Doe v. League School of Greater Boston Inc et al

Filing 68

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER DENYING 24 MOTION to Dismiss for Lack of Jurisdiction Count I of Plaintiffs' Complaint. (DaSilva, Carolina)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
JANE DOE, individually and as Mother
and Next Friend of J.D., a Minor,
Plaintiff,
v.
THE LEAGUE SCHOOL OF GREATER
BOSTON, INC., FRANK GAGLIARDI,
PATRICK FULLER, SEAN BERTONI,
and DONNA GRIFFIN,
Defendants.

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Civil Action No. 16-cv-11940-IT

MEMORANDUM & ORDER
August 21, 2017
TALWANI, D.J.
Plaintiff Jane Doe’s disabled child, J.D., was placed at Defendant The League School of
Greater Boston, Inc. (the “School”) for special education services. Doe alleges that a seventeen
year-old residential student at the School showed J.D. pornographic material and sexually
molested J.D., and that the School did not take proper action to protect J.D after learning of that
conduct. Count I of the Complaint asserts that the School thereby violated Title IX of the
Education Amendments of 1972, 20 U.S.C. § 1681(a). The School, arguing that it is not a
recipient of federal funds, has moved to dismiss this Count for failure to state a claim upon
which relief can be granted. Mot. Dismiss Count I of Pls.’ Compl. [“Mot. Dismiss”] [#24]. For
the reasons set forth below, the motion is DENIED.
I.

Facts as Alleged in the Complaint
The School is a private day and residential school that provides special education services

for students with autism spectrum disorder. Compl. ¶¶ 2, 10 [#1]. At the time of the events

giving rise to this case, J.D. was an eleven-year-old disabled student with autism spectrum
disorder, mood disorder, and post-traumatic stress disorder. Id. ¶ 8. In January 2014, J.D.’s
public school district placed him at the School to receive special education services in
compliance with his Individualized Education Plan. Id. ¶¶ 8-9. In September 2014, J.D.’s
placement changed from day student to residential student. Id. ¶ 11. J.D. lived in a schooloperated home staffed by School employees twenty-four hours per day. Id. ¶¶ 12-13.
In December 2014, School staff learned that A.B., a seventeen-year-old residential
student living in the same residence as J.D., showed J.D. pornographic photographs and/or
videos on A.B.’s portable PlayStation device. Id. ¶ 14. On December 19, 2014, Doe expressed
concerns to the School that J.D. was living with older students and was being shown sexually
explicit material. Id. ¶ 16. The School did not report A.B.’s conduct to the Massachusetts
Department of Children and Families, did not remove A.B. from J.D.’s residential home, and did
not take any other action to separate A.B. and J.D. Id. ¶ 17.
In June 2015, J.D. reported to School staff that A.B. had exposed himself to J.D., had
pulled down J.D.’s pants on multiple occasions, and had touched J.D.’s genitals. Id. ¶ 18. These
events also occurred at the School-operated residence. Id. A.B., who admitted he had committed
these acts, was removed from the residence but continued to attend the School. Id. ¶¶ 19-20. The
School did not report these events to the Massachusetts Department of Children and Families. Id.
¶ 21.
From the summer of 2015 to late September 2015, J.D. exhibited symptoms of severe
emotional distress. Id. ¶¶ 22-24. On September 24, 2015, Doe met with School staff to discuss
the extent of the molestation, and following that meeting, removed J.D. from the School. Id.
¶¶ 24-27. In October 2015, the Massachusetts Department of Children and Families reported to

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Doe that it had received reports of abuse. Id. ¶ 28.
The Complaint alleges that J.D. has suffered physical injuries and severe emotional
distress and was deprived of educational opportunities as a result of the School’s failure to
adequately protect J.D. Id. ¶¶ 37-46.
II.

Standard
A motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss a

complaint for failure to state a claim upon which relief can be granted, is properly allowed when
the complaint does not contain “sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). The court considers the facts as alleged
in the complaint. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 5 (1st Cir. 2011). For the
purposes of this motion, any well-pleaded, non-conclusory factual allegations are assumed true
and all reasonable inferences are drawn in the plaintiff’s favor. See Iqbal, 556 U.S. at 680-81
(stating that conclusory allegations are not entitled to a presumption of truth); Twombly, 550
U.S. at 581. Finally, the court will “determine whether the factual allegations are sufficient to
support the reasonable inference that the defendant is liable.” Saldivar v. Racine, 818 F.3d 14, 18
(1st Cir. 2016) (quoting Cardigan Mtn. Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015)).
III.

Discussion
Title IX prohibits discrimination on the basis of sex “under any education program or

activity receiving Federal financial assistance.” Education Amendments Act of 1972, 20 U.S.C.
§1681(a) (2012). A student who is the victim of sexual harassment by another student may have
a claim against his or her school under Title IX. Davis v. Monroe Cty. Bd. of Educ., 526 U.S.
629, 633 (1999). In order to state such a claim, Doe must allege: (1) that J.D. was “subject to

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severe, pervasive, and objectively offensive sexual harassment by a school peer”; (2) that the
harassment caused J.D. “to be deprived of educational opportunities or benefits”; (3) that the
School receives federal funds; (4) that the School knew of the harassment; (5) that the
harassment occurred in one of the School’s programs or activities; and (6) that the School “was
deliberately indifferent to the harassment such that its response (or lack thereof) is clearly
unreasonable in light of the known circumstances.” Porto v. Town of Tewksbury, 488 F.3d 67,
72-73 (1st Cir. 2007) (internal quotation marks omitted). The School argues that it does not
receive federal funds, and therefore that Doe cannot state a claim under Title IX.
“Entities that receive federal assistance, whether directly or through an intermediary, are
recipients within the meaning of Title IX . . . .” NCAA v. Smith, 525 U.S. 459, 468 (1999)
[hereinafter Smith I]; Grove City Coll. v. Bell, 465 U.S. 555, 564 (1984). In Grove City College,
the Court emphasized that the fact that the institution received funds indirectly did not matter.
465 U.S. at 570-72. Indeed, the Court noted that even Grove City College recognized “the
problematic nature” of the distinction between direct and indirect funds that it was advancing:
Although its interpretation . . . logically would exclude from coverage under Title
IX local school districts that receive federal funds through state educational
agencies, see, e.g., 20 U.S.C. §§ 3801 et seq., Grove City wisely does not attempt
to defend this result. In fact, the College concedes that “[b]ecause federal
assistance is often passed through state agencies, this type of indirect assistance
leads to Title IX jurisdiction over the education program or activity which
ultimately receives the assistance.” [citation omitted] Grove City has proposed no
principled basis for treating differently federal assistance received through
students and federal aid that is disbursed by a state agency.
Id. at 564, n.12. The Court concluded that “[n]othing in [20 U.S.C. §1681(a)] suggests that . . .
the application of the nondiscrimination principle [is] dependent on the manner in which a
program or activity receives federal assistance . . . [or that] only institutions that . . . receive
checks directly from the federal government are subject to regulation.” Id. at 564. All recipients
of federal funds, whether initial, intermediary, or ultimate, fall within the regulatory power of
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Title IX. See id. at 567-68, 568 n.19; Smith v. NCAA, 266 F.3d 152, 160-61 (3d Cir. 2001)
[hereinafter Smith II] (applying on remand the Supreme Court’s standard as set out in Smith I).
At the same time, “entities that only benefit economically from federal assistance are not”
recipients of federal aid. Smith I, 525 U.S. at 468; see also Dep’t of Transp. v. Paralyzed
Veterans of Am., 477 U.S. 597, 607 (1986) (analyzing similar language in Section 504 of the
Rehabilitation Act and finding that private airlines merely benefitted from federal grants to
airports and were therefore not recipients of federal funds under the meaning of the Act).
To distinguish between entities that are recipients from those that only benefit
economically, courts look to the underlying grant statute to determine (1) whether Congress
intended the institution to receive federal funds, and (2) whether the institution has the power to
opt out of receiving the funds. Paralyzed Veterans, 477 U.S. at 604, 606-07; see Grove City
Coll., 465 U.S. at 563-64, 566-68, 575.
Doe does not specifically state the source of the federal funds the School allegedly
received, but does allege that J.D.’s public school district “placed” J.D. as a student at the School
because the public school district could not meet his educational needs. Compl. ¶ 9 [#1]. The
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-50, provides funds to
public school districts for special education and related services and sets forth a public school’s
legal obligation to make such a “placement.” The IDEA provides in relevant part:
[P]rovision is made for the participation of [children placed in private schools by
their parents] in the program assisted or carried out under this subchapter by
providing for such children special education and related services . . .
Children with disabilities in private schools and facilities are provided special
education and related services, in accordance with an individualized education
program, at no cost to their parents, if such children are placed in, or referred to,
such schools or facilities by the State or appropriate local educational agency as the
means of carrying out the provision of special education and related services to all
children with disabilities within such State.

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20 U.S.C. §§ 1412(a)(10)(A)(i), 1412(a)(10)(B)(i).
Under these provisions, Congress intended private schools in which disabled students are
placed to receive federal funds. See Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ.
of Mass., 471 U.S. 359, 369 (1985) (“[T]he Act . . . provides for placement in private schools at
public expense . . . .”). Congress expressly provided for the allocation and disbursement of
federal funds through state agencies for the purpose of providing an appropriate education for
disabled children placed in private schools. 20 U.S.C. §§ 1412(a)(10)(B)(i).
Further, when Congress drafted the IDEA, it did so with the understanding that the grants
it provided would bind recipients to the obligations of Title IX. Title IX and the Rehabilitation
Act, among other federal laws, are modeled after Title VI, a statutory framework that envisioned
a broad range of grant programs triggering coverage. See Grove City Coll., 465 U.S. at 566 &
n.15 (citing 29 Fed. Reg. 16298, 16303-05, codified as 45 C.F.R. pt. 80, app. A (1972)); M.H.D.
v. Westminster Schs., 172 F.3d 797, 802 n.12 (11th Cir. 1999); 45 C.F.R. pt. 80, app. A (listing
various educational grant programs to which Title VI applies, including several designed to
benefit disabled children). When Congress drafts a statute providing federal funds to private
entities it does so with the knowledge that, should those entities choose to accept those funds,
they will be assenting to the regulatory power of Title VI and its progeny. See Paralyzed
Veterans, 477 U.S. at 606.
The grants provided to the School under the IDEA are analogous to the Basic Educational
Opportunity Grants at issue in Grove City College. There, the Court reasoned that earmarking
funds for specific purposes is an important clue that Congress intended an educational program
to receive federal funds. 465 U.S. at 571-73. Similarly here, the IDEA earmarked funds for
private schools by requiring local education agencies to identify, locate, and evaluate disabled

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children who are enrolled in private schools by their parents with the consent of their local public
agency, and to develop and implement a practical method for determining which of those
children are receiving needed special education services. 20 U.S.C. §§ 1412(a)(3)(A),
1412(a)(10)(i)-(iii). Based on this “child find,” federal funds will be granted to the public agency
proportionally; these funds may not be supplanted by state or local funds. Id.
§§ 1412(a)(10)(A)(i)(I), 1412(a)(10)(A)(i)(IV). For children like J.D.—who are placed in a
private school by local or state education agencies—the payments the public agency is required
to make to the placement school are directly determined by the funding the state receives from
the federal government under the IDEA. Id. § 1412(f)(2)(A). Funds that cannot be used for any
purpose other than payments to private schools that provide special education services to
children in compliance with the IDEA can only be described as “earmarked” for that purpose.
Compare with Smith I, 525 U.S. at 468, for an explanation that, although the NCAA received
dues from colleges and universities that received federal funds, it merely benefited from federal
funds because they were not “earmarked” for payment of dues to the NCAA. Accordingly, the
court finds that Congress intended the School to receive federal funds.
Next, the court must determine whether the School is “in a position to accept or reject
[the obligations set forth by federal law] as part of the decision whether or not to ‘receive’
federal funds.” Paralyzed Veterans, 477 U.S. at 606. The language of the IDEA does not obligate
private schools to take children who are referred or placed by public agencies. The School’s
ability to choose whether or not to enroll J.D. and to accept the tuition payments provided by the
state or local education agency indicates its ability to reject federal funds if it so chooses. See
Grove City Coll., 465 U.S. at 565, n. 13. The School thus has the power to accept or reject those
funds.

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The School argues that because it is not obligated to ensure a disabled student receives a
free appropriate public education under 603 C.M.R. 28.06 (implementing the mandates of the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-50), it merely benefits
from the federal funds received by the district, and cannot be held liable under Title IX. Def. The
League Sch. of Greater Bos., Inc.’s Mem. Supp. Its Mot. Dismiss Count I of Pls.’ Compl. 7
[#25]. The School points to both the language of the IDEA and case law in other Circuits to
support its argument. See 20 U.S.C. § 1412(a) (“A State is eligible for assistance . . . if the State
submits a plan that provides assurances . . . that the State has in effect policies and procedures to
ensure that the State meets [the conditions of the IDEA]”); Ullmo v. Gilmour Acad., 273 F.3d
671, 678-79 (6th Cir. 2001) (holding that private schools are not subject to liability under the
IDEA); St. Johnsbury Acad. v. D.H., 240 F.3d 163, 171 (2d Cir. 2001) (holding that the “IDEA
applies only to the State and other public agencies, not to private schools in which public
agencies may place children”); J. v. Sch. Dist. of Phila., No. 06-3866, 2007 WL 1221216, at *5
(E.D. Pa. Apr. 25, 2007) (dismissing claims under the IDEA and Section 504 of the
Rehabilitation Act against a private contractor that provided special education services to
students in Philadelphia public schools).
The School’s argument is misplaced. The courts in Ullmo and St. Johnsbury Academy
were tasked with a different question than the one presented here—whether private entities can
be held liable under the IDEA for failing to ensure that disabled students received a free
appropriate public education. The courts found that liability under the IDEA was precluded
because the statutory language indicated that the state and local educational agencies, not the
private schools in which students were placed, retained responsibility for the students’ education.
See Ullmo, 273 F.3d at 678-79; St. Johnsbury Acad., 240 F.3d at 171.

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Ullmo and St. Johnsbury Academy did not address liability under Title IX and did not
reach the question of whether the private entities received federal funding. As described above,
Title IX has a far broader reach, applying to “any education program or activity receiving
Federal financial assistance.” 20 U.S.C. § 1681(a). Given the wide availability of federal funds
for educational opportunities—public or private—this necessarily includes some private
educational activities. See, e.g., Grove City Coll., 465 U.S. at 569-70, 574 (holding that a private
college received federal funds and was subject to Title IX); see also United States v. Hersom,
588 F.3d 60, 65 (1st Cir. 2009) (“We view [Grove City College, Paralyzed Veterans, and Smith
I] as establishing that the term ‘Federal financial assistance’ generally refers to entities receiving
federal funds . . . indirectly[,] so long as they are the intended recipients of the federal legislation
providing the assistance.”). Thus, regardless of whether the School may not be held liable for
failing to provide an appropriate education under the IDEA, the federal funds granted by the
IDEA can still trigger Title IX obligations.
Nor does the reasoning of J. v. Sch. Dist. of Phila., 2007 WL 1221216, assist the School
here. There, the student was not placed in a private school, and instead, a private contractor
provided services in the public school. Id. at *1. And although that court found that the
complaint there failed to adequately allege that the private contractor was a recipient of federal
funds, the court so found because the private contractor did not control decisions with respect to
the federal funds received by the public school. Id. at *2, 5. In contrast here, as set forth above,
the funding for placements under the IDEA, like the tuition assistance in Grove City College, can
be refused altogether by the School.
Accordingly, plaintiff has adequately alleged that the School is a recipient of federal
funds for the purposes of Title IX liability.

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IV.

Conclusion
For the foregoing reasons, Doe has successfully stated a claim under Title IX and the

School’s Motion to Dismiss [#24] is DENIED.
IT IS SO ORDERED.
Date: August 21, 2017

/s/ Indira Talwani
United States District Judge

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