits
28

of,

C.F.R.

[the

entity's]

§ 35.160(b)(1)

service,

(emphasis

program,
added).

or
And

although the regulation directs that "[i]n determining what types
of auxiliary aids and services are necessary, a public entity shall
give primary consideration to the requests of individuals with
disabilities," id. § 35.160(b)(2), the requested aid or service
must still be beneficial in the first instance.
Dep'ts

of

Educ.

and

Justice,

Frequently

See United States

Asked

Questions

on

Effective Communication for Students with Hearing, Vision, or
Speech Disabilities in Public Elementary and Secondary Schools 8–
9,

https://www2.ed.gov/about/offices/list/ocr/docs/dcl-faqs-

effective-communication-201411.pdf.
II.
We next recite the relevant travel of plaintiffs' multitrack pursuit of their claims under the ADA and IDEA.

Plaintiffs

sued the district and several school officials in March 2013,
alleging

violations

of

the

First

- 9 -

Amendment,

the

ADA,

the

Case: 17-1700

Document: 00117270114

Page: 10

Rehabilitation Act, and the IDEA.

Date Filed: 03/26/2018

Entry ID: 6158926

In May 2014, plaintiffs filed

a second suit against the district and several other school
officials, alleging that the district had "continued the pattern"
of violating their rights under those statutes.

The two cases

were consolidated in the district court and in due course the
parties filed cross-motions for summary judgment.
The

district

argued

that

plaintiffs

had

failed

to

exhaust their administrative remedies under the IDEA, which barred
their

claims

under

Rehabilitation Act.

the

First

Amendment,

the

ADA,

and

the

In response, while the parties were awaiting

a decision on the summary judgment motions, plaintiffs began the
process of exhausting their IDEA remedies by requesting a due
process hearing from the Maine Department of Education in early
January 2016.4

In that request, plaintiffs asserted numerous

violations of the IDEA and sought, among other things, a finding
that the recording device was necessary to provide B.P. with a
FAPE.5

4

This was the fifth due process hearing plaintiffs requested.
Two previous requests led to hearings and the other two were
withdrawn.
Because we do not rely on the prior hearings in
resolving this appeal, we omit any discussion of them.
5

B.P.'s father, Matthew Pollack, requested the 2016 IDEA
hearing. B.P.'s mother, Jane Quirion, was present for most of the
hearing and testified at it, but was not a party to the proceeding.
However, because there is no dispute that B.P.'s parents are in
privity for issue preclusion purposes and that they join here to
sue solely as next friend of B.P., we use the term "parents" and
- 10 -

Case: 17-1700

Document: 00117270114

Shortly

after

Page: 11

plaintiffs

Date Filed: 03/26/2018

requested

the

due

Entry ID: 6158926

process

hearing, the district court entered summary judgment for the
district on plaintiffs' remaining ADA, Rehabilitation Act, and
First Amendment claims.

It agreed with the district and found

plaintiffs' claims barred for failure to have fully exhausted all
remedies under the IDEA.

Plaintiffs appealed that determination

to this court.
While plaintiffs' appeal to this court was pending, an
IDEA hearing officer from the Maine Department of Education moved
forward on their hearing request.

The hearing officer held a

three-day hearing in March 2016 and, shortly thereafter, issued a
decision.

The decision rejected plaintiffs' position that the

recording device was required under the IDEA.

In so ruling, the

hearing officer made the following findings, in relevant part:
No doubt it must be difficult to send a
child who has a limited ability to communicate
into the care of others. It requires a certain
level of trust.
The Student has attended
school in the District for 12 years without a
recording device, and throughout his entire
educational career, he has been happy, has
loved school, and has made continuous and
significant progress. There have been only a
handful of incidents of concern to the
Parents, and the Parents have stated under
oath that they felt the Student was safe at
school. The need for a recording device is
therefore not a safety issue. . . . Everyone,
including the Parents, agrees that the Student
has been making good progress in his
"plaintiffs" interchangeably when referring to the IDEA proceeding
and this case.

- 11 -

Case: 17-1700

Document: 00117270114

Page: 12

Date Filed: 03/26/2018

educational program. That is precisely what
FAPE requires. The Student is receiving FAPE.
From a practical perspective, it is
impossible for the District staff to report on
every aspect of the Student's day, and it is
not necessary.
In the Parent's closing
argument, he lists some examples where
information should have been included in the
daily log but wasn't, and most were essential
in his eyes but not in mine or the other
adjudicators who have denied his attempts to
send the Student to school with a recording
device.
It is unnecessary for the Student to wear
a recording device to benefit educationally.
As noted above, there is no dispute that the
student is already receiving FAPE without the
recording device.
There is [a] wealth of evidence from both
educators and the parent of another child with
autism (Parent B) that the recording device
actually would be disruptive and detrimental
to the education of the Student and would
interfere with the learning process.
It is
also understandable, given the Parents'
unusually high level of scrutiny over the
actions of the District, that District staff
would be concerned about how the Parents would
use the recordings, and that things could be
taken out of context from a recording of a
nonverbal child.
Based upon the evidence, I conclude that
allowing the Student to wear a device that
would record his day at school, either by
audio or video means, would interfere with his
ability to receive FAPE.
The Parent was
unable to state how or whether the Parents
would use the recordings. There is simply no
demonstrable benefit, and there is the
potential for harm.
In conclusion, the Parent has failed to
provide any evidence that the Student is not
receiving FAPE and no evidence to support the
assertion that wearing a recording device
could benefit him educationally.

- 12 -

Entry ID: 6158926

Case: 17-1700

Document: 00117270114

Issuance

of

Page: 13

the

Date Filed: 03/26/2018

hearing

officer's

Entry ID: 6158926

ruling

resolving

plaintiffs' IDEA claims caused this court to dismiss the original
appeal of the district court's exhaustion ruling as moot and to
vacate

the

judgment

of

dismissal,

since,

if

exhaustion requirement, plaintiffs had met it.
Reg'l

Sch.

Unit

(unpublished).6
hearing

75,

660

F.

App'x

1,

2–3

there

were

an

See Pollack v.
(1st

Cir.

2016)

On remand, the district court held that the IDEA

officer's

un-appealed

findings

collaterally

precluded

plaintiffs from establishing that the recording device was a
required accommodation under the ADA and the Rehabilitation Act.
The district court also found, on summary judgment, that the
effective

communications

regulation

did

communications between B.P. and his parents.

not

apply

to

After plaintiffs

then tried their First Amendment claims to a jury and lost, final
judgment entered.

Plaintiffs appealed only the dismissal of their

disability discrimination claims against the district.
III.
As we described above, the IDEA hearing officer found
that allowing B.P. to attend school equipped with a recording
device would provide "no demonstrable benefit."

6

So the question

This order was issued prior to the Supreme Court's decision
in Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743 (2017), which held
that a plaintiff is only required to exhaust IDEA remedies when
his "lawsuit seeks relief for the denial of a free appropriate
public education." Id. at 754.

- 13 -

Case: 17-1700

Document: 00117270114

Page: 14

Date Filed: 03/26/2018

Entry ID: 6158926

arises: To what extent, if any, does that factual finding preclude
B.P. from establishing an essential element of his ADA claim; i.e.,
that the recording device would in fact provide a benefit to him
in the form of greater access to the services that the district
provides to its students?

See Nunes, 766 F.3d at 145.

The parties agree, and we therefore assume, that we
afford

the

findings

at

issue,

which

were

the

product

of

an

adjudicatory proceeding in a Maine administrative agency, "the
same preclusive effect to which [they] would be entitled in the
State's courts."

Univ. of Tenn. v. Elliott, 478 U.S. 788, 799

(1986); see also FPL Energy Me. Hydro LLC v. FERC, 551 F.3d 58, 63
(1st Cir. 2008) ("A federal court is generally bound under res
judicata to give the same preclusive effect to a state court
judgment as would be given to it by a local court within that
state."); Dertz v. City of Chi., No. 94 C 542, 1997 WL 85169, at
*10 (N.D. Ill. Feb. 24, 1997) (holding that the doctrine of issue
preclusion applies to state administrative findings for claims
brought under Title II of the ADA).

Maine courts apply issue

preclusion, also known as collateral estoppel, "to administrative
proceedings as well as to court proceedings." Portland Water Dist.
v. Town of Standish, 940 A.2d 1097, 1100 (Me. 2008).
law,

issue

preclusion

applies

when

"the

Under Maine

identical

issue

necessarily was determined by a prior final judgment, and the party
estopped had a fair opportunity and incentive to litigate the issue

- 14 -

Case: 17-1700

Document: 00117270114

in the prior proceeding."

Page: 15

Date Filed: 03/26/2018

Entry ID: 6158926

Mutual Fire Ins. Co. v. Richardson, 640

A.2d 205, 208 (Me. 1994) (quoting State Mutual Ins. Co. v. Bragg,
589 A.2d 35, 37 (Me. 1991)).

The application of issue preclusion

"is determined on a case-by-case basis," id., and is "meant to
serve the ends of justice not to subvert them," id. (quoting
Pattershall v. Jenness, 485 A.2d 980, 983 (Me. 1984)).
Plaintiffs also concede that the un-appealed decision of
the IDEA hearing officer constitutes a final judgment and that
they had a full and fair opportunity to litigate the issues
necessarily decided in that proceeding. They argue, instead, that:
(A) the pertinent factual findings of the hearing officer are not
identical to the factual issues germane to their ADA claim, (B) the
findings

were,

in

any

event,

not

necessary

to

the

agency's

judgment, (C) a difference in who had the burden of proof in the
two proceedings makes preclusion inapplicable, and (D) events
occurring after the agency judgment entered provide a basis for
side-stepping the impact of that judgment in this case.

Reviewing

the district court's application of issue preclusion de novo, see
Vargas-Colón v. Fundación Damas, Inc., 864 F.3d 14, 25 (1st Cir.
2017), we address each argument in turn.
A.
Under

Maine

Identical Issue

law,

issue

preclusion

"prevents

the

reopening in a second action of an issue of fact actually litigated
and decided in an earlier case."

Town of North Berwick v. Jones,

- 15 -

Case: 17-1700

Document: 00117270114

Page: 16

Date Filed: 03/26/2018

Entry ID: 6158926

534 A.2d 667, 669-70 (Me. 1987) (internal quotation marks omitted).
Plaintiffs argue that, without reopening any issue of fact found
by the hearing officer, they can still demonstrate that allowing
B.P. to wear a recording device would be effective in providing
him meaningful access to the benefits that the district offers its
students.

Specifically, plaintiffs argue that we should read the

hearing officer's findings as trained solely on an absence of
educational benefits to B.P.

So limited, plaintiffs contend, the

findings are not a bar to proving that the device would provide
B.P. greater access to other benefits stemming from keeping his
parents informed about his school day so that they can better
advocate for him, more like the parents of his non-disabled peers.
While we are not sure we see the distinction plaintiffs would have
us draw (especially since plaintiffs themselves repeatedly portray
the

benefit

of

improved

communication

as

facilitating

their

ability to obtain a better education for B.P.), the simple fact is
that plaintiffs never developed this argument in the district
court.

The

Chauffeurs,

argument

is

Warehousemen

therefore

and

Helpers

waived.

See

Union,

Local

Teamsters,
No.

59

v.

Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any
principle is settled in this circuit, it is that, absent the most
extraordinary circumstances, legal theories not raised squarely in
the lower court cannot be broached for the first time on appeal.").

- 16 -

Case: 17-1700

Document: 00117270114

Page: 17

Date Filed: 03/26/2018

Entry ID: 6158926

Plaintiffs did argue below that the right to a FAPE is
not necessarily the same as the right to an accommodation under
the ADA.

We agree.

See Fry v. Napoleon Cmty. Sch., 137 S. Ct.

743, 755–56 (2017) (noting that the ADA and the IDEA have "diverse
means and ends," even though "the same conduct might violate" both
statutes).

This argument, though, overlooks the fact that issue

preclusion applies not only to determinations of law, such as
whether the IDEA or the ADA has been violated, but also to
determinations of fact made in resolving issues of law. See Godsoe
v.

Godsoe,

995

A.2d

232,

237

(Me.

2010)

("A

party

may

be

collaterally estopped from relitigating a factual issue even if
the two proceedings offer substantially different remedies or the
second proceeding is based on a different claim than the first.");
see also Restatement (Second) of Judgments § 27 cmt. c (1982) ("An
issue on which relitigation is foreclosed may be one of evidentiary
fact, of 'ultimate fact' (i.e., the application of law to fact),
or of law.").

In short, when we consider issue preclusion rather

than claim preclusion, it is very often the case that the ultimate
question in the earlier proceeding will differ from the ultimate
question in the later proceeding.

See, e.g., Napier v. Town of

Windham, 187 F.3d 177, 184–85 (1st Cir. 1999) (applying Maine issue
preclusion principles and giving preclusive effect to findings
from a state criminal case in a subsequent federal civil rights
suit); Gray v. TD Bank, N.A., 45 A.3d 735, 737–38, 742 (Me. 2012)

- 17 -

Case: 17-1700

Document: 00117270114

Page: 18

Date Filed: 03/26/2018

Entry ID: 6158926

(giving preclusive effect to findings from a probate proceeding
brought to determine whether certain funds held by a bank were the
property of the estate in a subsequent breach of contract case
brought against the bank).

That difference does not mean that a

predicate factual question in each case cannot be identical.

See

Gray, 45 A.3d at 742 ("[T]he factual question at the center of
Gray's breach of contract claim against the Bank is identical to
the question adjudicated and determined in the Probate Court . . .
." (emphasis added)).

And here, plaintiffs neither dispute that

the question whether the recording device would benefit B.P. is at
"the center of" their ADA claim, nor offer any properly preserved
argument that the claimed ADA benefit is any different from the
educational benefit that the hearing officer found was lacking
under the IDEA.
B.
Plaintiffs'

Necessary to the Judgment
principal

argument

is

that

the

hearing

officer's finding of no demonstrable benefit, even if identical to
an issue upon which they need to prevail in order to successfully
make out a reasonable accommodation claim, was not necessary to
the hearing officer's final decision.
of this argument:

They advance two versions

first, that the hearing officer's finding of

"no demonstrable benefit" was an unnecessary alternative ground
for her decision, and second, even if considering the effectiveness
of the device was necessary, there was no need for the hearing

- 18 -

Case: 17-1700

Document: 00117270114

Page: 19

Date Filed: 03/26/2018

Entry ID: 6158926

officer to find that the device offered no benefit whatsoever.

We

address each argument in turn.
1.
The hearing officer wrote that "[e]veryone, including
the Parents, agrees that the Student has been making good progress
in his educational program."
precisely what FAPE requires.

She went on to state:

"That is

The Student is receiving FAPE."

As

plaintiffs see it, the hearing officer could have stopped there.
Indeed, by plaintiffs' most recently advanced logic, even if the
hearing officer had concluded that the recording device would be
quite effective and beneficial, she would have been required to
rule against the parents if B.P. was nevertheless already receiving
a FAPE.

And, plaintiffs say, the hearing officer's finding of no

demonstrable benefit could not be appealed because the judgment
could stand independently on the finding that B.P. was receiving
a FAPE.

See Restatement, supra, § 28 cmt. a ("[T]he availability

of review for the correction of errors has become critical to the
application of preclusion doctrine.").
Read as a whole, though, the hearing officer's decision
does not invite us to construe the "no demonstrable benefit"
finding as only an alternative ground for the decision. The ruling
never labels the finding as an unnecessary or alternative part of
its reasoning.

To the contrary, the hearing officer's statement

that B.P. is "receiving FAPE" follows -- and seems to be based on

- 19 -

Case: 17-1700

Document: 00117270114

Page: 20

Date Filed: 03/26/2018

Entry ID: 6158926

-- a discussion of events belying any need for the recording
device.

Additionally, the decision twice labels its finding

regarding the efficacy of the device as its conclusion.7

In this

manner, the text invites the reader to see the finding of "no
demonstrable benefit" as reinforcement for the legal conclusion
that B.P. was receiving a FAPE, rather than as an unnecessary
alternative basis for the decision's ultimate conclusion that the
device was not required under the IDEA.
The nature of the hearing that gave rise to the finding
supports reading the hearing officer's conclusion as standing on
two reinforcing -- rather than alternative -- grounds.

Regarding

the recording device claim, the proceeding was structured to
determine, in the words of the district court's initial summary
judgment ruling requiring exhaustion under the IDEA, "whether
B.P.'s IEP should include his use of supplementary aids to properly
protect B.P. at school or allow B.P. to effectively communicate
and advocate for himself so that he could best work towards his
educational goals."

Not surprisingly, therefore, much of the

hearing focused on whether and to what extent the recording device
would benefit B.P. by allowing him to best pursue his educational

7

The decision expressly "conclude[s]" that the device would
be to B.P.'s detriment by interfering with his ability to receive
a FAPE (i.e., would interfere with his education).
It also
includes the finding that the parents provided "no evidence to
support the assertion that wearing a recording device could benefit
[B.P.] educationally" as part of its "conclusion."

- 20 -

Case: 17-1700

Document: 00117270114

goals.

Page: 21

Date Filed: 03/26/2018

Entry ID: 6158926

All parties, especially plaintiffs, treated this as a

central question in the IDEA proceeding and they therefore made
their

best

case

on

this

issue.

In

particular,

plaintiffs

emphasized that B.P. required the device for safety reasons, to
"protect himself," as well as to advocate for himself through his
parents.

At the hearing, B.P.'s father testified that without the

device, "there is no way for [B.P.] to tell us what happens . . .
and, therefore, for him to . . . advocate for himself or get our
assistance
similarly.

in

advocating

for

him."

B.P.'s

mother

testified

Plaintiffs maintained this position in the written

closings they submitted to the hearing officer.

Plaintiffs also

claimed that the device was necessary to allow them to reinforce
at home the programming provided at school.

In response, the

district elicited testimony from its staff that the device would
not support B.P.'s education and could in fact hinder it by
increasing

his

uncomfortable.

isolation

and

making

staff

and

his

peers

Given this extensive and predominant focus on the

potential benefits of the recording device, we decline plaintiffs'
invitation to presume that the hearing officer's finding that B.P.
was receiving a FAPE would have remained unchanged had the parents
convinced the officer that B.P. would indeed benefit from wearing
the device.

We find additional support for our conclusion in the

fact that the hearing officer, in her ruling, expressed puzzlement

- 21 -

Case: 17-1700

Document: 00117270114

Page: 22

Date Filed: 03/26/2018

Entry ID: 6158926

that the parents failed to explain precisely how they would use
the recordings.8
Substantive IDEA law buttresses our reading that the
hearing officer's "no demonstrable benefit" finding was not an
unnecessary

addendum,

but

rather

served

as

an

important

reinforcement of the decision that B.P. was already receiving a
FAPE.

It is true that a school need not maximize the benefits

received by a student in order to provide a FAPE.

See Endrew F.

ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988,
1001 (2017) (rejecting an argument that a FAPE must provide
students with disabilities "substantially equal" opportunities to
those afforded students without disabilities).

At the same time,

though, the IDEA establishes no objective tool to measure how much
of an available benefit the school must provide.

See id. at 1000

n.2 ("We declined to hold in Rowley, and do not hold today, that
'every handicapped child who is advancing from grade to grade . . .
is automatically receiving a [FAPE].'" (alterations in original)
(quoting

Bd.

of

Ed.

of

Hendrick

Hudson

Cent.

Sch.

Dist.,

Westchester Cty. v. Rowley, 458 U.S. 176, 203 n.5 (1982))).
Rather, the IDEA requires a hearing officer to pay heed to the
precise circumstances confronting an individual student.

See id.

at 999 ("To meet its substantive obligation under the IDEA, a

8

In other words, what exactly were the parents going to do
with the four or five hours of recordings each evening?

- 22 -

Case: 17-1700

Document: 00117270114

Page: 23

Date Filed: 03/26/2018

Entry ID: 6158926

school must offer an IEP reasonably calculated to enable a child
to

make

progress

appropriate

circumstances." (emphasis added)).

in

light

of

the

child's

The statute directly calls for

consideration of the "unique needs" of each child, 20 U.S.C.
§ 1400(d)(1)(A), and of the possibility that "supplementary aids"
may

need

to

be

included

§ 1414(d)(1)(A)(i)(IV).

in

a

child's

IEP,

id.

A careful hearing examiner confronted

with the parents' claim that a recording device would meaningfully
benefit B.P. in a manner relevant to his receipt of a FAPE might
well

have

thought

it

important

--

as

plaintiffs

themselves

apparently did -- to assess all the potential benefits of the
device before finally reaching a conclusion that B.P. was receiving
a FAPE.
The distinction between a substantive deprivation of a
FAPE and a procedural deprivation of a FAPE may also have accounted
for the hearing officer's assessment of the extent to which the
device would benefit B.P.
"proper content of an IEP."

A substantive inquiry focuses on the
See Lessard v. Wilton-Lyndeborough

Coop. Sch. Dist., 518 F.3d 18, 23 (1st Cir. 2008).

A procedural

inquiry instead focuses on the parents' ability to participate
meaningfully in the IDEA process.

See id. (citing the right of

parents to be part of the IEP team as an example of the IDEA's
procedural requirements).

Our review of the IDEA due process

record suggests that there was a fair amount of confusion, or at

- 23 -

Case: 17-1700

Document: 00117270114

Page: 24

Date Filed: 03/26/2018

Entry ID: 6158926

the very least an evolution throughout the proceedings, regarding
whether

the

challenge

hearing

or

a

procedural

§ 1415(f)(3)(E)(i)
(procedural).

officer

was

one,

(substantive)

adjudicating

or

both.

with

id.

a

substantive

Compare

20

U.S.C.

§ 1415(f)(3)(E)(ii)

Although the hearing officer initially believed

that she was adjudicating a substantive challenge, she ultimately
framed the issue in her opinion in the words of a procedural
challenge.
their

reply

And between plaintiffs' first closing argument and
closing,

they

seem

to

have

subtly

changed

from

emphasizing the substantive nature of their claim (that B.P. was
substantively deprived of a FAPE because he lacked the ability to
protect himself and advocate for himself) to emphasizing its
procedural nature (that without the device, the parents were
deprived of their procedural right to participate in the IDEA
decision-making process, which in turn deprived B.P. of the ability
to protect himself and advocate for himself).
apparent

evolution,

the

hearing

officer's

In light of this
analysis

(and

her

multiple conclusions) can reasonably be read as inquiring into
both whether B.P. was substantively deprived of a FAPE and whether
he was procedurally so deprived.

So viewed, the "no demonstrable

benefit" finding may have been necessary to rejecting the IDEA
claim even if it was not necessary to finding that B.P. was not
substantively deprived of a FAPE.

- 24 -

Case: 17-1700

Document: 00117270114

Page: 25

Date Filed: 03/26/2018

Entry ID: 6158926

For these reasons, and for purposes of considering the
preclusive effects of the hearing officer's findings, we are not
persuaded that an assessment of the efficacy of the recording
device was unnecessary to the FAPE proceeding.

See Manganella v.

Evanston Ins. Co., 700 F.3d 585, 593–94 (1st Cir. 2012) (rejecting
plaintiff's argument against issue preclusion because "although
[plaintiff] argues here that the arbitrators could have just
assumed the truth of the harassment allegations [and reached the
same result], he did not ask them to do so" but rather "vigorously
litigated" their truth); Restatement, supra, § 27 cmt. j ("The
appropriate question, then, is whether the issue was actually
recognized

by

the

parties

as

important

necessary to the first judgment.").

and

by

the

trier

as

Moreover, a rationale we have

cited for the requirement that a finding be necessary to the
judgment -- that the parties do not have a strong incentive to
litigate a peripheral issue, see Commercial Assocs. v. Tilcon
Gammino, Inc., 998 F.2d 1092, 1097 (1st Cir. 1993) -- shrinks
considerably where the parties have vigorously litigated the issue
before a tribunal that to all indications viewed the issue as
important.

Here, the parties and the hearing officer had ample

cause to regard a full assessment of the potential benefits of the
recording device as relevant to the determination of whether B.P.
was receiving a FAPE (and thus as necessary to the overall agency
judgment), and appear to have acted accordingly.

- 25 -

Case: 17-1700

Document: 00117270114

Plaintiffs'

Page: 26

argument

Date Filed: 03/26/2018

that

they

had

no

Entry ID: 6158926

incentive

to

appeal the hearing officer's ruling therefore lacks the full force
it might have had were it clear that the finding that B.P. was
receiving a FAPE stood entirely on its own without any reliance on
the "no demonstrable benefit" finding. If a reviewing court agreed
with our reading of the hearing officer's decision, then it would
have entertained an appeal of the latter finding.

And if it

disagreed with our reading, plaintiffs' argument on preclusion
would have been substantially strengthened.

In sum, plaintiffs

likely had ample incentive to appeal the hearing officer's judgment
if they felt that the "no demonstrable benefit" finding was plainly
wrong.
2.
This brings us to plaintiffs' closely-related fallback
theory:

that, even assuming some assessment of the efficacy of

the recording device was necessary to the judgment, the hearing
officer did not need to decide that the device actually lacked any
benefit at all.

Rather, all the officer needed to find on this

score, say plaintiffs, was that the device was not so effective
and important as to be necessary for a FAPE; her additional finding
that the device would provide no benefit at all, much less that it
would

interfere

with

the

provision

of

a

FAPE

and

could

affirmatively cause harm, was simply "not the standard" and was
therefore unnecessary to the judgment.

- 26 -

Case: 17-1700

Document: 00117270114

Page: 27

Date Filed: 03/26/2018

Entry ID: 6158926

In rejecting this argument, we do not reject plaintiffs'
contention

that,

in

theory,

the

hearing

officer

could

have

concluded that the recording device would provide some benefit,
yet not enough that its provision was necessary to provide B.P.
with a FAPE, and still have reached the same result.

Cf. K.M. ex

rel. Bright, 725 F.3d at 1101 ("[T]he IDEA does not require schools
to

provide

equal

educational

opportunities

to

all

students."

(internal quotation marks omitted)); Endrew F., 137 S. Ct. at 1001.
But we resist the temptation to "speculate that a prior decision
could have been rested on narrower grounds than those actually
chosen."

Wright & Miller, supra, § 4421.

As we have previously

observed, "a factual determination is not inherently untrustworthy
just because the result could have been achieved by a different,
shorter and more efficient route."

Commercial Assocs., 998 F.2d

at 1097.
Plaintiffs cite no authority for their argument to the
contrary.

The Restatement is silent on the matter, despite a

thorough discussion of the preclusive effects of "evidentiary
facts," i.e., those that are not ultimate facts.
supra, § 27 cmt. j; id. § 27 ill. 17.

Restatement,

Our survey of Maine case

law has revealed no hint that Maine courts would embrace a rule
that issue preclusion applies only where a finding on an issue
necessary to the judgment is the narrowest possible finding on
that question.

In fact, several Maine cases suggest the opposite.

- 27 -

Case: 17-1700

Document: 00117270114

Page: 28

Date Filed: 03/26/2018

Entry ID: 6158926

See Perry v. H.O. Perry & Son Co., 711 A.2d 1303, 1305 (Me. 1998)
(giving preclusive effect to a finding that "[t]he record is devoid
of any evidence" of detrimental reliance); Button v. Peoples
Heritage Sav. Bank, 666 A.2d 120, 121, 123 (Me. 1995) (giving
preclusive effect to a finding that "all of [decedent's] actions
in arranging her financial affairs were voluntary," where the only
relevant action was the redemption of a particular certificate of
deposit

(internal

quotation

marks

omitted)).

So,

too,

precedent applying the preclusion principles of other states.

does
See

Gambino v. Koonce, 757 F.3d 604, 609–10 (7th Cir. 2014) (rejecting
appellant's argument that the first court's finding of fraudulent
intent was not necessary to the judgment because its decision on
liability could have rested on a finding of recklessness and its
award of punitive damages on a finding of gross negligence); cf.
Stoehr v. Mohamed, 244 F.3d 206, 209 (1st Cir. 2001) (per curiam)
(rejecting an argument against issue preclusion on the grounds
that the first court's finding of fraud was not essential because
liability under Mass. Gen. Laws 93A need only be premised on unfair
conduct).

But cf. NLRB v. Thalbo Corp., 171 F.3d 102, 111 (2d

Cir. 1999) (noting that, where the magistrate judge believed that
a

Title VII

claimant

was

required

to

seek

other

work

"aggressively," a finding that the claimant did not search for
other jobs at all would have been "superfluous").

- 28 -

Case: 17-1700

Document: 00117270114

In

assessing

Page: 29

the

Date Filed: 03/26/2018

implications

of

the

Entry ID: 6158926

foregoing

discussion of the necessity requirement in this case, we are guided
by Maine's recognition that "collateral estoppel is, after all, a
flexible doctrine," Pattershall, 485 A.2d at 983 (quoting Hossler
v. Barry, 403 A.2d 762, 769 (Me. 1979)), and its understanding
that the doctrine "is 'meant to serve the ends of justice not to
subvert them,'" Mutual Fire, 640 A.2d at 208 (quoting Pattershall,
485 A.2d at 983).

We have previously taken a pragmatic approach

in applying issue preclusion principles.

See Miller v. Nichols,

586 F.3d 53, 62 (1st Cir. 2009) (applying Maine law and rejecting
an

argument

against

"ignores . . .

issue

preclusion

what

actually

in

part

happened

in

the

because
state

it

court

proceedings"); Commercial Assocs., 998 F.2d at 1096 (noting that
Rhode Island courts "allow themselves a good deal of latitude in
applying the rule [of collateral estoppel], observing the spirit
of it rather than the letter" (alteration in original) (quoting
Hill v. Bain, 23 A. 44, 44 (R.I. 1885))).

We do the same here,

and decline to adopt the unbending application of the necessity
requirement

urged

by

plaintiffs.

The

parties

to

the

prior

proceeding litigated a factual issue as if it were the essential
issue in the case, the applicable law provided no clear sign that
resolution of the issue was a frolic, and there is nothing about
the substance of the resulting finding to cause one to think that
it was not the product of a seriously undertaken decision by the

- 29 -

Case: 17-1700

Document: 00117270114

adjudicator.

Page: 30

Date Filed: 03/26/2018

Entry ID: 6158926

In this context, we conclude that the purposes

underlying the necessity requirement are adequately satisfied.
C.

Burden of Proof

We turn now to plaintiffs' third argument:

that, under

Maine law, when the party against whom preclusion is sought bears
the burden of proof in the first proceeding but not in the second,
findings of fact in the first proceeding are often not given
preclusive effect in the second proceeding. See Crawford v. Allied
Container

Corp.,

561

A.2d

Restatement, supra, § 28(4).

1027,

1028

(Me.

1989);

see

also

But that is not the case here.

Rather, as ADA claimants, plaintiffs must carry in this second
proceeding the burden of proving that the proposed accommodation
-- the recording device -- will be beneficial, i.e., will provide
some increased access to a public service.
258–59.

See Reed, 244 F.3d at

Similarly, they bore the burden in the IDEA proceeding of

showing that the device was necessary for B.P. to receive a FAPE.
In short, on de novo review we find that there was no relevant
shifting of the burden.
D.

New Evidence of Pretext

Plaintiffs argue, finally, that evidence that has come
to light since the IDEA hearing suggests that the district's
refusal to allow the recording device was pretextual.

This

evidence, plaintiffs contend, creates an issue of material fact
"concerning the validity of the very finding the district court

- 30 -

Case: 17-1700

Document: 00117270114

deemed preclusive."

Page: 31

Date Filed: 03/26/2018

Entry ID: 6158926

Plaintiffs point specifically to evidence

that the district's special education director agreed to allow
them to view video recordings of B.P.'s speech-language therapy
only if they promised not to use the recordings as a basis for a
complaint against the therapist.

They also rely on evidence that

the

from

director

prohibited

them

visiting

B.P.'s

school

unannounced because they were solely focused on seeking out wrongs
by school staff.
Even

if,

as

plaintiffs

suggest,

the

new

evidence

establishes an issue of material fact as to whether the district's
refusal to allow the device was pretextual, it has no impact on
this case.

Pretext is only relevant to the final stage of the ADA

analysis.

Once the plaintiff has shown that the accommodation

sought is reasonable and effective and the defendant has claimed
undue hardship, then the plaintiff has the opportunity to prove
that the defendant's claimed hardship is pretextual.

See Wynne v.

Tufts Univ. Sch. of Med., 976 F.2d 791, 796 (1st Cir. 1992)
(explaining that, when pretext is at issue, plaintiff must produce
specific facts that undercut the defendant's position).
analysis does not even get past the very first step.

Here, the
Because of

the hearing officer's factual findings, plaintiffs cannot make the
preliminary showing that the device would benefit B.P. in some
manner.

And because plaintiffs do not dispute that proving that

the device would benefit B.P. is essential to sustaining their

- 31 -

Case: 17-1700

Document: 00117270114

Page: 32

Date Filed: 03/26/2018

reasonable accommodation claim, they cannot prevail.9

Entry ID: 6158926

No amount

of pretext evidence can change that result.
IV.
For the foregoing reasons, we affirm.

9

Because we find that plaintiffs' reasonable accommodation
claim is precluded by the 2016 IDEA due process hearing, we need
not address the district's alternative arguments that the claim is
barred by the preclusive effects of the earlier 2012 due process
hearing or by the jury's findings in the First Amendment trial.
Similarly, we need not address plaintiffs' contention that
communications between them and B.P. fall within the scope of the
effective communications regulation. Even if they do, plaintiffs
cannot show that the recording device is "necessary" for purposes
of the regulation, due to the hearing officer's finding that it
offered "no demonstrable benefit."

- 32 -