UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Elizabeth Tveter

v. Case No. 16-cv-329-PB Opinion No.

Pinkerton Academy et al.

MEMORANDUM AND ORDER

Children with disabilities are protected by several federal

statutes. The Individuals with Disabilities Education Act

(“IDEA”),

et seq., guarantees disabled school

children the right to a “free appropriate public education”

(“FAPE”),

(a)(1)(A). Title II of the Americans

with Disabilities Act (“ADA”),

et seq., and

Section 504 of the Rehabilitation Act (“Section 504”),

, also protect disabled children from unlawful

discrimination, harassment, and retaliation. Congress has

specified, however, that a would-be litigant must comply with

the IDEA’s exhaustion requirement before suing under either the

ADA or the Rehabilitation Act if the relief she seeks is also

available under the IDEA. See

(l). The

principal issue presented by the pending summary judgment motion

is whether the plaintiff’s remaining ADA and Section 504 claims

are subject to the IDEA’s exhaustion requirement. I. BACKGROUND

A. Factual Background1

The plaintiff in this case, Elizabeth Tveter, began

attending Pinkerton Academy as a freshman in the fall of 2012.

In her freshman and sophomore years, she played on Pinkerton’s

varsity field hockey team. She was an exceptional player and

well-liked both by her teammates and the school’s athletic

staff.

In January 2014, Tveter suffered a traumatic brain injury

while playing field hockey on a club team unaffiliated with

Pinkerton. As a result of that injury, Tveter became disabled.

1. Facts Related to Tveter’s Accommodation Plans

Shortly after her injury, Tveter was identified as a

qualified student with a disability under Section 504 of the

Rehabilitation Act. A Section 504 plan was developed for her in

April 2014. One of the plan’s accommodations granted Tveter

1 Consistent with the summary judgment standard, the facts are presented in the light most favorable to Tveter as the non- moving party. See Theriault v. Genesis HealthCare LLC,

(1st Cir. 2018). I summarize only those facts that are relevant to my resolution of the defendants’ motion, which I gleaned from the parties’ statements of undisputed facts and the summary judgment record. I note, however, that neither party was judicious in selecting materials for inclusion in the summary judgment record, which spans over 600 pages. To the extent there are relevant facts in the record that the parties did not bring to my attention, it suffices to note that “courts are not required to ferret through sloppy records in search of evidence supporting a party’s case.” Mercado-Alicea v. P.R. Tourism Co.,

(1st Cir. 2005). 2 extra time to complete academic assignments. See Ex. 18 in

Supp. of Pl.’s Obj. to Defs.’ Mot. for Summ. J. (“Pl.’s Ex.”),

Doc. No. 210-1 at 35. Tveter retained her Section 504 plan

until she graduated in 2016.

In March 2015, Tveter was identified as having a qualifying

disability under the IDEA. Pinkerton proposed an individualized

education program (“IEP”) for her and assembled an IEP team.

The proposed IEP contained a variety of academic accommodations

and one nonacademic accommodation for Tveter’s disability. The

academic accommodations included extended time for completing

tests and assignments, a quiet location for taking tests and

quizzes in the company of a paraprofessional, open notes for

tests and quizzes, ability to orally supplement tests, quizzes

and assignments, adjustments to lengths of writing assignments

with emphasis on quality over quantity, access to a speech-to-

text device, access to teachers’ notes, ability to leave class

3-5 minutes early, a quiet setting for lunch, access to a quiet

area without bright lights when feeling unwell, and access to

elevators. See Ex. 3 in Supp. of Defs.’ Mot. for Summ. J.

(“Defs.’ Ex.”), Doc. No. 182-3 at 13-14.

In addition, Tveter’s mother requested that the IEP include

a nonacademic accommodation related to Tveter’s participation in

school sports. The IEP team agreed to include that request in

her draft IEP, which stated that Tveter would “remain eligible

3 for athletics and extra[]curricula[r] activities provided

coursework is incomplete as a result of the implementation of

these accommodations for her disability.” Doc. No. 182-3 at 14;

see Defs.’ Ex. 1, Doc. No. 182-1 at 1-2.

In November 2015, the IEP team completed its review of

Tveter’s draft IEP. Although Tveter and her mother initially

agreed to the IEP with an exception pertaining to the sports-

related accommodation, they subsequently rescinded the agreement

and refused the IEP altogether on November 30. See Doc. No.

182-1 at 2; Defs.’ Ex. 4, Doc. No. 182-4 at 1-2.

Tveter and her mother received copies of the New Hampshire

Procedural Safeguards Handbook for Special Education. See Doc.

No. 182-1 at 2. They did not request an administrative due

process proceeding to challenge any area of disagreement with

the IEP. See Doc. No. 182-1 at 2.

2. Facts Related to Tveter’s Participation in Athletics

In the fall of 2014, Tveter, then a junior, attempted to

try out for Pinkerton’s field hockey team. The school’s

athletic director refused to allow her to participate in the

tryouts or even to sit in the bleachers to watch, which she was

required to do in order to reserve a spot on the team as an

injured player. The athletic director explained that she was

ineligible to try out for the team because she had incomplete

grades, even though her Section 504 plan allowed her extra time

4 to finalize those grades. He also cited her lack of a medical

clearance to participate in the sport, despite Pinkerton’s

receipt of multiple notes from Tveter’s treatment providers

clearing her to participate in tryouts and certain drills. See

Pl.’s Ex. 36, Doc. No. 210-1 at 60-62.

After her parents filed a complaint with Pinkerton, Tveter

was permitted to join the varsity field hockey team. She did

not play in any games that season. After incrementally clearing

her to return to play, Tveter’s treating providers cleared her

for full participation in the sport at the end of October 2014,

after the regular season had ended and the playoffs had begun.

See Doc. No. 210-1 at 62-65; Defs.’ Ex. 14, Doc. No. 182-14 at

14-15; Defs.’ Ex. 6, Doc. No. 182-6 at 2-3. At that point,

however, Pinkerton still did not allow her to play, citing the

fact she had not completed Pinkerton’s concussion protocol, as

she was continuing to report symptoms of a concussion. See Doc.

No. 182-6 at 2-3.

On four separate occasions that season, Tveter’s field

hockey teammates pressured her into giving up items of clothing

that someone on the team needed, including a pair of socks, a

skirt, a practice jersey, and an undershirt. See Pl.’s Ex. 4,

Doc. No. 210 at 93-101. In her complaint Tveter calls those

incidents “gang stripping” and alleges that her skirt was

“forcibly” removed, Am. Compl. ¶¶ 34-36, however she has

5 presented no admissible evidence to support those claims.

Indeed, in her deposition Tveter could not remember the

circumstances surrounding three of the incidents and could only

recall the incident involving her socks in some detail. See

Doc. No. 210 at 93-101. She testified that, while the team was

on the bus on the way to a game, one of her teammates told

Tveter to give her Tveter’s brand-new socks in exchange for a

pair of socks that were the wrong color. Tveter tearfully

relented after two other girls joined in telling her she needed

to hand over her socks because Tveter would not be playing in

the game. See Doc. No. 210 at 96-97. Nothing similar had

happened to Tveter in the prior years on the team before she

became disabled.

Coach Resmini was on the bus when this incident occurred,

but there is no evidence that she witnessed it or was told about

it at the time. See Doc. No. 210 at 97. A few days later, in

early November 2014, Tveter’s mother emailed Coach Resmini about

the clothing incidents. See Pl.’s Ex. 28, Doc. No. 210-1 at 49.

This was the first time the incidents were brought to the

attention of a school employee. In the email, Tveter’s mother

described what had happened with the socks and noted that there

had been other instances when Tveter’s teammates had “turned to”

Tveter for items they needed and that she had complied because

she was “kind[]hearted.” Doc. No. 210-1 at 49. The email makes

6 no mention of bullying or harassment. See Doc. No. 210-1 at 49.

Coach Resmini met with Tveter and her mother to discuss the

incidents. See Doc. No. 210 at 152. In that meeting, Tveter

and her mother complained that the incidents constituted

bullying. See Doc. No 210 at 152. Coach Resmini spoke with the

student who took Tveter’s socks and that student gave Tveter a

pair of socks shortly after. See Doc. No. 210 at 151; Doc. No.

210-1 at 49. Coach Resmini did not take further steps to remedy

the situation, as the field hockey season had ended. See Doc.

No. 210 at 152.

After discovering that the wrong socks had been returned to

Tveter, her mother emailed school officials in February 2015,

referring to the bus incident as bullying. See Doc. No. 210 at

73. Pinkerton staff investigated and found that no bullying had

occurred. They concluded that Tveter had loaned her teammate

one pair of socks and that she had received two pairs in return.

See Doc. No. 210 at 74. Because her mother insisted that the

two pairs of socks Tveter had received were of inferior quality,

Pinkerton reimbursed her for a new pair. See Defs.’ Ex. 12,

Doc. No. 182-12 at 10.

The following month, Tveter signed up for tennis tryouts,

but the athletic director told her she was not eligible to

participate. See Pl.’s Ex. 1, Doc. No. 210 at 16-17. Initially

he cited her failing grade in one class, even though he knew the

7 only reason she was failing was Pinkerton’s refusal to allow her

to attend that class. See Doc. No. 210 at 16-17. When the

grade was corrected in response to a complaint from her parents,

the athletic director again found Tveter ineligible for the

tryouts. See Doc. No. 210 at 17. This time he cited her

incomplete grade in another class, even though Tveter’s Section

504 plan provided her extra time to complete assignments for

that class. See Doc. No. 210 at 17. The athletic director also

refused to grant Tveter an exception pursuant to the rules of

the New Hampshire Interscholastic Athletic Association

(“NHIAA”), which permit Pinkerton to exempt a disabled student

from such academic requirements. See Doc. No. 210-1 at 65-66.

Tveter’s mother reported the athletic director’s actions to

Pinkerton, alleging bullying, harassment, discrimination, and

retaliation. See Doc. No. 210 at 16-17.

In the interim, Tveter completed the missing academic work,

and Pinkerton responded to the complaint by notifying her mother

that Tveter was now eligible to try out for tennis. See Doc.

No. 210 at 16. Because tryouts for the varsity tennis team were

over by then, however, Tveter was given the choice to join the

junior varsity team, as the lowest ranking member. See Doc. No.

210-1 at 67. Tveter was the only member of the team who was not

given a team uniform, even after she rose through the ranks and

began playing in tournaments. See Doc. No. 210-1 at 67.

8 In August 2015, at the start of her senior year, Tveter

again signed up for field hockey tryouts. Pinkerton informed

her that she did not meet the academic eligibility criteria for

the sport because she had an incomplete grade in one class, once

more disregarding her Section 504 plan’s accommodation of extra

time for completing academic work and the NHIAA provision

allowing exemptions for disabled students. See Doc. No. 210-1

at 69-70. Tveter managed to finalize her grade the morning of

the tryouts and made the varsity field hockey team. See Doc.

No. 210-1 at 70. In the meantime, her mother filed a complaint

with Pinkerton, alleging that the school was discriminating

against Tveter and denying her an equal opportunity to

participate in sports. See Doc. No. 210-1 at 70.

At the end of September, Tveter’s mother filed another

grievance with Pinkerton alleging discrimination and

retaliation. She complained that Tveter was no longer a

“starter” on the field hockey team, was not permitted to play in

her “permanent” position, and was not given adequate playing

time in games. See Doc. No. 210 at 10-11. She also alleged

that Coach Resmini was retaliating against Tveter, noting that

Tveter’s playing time was drastically decreased a week after

Coach Resmini learned that the mother had spoken to Pinkerton’s

Section 504 coordinator about these issues. See Doc. No. 210 at

11. The Section 504 coordinator investigated the complaint and

9 found no evidence of discrimination or retaliation. She

concluded that there were no permanent positions on the team and

that Coach Resmini was giving Tveter less playing time and not

including her in the starting lineup because other players were

stronger than Tveter and made more accurate passes. See Doc.

No. 210 at 13-14.

Later that season, in October 2015, Tveter was struck in

the back of the head with a field hockey ball during pregame

warmups. See Pl.’s Ex. 44, Doc. No. 210-2 at 11-12. Tveter

suffered a concussion and had to be out of school for an

extended period. After her mother complained that this incident

constituted bullying and harassment, Pinkerton investigated and

found that it was an accident. According to Pinkerton’s

investigation, Tveter was on the sidelines while other players

were warming up. One of her teammates hit an aerial ball, which

deflected off another teammate’s stick and hit Tveter in the

back of the head.2 See Doc. No. 210-2 at 11-12, 21-24.

In January 2016, three days after Tveter was medically

cleared to return to school for forty-five minutes per day, she

2 Although Tveter contends that there are “significant disagreements” about how she was injured, see Pl.’s Obj. to Defs.’ Mot. for Summ. J., Doc. No. 203 at 19, she has not pointed to admissible evidence to support her claim that the blow to her head was not an accident. The fact that the teammate who hit the ball was one of the girls involved in the clothing incidents the year before is insufficient to allow a reasonable inference that the hit was intentional. 10 was injured in a unified gym class during a floor hockey game.

According to Tveter, one of her field hockey teammates (who was

not involved in the October incident) hit a sponge ball using a

plastic stick toward Tveter at close range and struck her in the

face, causing her head and neck to whip back. See Defs.’ Ex.

28, Doc. No. 182-28 at 3; Doc. No. 210 at 87-91. That same day,

Tveter’s mother filed a complaint with Pinkerton, alleging that

the incident constituted bullying. Pinkerton investigated and

found it to be an accident. See Doc. No. 182-28 at 2; Pl.’s Ex.

10, Doc. No. 210 at 166-180. Several witnesses, including the

gym teacher, contradicted Tveter’s account that she was hit in

the face at close range. See Doc. No. 210 at 176-80. They

wrote that the ball, which was soft for players’ safety, was hit

from afar toward the goal and accidentally hit Tveter in the

upper chest area. See Doc. No. 210 at 176-80.

Two months later, Tveter informed Pinkerton that she again

intended to try out for the tennis team. See Pl.’s Ex. 2, Doc.

No. 210 at 43. Pinkerton responded that, considering her recent

injuries, she would be permitted to participate in the tryouts

only if she completed the school’s five-day concussion protocol.

See Doc. No. 210 at 44-45. Tveter’s mother complained that it

was inappropriate to apply the protocol to her daughter and that

this was another instance of retaliation. See Doc. No. 210 at

45-47. Pinkerton, however, remained adamant in requiring Tveter

11 to complete the concussion protocol and, as a result, she missed

the tryouts. See Doc. No. 210 at 48-49. Once she completed the

protocol and her medical provider cleared her to participate in

the sport, Tveter joined the varsity tennis team. See Doc. No.

210 at 47-48. Instead of receiving a white jersey that other

students on the team had received, she was provided a red one.

See Doc. No. 210 at 40-41, 44.3 Thus, for the second year in a

row, Tveter was singled out by not having a team uniform for

tennis.

Finally, at a sports award ceremony in June 2016, Tveter

did not receive several awards that she had earned as a scholar

athlete. In an email to school officials, her mother cited this

as further evidence of Pinkerton’s retaliation against Tveter.

See Doc. No. 210 at 28.

B. Procedural History

Tveter and her mother filed this lawsuit in July 2016,

shortly before Tveter’s graduation from Pinkerton. The amended

complaint asserted twelve different causes of action against

thirteen defendants. See Am. Compl., Doc. No. 40. The

complaint alleged that the defendants denied Tveter her right to

a FAPE under the IDEA, and discriminated against her, harassed

3 Pinkerton informed Tveter that the white jerseys were in limited supply and that the tennis coach would find her one, but apparently Pinkerton did not follow through on this promise. See Doc. No. 210 at 40. 12 her, and retaliated against her in violation of the ADA, Section

504, Title IX, the Fourteenth Amendment, and New Hampshire law.

The defendants moved to dismiss the complaint.

I dismissed the claims that Tveter was improperly denied

educational services such as classroom instruction and tutoring

on the ground that those claims sought relief from the denial of

a FAPE and that Tveter had failed to exhaust her administrative

remedies under the IDEA before filing suit. See Tveter v. Derry

Coop. Sch. Dist. SAU #10,

, at *3 (D.N.H. July

28, 2018). I rejected, however, the defendants’ argument that

Tveter’s claims stemming from her participation in school sports

were also subject to the IDEA exhaustion requirement. The

defendants argued that those claims had to be exhausted because

Tveter’s right to a FAPE included a right to “related services,”

(9), and the right to related services

necessarily included a right to “recreation,”

§ 1401(26)(A).

This argument failed to persuade me because the definition of

“related services” states that such services are an essential

component of a FAPE only when they “may be required to assist a

child with a disability to benefit from special education.” Id.

§ 1401(26)(A). Because the defendants did not argue that Tveter

sought an educational benefit from her participation in school

sports, that she had an IEP that concerned her participation in

sports, or that her participation in sports was a necessary

13 component of her FAPE, I concluded that the defendants’ sole

argument on exhaustion did not merit dismissal of her sports-

related claims. See Tveter,

, at *4.

With respect to the remaining claims, I refused to dismiss

Tveter’s negligence claims against Pinkerton and Coach Resmini

because the defendants presented only a conclusory challenge

that the allegations concerning their failure to protect Tveter

from harassment by her former field hockey teammates failed to

state a claim. See id. at *9. I dismissed Tveter’s

constitutional, Title IX, and other state law claims, as well as

her mother’s claims, for failure to state a claim upon which

relief may be granted. See id. at *5-10.

Pinkerton and Resmini now move for summary judgment on all

surviving claims. They again argue that Tveter’s sports-related

claims require exhaustion under the IDEA. This time they point

to evidence showing that Tveter’s proposed IEP included, at her

mother’s request, an accommodation related to her participation

in school sports, and they cite the regulations implementing the

IDEA for the proposition that having an equal opportunity for

participation in extracurricular and nonacademic activities is

within the scope of a FAPE. See Defs.’ Memo. in Supp. of Mot.

for Summ. J., Doc. No. 180-1 at 10-11 (citing

). The defendants also argue that no reasonable jury

could find, based on the summary judgment record, that they are

14 liable on any of the remaining claims. Tveter has filed an

objection to the motion. See Doc. No. 203.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); Tang v. Citizens Bank, N.A.,

(1st Cir.

2016). In this context, a “material fact” is one that has the

“potential to affect the outcome of the suit.” Cherkaoui v.

City of Quincy,

(1st Cir. 2017) (internal

quotation marks omitted). A “genuine dispute” exists if a jury

could resolve the disputed fact in the nonmovant’s favor. Ellis

v. Fidelity Mgmt. Trust Co.,

(1st Cir. 2018).

The movant bears the initial burden of presenting evidence

that “it believes demonstrates the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

(1986); accord Flovac, Inc. v. Airvac, Inc.,

(1st Cir. 2016). Once the movant has properly presented such

evidence, the burden shifts to the nonmoving party to designate

“specific facts showing that there is a genuine issue for

trial,” Celotex,

, and to “demonstrate that a

trier of fact could reasonably resolve that issue in its favor.”

Flovac,

(internal quotation marks and brackets

omitted). If the nonmovant fails to adduce such evidence on

15 which a reasonable factfinder could base a favorable verdict,

the motion must be granted. See

In considering the

evidence presented by either party, all reasonable inferences

are to be drawn in the nonmoving party’s favor. See Theriault

v. Genesis HealthCare LLC,

(1st Cir. 2018).

III. ANALYSIS

Defendants argue that they are entitled to summary judgment

on Tveter’s remaining federal claims because she failed to

exhaust her administrative remedies under the IDEA. In the

alternative, they contend that no reasonable jury could find for

Tveter on those claims. They also argue that her negligence

claims fail because there is no evidence that defendants failed

to reasonably supervise Tveter’s classmates during either event

when a ball hit her. I agree with the defendants that Tveter’s

sports-related claims under the ADA and Section 504 seek relief

that is available under the IDEA and, therefore, those claims

are subject to the IDEA’s exhaustion requirement. I also

conclude that Tveter’s negligence claims fail because no

reasonable jury could find that Pinkerton or Coach Resmini

negligently supervised Tveter’s classmates on the two occasions

when she was physically injured.

A. The Exhaustion Requirement

The IDEA requires schools receiving federal funds to ensure

that children with disabilities have available to them a “free

16 appropriate public education,” commonly referred to as a “FAPE.”

(a)(1)(A). “As defined in the [IDEA], a FAPE

comprises ‘special education and related services’ — both

‘instruction’ tailored to meet a child’s ‘unique needs’ and

sufficient ‘supportive services’ to permit the child to benefit

from that instruction.” Fry v. Napoleon Cmty. Sch.,

, 748–49 (2017) (quoting

(9), (26), (29)).

Schools must provide FAPE in the “[l]east restrictive

environment.” Parent/Prof’l Advocacy League v. City of

Springfield,

(1st Cir. 2019) (quoting

(a)(5)). A disabled child’s IEP – her written education

plan – is the “primary vehicle” for providing the mandated FAPE.

Fry,

(quoting Honig v. Doe,

(1988)).

The IDEA provides an administrative process for parents to

challenge their child’s IEP or its implementation. See

. Initially, parents can request a preliminary

meeting or mediation with the child’s IEP team, and, if the

dispute remains unresolved, they can ask for a “due process

hearing” before an impartial hearing officer. See

§ 1415(b)-(f). A hearing officer may grant relief based upon “a

determination of whether the child received a [FAPE].” Id.

§ 1415(f)(3)(E)(i). If the hearing is conducted by a local

educational agency, parents can appeal an adverse ruling to the

17 state educational agency. See id. § 1415(g). Parents can sue

in court only after they have exhausted these administrative

procedures. See id. § 1415(i)(2)(A).

The ADA and Section 504, which focus more broadly on “non-

discriminatory access to public institutions,” also protect

disabled children from discrimination that occurs in school.

Fry,

. Indeed, “[t]he same conduct [can]

violate all three statutes . . . .”

The IDEA expressly

recognizes that parents may seek relief under multiple statutes,

but it requires exhaustion of the IDEA’s administrative remedies

first where parents are “seeking relief that is also available

under” the IDEA.

(l); see Fry,

. “[T]o meet that statutory standard, a suit must seek

relief for the denial of a FAPE, because that is the only

‘relief’ the IDEA makes ‘available.’” Fry,

.

When determining whether a complaint seeks relief from such

a denial, courts must “set[] aside any attempts at artful

pleading” and “look to the substance, or gravamen, of the

plaintiff’s complaint.”

. The Court in Fry

provided commonsense guidance for approaching this task,

explaining that one “clue” concerning the nature of the relief

sought comes from answers to two hypothetical questions:

First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school — say, a

18 public theater or library? And second, could an adult at the school — say, an employee or visitor — have pressed essentially the same grievance?

(emphasis in original). The Court explained that if

the answer to both questions is yes, then it is “unlikely” that

the complaint is about the denial of a FAPE.

By contrast,

when the answer to both questions is no, then the complaint

“probably” concerns a FAPE.

Consistent with the examples

the Supreme Court gave when applying the Fry hypotheticals, see

, other courts have explained that these questions

are fact-intensive and should not be “approach[ed] . . . at a

high[] level of generality.” Nelson v. Charles City Cmty. Sch.

Dist.,

(8th Cir. 2018); see McMillen v. New

Caney Indep. Sch. Dist.,

, 646 (5th Cir. 2019).

Further, when a plaintiff invokes the IDEA administrative

process prior to filing suit, depending on the facts, this may

be another “sign” that the complaint is seeking relief from the

denial of a FAPE. Fry,

. “[B]ut the converse

is not true.” Nelson,

. The fact that a

plaintiff did not invoke the formal grievance procedures under

the IDEA is not evidence that the gravamen of the complaint is

something other than a FAPE. See

The question in this case is whether Tveter’s ADA and

Section 504 claims arising from her participation in school

sports seek relief from the denial of a FAPE. The defendants’

19 argument on summary judgment, which they did not present and I

did not evaluate in connection with their motions to dismiss, is

that the IDEA’s implementing regulations show that, as part of a

FAPE, schools must provide accommodations to give disabled

students an equal opportunity to participate in school sports,

which the defendants say is precisely what Tveter sought and

Pinkerton allegedly failed to provide.

At the heart of this new argument is the IDEA’s mandate

that an IEP include “supplementary aids and services” to enable

a disabled child to “participate in extracurricular and other

nonacademic activities” with nondisabled children. See

(d)(1)(A)(i)(IV). The statute does not define

extracurricular or nonacademic activities. However, it defines

“supplementary aids and services” as

aids, services, and other supports provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with section 1412(a)(5) of this title.

§ 1401(33).

These statutory provisions create ambiguity as to whether a

school must provide supplementary aids and services for

extracurricular and nonacademic activities only when such

activities are needed to directly further a disabled student’s

educational needs. When read in isolation, the definition of

20 “supplementary aids and services” could be read to suggest that

the term applies only to aids and services that are provided in

the classroom or other similar educational settings. But that

narrow reading is difficult to reconcile with the ordinary

understanding of the statutory mandate that an IEP include

“supplementary aids and services” that are provided to enable

the child to “participate in extracurricular and other

nonacademic activities.” Id. § 1414(d)(1)(A)(i)(IV).

The federal regulations promulgated under the IDEA resolve

that statutory uncertainty in favor of a broad construction of

FAPE that includes educationally nonessential extracurricular

and nonacademic activities. The relevant regulations require

schools to provide supplementary aids and services that an IEP

team determines are needed to provide a disabled child with an

equal opportunity to participate in extracurricular and

nonacademic activities, without requiring a determination that

such an activity would yield an educational benefit. See

, 300.117. Specifically, § 300.107(a) provides:

Each public agency must take steps, including the provision of supplementary aids and services determined appropriate and necessary by the child’s IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.

Further, § 300.117 provides that the duty to provide an equal

opportunity means that schools “must ensure that each child with

21 a disability participates with nondisabled children in the

extracurricular services and activities to the maximum extent

appropriate to the needs of that child.”

The regulations also define two key terms. “Nonacademic

and extracurricular services and activities” are broadly defined

with a non-exhaustive list of activities that includes

athletics, transportation, recreational activities, and school-

sponsored clubs or special interest groups. Id. § 300.107(b).

In tune with § 300.107, the definition of “supplementary aids

and services” refers to services rendered “in regular education

classes, other education-related settings, and in

extracurricular and nonacademic settings” in order to maximize

the mainstreaming of disabled students. Id. § 300.42 (emphasis

added).

The plain terms of the regulations neither limit the types

of extracurricular and nonacademic activities that can be

included in an IEP nor require a nexus to an educational

benefit. The regulations only require that such activities be

“appropriate” to the needs of a disabled student. See

(a). Once an activity is deemed appropriate, the

school “must ensure” that the disabled student has the

supplementary aids and services that are “appropriate and

necessary” for the student to participate. See

§ 300.117.

Unlike its statutory counterpart, the regulatory definition of

22 supplementary aids and services makes clear that such services

are not limited to educational settings. Compare

(33), with

. The definition expressly

includes services offered in extracurricular and nonacademic

settings, which, in turn, encompass a broad array of activities,

including school athletics. See

,

300.107(b). Therefore, the regulations impose an obligation on

schools to provide accommodations to ensure that disabled

students have equal access to such activities even when

participation is not necessary to further their educational

goals.

At least two other courts have come to the same conclusion

based on the plain language of the IDEA’s implementing

regulations. See Indep. Sch. Dist. No. 12 v. Minn. Dep’t of

Educ.,

(Minn. 2010); Meares v. Rim of the

World Unified Sch. Dist.,

, 1056–57 (C.D.

Cal. 2016). As the Minnesota Supreme Court explained, “[t]o

limit extracurricular and nonacademic activities to those

required only to educate the disabled student would require

adding or reading words into the above IDEA regulations.”

Indep. Sch. Dist. No. 12,

. I also find

persuasive that court’s reasoning that holding otherwise would

run counter to the regulations’ equal opportunity provisions.

See

. Specifically, “[r]equiring disabled students to

23 prove an educational benefit, when nondisabled students need

not, does not afford disabled students an equal opportunity to

participate in” such activities.

.4

The Department of Education views these regulations as

setting forth mandated components of a FAPE. Section 300.107

was promulgated pursuant to the IDEA provision that delineates

the requirements of a FAPE, whereas § 300.117 cites as its

authority the IDEA’s directive that a FAPE must be provided in

the “[l]east restrictive environment.” See

(citing

(a)(1)), 300.117 (citing

(a)(5)). Further, both provisions are organized under the

sub-heading “Other FAPE Requirements” in a section addressing

state eligibility for federal educational funding. See

et seq. This offers another textual clue that

the regulations sought to expound on the scope of a FAPE. Cf.

Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co.,

(1947) (noting that headings of sections can be useful

4 I agree with the district court in Meares that the regulations do not run afoul of the Supreme Court’s rejection of the notion of “strict” or “absolute equality . . . regardless of capacity” in the context of educational services required under the IDEA. See Meares,

-56 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley,

(1982)). The regulations do not require that a disabled student be allowed to participate in extracurricular activities regardless of her capabilities; instead, they expressly take capacity into account by providing that such activities must be “appropriate to the needs of” the student. See

. 24 interpretive tools where they do not “undo or limit that which

the text makes plain”).

I have little trouble concluding that these regulations are

entitled to deference. See Chevron, U.S.A., Inc. v. Nat. Res.

Def. Council, Inc.,

(1984); see also Irving Indep.

Sch. Dist. v. Tatro,

, 891-92 & n.9 (1984) (noting

that deference is owed to regulations promulgated by Secretary

of Education to implement provisions of IDEA). Because the

regulations were promulgated in the exercise of authority that

Congress expressly delegated to the Secretary to Education to

elucidate specific provisions of the IDEA, see

(a), they pass the threshold requirement for applying

Chevron deference. See United States v. Mead Corp.,

(2001). As discussed above, Congress has not

“directly spoken to the precise question at issue,” satisfying

step one of the Chevron analysis. See

. At step

two, courts must “defer to the agency’s interpretation unless

that interpretation is unreasonable.” Lovgren v. Locke,

(1st Cir. 2012); see Chevron,

. Here,

the agency’s interpretation is a permissible construction of the

IDEA’s FAPE requirement. The Department of Education considered

public comments that nonacademic activities such as athletics

should not be included as part of a FAPE and reasonably

concluded that its interpretation is consistent with the IDEA’s

25 “great emphasis” on maximizing the mainstreaming of disabled

children, including in extracurricular and nonacademic

activities. See Assistance to States for the Education of

Children with Disabilities and Preschool Grants for Children

with Disabilities,

-01, 46583, 46589 (Aug. 14, 2006).

As applied in this case, the regulations show that

participation in school sports was a component of Tveter’s right

to a FAPE. Specifically, her right to a FAPE included a right

to supplementary aids and services, as determined by her IEP

team, that would give her an equal opportunity to participate in

school sports to the maximum extent appropriate to her needs.

The record includes ample evidence, including multiple notes

from her treatment providers, that participation in both field

hockey and tennis was appropriate to her needs. Further, her

proposed IEP included, at her mother’s request, a sports-related

accommodation, exempting her in certain circumstances from

academic eligibility for sports – the very basis that Pinkerton

used to try to bar her from joining sports teams. The fact that

Tveter rejected the proposed IEP does not relieve her of the

exhaustion requirement. See E. D. By & Through Dougherty v.

Palmyra R-I Sch. Dist.,

(8th Cir. 2019)

(noting that it made “no difference that [plaintiffs] refused

all services under the IDEA” because “[o]pting out of IDEA

services does not unlock a pathway around exhaustion”).

26 At their core, Tveter’s claims allege that Pinkerton,

through its various actions and inactions, interfered with her

education by denying her opportunities to participate in school

sports on an equal footing with nondisabled students. Her

sports-related claims, therefore, in substance seek relief from

the denial of a FAPE. They are grievances that Tveter should

have raised, and that could have been remedied, in the

administrative process that the IDEA delineates. Accordingly,

she was required to exhaust her administrative remedies under

the IDEA before proceeding with her ADA and Section 504 claims

in this court.

Applying the exhaustion principles from Fry to each of

Tveter’s ADA and Section 504 claims leads me to the same

conclusion. See Doucette v. Georgetown Pub. Sch.,

,

24 (1st Cir. 2019) (endorsing a claim-by-claim analysis under

Fry). Tveter’s discrimination claim rests on allegations that

Pinkerton denied her opportunities to participate in tryouts for

field hockey and tennis alongside nondisabled students based on

academic criteria that failed to account for her Section 504

plan’s accommodations and the NHIAA exemptions for disabled

students. Even after she was allowed to join those teams,

Pinkerton allegedly continued to discriminate against her by

denying her a team uniform during two seasons of tennis and by

restricting her playing time, changing her position, and

27 removing her from the starting lineup during field hockey games.

The gravamen of this claim is the denial of an equal opportunity

to participate in school sports to the maximum extent

appropriate, which, as discussed above, is intertwined with her

right to a FAPE. The Fry hypotheticals point in the same

direction, as such allegations could not be brought either

outside the school setting or by an adult at the school,

especially given the central role that Tveter’s academic

performance played in Pinkerton’s actions. Cf. Wellman v.

Butler Area Sch. Dist.,

(3d Cir. 2017)

(applying Fry and requiring exhaustion of ADA/Section 504 claim

arising from school’s failure to accommodate student’s requests

for safe participation on football team because it was

“intertwined with his complaints about the school’s failure to

accommodate his educational needs, which include his

participation in extracurricular activities”); Clinton v. Dallas

Indep. Sch. Dist., No. 3:17-CV-2981-S,

, at *4 &

n.6 (N.D. Tex. Mar. 27, 2019) (concluding that ADA/Section 504

claim based on allegations that plaintiff was initially denied

participation on football team and later refused playing time in

games concerned denial of FAPE under Fry and thus had to be

exhausted).

Tveter’s retaliation claim likewise in substance seeks

relief from the denial of a FAPE. Tveter alleges that

28 Pinkerton’s discriminatory conduct detailed above was also

retaliatory in response to her mother’s complaints to the school

that Pinkerton was violating Tveter’s rights under the IDEA and

other laws. Prior to Fry, the First Circuit held that claims

that a school retaliated against a student in response to

parents’ efforts to enforce the student’s educational rights

“relate unmistakably” to the provision of a FAPE and had to be

exhausted. See Rose v. Yeaw,

(1st Cir. 2000);

see also Weber v. Cranston Sch. Comm.,

(1st Cir.

2000). Although the First Circuit has not revisited these

holdings since Fry, other circuits have found the same approach

is in line with the Fry test. See Z.G. by & through C.G. v.

Pamlico Cnty. Pub. Sch. Bd. of Educ.,

, 779 (4th

Cir. 2018) (citing Rose,

); S.D. by A.D. v.

Haddon Heights Bd. of Educ.,

, 126–27 (3d Cir.

2018).

Applying the Fry hypotheticals, the Third Circuit in Haddon

Heights explained that the retaliatory conduct at issue –

enactment of an attendance policy that harmed the plaintiff’s

ability to advance in school – could not have occurred outside

the school setting and an adult at the school could not have

pressed the same claim. See 722 F. App’x at 126-27. So too

here. The gist of the complaint’s allegations is that the

retaliation took the form of the denial of a FAPE.

29 Specifically, Pinkerton allegedly used academic standing as a

barrier to Tveter’s participation in sports and otherwise denied

her opportunities to be a bona fide member of sports teams in

retaliation for her mother’s complaints about the school’s

handling of her requests for educational and other services to

accommodate Tveter’s disability. This particular type of

retaliatory conduct could not have occurred to Tveter outside

the school or to an adult at the school. See Fry,

. Because the retaliation claim is thus grounded on

Pinkerton’s failure to provide Tveter with a FAPE, it is subject

to the IDEA’s exhaustion requirement.

Tveter’s harassment claim is no different. To the extent

the claim is based on allegations that Pinkerton’s actions in

preventing her from joining sports teams and treating her

differently from her teammates constituted harassment, the above

analysis applies with equal force. To the extent Tveter alleges

that Pinkerton was deliberately indifferent to her field hockey

teammates’ bullying, as pleaded, the gravamen of the claim

concerns the denial of a FAPE. The complaint alleges that this

same conduct forms a basis of Tveter’s (previously dismissed)

IDEA claim. Compare Am. Compl. ¶¶ 175-176, with id. ¶¶ 185-186.5

In pleading her IDEA claim, she incorporated her factual

5 The complaint incorrectly numbered paragraph 186 as 185. 30 allegations concerning the bullying incidents, see Am. Compl.

¶ 171, and specifically alleged that Pinkerton was liable for

failing to provide a Free and Appropriate Education (FAPE) and violating Individuals with Disabilities Education Act

et seq. by . . . (c) [f]ailing to supervise, investigate, prohibit and prevent, and/or otherwise address the openly egregious hostile environment of disability discrimination, and bullying from Pinkerton Academy students towards [Tveter], which was counter[]productive to her receiving a Free and Appropriate Education.

Am. Compl. ¶ 175. The complaint further charges that Pinkerton

“knew or should have known that this conduct was so severe,

pervasive, and offensive that it denied [Tveter] equal access to

a Free and Appropriate Education in violation of” the IDEA. Am.

Compl. ¶ 176. In other words, Tveter alleged that the

unremedied peer bullying resulted in the denial of a FAPE, which

several circuit courts have recognized as a viable theory of

liability under the IDEA. See Renee J. as Next Friend of C.J.

v. Houston Indep. Sch. Dist.,

(5th Cir. 2019);

M.L. v. Fed. Way. Sch. Dist.,

(9th Cir. 2005);

Shore Regional High Sch. Bd. of Ed. v. P.S.,

, 199-

200 (3d Cir. 2004); see also T.K. v. N.Y. City Dep’t of Educ.,

(2d Cir. 2016) (assuming without deciding that

bullying can result in denial of FAPE).

With respect to peer bullying, Tveter’s allegations in

support of her ADA and Section 504 claims are a mirror image of

her IDEA claim. In pleading those claims, Tveter again

31 incorporated the facts concerning the episodes of bullying, see

Am. Compl. ¶ 181, and then repeated nearly verbatim the above

allegations that support her peer harassment claim under the

IDEA. See Am. Compl. ¶¶ 185-186. The only difference is that

she dropped the references to FAPE and asserted instead that the

bullying “denied [her] equal access to an education in a

vio[l]ation of Section 504 . . . and [the ADA].” See Am. Compl.

¶ 186. As pleaded, therefore, Tveter’s ADA and Section 504

claims based on peer bullying rest on both the same facts and

the same legal theory as her IDEA harassment claim. Where the

same conduct forms the basis of claims under both the IDEA and

other laws, the court is entitled to consider the overlapping

allegations as evidence that the plaintiff – the master of the

complaint – in fact seeks a remedy available under the IDEA.

See, e.g., C. G. by & through Keith G. v. Waller Indep. Sch.

Dist.,

, 820–21 (5th Cir. 2017) (requiring

exhaustion of Section 504 claim that was “not independent” of

plaintiff’s IDEA claim where both rested on same allegations);

K.I. v. Durham Pub. Sch. Bd. of Educ., No. 1:19CV857,

, at *9 (M.D.N.C. June 29, 2020) (holding that Section

504 and ADA claims were subject to IDEA’s exhaustion requirement

where plaintiffs alleged “that the same conduct violated the

IDEA”); Tawes v. Bd. of Educ. of Somerset Cnty., No. CV RDB-17-

2375,

, at *5 (D. Md. Dec. 11, 2017) (requiring

32 exhaustion where plaintiff “brought an IDEA claim based on

identical facts to those used to support . . . claims under

other laws designed to protect children with disabilities”); cf.

Parent/Prof’l Advocacy League,

(holding that

IDEA’s exhaustion requirement applied to ADA claims where

“overlap is such that, in pleading what are on the surface ADA

claims, the plaintiffs’ complaint in substance ‘seek[s] relief

that is also available under’ the IDEA”).

Considering the Fry hypotheticals confirms this conclusion.

As pleaded, the harassment claim could only be brought in a

school setting and only a child could allege that peer bullying

led to the denial of equal access to education. See Fry,

. The harassment claim, therefore, does not “seek

relief for simple discrimination, irrespective of the IDEA’s

FAPE obligation.”

Instead, the claim expressly seeks

relief that is available under the IDEA.6

6 In the alternative, I conclude that no reasonable jury could find for Tveter on the harassment claim because there is no evidence that Pinkerton was deliberately indifferent to peer-on- peer bullying. See Thomas v. Springfield Sch. Comm.,

(D. Mass. 2014) (“The First Circuit has not yet addressed whether school district liability exists for peer- to-peer, disability-based harassment, but several circuits have found the standards applicable in Title IX cases also apply in cases alleging peer-to-peer, disability-based harassment.”) (collecting cases); Fortin on behalf of TF v. Hollis Sch. Dist., No. 15-CV-00179,

, at *3-4 (D.N.H. Sept. 18, 2017) (similar). A school is “deemed ‘deliberately indifferent’ to acts of student-on-student harassment only where [its] response to the harassment or lack thereof is clearly 33 I need not test the outer bounds of the IDEA’s exhaustion

requirement to resolve this case. As I have explained, the IDEA

protects a disabled student from discrimination, harassment, and

retaliation on the basis of disability both when the student is

pursuing educational goals in the classroom and while the

student is engaging in nonacademic activities such as school

sports that are a part of her educational program. Tveter’s

complaint leaves no doubt that she is seeking in part to

vindicate her right to a FAPE when pressing her sports-related

discrimination, harassment, and retaliation claims. Thus, her

ADA and Section 504 claims are subject to the exhaustion

requirement because she is “seeking relief that is also

available under [the IDEA].” See

(l). Because

Tveter failed to exhaust those remedies, I grant summary

judgment to Pinkerton on her remaining federal claims.7

unreasonable in light of the known circumstances.’” Davis v. Monroe Cnty. Bd. of Educ.,

(1999). Here, there is no evidence from which a jury could find that Pinkerton’s response to any of Tveter’s complaints of peer bullying was clearly unreasonable under the circumstances. When such complaints were brought to Pinkerton’s attention, school staff investigated and reasonably concluded that no bullying had occurred.

7 For the reasons stated in my order on the defendants’ motions to dismiss, Tveter has not shown that the futility exception to the exhaustion requirement applies to her case. See Tveter,

, at *4.

34 B. Negligence Claims

In ruling on the defendants’ motions to dismiss, I

concluded that Tveter’s negligence claims against Pinkerton and

Coach Resmini based on their toleration of harassment by

Tveter’s field hockey teammates stated a claim upon which relief

may be granted. See Tveter,

, at *9. In her

objection to the summary judgment motion, Tveter makes clear

that the basis for these claims is the defendants’ alleged

negligent failure to supervise in connection with the two

instances when her teammates caused physical injury to her head.

See Doc. No. 203 at 3-4, 29. I agree with the defendants that

no reasonable jury reviewing the summary judgment record could

find that the defendants are liable for those incidents.

The New Hampshire Supreme Court has recognized that

secondary schools “share a special relationship with students

entrusted to their care, which imposes upon them certain duties

of reasonable supervision.” Marquay v. Eno,

(1995); see also Gauthier v. Manchester Sch. Dist.,

(2015). Not every harm that befalls a student while in

a school’s care, however, will support a claim for negligence.

The court has explained that the duty of reasonable supervision

extends “to only those periods of time when parental protection

is compromised, and only to those risks that are reasonably

foreseeable.” Mikell v. Sch. Admin. Unit #33,

, 731

35 (2009). A school’s duty of reasonable supervision of students

participating in a sport, however, does not extend to

eradicating “commonly appreciated risks which are inherent in

and arise out of the nature of the sport generally and flow from

such participation.” Hacking v. Town of Belmont,

(1999) (internal quotation marks omitted); see Allen v. Dover

Co-Recreational Softball League,

(2002). In

other words, schools cannot be held liable for “injurious

conduct that is not outside the range of ordinary activity

involved in the sport.” Allen,

(emphasis in

original).

Applying these principles to this case, I conclude that no

reasonable jury could find the defendants liable for Tveter’s

physical injuries. With respect to the incident when she was

hit by a hockey ball during pregame warmups, the undisputed

evidence shows that she was struck as a result of an inaccurate

pass. This is “an ordinary risk inherent within the game of

[field hockey] that [Tveter] or her parents would have known and

appreciated.” Hacking,

; see Allen

(concluding that “being injured by an errant throw is a common

risk inherent in and arising out of a softball game”). But even

if the hit was intentional, as Tveter argues without support,

that fact alone is insufficient to show that Pinkerton breached

its duty of reasonable supervision. There is no evidence that

36 Pinkerton staff supervising the players ignored dangerous

behavior, “lost control,” or were otherwise negligent during the

pregame warmups. See Hacking,

.

The same is true with respect to the incident when Tveter

was injured by a sponge ball during a game of floor hockey in

gym class. There is evidence from which a jury could find that

the incident involved an intentional hit and that this manner of

injury is outside the range of the ordinary activity. But there

is no evidence that the defendants were negligent in supervising

the activity. The record shows that multiple members of

Pinkerton staff were supervising the game, which involved

playing with a sponge ball specifically designed for safe play.

Here too there is no evidence that the staff ignored dangerous

behavior, “lost control of the game,” or otherwise acted with

negligence. See Hacking,

. Given this

record, no reasonable jury could find for Tveter on the

negligence claims, so the defendants are entitled to summary

judgment.8

8 In a single-sentence footnote in their brief, the defendants raised discretionary function immunity as an alternative basis for granting summary judgment on the negligence claim. See Doc. No. 180-1 at 20 n.9. Because I determine that the claim fails on the merits, I need not address that defense. 37 IV. CONCLUSION

For the foregoing reasons, I grant the defendants’ motion

for summary judgment (Doc. No. 180). The clerk of court is

directed to enter judgment and close the case.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

November 2, 2020

cc: Elizabeth Tveter, pro se Alison M. Minutelli, Esq. Dean B. Eggert, Esq.

38