Burke v . Brookline 06-CV-317-JD 1/29/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Catherine Burke and Mikael Rolfhamre v. Civil N o . 06-cv-317-JD Opinion N o .

Brookline School District

O R D E R

Catherine Burke and Mikael Rolfhamre, who are proceeding pro

s e , bring suit against the Brookline School District, alleging

violations of the Americans with Disabilities Act (“ADA”),

Section 504 of the Rehabilitation Act, the Individuals with

Disabilities in Education Act (“IDEA”), and the Family

Educational Rights and Privacy Act (“FERPA”), and alleging a

claim under

. The plaintiffs seek $250,000 in

damages.1 The Brookline School District moves to dismiss the

plaintiffs’ claims.

Standard of Review

In considering a motion to dismiss, the court “take[s] as

true all well-pleaded allegations and draw[s] all reasonable

inferences in the plaintiff’s favor.” Ezra Charitable Trust v .

1 Their claim for attorneys’ fees was previously stricken. Tyco Int’l, Ltd.,

, 5-6 (1st Cir. 2006). “The court

need not accept a plaintiff’s assertion that a factual allegation

satisfies an element of a claim, however, nor must a court infer

from the assertion of a legal conclusion that factual allegations

could be made that would justify drawing such a conclusion.”

Cordero-Hernandez v . Hernandez-Ballesteros,

4 0 , 244 n.3 (1st Cir. 2006). In addition, the court will “disregard bald

assertions, unsupportable conclusions, and opprobrious epithets.”

Ezra Charitable Trust,

. “‘A complaint should not

be dismissed unless it is apparent beyond doubt that the

plaintiff can prove no set of facts in support of his claim that

would entitle him to relief.’” Stanton v . Metro Corp.,

(1st Cir. 2006) (quoting Conley v . Gibson,

1 , 45-46 (1957)) (other quotation marks omitted).

Background

Catherine Burke and Mikael Rolfhamre lived within the

Brookline School District from 1998 until August of 2005. They

adopted three sisters, Kasey, Sasha, and Ilona, from a Russian

orphanage in 1998. The plaintiffs allege that the girls were

identified as students in need of special education under the

IDEA, as individuals with disabilities under the ADA, and as

handicapped persons under Section 504 of the Rehabilitation Act.

2 The plaintiffs’ pro se complaint does not provide a clear

chronological description of the events that led to their claims.

It appears that the plaintiffs’ problems with the special

education program in the Brookline School District began in 2003.

The plaintiffs state that they met with members of the Brookline

school board, starting in 2003, to report the problems they were experiencing with the special education program. They contend

that school board members acknowledged problems but failed to

take any action.

The plaintiffs allege that Kasey and Sasha attended Mont

Blanc Academy for the 2003-2004 school year. The Academy is a

small private school located in Hooksett, New Hampshire. It is

not approved for special education by the New Hampshire

Department of Education. They also allege that they sought an

evaluation of Kasey in 2003 and then were embroiled in a disagreement with the District about who would serve as the

evaluator and how the evaluation would be conducted.

They state that they filed a Section 504 grievance on

September 1 5 , 2003, and requested a due process hearing in

October of 2003. They contend that the hearing was not provided

until September of 2004, after the “Office for Civil Rights”

intervened in the matter. The plaintiffs assert that the hearing

officer was not impartial and that the District interfered with

3 the investigation of their complaint by failing to make complete

records available and by providing incorrect and misleading

information to the investigator. The plaintiffs do not state

what decision was reached by the hearing officer.2

They allege that the District did not obtain their consent

to continue Sasha’s placement at Mont Blanc Academy for the 2003- 2004 year. They also allege that the District did not obtain

their consent to provide special education services to Sasha and

Kasey and did not include the plaintiffs in developing an

Individual Education Plan (“IEP”) for Sasha and Kasey. They

criticize the qualifications of the person the District hired to

provide services to their daughters for the 2004-2005 school

year. They also criticize the District’s handling of their

daughters’ school records and contend that the District failed to

make the records available to them. The plaintiffs state that the District requested a hearing

in June of 2004 to approve Kasey’s placement at “CSDA,” which is

the District’s “upper elementary school.” Compl. at 1 8 . They

allege that the hearing officer issued a decision in August of

2004 which ordered that Kasey be home schooled. The plaintiffs

state that the hearing officer’s decision was not appealed. They

2 It is not clear whether the hearing in the fall of 2004 was resolved by the November 2004 settlement agreement.

4 allege that the District failed to provide for Kasey’s education

and intimidated them by telling them that keeping Kasey at home

violated New Hampshire’s compulsory education laws. As a result,

the plaintiffs enrolled Kasey at CSDA in September of 2004 to

avoid truancy charges.

The plaintiffs sought an independent evaluation of Kasey in the fall of 2004. They allege that the District did not approve

the independent evaluator the parents had chosen. They signed a

settlement agreement on the evaluation issue on November 5 , 2004,

which they allege approved their independent evaluator but

imposed conditions on them. They claim that they were coerced

into signing the settlement agreement because they believed the

District had passed a new policy that would have allowed the

District to exclude the plaintiffs’ evaluator absent the

agreement. They contend that they learned after signing the agreement that the District’s policy was different than they had

understood it to b e , and they contend that the District

deliberately misled them.

The plaintiffs refer to a New Hampshire Department of

Education hearing in May of 2005 as a placement hearing for

Kasey. They state that they were seeking reimbursement for

placing Kasey at a private school when the District failed to

provide her with a free and appropriate public education as

5 required by the IDEA. They contend that the District interfered

with the hearing by misrepresenting the record, providing false

testimony, and giving incorrect information about the programming

that had been provided to Kasey. The plaintiffs also contend

that the District attempted to show that they were uncooperative

by falsely claiming that the plaintiffs were seeking a residential placement for Kasey and by falsely stating that the

plaintiffs had not objected to the District’s evaluation until

the hearing. The complaint does not indicate what result was

achieved through the hearing.

The plaintiffs allege that they were regarded as

troublemakers after they filed complaints. As a result, they

assert, special education department staff members “spread false

and damaging rumors about [the plaintiffs] to staff at [Mont

Blanc Academy] during the 2003-2004 school year and fueled negative attitudes toward [the plaintiffs].” Compl. at 2 9 . They

also allege that the District sought medical and mental health

records to use against the plaintiffs in litigation, enacted an

evaluation policy to disqualify the plaintiffs’ chosen

independent evaluator, conditioned Kasey’s IEP in February of

2005 on her mother agreeing to a psychiatric evaluation, and

provided their children with inferior treatment that was not in

compliance with state standards.

6 Discussion

The plaintiffs do not state separate claims in their

complaint. Instead, they cite Section 504 of the Rehabilitation

Act, the ADA, the IDEA, the FERPA, and § 1983 as the law that is

applicable to their claims. In a section titled “Factual

Allegations,” the plaintiffs allege that the District disregarded Section 5 0 4 , ADA, and IDEA regulations; violated the plaintiffs’

asserted rights under the IDEA and Section 504; and retaliated

against the plaintiffs for filing grievances and complaints. The

District interprets the plaintiffs’ complaint as alleging

violations of the ADA, Section 5 0 4 , FERPA, and § 1983 that are

all based on the IDEA and moves to dismiss. The plaintiffs

object to the motion to dismiss.

A. IDEA and FERPA

Money damages are not available in a suit brought under the

IDEA. Dias-Fonseca v . Puerto Rico,

3 , 28 (1st Cir.

2006). In addition, the FERPA does not provide either a private

cause of action or rights that are actionable under § 1983.

Gonzaga Univ. v . Doe,

(2002). Therefore,

to the extent the plaintiffs alleged claims under the IDEA or the

FERPA, those claims are dismissed.

In their objection, the plaintiffs do not address the FERPA

7 and contend that they are not alleging a claim under IDEA.

Instead, they assert, their claims are “that because of their

advocacy on behalf of their children, the District engaged in

retaliation, coercion, intimidation and interference; activities

which are prohibited by the ADA (

)” and “that

the District as a matter of policy and practice failed to carry out the requirements of Section 504 that pertain to parents’

rights.” O b j . Mem. at 3 . Based on their statements in their

objection, the plaintiffs claim retaliation in violation of the

ADA,

, and violation of the procedural

requirements of Section 504 of the Rehabilitation Act.

B. ADA Claim

The ADA provides: “No person shall discriminate against any

individual because such individual has opposed any act or

practice made unlawful by this chapter or because such individual

made a charge, testified, assisted or participated in any manner

in an investigation, proceeding, or hearing under this chapter.”

(a). The ADA also prohibits coercion,

intimidation, threatening, and interference of any individual “on

account of his or her having aided or encouraged any other

individual in the exercise or enjoyment o f , any right granted or

protected by this chapter.” § 12203(b). The IDEA affords an

8 opportunity to parents to file complaints for retaliation or

coercion that are related to “the identification, evaluation, or

educational placement of the child or the provision of a free

appropriate public education to such child.” Weber v . Cranston

Sch. Comm.,

1 , 51 (1st Cir. 2000).

General compensatory damages are not available in an IDEA- based suit. Dias-Fonseca,

. “[W]here the

underlying claim is one of violation of the IDEA, plaintiffs may

not use § 1983-or any other federal statute for that matter-in an

attempt to evade the limited remedial structure of the IDEA.”

Id. at 2 9 . Claims are based on the IDEA when they depend “on the

rights created by statute in the IDEA” and are not independent

claims under a different federal statute. Id.

In this case, the plaintiffs allege that they were coerced

into signing a settlement agreement to resolve their dispute with the District about an independent evaluation of their daughter,

Kasey. They allege that the District interfered with their

access to grievance procedures to address their dispute with the

District about Kasey’s evaluation. The plaintiffs’ retaliation

claim alleges that District personnel retaliated against them

because of the plaintiffs’ complaints and disputes about the

educational services provided to their children. The plaintiffs

contend that District staff members fueled negative attitudes

9 toward them among the staff at Mont Blanc Academy, demanded

access to medical and mental health records to be used in

litigation of the parents’ complaints, changed the evaluation

policy to exclude the plaintiffs’ chosen independent evaluator,

conditioned Kasey’s IEP on her mother’s consent to a psychiatric

evaluation, and provided inferior services and treatment that did

not comply with the IDEA.

The plaintiffs’ claims alleged under § 12203 are closely

related to the identification, evaluation, and educational

placement of their children for purposes of achieving a free and

appropriate public education. See Weber,

1 . In

fact, the plaintiffs state in their objection that the IDEA

violations they allege are “examples of specific instances of how

the District carried the retaliation, coercion, intimidation,

interference and deprivation of rights which are the basis of [their] claim.” O b j . Mem. at 3 . As such, they do not allege an

independent claim under the ADA but instead allege an IDEA-based

claim in the guise of the ADA. Therefore, the ADA claim seeking

general compensatory damages must be dismissed.3 See Diaz-

Fonseca,

9 .

3 In addition, an ADA claim is subject to administrative exhaustion, which does not appear to have occurred in this case. See Hess v . Rochester Sch. Dist.,

5 , 72 (D.N.H. 2005).

10 C. Section 504 of the Rehabilitation Act Claim

Both Section 504 of the Rehabilitation Act and the IDEA

require states to provide disabled students with a free and

appropriate public education. See M o . Dep’t of Elementary &

Secondary Educ. v . Springfield R-12,

9 2 , 998-99 (8th

Cir. 2004). The regulations promulgated under Section 5 0 4 , cited by the plaintiffs,

, 104.25, and 104.36,

require school districts to locate qualified handicapped persons

and notify their parents of the district’s obligation to provide

a free and appropriate public education, to conduct evaluations

and make placement decisions in accord with certain procedures,

and to implement procedural safeguards that can be satisfied by

compliance with IDEA requirements. “The IDEA establishes an

elaborate scheme of identifying individuals with disabilities and

ensuring that the responsible school authorities develop, in consultation with parents and students, an educational program

for the student that accounts for and addresses that student’s

needs.” Weber v . Cranston Pub. Sch. Comm.,

0 1 ,

405 (D.R.I. 2003).

The Section 504 regulations the plaintiffs cite in support

of their claim provide the same requirements and procedures for

ensuring a free and appropriate public education that are

required under the IDEA. Therefore, the Rehabilitation Act does

11 not provide a separate and independent cause of action for the

plaintiffs’ claim based upon the cited regulations. See Diaz-

Fonseca,

9 . The plaintiffs’ Rehabilitation Act

claim is dismissed.

D. § 1983 Claim

provides a cause of action to persons who

are deprived of “any rights, privileges, or immunities secured by

the Constitution and laws” by a person acting under color of

state law. The plaintiffs cite § 1983 but do not provide any

further explanation of that claim in their complaint, and they

ignore § 1983 in their objection to the motion to dismiss. As is

stated above, plaintiffs may not invoke § 1983 to bring claims

for compensatory damages that are in essence IDEA claims. Diaz-

Fonseca,

. In addition, no claim may be brought

under § 1983 based on an alleged violation of the FERPA.

Gonzaga,

. Therefore, to the extent the

plaintiffs intended to bring a claim under § 1983 based on

alleged violations of the ADA, the IDEA, Section 504 of the

Rehabilitation Act, or FERPA, as alleged in this case, that claim

is dismissed.

12 Conclusion

For the foregoing reasons, the defendant’s motion to dismiss

(document no. 8) is granted. All of the plaintiffs’ claims are

dismissed for failure to state a claim upon which relief may be

granted. The clerk of court shall enter judgment accordingly and

close the case. SO ORDERED.

V j Joseph A. DiClerico, Jr. United States District Judge January 29, 2007

cc: Catherine E. Burke, pro se Dean B. Eggert, Esquire Mikael Rolfhamre, pro se

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