K.S. et al v. Warwick School Committee et al

Filing 42

MEMORANDUM AND ORDER deferring ruling on 28 Motion for Judgment on the Pleadings; granting as to Count I 19 Motion for Summary Judgment - So Ordered by District Judge Mary S. McElroy on 8/4/2020. (Urizandi, Nisshy)

Case 1:17-cv-00258-MSM-LDA Document 42 Filed 08/04/20 Page 1 of 16 PageID #: 1085

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

K.S. and C.S.,
Plaintiffs

)
)
)
v.
)
)
WARWICK SCHOOL COMMITTEE, by and )
through Jennifer Ahern sued in her capacity )
as Chairperson of the Warwick School
)
Department and MARY LEONE,
)
individually and in her capacity as Manager, )
chairperson and representative for Warwick )
Public Schools and HEIDI FANION,
)
individually and in her capacity as Social
)
Worker for the Warwick Public Schools
)
Defendants
)

No. 1:17-cv-00258-MSM-LDA

MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
The saga behind this case began many years ago when K.S., twenty-seven (27)
years old at the time of this writing, a student educated by the Warwick Public School
System,1 was first provided with an Individualized Educational Plan, known
familiarly as an “IEP.”2 She has studied with the benefit of an IEP since at least

While Warwick had legal responsibility for K.S.’s education, she was not always
educated at schools within the District. For a period of time she received educational
services at Bradley Hospital and, following that, at a residential educational
placement in Connecticut.

1

Public school districts must develop IEPs for those who suffer from a disability. K.S.
suffers from a variety of conditions that hinder her ability to learn in an unmodified
traditional setting. As the parties agree that K.S. is disabled, there is no need to

2

1 

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2011. Her longtime energetic advocate, throughout this case and likely throughout
her entire school life, has been her mother, C.S.
Although this case had its official beginning when filed on May 27, 2017 (ECF
No. 1), its roots are embedded in the matter of K.S. et al v. Rhode Island Board of

Education, et al, C.A. No. 14-cv-00077-MSM-LDA. That was a civil action brought by
K.S. and another class representative to require Rhode Island to continue her free
public education until she reached the age of twenty-two (22).

Rhode Island’s

regulations at that time terminated educational services to the disabled when they
reached twenty-one (21) years of age. On appeal, the First Circuit granted class relief
and ordered the state to “provide a Free Appropriate Public Education (“FAPE”) to
students with disabilities up to the age of twenty-two (22). K.L. v. R.I. Bd of Educ.,

et al, 907 F.3d 639, 651 (1st Cir. 2018).3
In connection with the class action, K.S. was provided services to the age of
twenty-two (22). In this lawsuit, which is completely distinct from the class action,
she complains that those services were inadequate.

She has exhausted

administrative remedies and in Count I of her complaint she takes issue with the
Department of Education administrative decision (hereinafter “Adm. Dec”) (ECF No.
20-5). Counts II and III allege retaliation in violation of Title II of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12203 and § 504 of the Rehabilitation Act
of 1973, 29 U.S.C. § 794. The Title II claim is brought on behalf of K.S. alone, while

detail those conditions. Any conditions relevant to this decision will be noted in the
text.  

K.S. aged out of the class, so she was replaced as a named plaintiff.  

3 

2 

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the § 504 claim is brought on behalf of both K.S. and her mother, C.S.4 Finally, Count
IV alleges retaliation against both K.S. and C.S. in violation of the First Amendment
to the United States Constitution.5
The case is before the court on the parties’ cross-motions for partial summary
judgment on Count I, the administrative appeal. (ECF Nos. 19 and 28) and the
defendants’ motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on
the remaining Counts. (ECF No. 28). For the reasons that follow, I GRANT the

Even though C.S. is herself a non-disabled person, she has standing under the
Rehabilitation Act “to assert a claim of retaliation against her personally for
complaints made on behalf of [a disabled child].” Weber v. Cranston School Comm.,
212 F.3d 41, 48-49 (1st Cir. 2000).
4

5   Both

the ADA and the Rehabilitation Act prohibit retaliation against a person for
the exercise of protected rights. Weber, 212 F.3d at 45 (§ 504 “incorporate[s] the
‘remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964”
which, at 34 C.F.R. §100.7(e) prohibits retaliation). Title II, the ADA, specifically
prohibits discrimination “against anyone because the person has opposed any
practice made unlawful by this chapter or because they made a charge or participated
in an investigation ….” 42 U.S.C. § 12203(a). The Rehabilitation Act, § 504
incorporates Title VI of the Civil Rights Act of 1964 by “prohibit[ing] recipients from
discriminating against any individual … because he has made a complaint … under
this part.” 42 U.S.C. § 1415, § 504. K.S. and C.S. also press a direct constitutional
claim, contending they were retaliated against for exercising their First Amendment
right to seek redress of grievances through the filing of a lawsuit. Gonzalez-Droz v.
Gonzalez-Colon, 660 F.3d 1, 16 (1st Cir. 2011) (“A party seeking to establish a claim
of retaliation under the First Amendment must show that the conduct in which he
engaged was a ‘substantial’ or ‘motivating factor’ in the challenged decision.”).
The IDEA expresses a clear acknowledgement of the “central role” parents play
in ensuring that their disabled children are appropriately educated. Weber v.
Cranston Sch. Comm., 212 F.3d 41, 51 (1st Cir. 2000). It both designates parents as
part of the IEP team and mandates that “parents must be ‘members of any group that
makes decisions on the educational placement of their child, …” Id. Parents may,
therefore, sue for retaliation against themselves as well as against their children. Id.
C.S. seeks redress, therefore, for retaliation against both herself and K.S.

3 

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defendants’ Motion for Summary Judgment as to Count I and defer decision on their
Motion for Judgment on the Pleadings.
JURISDICTION
The Court has federal question jurisdiction under 28 U.S.C. § 1331, 1343(a)
and 1343(a)(4) because the rights to education asserted, and to be protected from
retaliation in that context, arise under federal statutes.

With respect to the

administrative appeal, it lies from the hearing officer’s final decision. 20 U.S.C. §
1415(i)(2)(A). As to Count IV, 42 U.S.C. § 1983 gives the Court jurisdiction over a
claim for direct violation of constitutional rights.
EDUCATIONAL RIGHTS
There are a number of federal statutes developing the right of persons with
disabilities to education and to various protections within the context of educational
services.

Chief among them is the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1400 et seq, which guarantees each student a Free Appropriate
Public Education (“FAPE”) tailored to his or her needs.6 A student is entitled to a

6

IDEA is a comprehensive federal education statute which grants
disabled students the right to a public education, provides financial
assistance to states to meet their educational needs, and conditions a
state’s federal funding on its having in place a policy that ensures that
a “free appropriate public education” is available to all children with
disabilities. 20 U.S.C. § 1412(a)91). A stated purpose of IDEA is “to
ensure that all children with disabilities have available to them a free
appropriate public education that emphasizes special education and
related services designed to meet their unique needs and prepare them
for employment and independent living.” Id. § 1400(d)(a)(A).

Weber v. Cranston School Comm., 212 F.3d 41, 44, n.1 (1st Cir. 2000).
4 

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FAPE “that emphasizes special education and related services designed to meet their
unique needs and prepare them for further education, employment, and independent
living; …” 20 U.S.C. § 1400(d). To effectuate that entitlement, the IDEA includes a
right to an Individualized Education Program (IEP), to evaluations and to certain
procedural safeguards. 20 U.S.C. § 1414 (b) and (d). “The ‘primary vehicle’ for
delivery of a FAPE is an IEP.” D.B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012). The
IEP has been called the “centerpiece of the IDEA’s system for delivering education to
disabled children.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010).
An appropriate public education includes “instruction and support services sufficient
‘to permit the child to benefit educationally from that instruction.’” Roland M. v.

Concord School Committee, 910 F.2d 983, 987 (1st Cir. 1990).
But the educational landscape for persons with disabilities is broader than the
IDEA:
Important as the IDEA is for children with disabilities, it is not the only
federal statute protecting their interests. Of particular relevance to this
case are two antidiscrimination laws – Title II of the Americans with
Disabilities Act (ADA, 42 U.S.C. § 12131 et seq., and § 504 of the
Rehabilitation Act, 29 U.S.C. § 794 – which cover both adults and
children with disabilities, in both public schools and other settings. Title
II forbids any “public entity” from discriminating based on disability;
Section 504 applies the same prohibition to any federally funded
“program or activity.” 42 U.S.C. §§ 12131-12132; 29 U.S.C. § 794(a). A
regulation implementing Title II requires a public entity to make
“reasonable modifications” to its “policies,” practices, or procedures”
when necessary to avoid such discrimination.
28 C.F.R. §
35.130(b)(7)(2016); see e.g., Alboniga v. School Bd. of Broward Cty., 87
F.Supp.3d 1319, 1345 (S.D.Fla. 2015) (requiring an accommodation to
permit use of a service animal under Title II). In similar vein, courts
have interpreted § 504 as demanding certain “reasonable” modifications
to existing practices in order to “accommodate” persons with disabilities.
Alexander v. Choate, 469 U.S. 287, 299-300, 105 S.Ct. 712, 83 L.Ed.2d
5 

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661 (1985); see e.g., Sullivan v. Vallejo City Unified School Dist., 731 F.
Supp. 947, 961-962 (E.D.Cal. 1990) (requiring an accommodation to
permit use of a service animal under § 504). And both statutes authorize
individuals to seek redress for violations of their substantive guarantees
by bringing suits for injunctive relief or money damages. See 29 U.S.C.
§ 794a(a)(2); 42 U.S.C. § 12133.

Fry v. Napoleon Comm’y Sch., ____ U.S. ____, 137 S.Ct. 743, 749, 197 L.Ed.2d 46
(2017).
The IDEA contains a formal structure for resolving disputes, 20 U.S.C. §
1415(b) through (i), beginning with a due process hearing before an administrative
agency and culminating in the right of an unhappy parent or child to seek redress via
a civil action in a state or federal court. 20 U.S.C. § 1415(i)(2)(A). K.S.’s core
complaint is that she was denied a meaningful FAPE both before and during the year
between her 21st and 22nd birthdays when she aged out of her right to publiclyprovided special education services. By filing a complaint and pursuing it through
an administrative hearing, she has satisfied the exhaustion requirement of the IDEA.
Satisfying the IDEA’s administrative procedures not only carries with it the
right to seek judicial review of the IDEA cause of action, but also permits a plaintiff
to complain of the identical lack of a FAPE under both “the ADA, the Rehabilitation
Act, or similar laws …” Fry, 137 S.Ct. at 750.7

Moreover, satisfying the IDEA’s exhaustion requirement of a due process hearing
also satisfies administrative exhaustion “required before filing [a] retaliation claim
in federal court pursuant to Section 504 of the Rehabilitation Act and 42 U.S.C. §
1983.” Weber, 212 at 51-52 (petitioner had not exhausted with respect to her §§
504 and 1983 retaliation claims because she had failed to “invoke the due process
hearing procedures of IDEA …”).
7

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I.
THE IDEA APPEAL
STANDARD OF REVIEW
Count I is an appeal by K.S. from the administrative decision following the due
process hearing conducted by the Rhode Island Department of Education (RIDE)
pursuant to the IDEA. On April 28, 2017, an administrative hearing officer at RIDE
issued a decision that found in favor of the City. RIDE concluded that, based on a
series of factual findings, there was no denial of a FAPE to K.S. K.S. had the burden
of proof at the IDEA hearing, Schaffer v. Weast, 546 U.S. 49, 62, 126 S.Ct. 528, 163
L.Ed.2d 387 (2005), and she continues to carry the burden of proof as the appellant
here. Roland M. v. Concord School Committee, 910 F.2d 983, 991 (1st Cir. 1990).
The facts are largely undisputed, while the interpretation and significance of
those facts are not.8 The Court’s review is a “bounded, independent decision [ ] –
bounded by the administrative record and additional evidence, and independent by
virtue of being based on a preponderance of the evidence before the court.” Roland

M. v. Concord School Committee, 910 F.3d 983, 989 (1st Cir. 1990). The court is not
bound by the findings of fact, but must be “deferential, recognizing ‘the expertise of
the administrative agency, …consider[ing] the [agency’s] findings carefully and
endeavor[ing] to respond to the hearing officer’s resolution of each material issue.”

Id. at 991. The First Circuit has explained that the applicable standard in reviewing

Unless otherwise noted, the facts surrounding the testimony at the administrative
hearing are taken from the Administrative Hearing Officer’s Decision, which outlines
the testimony in detail. (ECF No. 1-3, pp 4-30).

8

7 

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an administrative decision under the IDEA “falls somewhere between the highly
deferential clear-error standard and the non-deferential de novo standard.” D.B. v.

Esposito, 675 F.3d 26, 36 (1st Cir. 2012). See also, Rafferty v. Cranston Pub. Sch.
Comm., 315 F.3d 21, 25 (1st Cir. 2002) (describing review as “intermediate,” requiring
“a more critical appraisal of the agency determination than clear-error review entails,
but which, nevertheless, falls well short of complete de novo review.”).
In this case, the precise niceties of the above formulations need not overly
concern us. After reviewing the decision, the memoranda, Statements of Disputed
and Undisputed Facts filed by the parties, and the exhibits, and after holding a
hearing on the pending motions, I am in agreement with the findings of fact made by
the administrative hearing officer, with her interpretations of the evidence, and with
the conclusions applied. The administrative hearing officer applied the correct law
to those findings of fact. Whether I view the evidence with fresh eyes or through the
lens of deference to an agency’s expertise, I arrive at the same place: For the reasons
that follow, the court affirms the decision of the agency below, DENIES the appeal of
K.S. from that decision, and GRANTS summary judgment to all defendants on Count
I.
BACKGROUND
K.S. turned twenty-one (21) in late March 2014.9 She had been scheduled to
graduate in 2011 but, when she was unable to complete the required credits by that

Her precise birthday is immaterial and, in the interests of privacy, and
notwithstanding that a pseudonym is used here, there is no need to disclose it.

9

8 

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time with classroom learning, alternatives kicked in that were designed to enable her
to earn a high school diploma. As of 2011, from the time she returned from her last
residential educational placement, she was participating in two types of learning
consistent with her IEP instead of attending school.10

Those services continued as

a result of the filing of the class action until her 22nd birthday in late March 2015.
She was receiving tutoring in certain subjects and participating in a “virtual credit
retrieval program” of online learning in other subjects. Both types of education were
not offered simultaneously in the same subject. As described by the hearing officer,
“[t]hese services were variously provided in the Warwick library, school locations, and
other places, e.g. the student was enrolled at a private gym at public expense as part
of her curriculum.” (Adm.Dec., ECF No. 1-3 at p. 6.) Integral to K.S.’s participation
was Warwick’s commitment to provide two additional essential services:
transportation to the place of learning and a social worker to accompany her because
of her anxiety. One of the social worker’s primary tasks seems to have been to
facilitate K.C.’s use of the transportation in spite of her anxieties. K.S. had a
particular fear of buses, so for much of the year Warwick supplied a van to pick her
up at her home and deliver her and her social worker to the site of the services.
The situation after K.S.’s 21st birthday began to deteriorate when Heidi
Fanion, her social worker (who is a defendant here), suffered an injury that required
her to go out on medical leave in the Spring of 2014. The district, which contended it
could not find a qualified social worker substitute, replaced her with a guidance

10

K.S.’s IEP is ECF No. 1-1.
9 

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counselor. C.S., on K.S.’s behalf, accepted the substitution. When Fanion returned
in June 2014, she resumed her duties. K.S. ultimately became dissatisfied with her,
however,

claiming

that

she

had

“changed”

her

behavior,

becoming

less

accommodating.
In November 2014, K.S. delivered a child and stayed out of school until midDecember, when she attended for one day. By January of 2015, the parties had
reached an impasse, apparently caused by the transportation situation. On “at least”
three occasions in December and January, the district had sent a van to pick K.S. up
at her home, but she had declined to go. As a result, the district refused to send a
van any longer and relocated the tutoring to a public library near K.S.’s home. The
district advised that along with discontinuation of the van, the social worker would
no longer accompany K.S. to tutoring. Id. The district ultimately offered to continue
bus transportation through the winter until K.S.’s 22nd birthday, as well as a social
worker and tutoring, but that offer was declined and, after the one occasion in
December 2014, K.S. no longer attended school in the Warwick district.
On appeal from the administrative agency decision, K.S. presses the same
claims as she did through the exhaustion process. When examining the evidence
against the legal requirement to provide a FAPE, I am guided by the principle that
adherence to and implementation of an IEP need not be perfect, Sumter County

School Dist. 17 v. Heffernan ex rel TH, 642 F.3d 478, 484 (4th Cir. 2011), but a
substantial or material deviation may support the conclusion that a FAPE was
denied. Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n. 3 (8th Cir. 2003).

10 

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Accord, Mr. and Mrs. C v. Maine Sch. Admin. Dist. No. 6, Civil No. 06-198-P-H, 2007
WL 4206166 at *24 (D. Me. Nov. 28, 2007). “[A] party challenging the implementation
of an IEP must show more than a de minimus failure to implement all elements of
that IEP, and, instead, must demonstrate [a failure] to implement substantial or
significant provisions of the IEP.” Houston Indep. School Dist. v. Bobby R., 200 F.3d
341, 349 (5th Cir. 2000), cert den 531 U.S. 817 (2000).
COUNT I
K.S. contends that the implementation of her IEP, and the services provided,
were faulty in the following respects.11
1. Inadequate transportation. K.S. claims the van sometimes did not come,
and the district failed her by offering only bus service as a substitute in the winter of
2015. K.S. acknowledged, however, in her testimony that the IEP did not specify the
type of transportation to be provided.

Mary Leone, the Warwick school

administrator,12 testified that C.S. had become unhappy with her social worker, Ms.
Fanion, and refused to accept her as a support person. But, without a support person,
K.S. would not get into the van.

Apparently, the public library, where tutoring was

moved to, was within walking distance of K.S.’s home, but she testified she never
walked there.

These contentions are essentially the same ones brought in K.S.’s Request for a
due process hearing. (ECF No. 1-2, pp 3 - 8).
12 Ms. Leone testified she came out of retirement to assist Warwick with K.S.’s
education because everyone else familiar with K.S. had left the Warwick system.
11

11 

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The record is devoid of evidence contradicting Warwick’s testimony that
transportation services were virtually always available. Any occasions when the van
might not have come were, if they occurred, episodic and inconsequential.13
Moreover, Warwick’s response to K.S.’s refusal to use the van after November 2014
was reasonable in light of the fact that, as the plaintiffs acknowledge, the IEP did not
specify private vehicle transportation. To the extent that K.S. contends that Ms.
Fanion texted her in anticipation of the van’s arrival during the early part of 2014,
but that neither her substitute while she was on medical leave nor Ms. Fanion herself
when she returned from leave did so, those texts were not required. Neither was it
required that Ms. Fanion get out of the van and meet K.S. at her door to walk her to
the van; Ms. Fanion denied doing that, but even if she did, her withdrawal of that
courtesy when she returned from medical leave in no way violated the IEP.
2. Inadequate tutoring and/or credit retrieval. K.S. was at times unhappy
with the decision of Warwick to offer tutoring or credit retrieval. In one instance, she
wanted tutoring to assist her with online credit-retrieval in chemistry. K.S. also
wanted Warwick to provide her with computer access at home so her mother wouldn’t
have to pay for internet; nothing in the IEP required that, and Warwick’s reliance on
computer availability at the library near K.S.’s home was reasonable.

There may have been one or two occasions when the van was not available, separate
from its discontinuance in January 2015. The hearing officer found that testimony
to this effect from C.S. and K.S. “[did] not coincide with that of school personnel.”
(Adm. Dec., ECF No. 1-3, p. 32). Even if the testimony of the plaintiffs were credited,
however, this would constitute a de minimus deviation from the I.E.P.

13

12 

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The IEP did not require Warwick to provide both types of learning
simultaneously and, indeed, on occasion such as when Warwick paid for private gym
membership, Warwick attempted to respond to K.S.’s needs even when they required
less-orthodox methods.14

The testimony of administrator Leone that K.S.’s

attendance at best was sporadic is credible and accepted by the court. She attended
34 sessions but was absent 71 to 74 sessions in the year between her 21st and 22nd
birthdays. (ECF No. 18-1, pp 221). K.S. cancelled 68% of the sessions.

Ms. Fanion

testified that not infrequently when she texted K.S. that the van was on its way, she
received a response that K.S. would not be attending, or K.S. would refuse the van
when it arrived.
3. Social worker services. K.S. puts forth two contentions in support of her
claim that the IEP was violated by an inadequate provision of social worker services.
First, she asserts that when Ms. Fanion went on medical leave for five months, her
substitute was inadequate because she was a guidance counselor not a social worker
and because she was not as supportive as Ms. Fanion. Administrator Leone testified
that the district could not find a qualified social worker who would bid for the
assignment and no one expected Ms. Fanion to be out for so long. The substitute,
Donna Nassa, was a guidance counselor with certification in special education.
Second, she asserts that Ms. Fanion returned from medical leave a “changed” person,

Online credit-retrieval in chemistry apparently proved too difficult for K.S.
Chemistry therefore stopped in order to allow her to concentrate on English, health
and physical education in the Spring of 2014. Chemistry restarted in August 2014
with a tutor, even though Warwick ordinarily did not offer summer sessions.
14

13 

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less supportive and less accommodating. C.S. requested that Warwick replace Ms.
Fanion with another social worker, but the City did not do so.
The quick answer to the Fanion-Nassa substitution is that both C.S. and K.S.
accepted Ms. Nassa as a substitute at the time. With respect to any claims of
inadequacies of either Ms. Fanion or Ms. Nassa, the complaints are mostly vague15
and contradicted by Ms. Leone who testified there was no change in services and by
Ms. Fanion who testified she did not change her behavior. To the extent there may
have been subtle changes, they are too subtle to be reflected in the record and thus
not ammunition for this attack. I find, as did the hearing officer, that Warwick’s
failure to replace Ms. Fanion after C.S. requested a switch was entirely reasonable:
K.S. had taken medical leave, she returned for only one session, the district had been
unable to find a qualified replacement when Ms. Fanion went on medical leave, and
K.S. was within a few months of her 22nd birthday. I find no adverse impact on
Warwick’s provision of educational services. To the extent that K.S.’s unhappiness
with Ms. Fanion led to her rejection of van transportation and, consequently, rejection
of any educational services in those last few months, that is regrettable but not
supported by any objective justification.
4. Impeding C.S.’s effectiveness as an advocate. C.S. claims that after the
class action lawsuit was filed, she was forbidden from speaking to Warwick school

For example, C.S. testified Ms. Nassa was not as “helpful” as Ms. Fanion. Only
one example was given – that Ms. Nassa would not come into the apartment lobby
to retrieve C.S. to bring her to the van. Ms. Fanion, however, denied that she had
ever done that.
15

14 

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personnel directly and was told to communicate with them only through Ms. Leone.
Ms. Leone testified, and this was not contradicted, that she never forbade K.S. or
service providers from talking to each other directly. She did direct C.S. to funnel
any complaints related to academics through her office, so that she could discuss them
with counsel. There was one undisputed incident when a meeting was scheduled with
Ms. Leone and, because C.S. had brought an attorney, Ms. Leone was required by
policy to reschedule the meeting so that the City’s attorney could attend. Ms. Leone
testified that C.S. never contacted her to reschedule.
I find that neither of these issues impeded C.S.’s effectiveness, nor served as a
barrier to her advocacy role, nor substantially impaired the provision of a FAPE.
5. Failure of monthly meetings. K.S. contends that Warwick was deficient in
failing to hold monthly progress meetings.

The hearing officer, based on the

testimony and in a reasonable exercise of fact-finding, found that the IEP required
only quarterly meetings. C.S. in her testimony agreed that both the IEP and the
“stay put” order required only quarterly reports, which she received.
I find the meetings were not inconsistent with the IEP.
CONCLUSION
For the most part, the complaints of C.S. and K.S. allege deficiencies that were
simply not commanded by the IEP. Their dissatisfaction with various situations –
for example, the substitution of a bus for the van, the lack of simultaneous tutoring
and online instruction in the same subject, the need for a substitute for Ms. Fanion
while she was on medical leave, the provision of internet at the nearby library instead

15 

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of at K.S.’s home – was clearly real and sincere, and explains their frustration with
the services Warwick provided. But their unhappiness does not change the fact that
the IEP was substantially complied with and, to the extent there were deviations,
they were de minimus and did not amount to a denial of a FAPE. In conclusion, based
on the evidence submitted, K.S. was not denied a meaningful FAPE, she has not
sustained her burden on appeal, and therefore the defendants’ motion for summary
judgment on Count I is GRANTED.

IT IS SO ORDERED:

________________________________
Mary S. McElroy,
United States District Judge
August 4, 2020

16