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

Filing 33

ORDER ON DEFENDANTS MOTION TO DISMISS re 17 Motion to Dismiss for Failure to State a Claim By JUDGE NANCY TORRESEN. (lrc)

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,
BRADLEY V. SMITH, and
KELLY ALLEN,
Defendants.

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ORDER ON DEFENDANTS’ MOTION TO DISMISS
Before the Court is the Defendants’ motion to dismiss Counts II through X of
the Plaintiffs’ amended complaint. Defs.’ Mot. to Dismiss Counts II-X of Pls.’ Am.
Compl. (ECF No. 17) (“Mot. to Dismiss”); Pls.’ Am. Compl. (ECF No. 14) (“Am.
Compl.”). For the reasons stated below, the Court GRANTS the motion in part and
DENIES the motion in part with respect to Defendant RSU 75, DENIES the
motion with respect to Defendant Bradley Smith, and GRANTS the motion in part
and DENIES the motion in part with respect to Defendant Kelly Allen.
FACTUAL ALLEGATIONS
The Plaintiffs, Matthew Pollack and Jane Quirion, individually and as next
friends of their son, B.P., make the following allegations in their Amended

Complaint.1 B.P. is a fourteen year-old boy who has been diagnosed with autism,
mental retardation, and Landau-Kleffner Syndrome. Am. Compl. ¶ 2. He is nonverbal. Am. Compl. ¶ 17. Although he recognizes several words by sight, he cannot
read or follow written directions. Am. Compl. ¶ 19. Because of his neurological
disorders, B.P. cannot convey accurate information about events in his life to other
people. Am. Compl. ¶ 18.
B.P. attends public school in Regional School Unit Number 75 (“RSU 75” or
the “District”). Am. Compl. ¶¶ 1, 4, 9, 22. Although he is a happy, well-behaved
child, he requires constant adult supervision and cannot participate in the District’s
regular curriculum. Am. Compl. ¶¶ 4, 21, 24. For the past several years, B.P. has
been educated according to an “individualized education plan” (“IEP”) developed
under the Individuals with Disabilities Education Act (the “IDEA”), a federal law
which mandates minimum standards in the provision of special education within
states that accept certain federal funds. Am. Compl. ¶ 21; see also Sebastian M. v.
King Philip Reg’l Sch. Dist., 685 F.3d 79, 84 (1st Cir. 2012) (describing the purpose
and structure of the IDEA). The staff at RSU 75 prepares a daily written report to
help keep Quirion and Pollack abreast of what B.P. is doing in school. See Am.
Compl. ¶ 48.
In April of 2011, Quirion and Pollack requested that the District produce all
records relating to them or B.P. Am. Compl. ¶ 26. School officials turned over most

1

For purposes of resolving the Defendants’ motion to dismiss, the Court must accept the
plausible allegations in the Amended Complaint and draw all reasonable inferences in the Plaintiffs’
favor. See Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012).

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of the relevant records without protest, including e-mails between school staff about
B.P. and his parents and lesson plans and tally sheets2 from B.P.’s classroom
activities. Am. Compl. ¶ 27. Six months later, in October of 2011, B.P.’s parents
filed a request for an administrative due process hearing under the IDEA,
challenging the manner in which the District had educated B.P. and alleging that
the District failed to follow procedures imposed by state and federal law. Am.
Compl. ¶¶ 28-29. In November of 2011, B.P.’s parents filed another request for
B.P.’s education records. Am. Compl. ¶ 30. In contrast to its response to the parents’
request in April, the District refused to turn over many of the documents. Am.
Compl. ¶¶ 23, 30-32. In January of 2012, Quirion and Pollack negotiated a
settlement of their due process claims with the District. Am. Compl. ¶ 34.
On February 9, 2012, conflict again developed. See Am. Compl ¶¶ 39-40.
B.P.’s classroom teacher reported to school administrators that Quirion had been
“spying” on a class field trip at the Topsham Public Library. See Am. Compl ¶¶ 3940. Quirion learned of the report and e-mailed Patrick Moore, the District’s Director
of Special Services, and Kelly Allen, the District’s autism consultant, refuting the
teacher’s version of events. See Am. Compl. ¶¶ 39-40, 42-43.
The afternoon of February 10, 2012, B.P. was alone with his classroom
teacher for at least thirty minutes. Am. Compl. ¶ 44. When Quirion arrived at
school to pick up B.P. at around 2:20 p.m., B.P. acted unusually and cried
continuously for the next hour and a half. Am. Compl. ¶ 46. The District staff’s daily
“Tally sheets” are records kept by ed techs that document a special education student’s
performance on specific tasks and programs in his or her educational program. See Am. Compl.
¶¶ 82, 230.
2

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report did not mention B.P.’s distress, and no one at the school was able to explain
adequately what had happened. Am. Compl. ¶¶ 48-53.
In the wake this incident, Quirion and Pollack submitted a formal request
that the school replace B.P.’s classroom teacher, complaining that she was
incompetent, unable to effectively communicate, and dishonest. Am. Compl. ¶ 54.
Quirion also wrote a letter to Moore and the school principal on March 5, 2012,
informing them that she would be placing a voice-recording device on B.P. whenever
he was in school so that she could have some “semblance of peace that he is
safe . . . .” Am. Compl. ¶¶ 54-64.
A day later, the District’s attorney responded in writing. Am. Compl. ¶ 65.
He informed Quirion: (1) that placing a recording device on B.P. would violate state
anti-voyeurism statutes, school rules regarding student use of personal electronics,
and the District’s collective bargaining agreement; (2) that B.P. could attend school
“only on the condition that he does not use an audio recording device during the
school day”; and (3) that Quirion and Pollack’s statements about B.P.’s classroom
teacher constituted defamation per se, and that if they “continue[d] to engage in
these false claims, [they] could face substantial exposure.”3 Am. Compl. ¶¶ 65-67.
District attorneys later repeated their warnings that B.P. would not be allowed to
attend school with a recording device and that B.P.’s parents might face defamation
liability. Am. Compl. ¶ 71-73.

In August of 2012, B.P.’s former classroom teacher served Quirion and Pollack with a notice
of claim alleging that they had defamed her. Am. Compl. ¶ 77.
3

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On April 13, 2012, Quirion and Pollack lodged another formal records
request. Am. Compl. ¶ 79. The District initially refused to turn over many of the
types of documents it had provided in April of 2011. Am. Compl. ¶ 79-80. It later
agreed to produce them only if Quirion and Pollack paid the District over $2,600.
Am. Compl. ¶ 79-84.
In May of 2012, Pollack attended a school board meeting where a proposal to
grant tenure to B.P.’s classroom teacher was on the agenda. Am. Compl. ¶ 86.
Pollack planned to speak in opposition to the proposal during the meeting’s public
comment period. Am. Compl. ¶ 86. After arriving, he reviewed the printed guide
distributed to attendees and noticed that it contained a policy stating that “[n]o
complaints or allegations will be allowed at Board meetings concerning any person
employed by the school system.” Am. Compl. ¶ 87. Because of the policy, he decided
not to speak, and the teacher was ultimately granted tenure. Am. Compl. ¶¶ 88, 91.
In June of 2012, the District agreed to assign B.P. a new classroom teacher.
Am. Compl. ¶ 63. That same month, Quirion sent the District a formal request for
accommodation under the Americans with Disabilities Act (the “ADA”) asking that
B.P. be allowed to carry a voice recording device so he could “tell” his parents about
his day at school despite his communication disability. Am. Compl. ¶ 101. Although
the District’s attorney acknowledged receipt of the request, no response was given
until August 30, 2012, when Quirion notified the District’s attorney that she was
treating the District’s failure to respond as an implicit approval of her request. Am.
Compl. ¶¶ 102, 104. The attorney begged Quirion’s indulgence, but Quirion insisted

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that she would be sending B.P. to school with a recording device. Am. Compl. ¶ 105.
Moore responded that B.P. would not be permitted to come to school with the
recording device. Am. Compl. ¶ 106.
On September 4, 2012, the first day of the 2012-2013 academic year, Moore
met Quirion at the front door when she was dropping B.P. off for school in the
morning. Am. Compl. ¶ 122. Moore asked Quirion if B.P. was wearing a recording
device. Am. Compl. ¶ 123. Quirion responded that “the District would not find a
recording device on B.P.” Am. Compl. ¶ 123. At some point later that school day,
Allen opened a pocket attached to B.P.’s shoe, found a novelty eraser and a folded
note inside, and opened and read the note. Am. Compl. ¶¶ 125-28. Allen later
claimed she had been looking for a key to the padlock on B.P.’s locker. Am. Compl.
¶ 128. Quirion and Pollack learned about the incident only when the District tried
to use the content of the note as evidence against them at a due process hearing
near the end of October of 2012.4 Am. Compl. ¶¶ 130-143.
Eventually, school officials told Quirion that they would accommodate B.P.’s
ADA request for a recording device by designing an improved daily report form, but
the new form provided the same level of information as the previous form. Am
Compl. ¶ 108. As a result of the District’s refusal to let B.P. wear an audio recording
device, B.P.’s parents have failed to learn about important incidents at school. Am.
Citing Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30 (1st Cir. 2001),
the Defendants ask the Court to consider a transcript of Allen’s testimony during the IDEA due
process hearing in which Allen explained why she looked into B.P.’s shoe pocket and described the
contents of the note she found. Ex. A to Defs.’ Reply Mem. (ECF No. 21-1). Under the general rule,
“[c]onsideration of documents not attached to the complaint, or not expressly incorporated therein, is
forbidden, unless the proceeding is properly converted into one for summary judgment . . . .”
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). The narrow exception set forth in Alternative Energy
does not apply to a transcript of disputed testimony.
4

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Compl. ¶¶ 109-110. For instance, in April of 2013, Quirion noticed unexplained
bruises on B.P.’s forearms, which a doctor determined were consistent with grab
marks. Am. Compl. ¶¶ 146, 154.
Although the District justified its recording prohibition by referencing a
Maine anti-voyeurism law, the District allows other disabled students to use audiorecording devices during the school day without taking measures to protect the
privacy of their peers. Am. Compl. ¶¶ 65, 120. District representatives have told
Quirion and Pollack that the reason B.P. is treated differently is that B.P. and his
parents want to monitor the behavior of school officials and employees, while the
other students use recording devices for school-sanctioned purposes. Am. Compl.
¶ 121.
Since the fall of 2010, Quirion and Pollack have shared their concerns about
the District with reporters and columnists for media outlets. Am. Compl. ¶ 162.
They claim that they “have acted not only . . . to advocate for B.P. and his education,
but also to inform the public of the District’s actions and inaction and to advocate
for the right of all students and parents to obtain information about the District’s
operations . . . .” Am. Compl. ¶ 165.
PROCEDURAL HISTORY
In September of 2012, Quirion and Pollack filed a due process hearing
request pursuant to the IDEA and Maine special education regulations seeking
orders requiring the District to allow B.P. to carry a recording device during the
school day and requiring the District to turn over certain records. Am. Compl.
7

¶¶ 135-36. A hearing officer held a full evidentiary hearing on Quirion and Pollack’s
due process hearing request. Am. Compl. ¶¶ 143-44. In an order issued in December
of 2012, the hearing officer denied Quirion and Pollack’s requests for relief. Am.
Compl. ¶ 145.
The Plaintiffs filed this suit in March of 2013, Compl. (ECF No. 1), and then
amended their complaint in May. Count I, which the Plaintiffs bring against the
District, seeks judicial review of the due process hearing officer’s decision under the
IDEA. Am. Compl. ¶¶ 166-70; see also Attach. 1 to Am. Compl. 1 (ECF No. 1-1).
Counts II through X assert various other claims against the District under the
First, Fourth, and Fourteenth Amendments of the United States Constitution, Title
II of the ADA, Section 504 of the Rehabilitation Act of 1973, and the IDEA. ¶¶ 171241. Count II asserts a claim against Smith, and Counts II and V assert claims
against Allen. See Am. Compl. ¶¶ 171, 191.
The Defendants’ motion seeks the dismissal of Counts II through X under
Federal Rule of Civil Procedure 12(b)(6). The Court held oral argument on the
Defendants’ motion on the morning of March 10, 2014. That afternoon, the
Defendants filed notice alerting the Court to a recent First Circuit decision
regarding standing, Blum v. Holder, No. 13-1490, 2014 WL 888918 (1st Cir. Mar. 7,
2014). Notice of Supplemental Authority 1 (ECF No. 26). The filing contends that
the Plaintiffs lack standing to bring Count VII. Notice of Supplemental Authority 2.
The Court sought and received additional briefing on the standing issue from both

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parties. Notice (ECF No. 28); Pls.’ Supplemental Mem. (ECF No. 30); Defs.’
Supplemental Mem. (ECF No. 31).
LEGAL STANDARDS
Federal Rule of Civil Procedure 8(a)(2) requires a civil complaint to contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” “A ‘short and plain’ statement need[ ] only” provide “enough detail to” allow
“a defendant ‘fair notice of what . . . the claim is and the grounds upon which it
rests.’” Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, a complaint
cannot rest on legal conclusions or generic “the defendant-unlawfully-harmed-me
accusation[s]” alone. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). It “must contain
enough factual material ‘to raise a right to relief above the speculative level . . . .’”
Ocasio-Hernández, 640 F.3d at 12 (quoting Twombly, 550 U.S. at 555). Cf., Valentin
v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir. 2001).
Federal Rule of Civil Procedure 12(b)(6) permits a party to move to dismiss a
complaint on the grounds that the plaintiff failed “to state a claim upon which relief
can be granted.” Dismissal under Rule 12(b)(6) is warranted only if a complaint fails
to meet the limited notice pleading requirement imposed by Rule 8(a)(2). OcasioHernández, 640 F.3d at 11-12.
Federal Rule of Civil Procedure 12(b)(1) permits a party to move to dismiss a
complaint on the grounds that the court “lack[s] . . . subject-matter jurisdiction” to
hear the case because the plaintiff lacks standing. See Blum, 2014 WL 888918 at *4.
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In assessing standing, the court must “accept as true all material allegations of the
complaint” and “construe the complaint in favor of the complaining party.” Warth v.
Seldin, 422 U.S. 490, 501 (1975). “[I]n practice,” the standard applied to determine
standing “differs little from that used to review motions to dismiss” under Rule
12(b)(6). Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101, 104 (1st Cir. 1995); cf.,
Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir. 2001).
DISCUSSION
I.

IDEA Preemption
Before discussing the merits of the individual counts in the Amended

Complaint, the Court addresses the Defendants’ contention that Counts II, III, IV,
VIII, IX, and X are preempted by the IDEA, codified at 20 U.S.C. §§ 1400-1482.
A.

The Governing Law
1.

General Statutory & Regulatory Framework

The IDEA “is a comprehensive statutory scheme” passed by Congress to
ensure that “all children with disabilities have available to them a free appropriate
public education” (“FAPE”), and “that the rights of children with disabilities” and
their “parents . . . are protected.” 20 U.S.C. § 1400(d)(1)(A)-(B); Frazier v. Fairhaven
Sch. Comm., 276 F.3d 52, 58 (1st Cir. 2002).
A state that chooses to receive federal funds under the IDEA “must offer
every disabled child within its jurisdiction a FAPE.” Sebastian M., 685 F.3d at 84;
see also 20 U.S.C. § 1412(a)(1), (5). In order to provide a FAPE, a school must create
an IEP for each disabled student and then follow it. D.B. ex. rel. Elizabeth B. v.

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Esposito, 675 F.3d 26, 34 (1st Cir. 2012). The IEP is developed by a team composed
of the student’s parents and educators. 20 U.S.C. § 1414(d). If school officials and
parents are not able to reach consensus about what the IEP should contain, the
school officials make the ultimate determination. 05-071-101 Me. Code. R. § VI.2(I)
(LexisNexis 2014); see also 20 U.S.C. §§ 1415(b)(3), 1415(c).
The IDEA “contains a panoply of procedural safeguards designed to assure
that parents will have meaningful input into decisions that affect the education of
children with special needs.” Frazier, 276 F.3d at 58. For instance, school districts
must allow parents “to examine all records” relating to the “provision” of their
child’s FAPE and their child’s identification, evaluation, and educational placement.
20 U.S.C. § 1415(b)(1). The IDEA also requires states to allow students and parents
to lodge formal complaints “with respect to any matter relating” to these topics. 20
U.S.C. § 1415(b)(6)(A).
If the parties cannot resolve the dispute, the student and parents have the
right to demand a hearing by an impartial hearing officer. 20 U.S.C.
§§ 1415(f)(1)(A), (B)(ii). The hearing officer may grant relief on substantive grounds
if the school’s services do not meet the IDEA’s definition of a FAPE. 20 U.S.C.
§ 1415(f)(3)(E).

The

hearing

officer

may

also

grant

relief

if

“procedural

inadequacies” caused: (1) “the child’s right to a [FAPE]” to be “impeded”; (2) “the
parents’ opportunity to participate in the decisionmaking process regarding the
provision of a [FAPE]” to be “significantly impeded”; or (3) “a deprivation of
educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii).

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A party dissatisfied with a hearing officer’s decision may appeal it to a state
court or a federal district court. 20 U.S.C. § 1415(i)(2)(A). The reviewing court “shall
grant such relief as [it] determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii).
2.

IDEA Preemption

The IDEA contains both a savings clause and an exhaustion clause. 20 U.S.C.
1415(l). The savings clause provides that “[n]othing in [the IDEA] shall be
construed to restrict or limit the rights, procedures, and remedies available under
the Constitution, the [ADA], title V of the Rehabilitation Act . . . , or other Federal
laws protecting the rights of children with disabilities.” Id. This is qualified by the
exhaustion clause, which provides that, “before . . . filing . . . a civil action under
such laws seeking relief that is also available under [IDEA],” a party must exhaust
IDEA’s due process hearing procedure “to the same extent as would be required had
the action been brought under [IDEA].” Id. As a whole, § 1415(l) has two purposes:
(1) “to ensure that the IDEA does not restrict rights and remedies” that are
“independently available through other sources of law”; and (2) to ensure that
parties channel IDEA disputes through the administrative procedure Congress
crafted to handle them. Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 29 (1st Cir. 2006).
The First Circuit has explained that where a plaintiff’s “underlying claim is
one of violation of the IDEA,” the plaintiff cannot use another federal statute “to
evade” the IDEA’s “limited remedial structure.” Diaz-Fonseca, 451 F.3d at 29. More
recently, the First Circuit clarified that where a “claim is ‘independently available
through other sources of law,’” the IDEA does not preempt that claim, M.M.R.-Z. ex

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rel. Ramirez-Senda v. Puerto Rico, 528 F.3d 9, 14-15 (1st Cir. 2008) (quoting DiazFonseca, 451 F.3d at 29). Plaintiffs are not “barred from bringing a non-IDEA claim
alongside an IDEA claim” just because “there is some overlap between” them. D.B.,
675 F.3d at 39-40.
B.

Application of the Law to the Claims in this Case

The Plaintiffs core IDEA claim, brought under 20 U.S.C. § 1415(i)(2)(A), is
found in Count I. There, the Plaintiffs seek review of the state due process hearing
officer’s decision that the District did not violate the IDEA either by failing to turn
over certain records or by denying the Plaintiffs’ request that B.P. be allowed to
record his school day.
The Defendants argue that the IDEA preempts Counts II, III, IV, VI, XIII,
IX, and X, or that these claims are subsumed by Count I. In Count II, the Plaintiffs
assert that the District, Moore, and Allen illegally retaliated against them for
exercising their First Amendment rights when it denied them access to records,
threatened them with legal liability, prohibited B.P. from using a recording device,
and searched B.P. in September of 2012. In Count III, the Plaintiffs assert that the
District illegally retaliated against them in the same ways for engaging in conduct
protected by the Rehabilitation Act, a law that applies to recipients of federal
funding and prohibits discrimination against disabled individuals. See D.B., 675
F.3d at 39. In Count IV, the Plaintiffs assert that the District discriminated against
them in violation of the Rehabilitation Act and the ADA, a disability discrimination
law that applies to local governments, when it refused to let B.P. wear a recording
device in school. They claim that the District failed to live up to an affirmative
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obligation imposed by these laws to adopt reasonable modifications to existing
policies, practices, and rules under certain circumstances. In Count IV, the
Plaintiffs assert that the District burdened expression in violation of the First
Amendment when it imposed the recording prohibition. Without the recordings,
they argue, B.P. is unable to engage in a form of expression that would allow him to
inform his parents about his school day. In Counts XIII through X, the Plaintiffs
assert various additional claims for injunctive and declaratory relief.
In this section, the Court analyzes how the law of IDEA preemption applies
to these claims, providing only cursory discussion of the substantive law that
undergirds them. More rigorous discussion of the claims and their legal basis is
provided in subsequent sections, where the Court analyzes the merits of Counts II,
III, IV and VI.
1.

Counts II & III: The Retaliation Claims

In both D.B. and M.M.R.-Z., the First Circuit explained that, because
retaliation claims rest on different proof than IDEA claims, they are not preempted
by the IDEA. D.B., 675 F.3d at 39-41 (Rehabilitation Act and First Amendment
retaliation claims not preempted); M.M.R.-Z., 528 F.3d at 14-15 (Rehabilitation Act
retaliation claim not preempted). Accordingly, Counts II and III, which state claims
of First Amendment retaliation and Rehabilitation Act retaliation, respectively, are
not preempted by the IDEA.
2.

Count IV: The Failure-to-Modify Claims

In a failure-to-modify claim brought under Title II of the ADA or the
Rehabilitation Act, the plaintiff must show that the defendant’s denial of a
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requested modification prevented the plaintiff from “participat[ing]” in or enjoying
the “benefits” of the defendants’ “services, programs, or activities,” or otherwise
“subjected” the plaintiff to “discrimination.” 42 U.S.C. § 12132; Theriault v. Flynn,
162 F.3d 46, 48 n.3 (1998). The plaintiff must also show that the requested
modification was “reasonable.” See 42 U.S.C. §§ 12131(2), 12132. By contrast, an
IDEA claim requires a plaintiff to demonstrate that a school district failed to
provide a disabled student a FAPE or committed an actionable procedural violation.
20 U.S.C. § 1415(f)(3)(E). An ADA or Rehabilitation Act failure-to-modify case is
about whether discrimination occurred, while an IDEA case is about whether a
school’s special education services met a basic, minimum threshold set by statute.
Because the Plaintiffs’ failure-to-modify claims are based on different proof than
their IDEA claim, they are not preempted.
3.

Counts VIII, IX, and X: Additional Claims for Injunctive
and Declaratory Relief

In Count VIII, the Plaintiffs seek an injunction under the IDEA requiring the
District to turn over certain records. Am. Compl. ¶¶ 227-34. In Count IX, the
Plaintiffs seek a declaration that the District’s interpretation of the IDEA and its
regulations regarding which records the District is required to turn over to Quirion
and Pollack is incorrect. Am. Compl. ¶¶ 235-38. In Count X, the Plaintiffs seek a
declaration that they have a right to record B.P.’s school day, whether under the
IDEA, the ADA, the Rehabilitation Act, or the First Amendment. Am. Compl.
¶¶ 239-41.

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The Defendants argue that these claims are preempted by the IDEA and
must be dismissed. The Plaintiffs respond that they are simply seeking alternative
relief and not circumventing the IDEA’s remedial scheme. Given the Plaintiffs’
clarification, the Court construes Counts VIII, IX, and the IDEA portion of Count X
to be specific requests for relief pursuant to 20 U.S.C. § 1415(i)(2), the IDEA’s civil
action provision.
The Defendants’ IDEA preemption argument fails as to the remainder of
Count X, which is brought under Title II of the ADA, Section 504 of the
Rehabilitation Act, and the First Amendment, via the Declaratory Judgment Act.
As discussed above, the IDEA’s savings clause specifically provides that “[n]othing
in [the IDEA] shall be construed to restrict or limit the rights, procedures, and
remedies available under the Constitution, the [ADA], or Title V of the
Rehabilitation Act or any other laws protecting the rights of children with
disabilities . . . .” 20 U.S.C. 1415(l).
In sum, the First Amendment retaliation claim stated in Count II, the
Rehabilitation Act retaliation claim stated in Count III, the ADA and Rehabilitation
Act failure-to-modify claim stated in Count IV, the First Amendment right-to-record
claim stated in Count VI, and the claim for declaratory relief stated in Count X are
not preempted by the IDEA. With the exception of Count X, the Defendants
articulate other merits-based arguments as to why these counts should be
dismissed. The Court analyzes these merits-based arguments below, along with the
Fourth Amendment unreasonable search claim stated in Count V and the First

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Amendment challenge of the District school board’s commenting policy stated in
Count VII. No further analysis is required as to Counts VIII and IX.
II.

First Amendment Retaliation Claims
In Count II, the Plaintiffs claim that the District, Smith, and Allen illegally

retaliated against them for asserting their rights under the First Amendment. They
bring their claims under 42 U.S.C. § 1983. The Defendants assert that the Plaintiffs
have failed to state a claim for relief against any of the Defendants.5
A.

The Governing Law

The First Amendment to the United States Constitution provides that
“Congress shall make no law . . . abridging the freedom of speech, or of the press; or
the right of people to peaceably assemble, and to petition the Government for a
redress of grievances.” U.S. Const. amend. I. The Due Process Clause of the
Fourteenth Amendment incorporates this prohibition to the states. Gitlow v. New
York, 268 U.S. 652, 630 (1927). Section 1983 provides a cause of action to
individuals who are “depriv[ed]” of “any rights, privileges, or immunities secured by
the Constitution or U.S. law” by a “person”6 acting “under color of” state law. 42
U.S.C. § 1983.

Without citation or argument, the Defendants also state that “[t]he individual defendants
are . . . entitled to qualified immunity from liability for any alleged retaliatory actions.” Mot. to
Dismiss 6. Because the Defendants have not explained how the qualified immunity doctrine applies,
the Court does not address the issue.
5

Local governmental bodies like school districts are considered “persons” for § 1983 purposes
and therefore may be named as defendants in a § 1983 case. Monell v. Dep’t of Soc. Servs. of City of
New York, 436 U.S. 658, 690-91 (1978); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). A
plaintiff bringing a § 1983 suit against a governmental body must establish not only that a
constitutional violation occurred, but also that the violation resulted from either: (1) a policy or
custom of the local governmental body, see Monell, 436 U.S. at 690-91; or (2) a discrete action taken
by a local governmental body “policymaker,” an official with the authority to make final decisions on
6

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State actors, including both school districts and individual school officials,
“offend the First Amendment when they retaliate against an individual for
constitutionally protected speech.” González-Droz v. González-Colón, 660 F.3d 1, 16
(1st Cir. 2011); see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 280-81 (1977). To establish a prima facie case of First Amendment retaliation,
a plaintiff must show: (1) that “he or she engaged in constitutionally protected
conduct”; (2) that “he or she was subjected to an adverse action by the defendant”;
and (3) that “the protected conduct was a substantial or motivating factor in the
adverse action.” D.B., 675 F.3d at 26. Regarding the second element, an adverse
action in a First Amendment case is one that “viewed objectively . . . would have a
chilling effect on [the plaintiff’s] exercise of First Amendment rights,” Barton v.
Clancy, 632 F.3d 9, 29 & n.19 (1st Cir. 2011), or that “would deter a reasonably
hardy person from exercising his or her constitutional rights.” D.B., 675 F.3d at 43
n.11. Regarding the third element of a First Amendment retaliation claim,
“‘temporal proximity . . . may serve as circumstantial evidence of retaliation.’”
Hannon v. Beard, 645 F.3d 45, 49 (1st Cir. 2011) (quoting Gayle v. Gonyea, 313 F.3d
677, 683 (2nd Cir. 2002)).
B.

Application of the Law to the Facts of the Case

Quirion and Pollack allege that they engaged in conduct protected by the
Free Speech Clause or the Petition for Redress Clause of the First Amendment on
at least four occasions: (1) when they filed a due process hearing request in October

the body’s behalf. Jett, 491 U.S. at 737. The Defendants have not raised the municipal liability issue,
so the Court does not address it.

18

of 2011; (2) when they filed a due process hearing request in September of 2012; (3)
when they formally requested a new classroom teacher in February of 2012; and (4)
when they formally requested a modification of school policies under the ADA in
June of 2012. For purposes of their motion to dismiss, the Defendants assume that
these actions constitute protected conduct. Mot. to Dismiss 7.
a.

Claim Against the District

The Plaintiffs assert that the District took several adverse actions against
them because they engaged in protected activity. These actions fall into four general
categories: (1) denying Quirion and Pollack access to certain educational records; (2)
telling Quirion and Pollack that B.P.’s classroom teacher would sue them for
defamation if they did not withdraw a petition seeking her replacement and
suggesting to the teacher that she serve a notice of claim on them; (3) refusing to
allow B.P. to attend school while carry a recording device; and (4) searching B.P. on
the first day of the 2012-2013 school year. Am. Compl. ¶ 182. The Defendants argue
that the Plaintiffs fail to sufficiently allege adverse action and causation. Mot. to
Dismiss 7-11.
Although the Defendants state that refusing Quirion and Pollack access to
educational records is not a cognizable adverse action, the only argument they make
in support of this contention is a rehash of their preemption argument. See Mot. to
Dismiss 8. Accordingly, the Court assumes for purposes of deciding the motion that
this action was sufficiently adverse.
The only remaining question with respect to this allegation is whether the
Plaintiffs’ protected conduct was a substantial or motivating factor in the school
19

district’s refusal to provide records. Here, the Plaintiffs have plausibly alleged that
it was. When Quirion and Pollack requested B.P.’s educational records in April of
2011, the school district provided more or less everything they asked for, free of
charge. But when they made similar requests in November of 2011 and April of
2012, school district officials either refused to provide many of the same types of
records or agreed to provide them only if Quirion and Pollack paid a substantial
sum of money. It is at least plausible that the due process hearing request the
Plaintiffs lodged in October of 2011 played a motivating or substantial role in the
District’s change in behavior. Because the Plaintiffs’ First Amendment retaliation
claim survives under at least one of the adverse actions pled in the Amended
Complaint, the Court need not determine whether the other adverse actions alleged
would also support their claim.
b.

Claim Against Allen

The Defendants correctly point out that the only allegation in the Plaintiffs’
complaint that specifically mentions Allen is their charge that she searched B.P.’s
person on the first day of the 2012-2013 school year. The Plaintiffs claim that
Allen’s alleged search of B.P. was an adverse action and that it was brought on by
their protected conduct. The Defendants dispute both contentions.
Regarding the adverse action element, the question is whether Allen’s
conduct “would deter a reasonably hardy person” in the Plaintiffs’ position “from
exercising [their] constitutional rights.” D.B., 675 F.3d at 43 n.11. The Plaintiffs
allege only that Allen opened a pocket on B.P.’s shoe and removed and read a note
inside. While this intrusion appears relatively limited, objective reasonableness
20

inquiries are “generally not susceptible to resolution on a Rule 12(b)(6) motion.”
Bonney v. Washington Mut. Bank, 596 F. Supp. 2d 173, 179 (D. Mass. 2009).
Furthermore, it is at least plausible that the prospect of facing an investigative
search—or subjecting one’s disabled child to an investigative search—might well
chill a reasonably hardy person from engaging in protected expression. By a close
margin, the Plaintiffs have plausibly alleged that Allen took adverse action against
them.
The causation element is more straightforward. The Plaintiffs allege as
protected conduct their request for a modification of school rules to allow B.P. to
carry a recording device to school. Quirion reiterated this request on August 30,
2012, just five days before Allen allegedly searched B.P. This close “temporal
proximity” supports an inference that Allen retaliated against the Plaintiffs because
of their request. For these reasons, the claim against Allen survives the Defendants’
motion to dismiss.
c.

Claim Against Smith

The only allegations in the Amended Complaint which implicate Smith by
name relate to the District’s refusal to turn over certain records to Pollack in June
of 2012 and the search of B.P.’s pocket on September of 2012. With respect to the
records request, the Plaintiffs allege that Smith played a personal role in partially
denying it. This allegation survives for the same reasons described in the discussion
of the Plaintiffs’ First Amendment retaliation claim against the District. Since the
Plaintiffs have a viable claim against Smith based on the District’s June 2012

21

refusal to turn over records, the Court need not reach the issue of whether the
allegations related to the September 2012 search also support a viable claim.
III.

Rehabilitation Act Retaliation Claim
In Count III, the Plaintiffs claim the Defendants illegally retaliated against

them for asserting their rights under the Rehabilitation Act. The Defendants
contend that the Plaintiffs have failed to state a claim for relief.
A.

The Governing Law

To make out a prima facie case of retaliation under the Rehabilitation Act, a
plaintiff must establish: (1) that he or she engaged in conduct protected by the
Rehabilitation Act; (2) that he or she “was subjected to an adverse action by the
defendant,” D.B., 675 F.3d at 41; and (3) that the protected conduct was “the but-for
cause” of the adverse action. See Palmquist v. Shinseki, 689 F.3d 66, 74 (1st Cir.
2012). Under the Rehabilitation Act, an adverse action is “one that might well
dissuade

a

reasonable

person

from

making

or

supporting

a

charge

of

discrimination.” D.B., 675 F.3d at 41.
B.

Application of the Law to the Facts of the Case

As the above recitation of the black letter law shows, there are some
differences between retaliation claims brought under the First Amendment and
retaliation claims brought under the Rehabilitation Act. However, the Defendants
have not pointed to any meaningful distinctions in how these different bodies of law
operate on the facts. Therefore, the Plaintiffs’ Rehabilitation Act retaliation claim
against the District survives for the same reasons their First Amendment
retaliation claim against the District survives.
22

IV.

ADA and Rehabilitation Act Failure-to-Modify Claims
In Count IV, the Plaintiffs claim that the District discriminated against B.P.

when it refused to allow B.P. to bring a recording device to school to record his day.
Plaintiffs bring overlapping claims under Title II of the ADA and Section 504 of the
Rehabilitation Act. The Defendants argue that the Plaintiffs have failed to allege
that they were discriminated against or denied a benefit of a public entity’s services
or programs and that their claim should therefore be dismissed.
A.

Claim under Title II of the ADA
1.

The Governing Law

Congress passed Title II of the ADA to ensure disabled individuals
opportunities equal to those who are not disabled. See 42 U.S.C. § 12101(7)-(8).
Section 202 of the ADA provides 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.” 42 U.S.C. § 12132. This prohibition places an
affirmative obligation on public entities to make modifications to existing rules,
policies or practices in certain circumstances. 42 U.S.C. § 12131(2) (defining
“qualified individual with a disability” as “an individual with a disability who, with
or without reasonable modifications to rules, policies, or practices . . . meets” a
program’s “essential eligibility requirements”); Tennessee v. Lane, 541 U.S. 509,
531-32 (2004) (citing to 42 U.S.C. § 12131(2) as the source of Title II’s requirement
that public entities make reasonable modifications for the disabled); Toledo v.

23

Sanchez, 454 F.3d 24, 39 (1st Cir. 2006) (same); 28 C.F.R. § 35.130(b)(7)
(interpreting Title II to impose obligation to make reasonable modifications).
In a “reasonable modification” case, the plaintiff bears a burden of
establishing: (1) that the defendant is a “public entity”; (2) that the plaintiff has a
“disability”; (3) that the plaintiff is “qualified” to participate in or receive the
benefits of the defendant’s services, programs, or activities; (3) that the plaintiff
informed the defendant of his or her disability and requested a modification of the
defendant’s rules, policies or practices (or that the plaintiff’s disability and need for
a modification was obvious); (4) that the requested modification was “reasonable”;
(5) that the defendant nonetheless refused; and (6) that, as a result, the plaintiff
was not able to “to participat[e] in” or enjoy “the benefits of the [defendant’s]
services, programs, or activities,” or was otherwise “subjected to discrimination.” 42
U.S.C. §§ 12102, 12131, 12132; Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 283 (1st
Cir. 2006); Reed v. LePage Bakeries, Inc., 244 F.3d 254, 258 (1st Cir. 2001) (Title I
“reasonable accommodation” case); Higgins v. New Balance Athletic Shoe, Inc., 194
F.3d 252, 265 (1st Cir. 1999) (Title I “reasonable accommodation” case); Bercovitch
v. Baldwin Sch. Inc., 133 F.3d 141, 152 (1st Cir. 1998) (Title III “reasonable
modification” case).7

The First Circuit has held that “reasonable accommodation” cases brought under Title I of
the ADA, which protects against discrimination by private and state and local government
employers, are persuasive authority in Title II “reasonable modification” cases. Kiman, 451 F.3d at
283 n.9. The logic of that holding applies with equal force to “reasonable modification” cases brought
under Title III of the ADA, which protects against discrimination in places of public accommodation.
Compare 42 U.S.C. §§ 12111, 12112 (applicable provisions of Title I) with 42 U.S.C. §§ 12181, 12182
(applicable provisions of Title III).
7

24

The sixth element is derived from three distinct clauses in Title II’s core antidiscrimination provision: (1) a “participation” clause, which protects the disabled
from being “excluded from participation in . . . the services, programs, or activities
of a public entity”; (2) a “benefits” clause, which protects the disabled from being
“denied the benefits of the services, programs, or activities of a public entity”; and
(3) a “catch-all” clause, which protects the disabled, without qualification, from
being “subjected to discrimination” by a public entity. See 42 U.S.C. §12132. The
“catch-all” clause can fairly be read to cover discrimination against a recipient of
“services, programs, or activities” offered by a public entity. A plaintiff’s allegation
of discrimination by a public entity can therefore survive a motion to dismiss even if
the alleged conduct does not fit within the participation clause or the benefits
clause. See Currie v. Grp. Ins. Comm’n, 290 F.3d 1, 6-7 (1st Cir. 2002); Parker v.
Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000); Kelley v. Mayhew, No. 1:12-cv00390-NT, 2013 WL 5347718, at *5 (D. Me. Sept. 23, 2013).
2.

Application of the Law to the Facts of the Case

There is no dispute that the District is a public entity, that B.P. has a
disability, that B.P. is qualified to attend public school, that B.P.’s parents
requested a modification of school rules on his behalf, or that the District denied the
request. The Defendants make no argument at this stage of the suit that the
Plaintiffs’ request was unreasonable as a matter of law. Instead, they contest only
the sixth element: that refusing B.P.’s request for a modification denied him the
ability to participate in or enjoy the benefits of public education, or otherwise
subjected him to discrimination by the District.
25

The Defendants do not support this argument with citations to authority.
Instead, they label the Plaintiffs’ claim “attenuated,” assert that Plaintiffs have
failed to identify a “benefit” of public education, argue that the allegations are not
plausible in light of the hearing officer’s findings under the IDEA,8 and ask for
dismissal. See Mot. to Dismiss 13; Defs.’ Reply Mem. 3 (ECF No. 21). By focusing on
the Plaintiffs’ purported failure to identify a “benefit” of public education denied to
their son, they fail to explain why the more general catch-all clause does not apply.
Their contention that the Plaintiffs’ allegations “simply do not amount to plausible
allegations that B.P. . . . has been subjected to discrimination” ignores the fact that
a failure to accommodate a reasonable request to modify is itself a form of
discrimination. Mot. to Dismiss 13; 42 U.S.C. § 12101(a)(5); Olmstead v. L.C. ex rel.
Zimring, 527 U.S. 581, 588 (1999). The Plaintiffs have alleged sufficient facts to
state a plausible claim that the District denied a reasonable request to modify a
school policy which, because of B.P.’s disability, prevents him from enjoying the
same quality of public school services as his non-disabled peers.
B.

Claim under Section 504 of the Rehabilitation Act

Whereas Title II prohibits disability discrimination by public entities, Section
504 of the Rehabilitation Act prohibits disability discrimination “under any
program or activity receiving Federal financial assistance.” 29 U.S.C. § 794. Except
for this difference, the two statutes are “to be interpreted consistently,” as Title II
The Defendants’ use of the hearing officer’s findings to rebut the plausibility of the
allegations is misguided. At this stage, the Court limits itself to the four corners of the Amended
Complaint and makes its determinations under the Rule 12(b)(6) standard. Watterson, 987 F.2d at 3.
The contested findings of the hearing officer are not properly considered on a Rule 12(b)(6) motion to
dismiss, especially in a case where the Court will be called on to review those very findings. See 20
U.S.C. § 2015(i)(2)(C)(iii).
8

26

was expressly modeled on Section 504. Theriault, 162 F.3d at 48 n.3. The
Defendants do not dispute that the District receives federal aid. Accordingly, the
analysis of the Plaintiffs’ Title II failure-to-modify claim applies with equal force to
their Section 504 claim. The facts plead as to Count IV are sufficient to survive a
motion to dismiss.
V.

Fourth Amendment Unreasonable Search Claim
In Count V, the Plaintiffs claim that Allen and the District violated the

Fourth Amendment when Allen opened a pocket attached to B.P.’s shoe and opened
and read a folded note she found inside. They bring their claim under 42 U.S.C.
§ 1983. The Defendants respond that Allen is entitled to qualified immunity and
that the Amended Complaint fails to allege that the search9 was unreasonable.
A.

The Governing Law
1.

Unreasonable Searches & Seizures

The Fourth Amendment provides that the federal government shall not
violate “[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures . . . .” U.S. Const. amend. IV.
The Fourteenth Amendment extends this protection “to searches and seizures by
state officers, . . . including public school officials.” Vernonia Sch. Dist. 47J v. Acton,
515 U.S. 646, 652 (1995).
A search takes place when a government official violates an individual’s
“reasonable expectation of privacy,” Katz v. United States, 389 U.S. 347, 361 (1967)
The Defendants also argue that Allen never conducted a search at all, but was just helping
B.P. find a locker key. Mot. to Dismiss 16-17. At this stage of the suit, the Court accepts the
Plaintiffs’ plausible theory that Allen conducted a search for a recording device.
9

27

(Harlan, J., concurring), or “physical[ly] intru[des upon] a constitutionally protected
area in order to obtain information.” United States v. Jones, 132 S. Ct. 945, 951
(2012) (quoting United States v. Knotts, 460 U.S. 276, 286 (1983)) (internal
quotation marks omitted). In assessing a Fourth Amendment challenge at the
motion to dismiss phase, a court must accept the facts as alleged, drawing all
inferences in the plaintiff’s favor, and then, accepting those facts as true, determine
if they constitute an unreasonable search or seizure. See Sanchez v. PereiraCastillo, 590 F.3d 31, 44 n. 6 (1st Cir. 2009).
Two seminal Supreme Court cases govern Fourth Amendment challenges to
searches in school settings: (1) New Jersey v. T.L.O., 469 U.S. 325 (1985), where the
Court ruled on the constitutionality of an impromptu search by a public school
official based on particularized suspicion that a law or school rule had been violated,
T.L.O., 469 U.S. at 341 (holding that search of student’s purse for evidence related
to alleged violation of smoking ban was reasonable); and (2) Vernonia, where the
Court ruled on the constitutionality of a broad, suspicionless administrative search
program in a public school, see Vernonia 515 U.S. at 652 (holding that program
requiring student athletes to undergo drug urinalysis was reasonable).
Under T.L.O., an impromptu search conducted by a public school official
based on particularized suspicion that a law or school rule has been violated is
reasonable if, “under all the circumstances”: (1) the search is “justified at its
inception”; and (2) the search as actually conducted is “reasonably related in scope
to the circumstances which justified the interference in the first place.” T.L.O., 469

28

U.S. at 341 (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)) (internal quotation marks
omitted); see also Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 375-76
(2009). The first prong is satisfied where there is a “moderate chance,” Safford, 557
U.S. at 371, or there are “reasonable grounds for suspecting,” that “the search will
turn up evidence” of wrongdoing. T.L.O., 469 U.S. at 341-42. The second prong is
satisfied “when the measures adopted” to carry out the search “are reasonably
related to [its] objectives . . . and not excessively intrusive in light of the age and sex
of the student and the nature of the infraction.” Id. at 342. In completing this
analysis, courts must grant the “professional judgment” of school officials a “high
degree of deference.” Safford, 557 U.S. at 377.
Under Vernonia, the reasonableness of a suspicionless administrative search
program conducted in a public school is determined “by balancing” the program’s
“intrusion on the individual’s Fourth Amendment interests against its promotion of
legitimate governmental interests.” Vernonia, 515 U.S. at 652-52 (quoting Skinner
v. Ry. Execs.’ Ass’n, 489 U.S. 602, 619 (1989)); accord Bd. of Ed. of Indep. Sch. Dist.
No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 823 (2002). Courts undertaking
this inquiry must consider three factors: (1) “the nature of the privacy interest upon
which the search . . . at issue intrudes”; (2) “the character of the intrusion”; and (3)
“the nature and immediacy of the governmental concern at issue, and the efficacy of
[the] means for meeting it.” Vernonia, 515 U.S. at 654, 658, 660. As applied in
schools, this balancing test “permit[s] a degree of supervision and control that could
not be exercised over free adults.” Id. at 655-56.

29

2.

Qualified Immunity

Where a plaintiff brings a § 1983 claim against an individual public official,
qualified immunity may shield the official from both liability and litigation.
Bergeron v. Cabral, 560 F.3d 1, 5 (1st Cir. 2009). Qualified immunity protects
officials who “make reasonable but mistaken judgments about open legal
questions,” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011), but not those who
“should have known their conduct was unlawful.” Haley v. City of Boston, 657 F.3d
39, 47 (1st Cir. 2011). “[C]ourts should evaluate claims of qualified immunity at the
earliest practicable stage” of a lawsuit. MacDonald v. Town of Eastham, No. 131779, 2014 WL 944707, at *3-4 (1st Cir. Mar. 12, 2014).
An official is entitled to qualified immunity if the court determines that
either: (1) “the facts alleged or shown by the plaintiff” do not “make out a violation
of a constitutional right”; or (2) “the right” the plaintiff’s suit is based on was not
“‘clearly established’ at the time of the defendant’s violation.” Maldonado v.
Fontanes, 568 F.3d 263, 269 (1st Cir. 2009); see also Pearson v. Callahan, 555 U.S.
223, 236 (2009).
Determining whether a right was “clearly established” entails two further
inquiries. First, the court asks “whether ‘the contours of the right were sufficiently
clear that a reasonable official would understand that what he is doing violates that
right.’” Mosher v. Nelson, 589 F.3d 488, 493 (2009) (quoting Maldonado, 568 F.3d at
269). This inquiry “focuses on the clarity of the law at the time of the alleged civil
rights violation.” Maldonado, 568 F.3d at 269. Second, the court asks “whether in
the specific context of the case, ‘a reasonable defendant would have understood that
30

his conduct violated the plaintiffs’ constitutional rights.’” Mosher, 589 F.3d at 493
(quoting Maldonado, 568 F.3d at 269). This inquiry “focuses more concretely on the
facts of the particular case and whether a reasonable defendant would have
understood that his conduct violated the plaintiffs’ constitutional rights.”
Maldonado, 568 F.3d at 269.
B.

Application of the Law to the Facts of this Case
1.

The Claim Against Allen

The Plaintiffs raise three theories as to how Allen’s conduct violated B.P.’s
Fourth Amendment rights: (1) that she initiated the search to enforce a rule that
was itself unlawful, so the search could not have been “justified at its inception”; (2)
that she did not have “reasonable grounds” to believe she would find a recording
device inside the pocket on B.P.’s shoe, so it was unreasonable for her to open it and
look inside; and (3) that she could not have found evidence related to a recording
device inside a folded piece of paper, so removing and reading the note was not
“reasonably related in scope to the circumstances” justifying the search. T.L.O, 469
at 341; see also Am. Compl. ¶ 125; Pls.’ Opp’n 22-23 (ECF No. 18). The Defendants
argue that it was not “clearly established” that Allen’s actions violated the
constitution under any of these theories, so the qualified immunity standard
entitles Allen to dismissal. The Plaintiffs argue in response that T.L.O. and
Vernonia provide clear rules of law and that a reasonable person in Allen’s shoes
could not have failed to appreciate she was violating the Fourth Amendment. Pls.’
Opp’n 23-24.

31

With respect to the Plaintiffs’ first theory—that Allen violated the Fourth
Amendment by initiating a search based on a rule that was itself unlawful—the
school’s no-recording rule touches on murky, undeveloped areas of the law. See
supra Part IV (discussion of Plaintiffs’ failure-to-modify claims); infra Part VI
(discussion of Plaintiffs’ First Amendment right-to-record claim). It was by no
means clearly established that the no-recording rule was unlawful, and a
reasonable person in Allen’s position could have assumed it was a valid rule.
With respect to the Plaintiffs’ second theory—that Allen violated the Fourth
Amendment by opening B.P.’s pocket—the Court agrees that T.L.O. likely governs.
However, a reasonable person in Allen’s position could have thought she had
“reasonable grounds” to conduct a limited search of an exterior shoe pocket that
could hold a recording device. Quirion told school officials five days before the
search that B.P. would be attending school with a recording device. See Am. Compl.
¶¶ 104-105. The morning of the search, Moore asked Quirion if B.P. was carrying a
recording device, and Quirion responded by saying that “the District would not find
a recording device on B.P.” Am. Compl. ¶ 123. Finally, a search of a pocket attached
to a shoe is not particularly intrusive. The precise contours of the school search
“reasonable grounds” and “reasonably related in scope” standards are not
sufficiently clear that a reasonable person in Allen’s position would necessarily have
known whether opening the pocket on the shoe was unconstitutional. See Safford,
557 U.S. at 378.

32

With respect to the Plaintiffs’ third theory—that Allen violated the Fourth
Amendment by removing and reading the note in B.P.’s pocket—the unique features
of this case make it difficult to even determine which Fourth Amendment standard
applies. The Plaintiffs argue that T.L.O. provides the rule of law and that the
search clearly violated its second prong, because Allen could not have found a
recording device inside the note and the search therefore was not “reasonably
related in scope to the circumstances which justified” it. T.L.O., 469 U.S. at 341.
The Court agrees with the Plaintiffs’ factual premise, but not their legal conclusion.
The fact that the note could not have contained a recorder or any evidence related to
one is so obvious that it strains credulity to even characterize the second search as
an extension of the first.
At the time Allen encountered the note, she had worked with B.P. for eight
years. Am. Compl. ¶ 129. She was aware that he was nonverbal and therefore knew
that he could not have written the note or been its intended recipient. Am. Compl.
¶¶ 17, 129. On these facts, it was not clearly established that removing and opening
a note inside a pocket on B.P.’s shoe would even directly implicate T.L.O., which
involved a very different set of circumstances. It is not clear how Vernonia applies
either. There, the Supreme Court outlined the balancing test to be applied to a
drug-testing program, but also stated in more general terms that “when the
government acts as guardian and tutor,” the “relevant question is whether the
search is one that a reasonable guardian and tutor might undertake.” Vernonia, 515
U.S. at 665. This statement suggests that a more general, unbounded standard may

33

apply when a government official takes impromptu action to fulfill a “custodial and
tutelary responsibility,” Vernonia, 515 U.S. at 655; see also Cady v. Dombrowski,
413 U.S. 433, 441 (1973).10 Given the uncertainty about what legal standards apply
in such situations and how much latitude they allow educators, it would not be fair
to say that a reasonable official in Allen’s shoes would have known whether reading
the note was a violation of B.P.’s Fourth Amendment rights. Allen is therefore
entitled to qualified immunity and the charges against her in Count V are
dismissed.
2.

The Claim Against the District

The Plaintiffs argue that “to the extent that Allen was directed or requested
to conduct the search by a member of the District’s administration, the District is
liable . . . for the damages” that ensued. Am. Compl. ¶ 204. They also ask the
Court to infer that a member of the District’s administration directed Allen to
search B.P. Am. Compl. ¶ 133. The requested factual inference is plausible,11
though the legal contention that precedes it—that the District is liable for any
action encouraged by a member of its administration—is at best an imprecise
statement of the law of § 1983 municipal liability. The Defendants failed to contest
In Dombrowski, the Court recognized the reasonableness of a search conducted by a police
officer in order to carry out a “community caretaking” function “totally divorced from the detection”
or “investigation” of wrongdoing, but did not explain the exact test or methodology it used to reach
its conclusion. Dombrowski, 413 U.S. at 441. The Supreme Court has not again applied the
community caretaking function doctrine and its reach and content remain “poorly defined.”
MacDonald, 2014 WL 944707, at *3-4.
10

Quirion told school officials five days before the search that B.P. would be attending school
with a recording device. See Am. Compl. ¶¶ 104-105. The morning of the search, Moore asked
Quirion if B.P. was carrying a recording device, and Quirion responded by saying only that “the
District would not find a recording device on B.P.” Am. Compl. ¶ 123 (emphasis added). It is
plausible that school administrators informed Allen about these incidents and that she opened the
pocket on B.P.’s shoe at their behest.
11

34

the issue, so the Court assumes for purposes of resolving this motion that the
Plaintiffs’ statement of the law is correct.
Regarding Allen’s conduct in opening the pocket on B.P.’s shoe, the discussion
of Counts IV and VI shows that the Plaintiffs have alleged sufficient facts to state a
plausible claim that the recording prohibition violated the ADA and the First
Amendment. If the prohibition was unlawful, then the initial search of the pocket
on B.P.’s shoe might not have been “justified at its inception.” T.L.O., 469 U.S. at
341. Because the District is a municipality, not an individual, it cannot avail itself
of the qualified immunity defense that shielded Allen. See Walden v. City of
Providence, R.I., 696 F.3d 38, 55 n.23 (1st Cir. 2010). The Plaintiffs’ claim against
the District survives on at least one basis, so the Court need not address the
Plaintiffs’ additional theories.
VI.

First Amendment Right-to-Record Claim
In Count VI, the Plaintiffs claim that the District’s recording device

prohibition violates the First Amendment. They argue that the prohibition impinges
both B.P.’s right to “tell” his parents about the events of his school day, including
details that might paint school officials in a negative light, and his parents’ rights to
gather and receive information about government officials.
The Defendants articulate three different arguments for dismissal: (1) that
the recordings the Plaintiffs seek to make have no communicative element, and are
therefore not entitled to any First Amendment protection; (2) that the Plaintiffs’
request to record implicates only private concerns, so First Amendment protections
are not available in this context; and (3) that schools are nonpublic forums and the
35

District’s refusal to allow unlimited, full-time recording of B.P.’s school day survives
the standard applicable in such settings, as it is both reasonable and viewpointneutral. Mot. to Dismiss 20-24.
The cases interpreting the First Amendment create a kaleidoscope of tests
which are narrowly applicable in different factual contexts. As one prominent
constitutional scholar has observed, “it is not possible to comprehensively flowchart
the First Amendment as a defined series of questions in a required sequential
order.” Erwin Chemerinsky, Constitutional Law § 11.1.3 (3d ed. 2006). The
Defendants’ motion does little to clarify which standards apply or why. For now, the
Court lays out a general framework for assessing First Amendment challenges,
discusses the law necessary to understand the Defendants’ arguments, and then
applies that law, tackling each of the Defendants’ arguments in turn.
A.

The General First Amendment Framework

Generally speaking, a First Amendment challenge proceeds in three steps.
See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797 (1985). In the
first step, the plaintiff bears the burden of “demonstrat[ing] that the First
Amendment even applies” to the activity he or she claims is protected as expression.
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). If the
conduct or speech is protected, the court proceeds to the second step to analyze the
context in which the expression took place and determine which First Amendment
standard or standards apply. See Cornelius, 473 U.S. at 797. In the third step, the
court assesses whether the government’s justifications for restricting the conduct or
speech satisfy the applicable standard or standards. Id.
36

B.

Application of the General Framework to the Facts of the Case
1.

Step One: Determining Whether the First Amendment
“Even Applies”

The Defendants’ first argument—that the recordings the Plaintiffs seek to
make do not implicate the First Amendment at all—requires analysis under the
first step of the framework. The First Amendment “looks beyond written or spoken
words as mediums of expression” and provides protection for a wide range of
expressive activities. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston,
515 U.S. 557, 569-70 (1995). However, the Supreme Court has explicitly rejected
the idea “that an apparently limitless variety of conduct can be labeled ‘speech’
whenever the person engaging in the conduct intends thereby to express an idea.”
United States v. O’Brien, 391 U.S. 367, 376 (1968).
Activities that are not intuitively expressive may implicate the First
Amendment because they facilitate speech. See Minneapolis Star & Tribune Co. v.
Minnesota Comm’r of Revenue, 460 U.S. 575 (1983) (state tax on ink and paper
violated First Amendment); Citizens United v. FEC, 558 U.S. 310 (2010) (federal
law prohibiting corporations from spending general treasury funds on campaign ads
violated First Amendment). “Laws enacted to control or suppress speech may
operate at different points in the speech process.” Citizens United, 558 U.S. at 33637.
The First Circuit found in Glik v. Cunniffe that the First Amendment
encompasses a right to make audiovisual recordings of government officials working
in public places, subject to restrictions normally allowed in public forums. Glik v.
37

Cunniffe, 655 F.3d 78, 82-84 (1st Cir. 2011). The court held that Glik, a member of
the public but not the press, had a right to film an arrest in the Boston Common
which he thought was excessively forceful. Id. “Gathering information about
government officials in a form that can readily be disseminated to others serves a
cardinal First Amendment interest in protecting and promoting ‘the free discussion
of governmental affairs.’”12 Id. (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).
Glik seems to answer the Defendants’ argument that the Plaintiffs’ claim
does not implicate the First Amendment at all. Like Glik, the Plaintiffs claim a
right to make a recording needed to later express their message. While Glik may be
distinguishable because it took place in a traditionally public forum and only
involved the videotaping of a single act of official abuse, these differences go to
which First Amendment standard applies, not whether the First Amendment
applies at all. At a minimum, Glik stands for the principle that producing a
recording with a plan to share it with others can be a communicative act and
carries at least some First Amendment protection.13

Accord Am. Civil Liberties Union of Il. v. Alvarez, 679 F.3d 583, 586 (7th Cir. 2012) (state law
prohibiting audio-recording conversation unless all parties consent is content-neutral but likely fails
First Amendment intermediate scrutiny); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995)
(recognizing “First Amendment right to film matters of public interest”); Smith v. City of Cumming,
212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing First Amendment protects a “right to record
matters of public interest”); Demarest v. Athol/Orange Cmty. Television, Inc., 188 F. Supp. 2d 82, 9495 (D. Mass. 2002) (recognizing a “constitutionally protected right to record matters of public
interest”); Cirelli v. Johnston Sch. Dist., 897 F. Supp. 666, 665-69 (D.R.I. 1995) (teacher has right to
film potential health hazard in school, subject to restrictions normally allowable in public employee
speech cases); Connell v. Town of Hudson, 733 F. Supp. 465, 471-72 (D.N.H. 1990) (photojournalist
has right to photograph car accident victim).
12

The Defendants do not clearly press any argument that this count should be dismissed to the
extent Pollack and Quirion bring it as individual parents, as opposed to as next friends of B.P., so the
Court does not address that issue.
13

38

2.

Step Two: Determining
Standards to Apply

Which

First

Amendment

Because the Plaintiffs have alleged enough to make out a plausible claim that
the recordings they seek to make would be communicative, the Court analyzes
which First Amendment standards apply. The Defendants argue that the Court
should allow the Plaintiffs to proceed only if they satisfy the “public concern” test.
Even if the Plaintiffs can establish that their expression implicates a matter of
public concern, the Defendants argue that the District’s prohibition should only
have to meet the relaxed “reasonableness” standard applicable in non-public
forums.
Typically, the public concern test is applied in public employee speech cases
and cases involving common law torts, such as defamation or libel.14 There may be
arguments in favor of applying the public concern test in cases involving the right to
record15 or in cases involving student expression at school.16 There may also be
arguments that the Court should apply the nonpublic forum standard to schools

See, e.g., Pickering v. Bd. of Educ. of Township High Sch. Dist. 205, Will Cty., Il., 391 U.S.
563 (1968) (public employee speech case); Connick v. Myers, 461 U.S. 138, 146 (1983) (same); Gertz v.
Robert Welch, Inc., 418 U.S. 323 (1974) (state tort case); Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S. 749 (1985) (same); Snyder v. Phelps, 131 S. Ct. 1207 (2011) (same).
14

Federal appeals courts which have recognized a right to record have noted that the facts
before them implicated matters of “public interest,” though these courts did not apply or invoke the
public concern test. Glik, 655 F.3d at 85; Fordyce, 55 F.3d at 439; Smith v. City of Cumming, 212
F.3d at 1333.
15

Tinker v. Des Moines Indep. Com. Sch. Dist., 393 U.S. 505 (1969) (striking down a rule
banning students from wearing black armbands to protest the Vietnam War clearly involved a
matter of public concern, but the Court did not apply the public concern test).
16

39

while they are in session, at least as to parents.17 But as the Plaintiffs point out,
there are also arguments that “the special characteristics of the school
environment” require applying school-specific standards.18 The parties have not
adequately developed these theories and the Court is reluctant to adopt a standard
without more detailed briefing. For purposes of resolving this motion, however, the
Court may bypass the question, because the Plaintiffs’ complaint makes out a
plausible claim for relief even if the standards proposed by the Defendants apply.
3.

Step Three: Applying, for Purposes of Motion to Dismiss,
the Defendants’ Proposed First Amendment Standards
a.

“Public Concern” Analysis

Speech involves a matter of public concern if the speaker’s “expression can
fairly be considered to relate to ‘any matter of political, social, or other concern to
the community.’” Davignon v. Hodgson, 524 F.3d 91, 100 (1st Cir. 2008) (quoting
Myers, 461 U.S. at 146). To determine whether speech is of “public concern” or
“private concern,” the court must engage in a “case-specific, fact-dependent inquiry,”
examining the “‘content, form, and context” of the speech “as revealed by the whole
record.” Id. (quoting Myers, 461 U.S. at 147-48). No one factor is dispositive, but it is
important to “evaluate all the circumstances of the speech,” including “what was

See, e.g., S.H.A.R.K. v. Metro Parks Serving Summit Cty., 499 F.3d 553 (6th Cir. 2007)
(detailed discussion of right of access issues); Mejia v. Holt Pub. Sch., No. 5:01-cv-116, 2002 WL
1492205 (W.D. Mich. Mar. 12, 2002) (detailed discussion of the limitations of parents’ rights of access
to schools); Erwin Chemerinsky, Constitutional Law § 11.6.3 (3d ed. 2006) (“[C]reating a [First
Amendment] right of access to government places and papers might be seen as better accomplished
through statutes, such as freedom of information acts and open meeting laws, that can be drawn
with specificity and balance competing interests.”).
17

See, e.g., Tinker, 393 U.S. at 513-14; Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682-86 (1986);
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988); Morse v. Frederick, 551 U.S. 393, 404
(2007).
18

40

said, where it was said, and how it was said.” Snyder, 131 S. Ct. at 1216. Despite
the fact-intensive nature of the public concern inquiry, it is made by the court as a
matter of law. See Davignon, 524 F.3d at 100-101 & n.4.
The Plaintiffs cite Cirelli v. Johnston Sch. Dist., 897 F. Supp. 663 (D.R.I.
1995) for the proposition that “the health and safety of [school] staff and students is
a matter of public concern.” Cirelli, 897 F. Supp. at 666. These kinds of categorical
statements are not enough to win the day. See Snyder, 131 S. Ct. at 1216; Davignon,
524 F.3d at 100. That the expression at issue colorably touches on an important
sphere of community life weighs in favor of a “public concern” determination, but it
is not ultimately determinative.
Most of what B.P. seeks to record would probably not touch on weighty public
issues. Much of it, one would assume, would be both personal and mundane. On the
other hand, the District’s prohibition is total: B.P. can never attend school with a
recording device. Am. Compl. ¶¶ 66, 78, 106. The Plaintiffs have alleged that B.P.
was unexplainably harmed at school on two occasions and that the District’s daily
reports do not always match the events that actually transpire during the day.19
The school’s prohibition deprives B.P. of a communicative tool which might allow
him to shed light on these issues and confirm or dispel his parents’ suspicions of
abuse. While these issues are especially important to B.P. and his family, they are
serious enough to implicate community concerns as well.
See, e.g., Am. Compl. ¶¶ 43-53 (B.P.’s unexplained extreme distress on February 10, 2012);
Am. Compl. ¶¶ 146-58 (unexplained bruises on B.P.’s arms on April 29, 2013); Am Compl. ¶¶ 122134 (unreported search of B.P. by Allen on September 4, 2012); Am. Compl. ¶ 111 (unreported
incident of B.P. wandering into lunch room by himself during 2010-2011 school year).
19

41

Additionally, though any recordings B.P. might make of his school day would
likely only be played for his parents at home, B.P. depends on his parents to speak
for him in the broader community. Further, the Plaintiffs have alleged that any
abuses uncovered by recording B.P.’s school day would be used in a greater struggle
to improve the quality of special education in the school district as a whole. See Am.
Compl. ¶ 165. Allegations that they have been interviewed by members of the media
about B.P.’s situation at school support this claim. Am. Compl. ¶ 163.
To the extent that the public concern test applies, the Plaintiffs have alleged
enough to make out a claim that the District’s total ban on B.P.’s audio-recording
relates to a matter of political, social, or other concern to the community.
b.

“Non-public Forum” Analysis

Regulations of speech in non-public forums “must be . . . both viewpoint
neutral and reasonable to be constitutional.” Del Gallo v. Parent, 557 F.3d 58, 72
(1st Cir. 2009). “The reasonableness of a regulation” in a non-public forum “is
weighed ‘in light of the purposes served by the forum.’” Id. (quoting Ridely v. Mass.
Bay Transp. Auth., 390 F.3d 65, 82 (1st Cir. 2004)). Viewpoint neutrality “demands
that the state not suppress speech where the real rationale for the restriction is
disagreement with the underlying ideology or perspective that the speech
expresses.” Ridley, 390 F.3d at 82. A regulation is not viewpoint neutral if it “denies
access to a speaker solely to suppress the point of view he espouses.” Cornelius, 473
U.S. at 806.
Here, the Plaintiffs allege that the District has justified its restriction on B.P.
by invoking the privacy interests of other students, but that it allows some of B.P.’s
42

peers to make recordings in school without taking any privacy precautions. Am.
Compl. ¶¶ 65, 120. According to the Plaintiffs, District representatives have
explained this disparate treatment by noting that B.P. and his parents “are seeking
to monitor the behavior of school officials and employees, while the other students
are recording for a school-sanctioned purpose.” Am. Compl. ¶ 121. Accordingly, the
Plaintiffs have plausibly alleged that the “real rationale” for the District’s
restriction is its “disagreement with the underlying . . . perspective” that B.P. and
his parents plan to express. Ridley, 390 F.3d at 82. That smacks of viewpoint
discrimination. See id. Assuming without deciding that the First Amendment
standards which the Defendant identifies apply, Plaintiffs’ Count VI survives.
VII.

First Amendment Challenge of School Board Meeting Commenting
Policy
In Count VII, the Plaintiffs claim that a District policy prohibiting members

of the public from making “complaints or allegations . . . concerning any person
employed by the school system” during the public comment period of school board
meetings violates the First Amendment and should be struck down. Am. Compl.
¶¶ 86-87. Though the Plaintiffs allege that the existence of the policy caused Pollack
to self-censor his speech at one meeting in the past, the policy has never been
enforced against the Plaintiffs and they seek only injunctive relief. Am. Compl.
¶¶ 88, 219, 226. The Defendants contend that the Plaintiffs have not plausibly
alleged that the policy is unconstitutional and that the Plaintiffs lack standing to
bring their challenge. Mot. to Dismiss 20-24; Defs.’ Supplemental Mem. 1-6.

43

Because the Court finds that the Plaintiffs lack standing, the Court need not
address whether Count VII otherwise states a claim for relief.
Article III of the United States Constitution restricts the jurisdiction of
federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. Under this
restriction, a party asserting federal jurisdiction carries the burden of establishing
constitutional standing. Blum, 2014 WL 888918, at *4.
In a case like this one, involving a pre-enforcement First Amendment
challenge of a statute or rule, a plaintiff seeking to establish standing must show
that: “(i) she has suffered an actual or threatened injury in fact, which is (ii) fairly
traceable to the statute [or rule], and (iii) can be redressed by a favorable decision.”
Ramírez v. Sánchez Ramos, 438 F.3d 92, 97 (1st Cir. 2006). An “injury in fact” is
“an invasion of a legally protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotation marks omitted).
A plaintiff may satisfy the injury in fact requirement in the pre-enforcement context
if she either: (1) “‘allege[s] an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by [the] statute [or rule], and
there exists a credible threat of prosecution,’” Mangual v. Rotger-Sabat, 317 F.3d 45
(1st Cir. 2003) (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)); or (2) “‘is chilled
from exercising her right to free expression or forgoes expression in order to avoid
enforcement consequences.’” Id. at 58 (quoting N.H. Right to Life Political Action
Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996))).

44

Mere “[a]llegations of a subjective ‘chill’” cannot satisfy the injury in fact
requirement. Laird v. Tatum, 408 U.S. 1, 13-14 (1972). However, the precise
standard that does apply is somewhat unclear in the wake of the Supreme Court’s
recent decision in Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013).
Before Clapper, the First Circuit allowed pre-enforcement First Amendment
challenges to go forward if the plaintiff could show she had an “objectively
reasonable” fear of prosecution. See, e.g., Nat’l Org. for Marriage v. McKee, 649 F.3d
34, 48 (1st Cir. 2011); Ramírez, 438 F.3d at 99. But Clapper “may have adopted a
more stringent injury standard,” given its holding that a First Amendment suit
premised on a fear of future injury survives only if the injury is “certainly
impending.” Blum, 2014 WL 888918, at *4; see Clapper, 133 S. Ct. at 1147. Under
either standard, “a plaintiff must establish with specificity that she is ‘within the
class of persons potentially chilled.’” Nat’l Org. for Marriage, 649 F.3d at 47
(quoting Osediacz v. City of Cranston, 414 F.3d 136, 142 (1st Cir. 2005)).
The Plaintiffs allege that in May of 2012, Pollack attended a school board
meeting where a proposal to grant tenure to B.P.’s classroom teacher was on the
agenda. Pollack intended to voice his reservations about the teacher during the
meeting’s public comments period but decided not to after he received a pamphlet
containing the board’s policy. The Plaintiffs claim Pollack changed his mind for two
reasons: (1) he was worried that the chairperson might deem his comments
“‘complaints or allegations,’” in violation of the policy, and declare him to be
“disrupt[ing] . . . the meeting”; and (2) based on earlier threats leveled by RSU 75

45

attorneys, he was concerned that the District and the classroom teacher might sue
him for defamation. Am. Compl. ¶ 88.
In their supplemental memorandum, the Plaintiffs make much of these
earlier threats. Pls.’ Supplemental Mem. 4. They may be relevant to the Plaintiffs’
First Amendment retaliation claim, but they carry no water here. An injury is
“fairly traceable” to a challenged statute or rule if it is “not the result of the
independent action of some third party not before the court.” Lujan, 504 U.S. at 660
(internal citations, quotation marks, brackets and ellipses omitted). Any injury
caused by independent threats made by RSU 75 attorneys is not “fairly traceable” to
the school board’s public commenting policy.
Although the Amended Complaint alleges that the school board’s policy “will
continue” to “harm and injure” the Plaintiffs “into the future,” Am. Compl. ¶¶ 22526, the Plaintiffs fail to alleged any specific facts to support this claim. They make
no claim that they plan to attend to future school board meetings to make critical
comments about staff members. Cf. Nat’l Org. for Marriage, 649 F.3d at 47. Though
they seek only an injunction to forestall future harm, their claim is essentially
backward-looking, focusing on a single incident in the past. Their abstract claims
that they will suffer harm and injury in the future, without specifying how, are the
very types of conclusory allegations Iqbal and Twombly instruct district courts to
set aside. The Plaintiffs’ failure to demonstrate any ongoing harm or objectively
reasonable fear of prosecution is fatal to their assertion that they have standing to
bring this challenge.

46

CONCLUSION
Regarding the Plaintiffs’ claims against the District, the Defendants’ motion
to dismiss is DENIED with respect to Counts II, III, IV, V, VI, and X, but
GRANTED with respect to Count VII. Counts VIII and IX are construed as
alternate prayers for relief under Count I. Regarding the Plaintiffs’ claim against
Smith in Count II, the Defendants’ motion to dismiss is DENIED. Regarding the
claims against Allen, the Defendants’ motion is DENIED with respect to Count II
but GRANTED with respect to Count V.

SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 31st day of March, 2014.

47