POLLACK et al v. REGIONAL SCHOOL UNIT NO 75 et al

Filing 128

ORDER ORDER ON PLAINTIFFS' IDEA APPEALS re: Set Deadlines:( Status Report due by 5/21/2015.) By JUDGE NANCY TORRESEN. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MATTHEW POLLACK and
JANE QUIRION, individually
and as next friends of B.P.,
Plaintiffs,
v.
REGIONAL SCHOOL UNIT 75,
et al.,
Defendants.

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) Docket No. 2:13-cv-109-NT
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ORDER ON PLAINTIFFS’ IDEA APPEALS
Plaintiffs Matthew Pollack and Jane Quirion (the “Parents”) are the parents
of B.P., a sixteen-year-old boy who suffers from disabilities that greatly limit his
ability to communicate. The Defendant named in the counts at issue, Regional School
Unit 75 (“RSU 75” or the “District”), is the local educational agency responsible for
making a free appropriate public education available to B.P. under the Individual
with Disabilities Education Act (the “IDEA”), 20 U.S.C. §§ 1401-1491o.
The Parents challenge two decisions reached by Maine due process hearing
officers (“DPHOs”) under the IDEA. In the first, Case No. 13.107H, the DPHO
declined to grant the Parents additional relief from the District’s refusal to turn over
certain documents, including internal e-mails about B.P., and declined to grant the
Parents any relief from the District’s refusal to allow B.P. to attend school with an
audio recording device. In the second, Case No. 14.035H, the DPHO found that the
District committed procedural but not substantive violations when it offered to bring

B.P. on weekly lunch outings individually rather than with his special education
peers. The DPHO declined to grant an award of compensatory education.
For the reasons that follow, the Court GRANTS IN PART and DENIES IN
PART the Parents’ request for relief with respect to Case No. 13.107H and DENIES
the Parents’ request for relief with respect to Case No. 14.035H.
STATUTORY & REGULATORY BACKGROUND
Congress enacted the IDEA to ensure that all children with disabilities are
provided a “free appropriate public education” (“FAPE”),1 and to protect the rights of
disabled children and their parents. 20 U.S.C. §§ 1400(d)(1)(A)-(B), 1401(9); Frazier
v. Fairhaven Sch. Comm., 276 F.3d 52, 58 (1st Cir. 2002). The “primary vehicle for
deliver[ing]” a free appropriate public education is a child’s “individualized education
program” (“IEP”). Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 23
(1st Cir. 2008). An IEP is a written statement that includes, among other things,
measurable annual goals the child should be able to achieve and services the school

The IDEA defines the term “free appropriate public education” to mean “special education and
related services” that
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(A) have been provided at public expense, under public supervision and direction, and
without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education
in the State involved; and
(D) are provided in conformity with the [disabled child’s IEP].
20 U.S.C. § 1401(9).

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will offer. 20 U.S.C. § 1414(d)(1)(A)-(B). The IEP must be developed by a team that
includes the child’s parents. Id.
In order to receive federal funding under the IDEA, a state must establish a
due process hearing procedure to allow parents to challenge a child’s special
education programming. See 20 U.S.C. § 1415(b)(6), (f)(1)(A). A party “aggrieved” by
the final state decision may bring a civil action challenging it in state court or federal
district court. 20 U.S.C. § 1415(i)(1), (2).2
Legal Standard
Section 1415(f)(3)(E) of the IDEA sets forth the following limitations on an
IDEA DPHO’s decision:
(i)

In general

Subject to clause (ii), a decision made by a hearing officer shall be made
on substantive grounds based on a determination of whether the child
received a free appropriate public education.
(ii)

Procedural issues

In matters alleging a procedural violation, a hearing officer may find
that a child did not receive a free appropriate public education only if
the procedural inadequacies—
(I) impeded the child’s right to a free appropriate public education;

Federal regulations require states to establish a separate “minimum state complaint
procedure” to adjudicate IDEA violations as well. 34 C.F.R. §§ 300.151-153; see also 05-071-101 Me.
Code. R. § XVI(1)(B), (4) (Maine’s implementing regulations); 20 U.S.C. § 1221e-3 (statute governing
Secretary of Education’s general rulemaking authority). Under this procedure, a state’s educational
agency must allow parents to file a complaint regarding a suspected IDEA violation, conduct an
independent investigation, allow the parties to submit additional information, and issue a written
decision. 34 C.F.R. §§ 300.151-153; see also 05-071-101 Me. Code. R. § XVI(1)(B), (4). Federal
regulations have allowed for this procedure, in various forms, since 1972. See Beth V. ex rel. Yvonne V
v. Carroll, 87 F.3d 80, 82 (3d Cir. 1995).
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(II) significantly impeded the parents’ opportunity to participate in
the decisionmaking process regarding the provision of a free
appropriate public education to the parents’ child; or
(III) caused a deprivation of educational benefits.
(iii) Rule of construction
Nothing in this subparagraph shall be construed to preclude a hearing
officer from ordering a local educational agency to comply with
procedural requirements under this section.3
20 U.S.C. § 1415(f)(3)(E).
Clause (i) generally requires DPHOs to decide cases based on whether a school
substantively denied a free appropriate public education. See 20 U.S.C. § 1401(9).4
Under clause (ii), however, a DPHO may find that a procedural violation rises to the
level of a denial of a free appropriate public education if it caused one of the types of
harm laid out in roman numerals (I) through (III) of clause (ii).5 The rule of
construction found at clause (iii) appears to permit DPHOs to order local educational
agencies to comply with IDEA’s procedures even absent a finding that any violation
rose to the level of a deprivation of a free appropriate public education.

Read in context, the quoted text uses the term “section” to refer to all of 20 U.S.C. § 1415 and
the term “this subparagraph” to refer to 20 U.S.C. § 1415(f)(3)(E).
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For instance, a DPHO may find that a child’s IEP was not “appropriate,” i.e. that it was not
reasonably calculated to confer a meaningful educational benefit, see 20 U.S.C. § 1401(9)(C), D.B. ex
rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012)), or that the local educational agency failed,
in some material way, to implement the terms of the child’s IEP. See 20 U.S.C. § 1401(9)(D); S.D. v.
Portland Pub. Schs., No. 2:13-cv-00152-JDL, 2014 WL 4681036, at *6 (D. Me. Sept. 19, 2014).
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A DPHO who decides for a parent on procedural grounds under clause (ii) “nominally grants
relief by concluding that the child did not receive a FAPE, but it is clear from the structure of the
statute that this is not a decision on the substantive adequacy of the FAPE, but rather the label
attached to a finding of procedural defect.” Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550
U.S. 516, 540 n.5 (Scalia, J., concurring) (citations omitted); see also H.R. Rep. No. 108-779, at 219
(2003) (explaining that the language found at clause (ii) “allows procedural violations to rise to the
level of a substantive violation in certain circumstances”).
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Where a plaintiff has established a deprivation of a free appropriate public
education, a DPHO may award compensatory education—monetary or injunctive
relief to allow a disabled child to obtain services to make up for educational
opportunities the local educational agency failed to provide. See Mr. I. ex rel. L.I. v.
Me. Sch. Admin. Dist. No. 55, 480 F.3d 1, 25 (1st Cir. 2007); Diaz–Fonseca v. Puerto
Rico, 451 F.3d 13, 31 (1st Cir. 2006). Because compensatory education awards are
equitable in nature, Murphy v. Timberlane Reg’l Sch. Dist., 973 F.2d 13, 16 (1st Cir.
1992), hearing officers and courts have substantial discretion to decide when they are
necessary. Mr. I. ex rel. L.I., 480 F.3d at 25 (denial of compensatory award not abuse
of discretion despite finding of substantive IDEA violation where DPHO concluded
student’s “pupil evaluation team” “could better assess what special education [the
disabled child] needs at this point”).
Standard of Review
When a court hears a challenge of a DPHO’s decision under the IDEA, it must
receive the entire administrative record, hear additional evidence at the request of a
party, reach a decision based on the preponderance of the evidence, and grant “such
relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). The First
Circuit has characterized this standard of review as falling “somewhere between the
highly deferential clear-error standard and the non-deferential de novo standard.”
Lessard, 518 F.3d at 24. The court “essentially conducts a bench trial based on a
stipulated record, but must nevertheless give due deference to the findings of the
administrative hearing officer.” Sebastian M. v. King Philip Reg’l Sch. Dist., 685 F.3d
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79, 85 (1st Cir. 2012) (internal citations, quotation marks, and brackets omitted).
Deference is more likely warranted where a finding is based on educational policy
judgments, see Lessard, 518 F.3d at 28-29, or credibility judgments. See Sebastian
M., 685 F.3d at 86; Doe ex rel. Doe v. Attleboro Pub. Schs., 960 F. Supp. 2d 286, 29495 (D. Mass. 2013). Deference is less likely warranted where the disposition hinges
on abstract questions of law. See Lessard, 518 F.3d at 24; Abrahamson v. Hershman,
701 F.2d 223, 231 (1st Cir. 1983).
CASE NO. 13.107H
Factual Background
I.

B.P.’s Disability & Early Education
B.P. is diagnosed with autism and a variant of Landau-Kleffner Syndrome, a

language disorder. R. 1040. He is nonverbal and has very limited expressive
communication skills. R. 1040, 1077. He cannot communicate his experiences to
others in detail or accurately answer questions about what has happened to him. R.
1040, 1077.
B.P. has been educated in the District since kindergarten. R. 1040. By the time
B.P. began attending Mt. Ararat Middle School, the relationship between B.P.’s
parents and District officials had grown tense. See, e.g., R. 619-26, 1170; Nov. 17,
2014 Aff. of Patrick Moore ¶¶ 18-20 (“Moore Decl.”) (ECF No. 84). In particular,
Quirion and Pollack grew dissatisfied with Teacher 1,6 B.P.’s classroom teacher from

I refer to this individual as Teacher 1 rather than by name throughout this opinion because
she is the focus of personal, potentially embarrassing critiques by the Parents, the accuracy or fairness
of which are not directly at issue.
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the fall of 2010 through the spring of 2012. R. 619-26. At times, Quirion showed up
unannounced at field trips led by Teacher 1, causing consternation among District
staffers. R. 1042. The parties resolved one series of disputes in a settlement reached
in January of 2012, under which Quirion and Pollack agreed to release RSU 75 from
liability for incidents arising prior to the agreement’s effective date. R. 600-03, 627.
II.

The Underlying Incident
On the morning of February 10, 2012, Pollack was meeting with Patrick Moore,

RSU 75’s director of special education, and Kelly Allen, B.P.’s case manager. R. 104142. During the meeting, Moore or Allen told him that Quirion had been “spying” on a
community field trip to a public library led by Teacher 1. R. 1041-42. Pollack called
Quirion immediately. R. 1041-42. She insisted she had simply gotten caught behind
the school bus on her way to the grocery store. R. 1042. Later that morning, Quirion
e-mailed Moore and Allen a scanned copy of her time-stamped grocery receipt to
refute the accusation. R. 127-28, 1042.
When Quirion arrived at the end of the school day to pick up B.P., he burst into
tears as soon as he got in the car and continued to cry for about an hour. R. 1043,
1143-44. Pollack and Quirion sought an explanation for B.P.’s aberrant behavior, but
the school was unable to provide one. R. 131-33, 609-11, 1043-44, 1132, 1214-15, 122026, 1238-39. None of the staff members who worked with B.P. that day reported
noticing anything unusual. R. 609-11, 1132, 1214-15, 1220-26. Quirion came to
suspect there might be a connection between the accusation that she had been
“spying” on the field trip and B.P.’s crying spell. R. 1144.

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Following this incident, Pollack and Quirion submitted a formal request that
Teacher 1 be replaced as B.P.’s classroom teacher. R. 619-26, 1044. The request
included an eight-page narrative describing past instances that the Parents claimed
demonstrated Teacher 1’s dishonesty, incompetence, and inability to communicate.
R. 619-26, 1044. The District responded with a letter from their attorney denying the
classroom reassignment request and accusing Quirion and Pollack of violating the
terms of the January settlement agreement. R. 627-28. On March 5, 2012, Quirion
wrote school officials a letter withdrawing the reassignment request but also accusing
the school of being “more concerned with protecting a teacher with a history of lying
and retaliation” than “protecting a completely vulnerable child from that teacher.” R.
629.
At this point, Pollack and Quirion stepped up their efforts to glean more
information about B.P.’s day-to-day experiences at school. Their efforts proceeded on
two main tracks: (1) requests for the District to allow them to inspect certain records,
including all internal e-mails between District employees about B.P.; and (2) requests
that the District allow B.P. to attend school with an audio recording device. The Court
discusses these efforts separately below, though their timelines overlap.
III.

Requests for Records
On April 13, 2012, Pollack and Quirion sent the District a letter requesting

that they be allowed to inspect all of B.P.’s “education records,” pursuant to the
Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, a law that
protects the privacy and integrity of certain student records and grants parents the
right to access and challenge their content. R. 588-89. The Parents asked that the
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District “be sure to include,” among other things, “[a]ll electronic or written
communications between or among district employees or between a district employee
or employees and another person or people, related in any way to [B.P.].” R. 588. An
RSU 75 attorney responded that the internal e-mails and many of the other records
the Parents sought were not “centrally maintained” and thus did not constitute
“education records” under the FERPA. R. 668-69. The attorney wrote that the District
would consider the Parents’ letter as a request for “public records” under Maine’s
Freedom of Access Act, 1 M.R.S. §§ 400-414, and would not turn them over unless
Quirion and Pollack paid the District $2,600, the amount the attorney estimated it
would cost to gather them. R. 668-69.
On June 13, 2012, Pollack sent the District another request for records, this
time also invoking the IDEA and the Maine Unified Special Education Regulation
(“MUSER”), 05-071-101 Me. Code. R. §§ I-XIX & app. 1, a set of rules promulgated
by the Maine Department of Education to implement the IDEA. R. 590-92. Among
the classes of documents Pollack sought were “[a]ll electronic or written
communication between or among district employees or between a district employee
or employees and another person or people, related in any way to [B.P.].” R. 591.
On June 22, 2012, RSU 75 Superintendent Bradley Smith sent Pollack a
preliminary response. R. 694-96. With respect to the requested electronic
communications, Smith wrote that Pollack was not entitled to internal e-mails unless
they were maintained as part of B.P.’s central file. R. 695. He further informed
Pollack that the District would not turn over any additional e-mails unless Pollack

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paid the District $2,600, as RSU 75’s attorney had earlier specified. R. 695. Smith
also stressed that certain e-mails were “privileged and confidential communications
between the District and [its] attorneys.” R. 695.
In July of 2012, the District turned over some of the records Pollack had
identified in his June 22, 2012 records request. R. 580, 697. A cover sheet attached to
the documents listed each of Pollack’s requests and explained how the District was
complying or why the District was not complying. R. 697. With respect to Pollack’s
request for electronic communications, the cover sheet provided as follows:
OBJECTION: Electronic communications are not maintained in a
centralized file/location or kept as part of a student’s education records.
Further, any attorney/client correspondence is privileged when made in
anticipation of litigation as work product. Without waiving these
objections, see attached correspondence between the district and its
attorneys.
R. 697. The “attached correspondence” consisted of a handful of innocuous e-mails
between the District and its attorneys about scheduling an IEP meeting. R. 418-21;
see also Pls.’ Mem. of Law on Merits of Count I of First Action 10 & n.7 (“Parents’
Case 13.107H Br.”) (ECF No. 89).
IV.

Request to Make Audio Recordings
In the March 5, 2012 letter in which Quirion withdrew her classroom

reassignment request, she also informed school officials that she planned to send B.P.
to school with an audio recording device so she could “have a semblance of peace that
he is safe . . . .” R. 629. An RSU 75 attorney sent Quirion a letter the following day
informing her that the District would not allow B.P. to attend school with a recording
device. R. 634-36. The letter claimed that permitting B.P. to record at school would
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violate the District’s personal electronics policies, a state wiretap statute, other
students’ personal privacy rights, and the school’s collective bargaining agreement
with its teachers. R. 634-36.7
On June 12, 2012, Quirion wrote a letter to Bill Zima, Mt. Ararat Middle
School’s principal, again requesting that B.P. be allowed to wear a recording device
to school:
Given [B.P.’s] communication disability, I formally request pursuant to
the Americans with Disabilities Act of 1990 that the school provide a
reasonable accommodation for [B.P.’s] communication disability by
allowing him to carry and use a voice recording device so that I can
review it daily for announcements and other information that the
students are expected to convey to their parents, as well as for [B.P.] to
be able to “tell” me about his day at school.
R. 689.
Moore acknowledged this letter in a July 14, 2012 e-mail to Quirion, assuring
her that he would review her ADA request and schedule a time to meet. R. 698.
Quirion wrote back the next day to say she would be willing to attend such a meeting
but wanted to know the agenda ahead of time. R. 699. “If the point of a meeting is to
ask me to withdraw my request, I will not withdraw it,” she wrote. R. 699. It appears
that no meeting took place. See R. 705-06.
On August 30, 2012, with a new school year about to start, Quirion e-mailed
Moore and Zima to tell them that she would interpret their failure to respond as an
implicit approval of her request. R. 705-06. Moore wrote back immediately to request

The letter suggested that the District would schedule an IEP meeting to discuss Quirion’s
concerns about B.P.’s safety. R. 635. By e-mail, Pollack responded that an IEP meeting would not be
“the appropriate mechanism to address the issues here,” which he asserted did not concern B.P.’s
“behavior or education.” R. 642.
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that Quirion not send B.P. to school with a recording device. R. 705.8 On September
1, 2012, Moore sent Quirion a letter reiterating the District’s earlier objections. R.
710.
In the same letter, Moore offered to have B.P.’s educators include more
information on a daily report the school provided the Parents each afternoon. R. 710.9
Additionally, in December of 2012, the District agreed to add a term to B.P.’s IEP
requiring RSU 75 employees who become aware of a problem with B.P. or a failure to
comply with his IEP to inform Pollack and Quirion directly. See June 26, 2014 Decl.
of Matthew Pollack ¶¶ 4-9 (“Pollack Decl.”) (ECF No. 57-1).
V.

Subsequent Events
The record, as supplemented by the parties after the due process hearing, also

includes evidence concerning a number of subsequent events that Pollack and
Quirion claim demonstrate the District’s unwillingness or inability to provide them
with complete and accurate information about B.P.’s experiences at school. For
instance, on April 29, 2013, Quirion noticed bruises on B.P.’s arms after school. June
26, 2014 Decl. of Jane Quirion ¶ 4 (“Quirion Decl.”) (ECF No. 57-2). B.P.’s daily
report included no indication that he had been injured. Quirion Decl. ¶ 7. At the
Parents’ request, the District hired an attorney to investigate the incident, but the

Moore also informed Quirion that he wanted B.P.’s IEP team to meet to consider the issue. R.
706. Quirion wrote back that her request was “for a communication accommodation under the ADA,”
not “an education accommodation under the IDEA.” R. 707.
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The Parents contend that they actually received less information in B.P.’s daily reports in the
wake of Moore’s letter. Parents’ Case 13.107H Br. 7-8 & n.6. Compare R. 156-170 (representative
sample daily reports from before Moore’s September 1, 2012 letter) with R. 171-80 (representative
sample daily reports from after Moore’s September 1, 2012 letter).
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attorney was not able to determine the cause of the bruising. Quirion Decl. ¶¶ 12-15;
Moore Decl. ¶¶ 11-13. In another instance, on September 12, 2013, B.P.’s sister told
the Parents that she had seen B.P. sitting on a hallway floor with three or four other
students at a time when his daily report indicated that he was in his classroom
receiving instruction. Pollack Decl. ¶¶ 21-25; Moore Decl. ¶ 16. After Pollack e-mailed
a number of District employees about the incident, Katie Anderson, B.P.’s special
education teacher, wrote to explain that B.P. had been taking a short five-minute
“motor break,” as called for by his IEP. Moore Decl. ¶ 16.
Procedural History
On September 11, 2012, Pollack and Quirion filed a due process complaint
claiming that the District’s refusal to turn over records and the District’s denial of
their request that B.P. be allowed to wear an audio recording device at school
constituted procedural violations of the IDEA amounting to denials of a free
appropriate public education. R. 1-7. The complaint outlined many of the events
recounted above and sought an order “requiring the district to provide all records and
information [the Parents] have requested” and an order “requiring the district to not
interfere with [B.P.’s] right to wear a recording device during the school day.” R. 3-7.
In the run-up to the due process hearing, Quirion and Pollack requested the
DPHO issue a subpoena to Moore requiring him to produce, among other things, “all
records (whether in electronic, documentary, or other format) relating in any way to
[B.P.] (even if referencing another student) or his parents” and “all electronic or
written communication between or among district employees or between a district
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employee or employees and another person or people, related in any way to [B.P.]
(even if referencing another student) or his parents.” R. 56.10 The District moved to
vacate the subpoena. R. 70-80, 1001. The DPHO granted the Parents’ first request “to
the extent the requested document is not otherwise made confidential” and vacated
the second request as duplicative. R. 915. The DPHO further indicated that the
District could “redact” or “de-identify” documents “if appropriate.” R. 915. According
to the DPHO’s subsequent decision, “[t]he school made no claim of confidentiality”
and “produced approximately one thousand pages of documents” prior to the due
process hearing. R. 1001.
The DPHO conducted a three-day hearing on October 29, October 30, and
December 5, 2012 and issued a decision on December 29, 2012. R. 994-1006. With
respect to the Parents’ request for records, the DPHO denied relief on the basis that
“[c]omplaints that a school has violated the provisions of FERPA are more properly
resolved under the complaint and hearing process set forth in FERPA, rather than in
the context of a special education due process hearing.” R. 1001-02. As alternative
grounds for his decision, the DPHO also concluded: (1) that his earlier order regarding
the Parents’ subpoena for records fully remedied any procedural violation, so no
further order was warranted; and (2) that the Parents failed to establish that the
District had significantly impeded their right to participate in the decision-making
process concerning B.P.’s special education. R. 1002-04. With respect to the Parents’

The subpoena request was limited to documents created after January 26, 2012, the effective
date of the prior settlement agreement between the Parents and the District. R. 56, 627.
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request that B.P. be allowed to attend school with an audio recording device, the
DPHO again denied relief on the grounds that the Parents failed to establish a
significant impediment to their participatory rights. R. 1004-06.
The Parents subsequently appealed the DPHO’s decision to this Court and
moved to supplement the record with evidence concerning events that took place after
the due process hearing. I granted the motion in part, allowing Pollack and Quirion
to submit additional declarations and also permitting RSU 75 to submit responsive
declarations.
Discussion
I.

Request for Records
A.

Propriety of Reaching Merits in Light of FERPA Complaint
Procedure

The DPHO’s conclusion that the FERPA complaint procedure 11 provided the
proper mechanism for resolving the Parents’ request for records rests on an
assumption that the phrase “all records,” as it appears in the IDEA, see 20 U.S.C.
§ 1415(b)(1), has the same meaning as the phrase “education records,” as it appears
in FERPA. See 20 U.S.C. § 1232g(a)(4).

Under this procedure, a parent may file a written complaint regarding a suspected FERPA
violation with the Family Policy Compliance Office (the “FPCO”), a subdivision of the U.S.
Department of Education. 34 C.F.R. § 99.63. The FPCO is then empowered to investigate the complaint
and determine whether a violation has occurred. 34 C.F.R. § 99.64(b); see also 20 U.S.C. 1232g(g)
(providing statutory authority for complaint procedure). If the FPCO finds there has been a violation
and the school fails to correct its conduct voluntarily, the Secretary of Education may withhold federal
funds or initiate a hearing on whether further enforcement action should be taken. 34 C.F.R. §§
99.66(c), 99.67(a); see also 20 U.S.C. § 1234e (providing statutory authority for cease and desist orders).
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Under § 1415(b)(1) of the IDEA, local educational agencies must allow the
parents of a disabled child “[a]n opportunity . . . to examine all records relating to
such child . . . .” 20 U.S.C. § 1415(b)(1) (emphasis added). The IDEA does not define
the phrase “all records,” but the relevant legislative history suggests Congress
intended it to be interpreted expansively. See H.R. Rep. 104-614, at 17 (1996)
(explaining that the phrase “all records” was added to the IDEA, replacing the phrase
“all relevant records,” to “[e]nd[ ] the monopoly of schools on determining the
relevance of information about a child” and to “require schools to make all records
about a child available to the parents”). Though federal and Maine regulations
promulgated under the authority of the IDEA use the FERPA phrase “education
records,” neither assert that “all records” and “education records” mean the same
thing or even acknowledge the distinction. See 34 C.F.R. §§ 300.501, 300.611-613; 05071-101 Me. Code. R. § XIV(3).
In contrast to the IDEA, FERPA offers protections to the parents of both
disabled and regular education students. See 20 U.S.C. 1232g. Generally, FERPA
requires schools and educational agencies that receive federal funding to allow
parents to access their children’s “education records,” see 20 U.S.C. § 1232g(a), and to
otherwise protect the confidentiality of such records. See 20 U.S.C. § 1232g(b). FERPA
defines “education records” to mean “records, files, documents, and other materials
which—(i) contain information directly related to a student; and (ii) are maintained
by an educational agency or institution or by a person acting for such agency or

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institution.” 20 U.S.C. § 1232g(a)(4)(A).12 In Owasso Independent School District v.
Falvo, 534 U.S. 426 (2002), the Supreme Court closely parsed this definition,
ultimately determining that peer-graded assignments in the hands of student graders
are not “education records” because they are not “maintained” by the school. Id. at
433. As Justice Kennedy wrote for the majority,
The word “maintain” suggests FERPA records will be kept in a filing
cabinet in a records room at the school or on a permanent secure
database, perhaps even after the student is no longer enrolled. The
student graders only handle assignments for a few moments as the
teacher calls out the answers. It is fanciful to say they maintain the
papers in the same way the registrar maintains a student’s folder in a
permanent file.
Id. The Court buttressed this narrow interpretation by looking to FERPA’s structure.
Provisions allowing parents to challenge the content of their children’s “education
records” and requiring schools to maintain a log of who had accessed “education
records” further suggested to the Court that the term was intended to refer to
institutional records kept in a single place. Owasso, 534 U.S. at 434-35; see also 20
U.S.C. § 1232g(a)(2), (a)(4)(A).
Against this statutory background, any assumption that FERPA’s definition of
“education records” governs the scope of the IDEA’s “all records” provision rests on
shaky ground. Section 1415(b) of the IDEA contains none of the text the Owasso
majority relied on to limit the reach of the phrase “education records,” and the two
statutes serve substantially different purposes. While FERPA’s definition of

This general description is narrowed by a number of specific exceptions. 20 U.S.C.
§ 1232g(a)(4)(B).
12

17

“education records,” as interpreted by Owasso, is aimed at protecting the integrity
and privacy of the central record that follows all students from grade to grade and
school to school, the IDEA’s “all records” provision is geared at providing the parents
of disabled children with sufficient information to be active, informed participants in
the development of their children’s IEPs.
B.

Relief Provided by Earlier Order

Because I disagree with the conclusion that FERPA’s complaint procedure
offered the proper venue to resolve the merits of the Parents’ claim, I go on to examine
the DPHO’s subsequent determination that his pre-hearing subpoena order fully
resolved the Parents’ complaint.
As detailed above, the DPHO responded to the Parents’ subpoena request by
ordering the District to produce “all records . . . relating in any way to [B.P.]” “to the
extent the requested document is not otherwise made confidential.” R. 915, 1001. The
DPHO later found that the District fully complied with his order when it turned over
approximately 1,000 pages of documents. R. 1001.
The Parents assert that the evidence cannot support a finding that the District
provided them with all the records to which they were entitled under the IDEA
because the DPHO “did not require the District to identify any documents that it
withheld under claim of confidentiality.” Pls.’ Reply Mem. on Merits of Count I of
First Action 6 (ECF No. 106). I agree.
Although the DPHO wrote in his decision that the District made no claim of
confidentiality, it is unclear on the record before me whether the District understood
that it needed to make explicit any claims of confidentiality or privilege in order to
18

withhold documents. Accordingly, I order the District to take the following actions,
as further detailed at the conclusion of this decision: (1) inform the Parents whether
it withheld any records “related in any way to [B.P.]” when it responded to the
Parents’ subpoena on October 29, 2013; and (2) if so, produce a log that identifies and
describes the withheld documents in keeping with the requirements laid out in
Federal Rule of Civil Procedure 45(e)(2).
C.

Significant Impediment to Parents’ Participatory Rights

Until the District discloses whether it withheld any records under an unstated
claim of confidentiality or privilege, it is premature to reach the issue of whether the
District significantly impeded the Parents’ right to participate in the special
education decision-making process.
II.

Request to Audio Record
Quirion and Pollack argue that the District’s decision to bar them from sending

B.P. to school with a recording device was a procedural IDEA violation.13 The DPHO
rejected that claim on the basis that the Parents failed to establish that the District
significantly impeded their opportunity to participate in the decisionmaking process
concerning B.P.’s education. See R. 1004-06. I affirm the DPHO’s disposition of the
case for a simpler reason: the Parents failed to identify a procedural violation at all.
In general, a plaintiff pressing a procedural IDEA claim must identify a specific
procedure provided for under the IDEA and then demonstrate how the local

As the Parents’ conceded at oral argument, they make no argument that the District
substantively denied a free appropriate public education by forbidding B.P. to record his school day.
13

19

educational agency failed to abide by it. In an attempt to make the first of these
showings, the Parents assert that two provisions confer on them a procedural right
to gather and preserve an undefined quantum of information about their child’s
school day. First, they point to 20 U.S.C. § 1415(h)(2), which guarantees parents “the
right to present evidence” at an IDEA due process hearing. But this provision simply
entitles parents to present their case to a DPHO, which Quirion and Pollack were
allowed to do here.14 Second, the Parents point to 20 U.S.C. § 1415(f)(3)(E)(ii)(II), the
provision that allows a procedural violation to rise to the level of a substantive
deprivation of a free appropriate public education if it significantly impeded a
parent’s participatory rights. This provision does not help Quirion and Pollack either.
Rather than conferring any additional rights, it actually imposes an additional
burden on parents bringing procedural IDEA claims.15
For the reasons stated above, I deny the Parents’ appeal with respect to their
claim that RSU 75 committed a procedural IDEA violation by failing to allow B.P. to
attend school with an audio recording device.

The scope of a parent’s right to obtain evidence is governed by the provisions that explicitly
address that question. See, e.g., 20 U.S.C. § 1415(b)(1) (entitling parents “to examine all records
relating to” their child); 20 U.S.C. § 1415(c)(2)(B) (entitling parents to a detailed written response to
issues raised in a due process hearing complaint); 20 U.S.C. § 1415(f)(2) (requiring parties to disclose
any evaluations they intend to use at the due process hearing); 05-071-101 Me. Code. R. § XVI(7)(A)
(2015) (allowing DPHOs broad authority to issue subpoenas to require the attendance of witnesses
and the production of evidence).
14

Again, the scope of a parent’s right to participate in the IEP decision-making process is
governed by the provisions that explicitly address that question. See, e.g., 20 U.S.C. § 1414(d)(1)(B)(i)
(entitling parents to membership in their child’s IEP team); 20 U.S.C. § 1414(d)(3)(A)(ii) (requiring
IEP teams to consider parents’ educational concerns); 05-071-101 Me. Code. R. § VI(2)(I) (detailing the
role of parents in the IEP decision-making process).
15

20

CASE NO. 14.035H
The second IDEA appeal before the Court, Case No. 14.035H, requires me to
analyze whether the District deprived B.P. of a free appropriate public education by
offering to bring B.P. to public outings individually rather than with his special
education peers.
Factual Background
In the face of the Parents’ ongoing dissatisfaction with Teacher 1, the District
agreed to remove her as B.P.’s teacher at the end of his sixth grade year. R. 709-10,
715, 726. Under this agreement, Teacher 1 was precluded from having “any input”
into B.P.’s day-to-day education, but she retained authority over B.P. to “address
emergency situations” when necessary. R. 710, 719. Due to various programmatic
constraints, B.P. continued to be located in the same classroom as Teacher 1. R. 709710, 715, 726.
The Parents’ relationship with Teacher 1 remained strained. See, e.g., R. 42425, 719. For instance, near the end of B.P.’s seventh grade year, after Teacher 1
initiated a conversation with Quirion about B.P.’s eyesight, Quirion e-mailed Moore
to complain:
I would really appreciate it if you could keep her away from me unless
there is an emergency I need to know about right then and there. . . . I
am not comfortable with [Teacher 1] as I told you, I do not trust her or
like her, so please try to impress upon her that she should stay away
from me and not seek me out when there are other avenues that she can
use to communicate with me.

21

R. 424. A week later, in another e-mail to Moore, Quirion wrote that she could “see
no way” to “come to a working relationship with [Teacher 1]” and that she “want[ed]
to vomit just thinking about having to interact with her.” R. 425.
At the time of the events in question, B.P. was in the eighth grade and was one
of four students in Mt. Ararat Middle School’s “Community Experiential Program”
(“CEP”). R. 475, 719. These students received the bulk of their instruction in Teacher
1’s classroom but worked one-on-one with educational technicians or other specialists
throughout the day. R. 719. Teacher 1 was the primary teacher for the other students
in the classroom, while Katie Anderson, a teacher based out of a nearby classroom,
was B.P.’s primary teacher. R. 709-10, 726.
The three other CEP students often went on community outings to businesses
outside the school to work on functional life skills. R. 710. For years, the Parents
objected to B.P. participating in these trips, claiming that they did not address B.P.’s
IEP goals. R. 710, 716. Accordingly, B.P. did not attend them. See R. 710, 716.
Among these trips was a weekly Monday lunch trip led by Teacher 1. R. 710.16
This trip took place each week after a swimming program conducted at Bowdoin
College. R. 710. Though B.P. took part in the swimming program, he did not travel to
Bowdoin with the other students or Teacher 1. R. 710, 729. Quirion drove him there
and back on her own, and B.P. skipped the lunch outings. R. 710, 729.

On the four other days of the school week, B.P. ate in the cafeteria with his CEP peers. R. 717,
734. They typically ate in a group, along with non-disabled peers. R. 717, 734.
16

22

In July of 2013, an educational consultant named Candice Bray performed a
literacy consultation on B.P. and recommended that his educational team begin
working with him on “reading menus from places he eats with his family.” R. 460.
Bray suggested B.P.’s teachers use this activity to help strengthen B.P.’s reading
skills. R. 460-61.
In the fall of 2013, the District scheduled IEP meetings for October 28 and
November 12, 2013. R. 465, 472. At the time, B.P.’s full IEP team consisted of Quirion,
Pollack, Moore, Anderson, Allen, Tanji Johnston (Mt. Ararat Middle School’s special
education coordinator), Kirk Niese (B.P.’s regular education homeroom teacher),
Barbara Linnehan-Smith (an adaptive phys ed teacher), Sarah McLaughlin (a speech
therapist), Barbara Piccirillo (an occupational therapist), and Elaine DeFreitas (a
physical therapist). R. 466.
At the first meeting, the team focused primarily on B.P.’s annual goals and
short term objectives, taking Bray’s suggestions into consideration. See RSU Ex. 52,17
BP IEP part 1.m4a (“Oct. Meeting Recording”). The IEP team did not specifically
discuss the possibility of B.P. joining his CEP peers on Monday lunch outings. See
Oct. Meeting Recording.
However, between the two IEP meeting dates, on October 29, 2013, the Parents
e-mailed Anderson to let her know that their position on the lunch outings had
changed:

RSU Exhibit 52 is a DVD-R labeled “District Audio Exhibit” and containing two audio files,
one of the October 28, 2013 IEP meeting (with the file name “BP IEP part 1.m4a”) and one of the
November 12, 2013 IEP meeting (with the file name “IEP Mtg #2.m4a”).
17

23

We . . . want to have [B.P.] start participating in the field trips out for
lunch on Mondays. [Quirion] will need to know where the class is going
so that she can bring [B.P.] to the restaurant. We presume staff
will bring the Vantage18 to the restaurant and be available to provide
the instruction to [B.P.] that staff provide on these field trip[s]. [Quirion]
will make certain that [B.P.] is back at school by 1:00 p.m. for speech.
R. 155.
Anderson forwarded the e-mail to District administrators, and Moore wrote
the Parents a brief response on November 1, 2013:
Happy to hear that you want [B.P.] to participate in the lunch field trips.
The [middle school] staff hasn’t sorted out all the logistics for this coming
Monday, November 4 for the community lunch outing. We are not
prepared to initiate this program change yet. As you know, [Teacher 1]
is the teacher and you have made your wishes known about [Teacher 1]
not instructing or supervising [B.P.] except in an emergency. We can
address this program change at the [upcoming] IEP meeting . . . .
R. 156.
The IEP team met again on November 12, 2013, finally reaching this issue
near the end of the meeting. RSU 75 Ex. 52, IEP Mtg #2.m4a, 1:00:02 (“Nov. Meeting
Recording”). As the conversation began, Moore raised concerns about placing B.P.
in a lunch outing supervised by Teacher 1:19
Moore:

Let’s talk about Monday logistics for the lunch thing.

Allen:

Okay.

Moore:

Are we talking about lunch along with the rest of the
group, or are we talking about these restaurants,

The Vantage is a touch-screen device with an automated voice that allows B.P. to
communicate, in a limited fashion, with those around him. See R. 710.
18

The below excerpts are based on the audio recording of the full IEP meeting found on the
DVD-R entered into evidence as RSU Exhibit 52. The Court consulted but did not ultimately rely on
the partial transcript of the meeting the Parents appended to their post-hearing memorandum to the
DPHO. See R. 333-42.
19

24

Applebee’s, 99, et cetera, the ones that he’s familiar
with the menus on—
Quirion:

I figured he’d be going where the rest of the kids are.

Moore:

The problem we have there is that [Teacher 1’s] the
teacher there, and I know that you didn’t want that
interaction at all.

Pollack:

Well, why is that any different than the classroom?

Quirion:

Yeah.

Moore:

Because she doesn’t interact with him.

Quirion:

Why does she have to interact with him at the
restaurant?

Moore:

Because she’s the person who does those community
supports as it is right now.

Nov. Meeting Recording 1:00:02-1:01:30; see also R. 333.
The team continued to discuss the issue for nearly five minutes, and Moore
raised the possibility that Teacher 1 might be uncomfortable presiding over an outing
that B.P. and Quirion would attend. Nov. Meeting Recording 1:06:15-1:06:22. He told
the Parents he would talk with them if it was a problem. Nov. Meeting Recording
1:06:15-1:06:22. As Moore attempted to wrap up the meeting about a minute later,
the following exchange took place:
Moore:

Any other discussion about that?

Niese:

No, it sounds like a neat opportunity. It sounds really—

Johnston:

I’m just—I—the thing I’m worried about has nothing to
do with [B.P.]. It has to do with your and [Teacher 1’s]
relationship historically, and the way that that’s played
out. So I’m just worried about it. So I need to just say
that here. Which is—that does not have to do with
[B.P.], it has to do with—
25

Pollack:

Probably just ignore each other, right?

Quirion:

Well, I have no intention of interacting with her.

Johnston:

But what I mean is, in terms of an actual thing that
sometimes goes on in human dynamics, I’m worried
about that. So I’m just saying it here. Because I think,
um—

Quirion:

I know how to behave, and I—you know, I don’t—I don’t
see the issue, but, you know—

Johnston:

I know. And that’s why I’m saying I do see it as a
potential issue. So I’m just saying it here so that I’m not
saying anything that I didn’t say directly.

Allen:

So, if there is an issue, would you guys still be interested
in going to a restaurant, not necessarily the one that the
other boys are going to, to practice these skills as well?
With a staff person.

Quirion:

I suppose.

Pollack:

Maybe, yeah.

Allen:

Okay.

Quirion:

I mean, again, the rest of them don’t make or break
[B.P.’s] education, right?

Allen:

Right. It’s still the experience. Okay.

Johnston:

No, I love the experience.

Allen:

I do too.

Anderson:

Yeah, I think it’s going to be amazing.

Allen:

Okay.

Moore:

And we want this to work.

Quirion:

Yeah.
26

Moore:

Well, for everybody.

Nov. Meeting Recording 1:07:19-1:08:45; see also R. 340-42. The team then discussed
when lunch outings could start, and Moore, Allen and the Parents appeared to settle
on December 2, 2013. Nov. Meeting Recording 1:08:45-1:09:22.
On November 25, 2013, Johnston wrote an e-mail to Quirion and Pollack
informing them that the District would provide lunch outings to B.P. individually,
rather than with his CEP peers “[d]ue to the issues we briefly discussed at the IEP
[meeting].” See R. 218. Johnston wrote that she and McLaughlin would take B.P. on
lunch outings on December 2, 9, and 16 and that Anderson would take over after that.
R. 218.
Pollack wrote back shortly afterwards to push back against the District’s
decision:
We remember you vaguely mentioning some issue with [Teacher 1] at
the IEP meeting. But you did not describe exactly what harm you are
seeking to prevent by putting [B.P.] in a more restrictive environment
and prohibiting him from being with the rest of his class, or why the risk
(whatever it purportedly is) to [Teacher 1] is more important than the
factors directly concerning [B.P.’s] education.
Please tell us in detail the reasons that you have unilaterally decided
that this placement for the community outings is “the best way to
address community goals” and the reasons you determined that placing
him with the rest of his class in those outings is inappropriate.
R. 217-18.
Johnston replied that she had been referring to “the historical difficulty of the
relationship between [Quirion] and [Teacher 1], the teacher for the other students.”
R. 217. “It is not the intention to make any decision unilaterally,” Johnston continued.
27

R. 217. “[R]ather, the intention is to figure out how best to support the IEP goals in
the community in the context of some other rather difficult dynamics.” R. 217.20
On November 26, 2013, the following day, the District sent the Parents both
B.P.’s new IEP and a post-IEP-meeting “Written Notice.” R. 475-96 (IEP); R. 497-501
(written notice). The section of the IEP listing the “related services” or
“supplementary services” the District would provide contained only general
descriptions and did not specifically mention lunch outings. R. 490-91. The written
notice mentioned only that Quirion and Pollack were “interested in [B.P.] accessing
restaurants in the community on Mondays,” not that they preferred he do so with his
CEP peers. R. 499.
On Monday, December 2, 2013, Quirion brought B.P. to an individual lunch
outing at McDonald’s. R. 218. B.P. sat at a table with McLaughlin and Johnston and
worked on functional goals from his IEP, while Quirion sat at a separate table. R. 714,
737. After this outing, the Parents withdrew their consent for B.P. to go on individual
lunch outings. R. 714, 741. The District offered to resume the individual outings or
allow B.P. join the group outings, so long as Quirion did not attend. R. 714, 741. The
Parents refused. R. 714, 741.
Procedural History
On December 11, 2013, the Parents filed an IDEA due process hearing request
stating the following grievance, among others:

Johnston later testified that she also had reservations about Quirion attending the group lunch
outings based on complaints from other staff members and parents about Quirion’s behavior. R. 73738, 748-49.
20

28

District made unilateral decision to remove [B.P.] from placement in his
program for purposes of “community outings,” specifically lunch.
Decision was not made for educational reasons, and parents were not
made participants on decision team that made the decision. Placement
is not least restrictive placement, but is segregated from all other
students.
R. 2. As a remedy, the parents sought for B.P. to be provided communal lunch outings
as compensatory education. R. 662.
After conducting a two-day hearing on February 6 and 24, 2014, the DPHO
determined that B.P.’s IEP team had agreed to include B.P. on Monday lunch outings
with his CEP peers. R. 698-99. The DPHO found that the District had not
substantively denied B.P. a free appropriate public education but had violated the
IDEA’s procedural safeguards in three ways: (1) by failing to list the Monday lunch
outings in B.P.’s IEP as a related or supplemental service the District would provide;
(2) by failing to adequately address the Monday lunch outings in the post-IEPmeeting written notice; and (3) by failing to contact the Parents after the November
12, 2013 IEP meeting to discuss the issue. R. 699-700.
As a remedy, the DPHO ordered the school to take the following actions: (1)
convene an IEP meeting “to discuss implementing the Monday lunch outings as an
individual activity”; (2) “[p]roperly reflect any agreement in a Written Notice”; and
(3) “[a]mend the IEP to include any revised plan for conducting the Monday lunch
outings as a supplemental service or activity.” R. 705. The DPHO declined to order
RSU 75 to provide additional lunch outings in a group setting, finding that the
procedural violation did not rise to the level of a deprivation of a free appropriate
public education and that the Parents were therefore not entitled to an award of
29

compensatory education. R. 700-02. The Parents’ subsequently appealed the DPHO’s
decision to this Court.21
Discussion
As discussed above, an individualized education program or IEP is “a written
statement for each child with a disability that is developed, reviewed and revised in
accordance with [20 U.S.C. § 1414],”22 and that includes, among other things, a
description of the services a local educational agency will provide to a disabled
student. 20 U.S.C. § 1414(d)(1)(A)-(B). An IEP “serves as both a plan of action for
school districts to follow and a legal touchstone for hearing officers and judges to
assess their efforts.” York Sch. Dep’t v. S.Z., No. 2:13-cv-00042-NT, 2015 WL 860953,
at *15 (D. Me. Feb. 27, 2015). Because the IDEA defines the term “free appropriate
public education” to include “special education and related services” that “are
provided in conformity with [the IEP],” 20 U.S.C. § 1401(9)(D), a material failure to
provide a service contained in an IEP can constitute a substantive violation of the
IDEA. S.D., 2014 WL 4681036, at *6.
By its own terms, the IDEA provides little detail about how the terms of an
IEP should be formulated or how IEP teams should proceed when disagreements

The complaint containing the Parents’ appeal was originally treated as a distinct case and
assigned its own docket number, 2:14-cv-215-NT. The Court granted the Parents’ motion to consolidate
it with this case on October 21, 2014.
21

The IDEA includes a number of procedural safeguards regarding IEPs, among them a
requirement that parents be allowed to take part in decisions about their child’s programming, 20
U.S.C. § 1414(d)(1), (d)(3), (e), and a requirement that local educational agencies provide parents
detailed written notice justifying any proposed change or refusal to change a child’s programming. 20
U.S.C. § 1415(b)(3); see also 34 C.F.R. § 300.503.
22

30

arise. Maine’s implementing regulations, found in MUSER, offer more specific
guidance:
The IEP meeting serves as a communication vehicle between parents
and school personnel, and enables them, as equal participants, to make
joint, informed decisions regarding [the child’s special education].
Parents are considered equal partners with school personnel in making
these decisions, and the IEP Team must consider the parents’ concerns
and the information that they provide regarding their child in . . .
developing, reviewing, and revising IEPs; and determining placement.
The IEP Team should work toward consensus, but the [local educational
agency] has ultimate responsibility to ensure that . . . the IEP includes
the services that the child needs in order to receive FAPE; and that the
child’s placement is in the least restrictive educational placement. It is
not appropriate to make . . . IEP or placement decisions based upon a
majority “vote.” If the team cannot reach consensus, the [local
educational agency] must provide parents with prior written notice of
the school’s proposals or refusals, or both, regarding their child’s
educational program, and the parents have the right to seek resolution
of any disagreements by initiating an impartial due process hearing or
a State complaint investigation.
05-071-101 Me. Code. R. § VI(2)(I).
Here, the DPHO reached a sound practical result by sending the parties back
to the IEP meeting to rehash the lunch outings issue but also by declining to grant a
compensatory education award. The DPHO found that the IEP team agreed that B.P.
should receive lunch outings with his CEP peers and that the District committed a
procedural violation by leaving this out of his IEP. However, she failed to discuss: (1)
whether this verbal agreement became part of B.P.’s IEP though never memorialized
in writing; and (2) if so, whether the District’s failure to provide communal lunch
outings thereby constituted a material failure to provide services in conformity with
the IEP, i.e. a substantive IDEA violation. I reject her factual findings on the issue of

31

agreement as unsupported23 and reach beyond her analysis because I believe its
reasoning may cause difficulties in the future.
A close review of the recording of the November IEP meeting shows the
DPHO’s finding of an agreement was not warranted. While Moore did represent to
the Parents that the District would take B.P. on weekly lunch outings, he hedged on
whether B.P. could attend the outings led by Teacher 1, indicating that he would talk
with the Parents if there was a problem. A minute or so later, Johnston expressed
her concerns about the “human dynamics” at play, and Allen asked the Parents if
they would “still be interested in going to a restaurant, not necessarily the one that
the other boys are going to” if it turned out there was “an issue.” Quirion responded,
“I suppose,” while Pollock answered, “Maybe, yeah.” Quirion then suggested that “the
rest of them don’t make or break [B.P.’s] education, right?” These exchanges may
demonstrate consensus on whether B.P. should go on lunch outings, but they reveal
substantial disagreement on whether the outings should occur with B.P.’s CEP peers
or in another setting.24
Although there may be a situation where a decision reached at an IEP meeting
but not reduced to writing could be deemed part of an enforceable IEP, I do not believe
this is such a case. An approach that places determinative legal significance on a
moment of apparent agreement between two or three members of an IEP team that

The Parents have argued that the Court cannot upset a factual finding that the District did
not appeal. I reject their constrained view of the powers the IDEA confers on me to review the record
and grant appropriate relief.
23

The DPHO based her conclusion on a recording of a meeting that was also available to me, not
on live testimony, and I accordingly do not defer to the inferences she drew.
24

32

is later undercut by further discussion is unworkable. If parties are allowed to play
“gotcha” by plucking snippets from lengthy meetings, important back-and-forth
discussions about a disabled child’s well-being will be chilled.25 In general, I believe,
the better practice is to allow the local educational agency to formalize the decisions
reached at an IEP meeting into a written IEP document and then to allow parents to
challenge the IEP if they feel that something is missing.
The cases explain that the IDEA sets an accommodating, holistic standard for
schools to meet. Lessard, 518 F.3d at 30; Roland M. v. Concord Sch. Comm., 910 F.2d
983, 992 (1st Cir. 1990). It does not give parents the authority to dictate the
curriculum or insist on a particular methodology. Lessard, 518 F.3d at 30; Roland M.
v. Concord Sch. Comm., 910 F.2d at 992; Greenbush Sch. Comm. v. Mr. K, 949 F.
Supp. 934, 940 (D. Me. 1996). As the First Circuit wrote in Lessard,
The test is whether the IEP, taken in its entirety, is reasonably
calculated to enable the particular child to garner educational benefits.
Were the law otherwise, parents could endlessly parse IEPs into highly
particularized components and circumvent the general rule that parents
cannot unilaterally dictate the content of their child's IEP.
Lessard, 518 F.3d at 30. Ultimately, where consensus cannot be reached, it is for the
school to decide and for the parents to contest. Allowing parents to comb through
transcripts of lengthy meetings for moments of agreement that do not make their way
into an IEP would open the door to the type of parsing the case law forbids.26

The case cited by the Parents in support of their theory that something said at a meeting can
later become a provision of an IEP is distinguishable. Cf. K.A. ex rel. F.A. v. Fulton Cnty. Sch. Dist.,
No. 1:11-CV-727-TWT, 2011 WL 5554008 (N.D. Ga. Nov. 15, 2011). There, the school's own notes of
the meeting reflected a unanimous decision to provide the child with a personal assistant. Id. at *2.
25

The Parents’ alternative argument that the District’s decision to provide lunch outings
individually was improper because it was based solely on administrative convenience also runs afoul
26

33

Because I overturn the DPHO’s finding that the IEP team reached agreement,
I also overturn her conclusion that the District committed a procedural violation by
failing to reflect that agreement in the IEP. The Parents’ briefing identifies two
further alleged procedural violations: (1) that the District failed to give the Parents
adequate written notice of their final decision concerning the lunch outings, see 20
U.S.C. § 1415(c)(1), 34 C.F.R. § 300.503; and (2) that the District failed to adequately
include the Parents in that decision. See 20 U.S.C. § 1414(d)(1)(B)-(C), (d)(3)(D),
(d)(3)(F), (e). The record does not support a finding that either of these alleged
violations significantly impeded the Parents’ right to participate in the decisionmaking process concerning B.P.’s special education, the only type of harm they assert
on appeal. Quirion and Pollack attended an IEP meeting where community lunch
outings were discussed at length. During that meeting, they made school officials
aware of their preferences, learned about the District’s primary concerns, and
presented counter-arguments in favor of their point of view. The Parents were
allowed to meaningfully participate in the IEP decision-making process. They had no
right to “unilaterally dictate” the results of that process. Lessard, 518 F.3d at 30; see
also 05-071-101 Me. Code. R. § VI(2)(I).27

of the rule of Lessard. Additionally, it is unclear whether this argument is properly before me. The
Parents only presented this line of reasoning to the DPHO in the context of an argument that B.P.’s
placement in individual lunch outings violated the least restrictive environment requirement. See R.
658-62. The Parents expressly declined to press any least restrictive environment argument on appeal.
Pls.’ Mem. of Law on Merits of Count I of Second Action 17 n.8 (ECF No. 90).
Even if the Parents had established a substantive or procedural denial of a free appropriate
public education, they would not necessarily be entitled to further relief. As discussed above,
compensatory education “is a form of equitable relief,” Murphy, 973 F.2d at 16. It is not clear that the
equities of this case support the remedy the Parents seek. See Mr. I. ex rel. L.I., 480 F.3d at 26.
27

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CONCLUSION
For the reasons stated above, I GRANT IN PART and DENY IN PART the
Parents’ request for relief with respect to Case No. 13.107H and DENY the Parents’
request for relief with respect to Case No. 14.035H. Pursuant to my partial grant of
relief, I order the parties to adhere to the following schedule:
(1) by Wednesday, May 20, 2015, the District shall disclose to the Parents
whether it withheld any records “related in any way to [B.P.]” when it
responded to the Parents’ subpoena on October 29, 2013, and, if so, produce a
log that identifies and describes the withheld documents, in conformity with
the requirements of Federal Rule of Civil Procedure 45(e)(2).
(2) by the 21st day after the District meets its obligations under paragraph (1),
the parties shall jointly file a status report notifying the Court what if any
issues remain for resolution with respect to the Parents’ appeal of Case No.
13.107H.
SO ORDERED.
/s/ Nancy Torresen
United States Chief District Judge
Dated this 29th day of April, 2015.

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