United States Court of Appeals For the First Circuit

Nos. 21-1882, 21-1887

FALMOUTH SCHOOL DEPARTMENT,

Plaintiff, Counter-Defendant, Appellant, Cross-Appellee,

v.

MR. AND MRS. DOE, on their own behalf and on behalf of their minor son, JOHN DOE,

Defendants, Counter-Plaintiffs, Appellees, Cross-Appellants,

GENE KUCINKAS,

Counter-Defendant, Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

Eric R. Herlan, with whom Drummond Woodsum & MacMahon was on brief, for appellant and cross-appellees. Richard L. O'Meara, with whom Murray, Plumb & Murray was on brief, for appellees.

August 9, 2022 BARRON, Chief Judge. The Falmouth School Department

("Falmouth") appeals from an order of the United States District

Court for the District of Maine that concerns the Individuals with

Disabilities Education Act (the "IDEA"). The order rejects a

challenge to a ruling by a Maine Department of Education due

process hearing officer (the "hearing officer") that Falmouth

violated the IDEA and that Falmouth was therefore required to

reimburse Mr. and Mrs. Doe (the "Does"), the appellees here, for

the cost of their son John's tuition at a private school in which

they had placed him. Separately, the Does bring a cross-appeal

that challenges the District Court's order that dismisses their

counterclaims in Falmouth's IDEA action, which the Does bring

against Falmouth under the Americans with Disabilities Act (the

"ADA") and Section 504 of the Rehabilitation Act (the "RHA"), and

against Gene Kucinkas, Falmouth's Director of Special Education,

under

. We affirm.

I.

A.

To receive federal funds under the IDEA, states are

generally required to make a "free appropriate public education"

(a "FAPE") "available to all children with disabilities residing

in the State."

(a)(1)(A). Maine has accepted

funds under the IDEA and required local educational agencies such

- 2 - as Falmouth to provide a FAPE to eligible children within their

jurisdictions. Me. Stat. tit. 20A, §§ 7006, 7202.

"[T]he centerpiece of the [IDEA's] education delivery

system for disabled children" is the Individualized Education

Program ("IEP"). Endrew F. ex rel. Joseph F. v. Douglas Cnty.

Sch. Dist. RE-1,

(2017) (quoting Honig v. Doe,

(1988)). The child's "IEP team" develops the

IEP, which is "a written statement for each child with a

disability" that must, among other requirements, detail the

child's academic achievement and functional performance, provide

measurable annual goals for the child, describe how the child's

progress towards those goals will be measured, and describe what

services the child will receive.

(d)(1)(A). The

"IEP team" that develops the IEP must include the child's parents,

their regular and special education teachers, and a

"representative of the local education agency."

§ 1414(d)(1)(B), (d)(3), (d)(4).

An IEP must be "reasonably calculated to enable a child

to make progress appropriate in light of the child's

circumstances." Endrew F.,

. An IEP must also

ensure that the child is educated "in the '[l]east restrictive

environment' appropriate for" that child. C.D. ex rel. M.D. v.

Natick Pub. Sch. Dist.,

(1st Cir. 2019)

(alteration in original) (quoting

(a)(5)).

- 3 - The "least restrictive environment" ("LRE") requirement

"embod[ies] a 'preference' for 'mainstreaming' students with

disabilities in 'the regular classrooms of a public school

system.'"

(quoting Bd. of Educ. v. Rowley,

, 202-

03 (1982)). The IEP team, in designing an IEP to ensure that the

child receives a FAPE, must "choos[e] a placement" in which the

child will receive educational instruction "that strikes an

appropriate balance between the restrictiveness of the placement

and educational progress." Id. at 631. Under our precedent, we

"'weigh[]' this preference for mainstreaming 'in concert with the'

FAPE mandate." Id. (quoting Roland M. v. Concord Sch. Comm.,

(1st Cir. 1990)).

If the parents of a child who is eligible to receive

services under the IDEA believe that the child has been denied a

FAPE, then they may bring a complaint to a state or local

educational agency, as determined by the law of the relevant state.

(f)(1)(A); see also G.D. ex rel. Jeffrey D. v.

Swampscott Pub. Schs.,

, 5 (1st Cir. 2022). If the

complaint is not resolved informally, the parents are entitled to

a "due process hearing" in front of that agency at which their

complaint can be adjudicated.

(f)(1)(B). Maine

provides that such due process hearings occur in front of a hearing

- 4 - officer appointed by the Maine Commissioner of Education. Me.

Stat. tit. 20-A, § 7207-B(2)(A); see also id. § 1(4).

Under the IDEA, "[a]ny party aggrieved by the findings

and decision made" in the administrative proceeding before the

state or local educational agency may bring a civil action in state

or federal court.

(i)(2)(A). A District Court

that entertains such a civil action must undertake what we have

called "'involved oversight' of the agency's factual findings and

conclusions." G.D., 27 F.4th at 6 (quoting S. Kingstown Sch. Comm.

v. Joanna S.,

(1st Cir. 2014)). A District Court

that conducts this oversight must review the administrative record

and, at the request of a party to the action, additional evidence,

while "accord[ing] 'due weight' to the agency's administrative

proceedings."

(quoting Lenn v. Portland Sch. Comm.,

(1st Cir. 1993)); see also

(i)(2)(C).

The District Court must base its decision on "the

preponderance of the evidence" and "grant such relief as [it]

determines is appropriate."

(i)(2)(C)(iii). That

relief may, in some circumstances, include a requirement to

reimburse parents who "unilaterally change their child's placement

during the pendency of review proceedings" to a private placement

for the costs that the parents incur for that placement. Florence

Cnty. Sch. Dist. Four v. Carter ex rel. Carter,

(1993).

- 5 - B.

We describe "the background facts as supportably found

by the district court," Sebastian M. v. King Philip Reg'l Sch.

Dist.,

(1st Cir. 2012); see Falmouth Sch. Dep't v.

Doe, No. 20-cv-00214,

(D. Me. Sept. 29, 2021). We

focus here on the facts that pertain to Falmouth's appeal of the

District Court's rejection of Falmouth's challenge to the hearing

officer's decision that Falmouth denied John a FAPE and the hearing

officer's determination that, in consequence, Falmouth must

reimburse the Does for the cost that they incurred by placing John

in a private school. In Part V, infra, we recount the allegations

that are relevant to the Does' cross-appeal of the District Court's

order that dismissed their counterclaims.

The hearing officer found that John had been denied a

FAPE during two periods: January 2018 to March 2019, and September

2019 to February 2020. Those months span a period in which

Falmouth had proposed four separate IEPs for John. We will refer

to these IEPs as the January 2018 IEP, the January 2019 IEP, the

September 2019 IEP, and the November 2019 IEP.

Before turning to the facts that concern those periods

of time and those IEPs, however, we first review the events from

an even earlier period. That is the period during which John

received services from Falmouth for the first time under an IEP.

That initial IEP is not at issue in the IDEA suit that underlies

- 6 - this appeal, but it provides useful context for our consideration

of the IEPs that are. We will refer to this first IEP as the

January 2017 IEP.

1.

John enrolled at Falmouth Elementary School for first

grade in the fall of 2016. He did so after having attended a

private preschool and kindergarten. Soon after, Falmouth became

aware that John's literacy skills were "at the pre-K level." And

then, in November, Falmouth convened an IEP team and the Does

consented to John receiving special education services from

Falmouth. The January 2017 IEP for John followed thereafter.

According to Robin Seeker, John's special education

teacher, when John started this specialized instruction under this

IEP, in late January 2017, he was a "nonreader." More

specifically, he was reading at or below instructional level A on

the Benchmark Assessment System (the "BAS"), which classifies

students based on their ability to read independently and with the

support of an instructor.

Level A is the lowest level on the BAS. A child meets

progress expectations under the BAS if the child is at level D at

the end of kindergarten or the beginning of first grade and if the

child is at level J by the end of first grade.

The January 2017 IEP included a goal that John would

reach instructional level D on the BAS by February 2018, which is

- 7 - a level that corresponds to "an end of kindergarten reading level."

This IEP provided that John would receive ninety minutes of daily

instruction from Seeker, with that time split evenly between

reading, writing, and math.

The reading instruction that John received while this

IEP was in place was initially based on the Wilson "Fundations"

program. However, Seeker soon began using the "SPIRE" program

instead.

Falmouth and the Does agreed to amend the January 2017

IEP in April 2017 to add summer programming. Following a

psychological evaluation that diagnosed John with ADHD, the IEP

team met again in May 2017 to review the evaluation. Notes from

that meeting indicate that John was "reading at the instructional

level C on the [BAS]" and "working on learning his basic sight

words," which the hearing officer defined as words "that 'can't be

sounded out.'"

2.

The January 2017 IEP was set to expire in late January

2018. By that time, John had completed approximately half of

second grade. He was still "reading instructional levels C and D

books," and "writing at an end of kindergarten level." John had

increased, however, to spelling 50 words on a list of 100 "high

frequency sight words."

- 8 - In January 2018, Seeker identified John's "biggest

challenge" as being "in the orthographic area." Seeker was

referring to orthographic processing, which the District Court

explained "refers to the skills necessary 'to store and recall the

visual forms of letters and words.'" John also "struggled with

. . . phonological processing," which "refers to 'the ability to

perceive, order and manipulate the sounds within words.'"

John's IEP team met on January 23, 2018 to revise John's

January 2017 IEP. The result was the January 2018 IEP.

This IEP increased the amount of daily specialized

instruction that John would receive in reading and writing from

thirty minutes each to one hour of reading and forty-five minutes

of writing. It did not change, however, the type of reading

instruction that John would receive; it continued to provide for

John to receive SPIRE programming.

The January 2018 IEP also did not include a specific BAS

level as a measurable goal. The IEP did define as a goal, however,

that John be able to read the list of 100 "high frequency sight

words" that was mentioned above with 70% accuracy by February 2019.

By June 2018, John was still reading "somewhere between

a BAS level C and D." He had progressed to the second level of

the SPIRE program, but he had taken longer to complete the first

level than any other student Seeker could recall. John could spell

56 out of the 100 listed "high frequency sight words."

- 9 - That summer, Falmouth again offered John summer

programming. However, the Does declined the offer and elected to

have John tutored at the Children's Dyslexia Center during the

summer.

When John began third grade in fall 2018, John's mother

emailed his new special education teacher, Karen Dunn, to express

concern about John's lack of progress and to ask about other

potential programming options. Dunn, too, was concerned about

John's lack of progress and had observed "some apparent regression

in his reading skills" over the summer.

Dunn shared those concerns with Kucinkas, Falmouth's

Director of Special Education. Kucinkas proposed using Lindamood

Bell ("LMB") programming, which is, like SPIRE, a reading

instruction methodology. LMB programming includes the "Lindamood

Phoneme Processing System" ("LiPS") and "Seeing Stars." This

proposal was not communicated to the Does.

At a meeting of John's IEP team in September 2018, John's

mother raised the concerns that she had raised to Kucinkas. No

one on the IEP team, however, suggested any alternative reading

programming for John apart from SPIRE. Nonetheless, the January

2018 IEP was amended at that meeting to add the use of audio books

to the services that he would receive.

When John returned to school for third grade, Dunn used

Wilson "Fundations" materials in instructing John, although the

- 10 - use of these materials to instruct John was not expressly

referenced in the January 2018 IEP. Dunn used them to address

John's apparent reading regression over the summer.

Later in the fall, however, Dunn switched back to using

SPIRE to instruct John. By November, John had mastered only twelve

new sight words.

Approximately two and a half months before the January

2018 IEP expired, the Does obtained, on December 9, 2018, a private

reading evaluation from Lisa Murphy and Barbara Melnick of the

Aucocisco School, which is a private special education school in

Maine. The evaluation "suggested that John . . . struggled with

both orthographic processing and phonological processing" and

"assessed some core reading skills to be at the 'pre-k to

kindergarten levels.'"

The evaluation recommended "intensive and one on one"

"intervention." The evaluation specifically recommended "[t]he

Lindamood-Bell curriculum of LiPS followed by/overlaid with the

Seeing Stars Program" to better enable John to make progress.

The Does provided this evaluation to Falmouth in January

2019, before the January 2018 IEP had expired. By then, John had

added only three more sight words and progressed only to "BAS

instructional level E (early first grade)."

- 11 - 3.

John's IEP team reconvened for his second annual review

in January 2019. The Does submitted a statement of concern in

advance that discussed what they referred to as the "substantial

unrecognized orthographic processing deficits" that John had

according to the Aucocisco evaluation. They asked that John's

reading instruction include the "Lindamood-Bell curriculum of

[LiPS] followed by/overlaid with the Seeing Stars Program," based

on the Aucocisco evaluation.

Falmouth thereafter proposed the January 2019 IEP. The

January 2019 IEP increased the time John would spend in specialized

programming at Falmouth Elementary School, such that he would spend

59% of his time in a regular classroom (as opposed to the 63% he

had spent in the second IEP year and 77% in his first IEP year).

The January 2019 IEP also included "some instruction using the

Lindamood Bell Seeing Stars program."

Under the January 2019 IEP, John would receive nine hours

of weekly instruction using the Seeing Stars methodology delivered

by Shar Mahoney, who had not previously taught John. Mahoney would

consult with a trainer certified in LMB programming every other

week for fifty minutes. Falmouth reintroduced a BAS goal for John,

namely that John achieve BAS level I-J by February 2020.

At the January 22 meeting of the IEP team and in a letter

sent two days later, the Does stated that they would remove John

- 12 - from Falmouth Elementary School each afternoon so that he could

receive intensive reading programming at Aucocisco using LiPS and

Seeing Stars. Aucocisco proposed to provide John one-on-one

instruction for two hours daily.

In the email enclosing the letter, the Does requested

that Falmouth adjust John's schedule so that he could remain in

his mainstream classroom during the mornings while he was receiving

instruction at Falmouth before leaving to receive instruction at

Aucocisco in the afternoons. Kucinkas responded in a letter that

Falmouth would continue to provide John with specialized

instruction during his mornings at Falmouth Elementary School,

with no change in light of his daily early dismissal.

4.

The Does revoked their consent for services under John's

January 2019 IEP on March 12, 2019. They requested a plan for

accommodations under Section 504 of the RHA.1

Falmouth implemented such a plan (a "504 plan") later

that month. John continued to spend his mornings in a mainstream

Falmouth Elementary classroom and his afternoons at Aucocisco.

John also received a daily hour of tutoring from Aucocisco staff

for three weeks during the summer.

1 A plan offered under Section 504 of the Rehabilitation Act provides accommodations for students with disabilities to participate in public school education but does not provide specialized instruction.

- 13 - John received several evaluations and assessments during

the spring and summer of 2019. These included a neuropsychological

evaluation performed by Dr. Marcia Hunter in February and March

2019 that recommended LMB programming; multiple assessments that

Falmouth proposed and to which the Does consented in June; an

evaluation by Aucocisco in July to determine John's progress after

100 hours of Seeing Stars instruction; and a reading evaluation in

August by Dr. Jayne Boulos, to whom Falmouth had referred the Does.

The evaluation of John by Aucocisco concluded that he

was still reading at a first-grade level but noted gains in his

ability to read sight words. Dr. Boulos's evaluation concluded

that John's reading skills were "well-below average . . . across

all core domains" and recommended another evaluation from the

Children's Dyslexia Center, where John had received tutoring the

previous summer.

5.

John began fourth grade in fall 2019 and continued to

split his school days between Falmouth Elementary School and

Aucocisco. He was not then receiving services under the IDEA from

Falmouth.

Falmouth and the Does continued to discuss restarting

those services. Falmouth proposed a new IEP that would increase

John's weekly literacy instruction, but Falmouth indicated that it

- 14 - would not offer any LMB programming in the new IEP. We will refer

to this IEP as the September 2019 IEP.

In October 2019, Falmouth assessed John to be at BAS

instructional level E, an early first grade reading level and the

same level that he had achieved as of January 2019. A math

assessment showed that John had below-grade-level math skills.

In November 2019, John's IEP team met again. The Does,

in advance of this meeting, communicated to Falmouth that John

required a full-day placement at Aucocisco and that Aucocisco's

instruction was helping John develop literacy skills. Falmouth

proposed an updated IEP that would increase the proposed special

education in math and add behavioral intervention efforts but would

not offer any LMB programming. We will refer to this IEP as the

November 2019 IEP.

The Does rejected the proposed IEP and placed John at

Aucocisco full-time starting on November 4, 2019. Then Falmouth

proposed a new IEP in February 2020 -- the February 2020 IEP --

that the Does do not challenge.

In March 2020, according to Melnick, the Aucocisco

director, John was reading at a mid-second grade to early third

grade level. In fall 2020, John's report card noted that he was

practicing reading at a third-grade level.

- 15 - C.

The Does submitted a hearing request to the Maine

Department of Education on January 15, 2020.2 They argued that

John had not been provided a FAPE from January 2018 until February

2020, with the exception of the period from March 2019 to the start

of John's fourth grade year that fall when he was not receiving

services under the IDEA from Falmouth because the Does had

withdrawn their consent to his receipt of them.

After a five-day hearing in early March 2020, the hearing

officer concluded that Falmouth had denied John a FAPE from January

2018 to March 2019 and from September 2019 through February 2020.

In explaining why, the hearing officer addressed the January 2018,

January 2019, and September 2019 IEPs.3

First, the hearing officer determined that the January

2018 IEP was not "reasonably calculated to provide [John] with a

FAPE" because of its reliance on SPIRE. The hearing officer

explained that, starting in January 2018, Falmouth had "failed to

take . . . meaningful steps to address [John's] unique

circumstances and challenges with regard to his orthographic

The Does had initially filed for a hearing in October 2019, 2

but they withdrew that request before the hearing.

Although the November 2019 IEP was proposed within the 3

period that the hearing officer determined John was denied a FAPE, neither the hearing officer nor the District Court based any legal conclusions on this IEP and the parties make no arguments concerning it.

- 16 - processing disability, which by this time was known by [Falmouth]."

The hearing officer pointed to Falmouth's failure to request

additional evaluations focused on John's orthographic processing

and its continued reliance on SPIRE programming, rather than

"consider[ing] a change in the methodology being used for [John's]

programming." The hearing officer, quoting Dunn, specifically

identified "the Seeing Stars program that Ms. Dunn, Ms. Melnick,

and others testified was 'specifically designed for children who

have orthographic dyslexia'" as an alternative methodology.

Next, the hearing officer turned to the January 2019

IEP, which the Does rejected. The hearing officer called that IEP

"a step in the right direction," but "too little, too late," given

Falmouth's "reluctance to conduct further evaluations" and its

staff's lack of "experience[] in delivering" LMB programs.

Finally, the hearing officer addressed the September

2019 IEP, and concluded that it "was not reasonably calculated and

reasonably ambitious to enable [John] to make appropriate progress

in light of his circumstances." In support of that conclusion,

the hearing officer found it "incongruous that [Falmouth] seemed

to hold out hope that the SPIRE program would work for [John] after

two years of limited progress," even as it "offer[ed] and then

abruptly remove[d] the LiPS program, declaring that it was

'ineffective' after [John] had only incorporated it into his

learning for a period of six months."

- 17 - The hearing officer then determined that "the Aucocisco

School is an appropriate placement" for John. And, based on that

determination, the hearing officer ordered Falmouth to reimburse

the Does for the cost of John's Aucocisco tuition from January 28,

2019 to September 2019, and the 2019-2020 school year, along with

certain other expenses.

D.

Falmouth brought an action under the IDEA in the District

of Maine in which it challenged the hearing officer's ruling that

John had been denied a FAPE for the periods in question. Falmouth

also challenged the remedial order on separate grounds.

The Does answered and brought counterclaims against

Falmouth under Section 504 of the RHA and Title II of the ADA.

The Does also brought a counterclaim against Kucinkas under

alleging retaliation against them in violation of

their rights under the First Amendment. Falmouth moved to dismiss

the counterclaims under Federal Rule of Civil Procedure 12(b)(6).

Falmouth moved for summary judgment, as did the Does, as

to Falmouth's civil action under the IDEA in which it challenged

the hearing officer's orders in favor of the Does. See Sebastian

M.,

("[A] motion for summary judgment in an IDEA

case is simply a vehicle for deciding the relevant issues."). The

District Court granted judgment to the Does, sustaining the hearing

officer's order finding that John was denied a FAPE during the

- 18 - periods of time in question and holding that the hearing officer's

order of reimbursement was "an appropriate remedy" for Falmouth

having denied John a FAPE under those IEPs.

Falmouth and Kucinkas moved to dismiss the Does'

counterclaims against each of them under Federal Rule of Civil

Procedure 12(b)(6). In an order issued contemporaneously to its

order affirming the hearing officer's decision, the District Court

granted the motion and dismissed the counterclaims. Falmouth

timely filed a notice of appeal of the District Court's rulings

against it and the Does cross-appealed from the dismissal of their

counterclaims against Falmouth and Kucinkas.

II.

Falmouth brings various challenges that apply to the

District Court's ruling with respect to both of the periods of

time in which the hearing officer found that Falmouth denied John

a FAPE. In some of them, Falmouth does so without focusing on any

ruling by the District Court that concerns only a specific period

within that overall time span rather than the time span as a whole.

In those broadly applicable challenges, Falmouth alleges that the

District Court's assessments of the specific IEPs that Falmouth

had proposed for John during that overall time span were plagued

by flaws that apply equally to each of those assessments. We thus

begin our analysis by examining this set of contentions, before

then turning to the more time-period-specific challenges that

- 19 - Falmouth also brings to the District Court's ruling that John was

denied a FAPE and that direct our attention to the District Court's

assessments of certain ones of the IEPs at issue.

"We review the district court's determinations of law de

novo, and its findings of fact for clear error. 'Where the case

raises mixed questions of law and fact, we employ a "degree-of-

deference continuum," providing "non-deferential plenary review

for law-dominated questions" and "deferential review for fact-

dominated questions."'" Johnson v. Bos. Pub. Schs.,

,

191 (1st Cir. 2018) (internal citation omitted) (quoting Doe v.

Cape Elizabeth Sch. Dist.,

(1st Cir. 2016)). In

an IDEA case such as this one, we do not employ the typical

presumptions that accompany summary judgment motions. Sebastian

M.,

.

A.

Falmouth first contends that the District Court erred in

concluding that John had been denied a FAPE during the time periods

in question because the District Court based that conclusion on

the finding that SPIRE does not "address" orthographic processing.

Falmouth contends that the record compels the conclusion that SPIRE

does "specifically address[] . . . orthographic processing

issues." For that reason, Falmouth contends that the District

Court wrongly concluded that none of the IEPs that were either

implemented or proposed during the time periods in question was

- 20 - "reasonably calculated" to ensure that John would receive a FAPE,

Endrew F.,

. And so, Falmouth contends, for this

reason alone the District Court's ruling that Falmouth denied John

a FAPE during this time cannot stand.

But, the District Court did not base the ruling that

Falmouth denied John a FAPE during the periods at issue on the

mistaken finding about SPIRE that Falmouth attributes to it.

Rather, we understand the District Court to have concluded only

that the preponderance of the evidence supported the hearing

officer's conclusion that none of the IEPs at issue were

"reasonably calculated,"

to ensure that John would receive a

FAPE, because none used Seeing Stars or a similar program and so

none was "specially designed,"

to address John's specific

orthographic processing deficit, given both what the record showed

about the acuity of that deficit and the way that Seeing Stars

would be "specially designed" to address it while SPIRE would not

be. Thus, this aspect of Falmouth's challenge fails for the simple

reason that it takes aim at a supposedly absolute finding about

the limits on the type of instruction that SPIRE could provide

that the District Court did not make.

Falmouth appears to advance a related contention,

however. Here, Falmouth argues that the District Court erred in

ruling that Falmouth denied John a FAPE during the time in question

because it erred in assessing whether an IEP that relied on Seeing

- 21 - Stars would be "reasonably calculated" to ensure that John would

make appropriate progress relative to whether an IEP that relied

on SPIRE would be. We see no merit to this contention either.

Falmouth does not dispute that, as the District Court

pointed out, the record contains an evaluation from Lisa Melnick

and Barbara Murphy of Aucocisco that specifically recommended

using Seeing Stars programming to address John's specific

"orthographic processing deficits."4 Nonetheless, Falmouth

contends, the District Court still erred in ruling based on that

evidence that John had been denied a FAPE because of the

contradictory testimony that Falmouth asserts is in the record.

Here, Falmouth points solely to the testimony from the expert whom

Falmouth proposed to hire to consult with its own teacher for the

delivery of Seeing Stars to John under the proposed January 2019

IEP. But, the testimony from that expert, Ann Binder, does not

demonstrate that the District Court's ruling must be overturned.

The record does show that Binder testified "that SPIRE

. . . specifically addresses both orthographic processing issues

We understand Murphy, Melnick, and Binder to have each 4

testified based on both their personal knowledge of the case and in an expert capacity. The parties, hearing officer, and District Court appear to have proceeded on the assumption that the expert knowledge to which these witnesses testified was knowable to Falmouth at all relevant times. No party challenges this assumption, so we adopt the same premise.

- 22 - and phonological processing issues."5 But, as we have just

explained, the District Court did not dispute that SPIRE

"address[es] orthographic processing." So, this portion of

Binder's testimony does not aid Falmouth's argument on appeal, as

nothing in it purports to assess SPIRE's ability to address John's

unique needs relative to Seeing Stars, given the acuity of his

orthographic processing deficit.

Moreover, the other portion of Binder's testimony to

which Falmouth directs our attention also is of no assistance to

Falmouth. That portion is the one in which Binder claimed that

programs like SPIRE address orthography "in a much deeper way than

Seeing Stars" because "each lesson [of SPIRE] is narrower." But,

in this portion of Binder's testimony, she was clearly discussing

"orthography," which she later clarified is not the same as

"orthographic processing" and "is not something on its own that

can be taught."

Falmouth has one last related line of challenge. It

appears to be contending that, even if the more record-based

contentions that we have just considered are not persuasive, our

decision in Lessard v. Wilton Lyndeborough Cooperative School

District,

(1st Cir. 2008), and the Supreme Court's

decision in Endrew F. require us to conclude that the District

5We note that Seeker, too, claimed that "SPIRE tackles in an explicit way the orthographic component."

- 23 - Court erred in ruling that the IEPs at issue were not "reasonably

calculated," Endrew F.,

, to ensure that John

would receive a FAPE. But, we disagree.

Lessard does state that "state and local education

agencies" have discretion to "choose among competing pedagogical

methodologies."

. But, Lessard also recognizes

that courts "are entrusted with ascertaining the adequacy of an

IEP's educational components,"

, and "adequacy" includes,

as the Supreme Court made clear in Endrew F., whether "[t]he

instruction offered [is] 'specially designed' to meet a child's

'unique needs' through an 'individualized education program,'"

Endrew F.,

(emphases in original) (quoting

(14), (29)). And, the District Court, as we have

explained, applied just that standard in assessing whether,

notwithstanding the IEPs that Falmouth proposed, John was denied

a FAPE. Thus, at least given the limited arguments that Falmouth

makes about the problems with the District Court's assessment of

the record, we see no basis for concluding that the District Court

failed to adhere to Lessard or Endrew F. in ruling as it did.

B.

We next turn to Falmouth's contention that the District

Court ignored the Supreme Court's command that reviewing courts

must determine "[t]he adequacy of a given IEP" in light of "the

unique circumstance of the child for whom it was created." Endrew

- 24 - F.,

. Here, Falmouth argues that the District

Court erred with respect to its assessment of all the IEPs at

issue, because it "ignored . . . clear evidence that John was going

to progress at best slowly under any reading program, instead

finding FAPE violations based on John's slow growth." It further

contends in this regard that the District Court "failed to account

for the unique circumstance that John was a slow learner."

Accordingly, Falmouth contends, the District Court's ruling that

John was denied a FAPE must be overturned.

In pressing this line of argument on appeal, Falmouth

does not engage in any detailed analysis of the District Court's

treatment of any of the IEPs before us. But, even if we were to

conclude that Falmouth's failure in that regard does not amount to

a waiver of the argument for lack of development, see United States

v. Zannino,

(1st Cir. 1990), a review of the District

Court's opinion shows that the District Court did account for the

fact that John was "a slow learner" -- or, more precisely, that

John had orthographic and phonological processing deficits -- in

its analysis of each of the relevant IEPs.

The District Court began its analysis of the challenged

IEPs by noting that John was "a complex child with ADHD and

dyslexia." The District Court then concluded, consistent with

Endrew F., that an IEP that was reasonably calculated to enable

John to make progress had to address the reasons that John might

- 25 - learn more slowly than his peers -- namely, his orthographic

processing deficit. See

(holding that an IEP

must be "reasonably calculated to enable a child to make progress

appropriate in light of the child's circumstances," and refusing

to find that "an educational program providing 'merely more than

de minimis progress'" met that standard). And, the District Court

concluded that each of the IEPs Falmouth developed during this

time period was inadequate on that score.6 The District Court thus

did, contrary to Falmouth's contention, purport to root its

findings on a consideration of John's "unique circumstances,"

which the District Court supportably determined to be that John

would face challenges learning to read because of his orthographic

and phonological processing deficits.

C.

Falmouth also contends that the District Court, by

approvingly citing the slow gains that John made at Aucocisco while

not doing the same with respect to his slow gains at Falmouth,

only "selectively relied on [John's] unique circumstances." But,

the District Court found that John's progress at Aucocisco was

still greater than his progress at Falmouth over a much longer

time, and Falmouth does not develop an argument that the District

Court clearly erred in so finding. Thus, there is no basis for

We again note that the District Court did not address the 6

November 2019 IEP and the parties make no argument based on it.

- 26 - concluding that the District Court acted selectively in ruling the

way that it did.

D.

Falmouth next urges us to adopt a Fourth Circuit rule

that "parents will have to offer expert testimony to show that [a]

proposed IEP is inadequate." See Weast v. Schaffer ex rel.

Schaffer,

(4th Cir. 2004). Falmouth argues that,

if we were to do so, we would have to overturn the District Court's

ruling, because the Does "provided no testimony against the

appropriateness of the Falmouth IEPs, and no testimony that John

should have made more gains than he actually did under those

Falmouth IEPs."

But, the Does provided testimony from Melnick and Murphy

that John had a serious orthographic processing deficit, that SPIRE

was not a program whose use made an IEP specially designed to meet

John's unique needs in consequence of his having a deficit of that

kind, and that a program (Seeing Stars) did exist that would have

resulted in an IEP that was designed to do so if that program had

been employed. Moreover, Falmouth does not argue that Melnick and

Murphy were not qualified to so testify. Thus, the District Court

did not err even under the framework for analysis set forth in

Weast that Falmouth urges us to adopt.

Insofar as Falmouth may be understood also to be arguing

that, in light of Weast, we should hold that the Does were required

- 27 - to put forward experts who specifically labeled the IEPs

inadequate, rather than experts who merely testified to facts based

on which the District Court could supportably conclude the IEPs

were inadequate, Falmouth provides no reason for us to do so.

Weast does not itself provide support for such a holding because

Weast does not impose any such requirement, see

-

57, and, other than invoking Weast, Falmouth make no argument for

our imposing that requirement here.

E.

Falmouth's final challenge that applies to the District

Court's ruling in favor of the Does that implicates the District

Court's ruling as to the whole time-span in question -- and thus

the District Court's assessment of each of the IEPs at issue --

concerns the LRE requirement. As we noted at the outset, that

requirement "embod[ies] a 'preference' for 'mainstreaming'

students with disabilities in 'the regular classrooms of a public

school system.'" C.D.,

(quoting Rowley,

).

The District Court found that, under the IEPs at issue,

John would have spent between 53% and 59% of his time in mainstream

settings. It then compared that amount of time that John would

have spent in mainstream settings under those IEPs to the amount

of time that John would have spent in such settings under the Does'

plan to have John split his days between Aucocisco and Falmouth.

- 28 - In undertaking that comparison, the District Court found

that John would have spent less time in mainstream settings under

the Does' plan. But, the District Court went on to find that the

difference "appears insignificant on the record presented,

particularly when weighed against the clear need for educational

improvement." The District Court thus concluded that, "having

given due consideration to [the] IDEA's LRE mandate, . . . the

IEPs Falmouth developed in January 2018 and fall of 2019 failed to

provide John a FAPE."

Falmouth contends that the District Court misapplied the

LRE requirement in so ruling in part because, in finding that John

was denied a FAPE during the time span in question, the District

Court failed to "include an analysis of the benefits for John of

time in mainstream settings [] regardless of any comparison with

a private arrangement" in its "assessment of Falmouth's . . . IEP."

Thus, Falmouth argues, the District Court erred in ruling that

none of the IEPs that Falmouth proposed during the relevant time

period was "reasonably calculated," Endrew F.,

,

to ensure that John would receive a FAPE.

Falmouth is right that, in determining whether the IEPs

that Falmouth proposed during this time were reasonably calculated

to ensure that John would receive a FAPE, "the benefits to be

gained from mainstreaming must be weighed against the educational

improvements that could be attained in a more restrictive (that

- 29 - is, non-mainstream) environment," C.D.,

. But, the

District Court did not rule otherwise. Rather, it considered the

"difference in LRE time" between Falmouth's IEPs and the Does'

plan and determined that the "difference in LRE time" between them

"appears insignificant on the record presented, particularly when

weighed against the clear need for educational improvement."

Falmouth next contends that the District Court erred in

applying the LRE requirement for a different reason. Here,

Falmouth contends that any assessment of whether the IEPs at issue

were "reasonably calculated" to provide John a FAPE had to be made

by comparing the amount of mainstream instruction that they would

provide to the full-time, specialized instruction that John would

receive at Aucocisco. And, Falmouth asserts, if the District Court

had employed that comparison, it would have been required to

determine that the LRE requirement precluded the negative

assessment of the IEPs that the District Court made, because John

received no mainstream instruction at Aucocisco.

But, as Falmouth acknowledges, the District Court did

not purport to base the determination that John was denied a FAPE

on a comparison of any of the IEPs and John's receipt of full-time

instruction at Aucocisco. The District Court based that

determination instead solely on a comparison between each of the

IEPs and John receiving instruction partly at Falmouth and partly

at Aucocisco.

- 30 - Falmouth does go on to argue that even though the

District Court purported to make that comparison, it was not

permitted to do so. Here, Falmouth contends that, given the Does'

full-time placement of John at Aucocisco and the remedial order by

the hearing officer and the District Court's affirmance of it, the

District Court had no choice but to determine whether John had

been denied a FAPE by assessing the adequacy of the relevant IEPs

based on a comparison between the type of part-mainstream, part-

specialized instruction that John would receive under them and the

full-time specialized instruction at Aucocisco. And, Falmouth

then contends, such a comparison could not result in finding that

the IEPs were inadequate, given the LRE requirement.

But, the premise that the District Court had to make the

kind of comparison Falmouth asserted was required does not hold

up. And, that is so whether we focus on the fact that the Does

eventually placed John full-time at Aucocisco or the remedial

order.

Local educational agencies in implementing IEPs must

"evaluat[e] . . . marginal benefits and costs" of placements along

"a continuum of possible educational environments." C.D.,

(internal quotation marks omitted) (quoting Roland M.,

). And, over the course of the two periods that

are the subject of this appeal, John was placed at Aucocisco for

both half days and full days. Falmouth develops no argument,

- 31 - though, as to why the District Court was required to focus on one

part of the "continuum" concerning his placement at Aucocisco (the

full-time part) rather than another (the part-time part) in

determining whether the preponderance of the evidence supported

the hearing officer's conclusion that John was denied a FAPE

notwithstanding the IEPs that Falmouth developed. Thus, we do not

see how the fact of that full-time placement suffices to show that

this aspect of Falmouth's challenge has merit.

That leaves to address, then, only the question of

whether the hearing officer's remedial order in and of itself

demonstrates that the District Court had no choice in assessing

whether the preponderance of the evidence supported the

determination that the IEPs were not "reasonably calculated" to

provide John with a FAPE but to compare the instruction that John

would receive under those IEPs to his receiving full-time

instruction at Aucocisco. But, the fact that a remedy for Falmouth

having denied John a FAPE may require Falmouth to cover the costs

of tuition for his full-time instruction at Aucocisco in no way

suggests that the denial of the FAPE itself depends on the IEPs

offering instruction that was inadequate only when compared to the

instruction John would have received from attending that private

school full-time. Cf. Florence Cnty.,

("[O]nce

a court holds that the public placement violated IDEA, it is

authorized to 'grant such relief as the court determines is

- 32 - appropriate.'" (quoting

(e)(2))). Thus, this

contention lacks merit, too.

III.

Falmouth does have some fallback contentions. Here,

Falmouth challenges the District Court's ruling only insofar as it

implicates the District Court's assessment of certain of the IEPs

that Falmouth developed for John during the two periods in

question. We thus turn now to these narrow-gauged contentions,

which, as we will explain, also lack merit.

A.

Falmouth first takes aim at the District Court's ruling

that the January 2018 IEP was not "reasonably calculated to enable

[John] to make progress appropriate in light of [his]

circumstances," Endrew F.,

. Falmouth contends

that the District Court erred in so ruling because it relied,

impermissibly, on information that could not have been known to

the IEP team at the time that it was developing the January 2018

IEP because that information concerned the lack of progress that

John made in reading only after that IEP was in place. See Roland

M.,

("[A]ctions of school systems cannot . . . be

judged exclusively in hindsight. An IEP is a snapshot, not a

retrospective."). We do not agree, however, with Falmouth's

characterization of the District Court's ruling.

- 33 - The District Court noted that, at the time that the

January 2018 IEP was developed, "[d]espite then being in second

grade, John's reading and writing skills were still at a

kindergarten level" (emphasis added). The District Court further

noted, again by relying only on information that was available

prior to the development of that IEP, that John's "special

education teacher recognized that he had an orthographic deficit

and described it as his 'biggest challenge.'" And, the District

Court observed that, despite this information being available as

of that point in time, Falmouth nonetheless "proposed only

incremental increases in the amount of specialized instruction

John should receive and did not further evaluate John's

orthographic issues, or reconsider the type of specialized reading

instruction John might need." Indeed, the District Court found --

again, based on only the information that predated the IEP itself

-- that Falmouth "essentially abandoned the preexisting measurable

reading goal when John failed to reach it."

Moreover, the District Court determined that, given

those findings, "the preponderance of the evidence supports a

finding that the IEP Falmouth developed for John in early 2018

failed to provide programming that would allow John to make more

than de minimis progress on basic reading and writing skills over

the following year." And, in so ruling, the District Court pointed

- 34 - to no contrary evidence in the record, seemingly because it did

not identify any.

Falmouth is right that the District Court did reference

John's progress under the January 2018 IEP in the course of

rendering this ruling. But, we do not share Falmouth's view that

the District Court relied on that post-IEP-development information

in reaching the conclusion that it did. Considered in the context

of the District Court's analysis as a whole, we understand the

District Court's reference to that post-IEP-development

information merely to have been intended to reinforce its

independent ruling that, based solely on the information available

to the IEP team prior to the IEP'S development, a preponderance of

the evidence favored the Does' position over Falmouth's with

respect to whether that specific IEP provided John a FAPE.

B.

Falmouth next focuses on the District Court's ruling

that the January 2019 was not reasonably calculated to provide

John a FAPE. Here, Falmouth appears to contend that the District

Court incorrectly applied the FAPE standard to the facts before it

with respect to this negative assessment of the adequacy of this

IEP.7 Once again, we are not persuaded.

We note that Falmouth groups this argument under a heading 7

of its brief that suggests it contends the District Court made the same error Falmouth claimed it made with respect to the January 2018 IEP by basing the FAPE determination for these IEPs on

- 35 - The District Court concluded that the preponderance of

the evidence supported the hearing officer's conclusion that the

January 2019 IEP "fell short," and it agreed with the hearing

officer that, on this record, the plan was "too little, too late,"

because Falmouth's "plan for implementing [Seeing Stars]

programming, including utilizing a teacher, Shar Mahoney, who was

not certified in LMB and lacked recent experience using LMB, was,

at best, a work in progress." Falmouth contends that this

conclusion was improper because the record requires us to conclude

that, by agreeing "to try the LMB/Seeing Stars reading methodology"

with implementation "oversee[n]" by "an outside literacy expert -

- Ann Binder," while "increas[ing] even further the amount of

literacy instruction" "on top of a host of other important,

supportive services," Falmouth made "a reasonable calculation of

how to provide John with meaningful benefits."

To support this contention, Falmouth points to the

evidence in the record that it argues shows that Binder "has

extensive literacy experience and is certified as an 'educational

consultant' by the State of Maine." It further asserts that the

outcomes rather than on what was "objectively reasonable . . . at the time the IEP was promulgated," Roland M.,

. But, the specific arguments that Falmouth makes clearly do not posit that the District Court committed the legal error suggested by that heading with respect to the January 2019 and September 2019 IEPs. We address the arguments on their own terms and not on the terms suggested by the brief heading.

- 36 - record shows that Mahoney, whom Binder would have overseen in

providing Seeing Stars programming, is herself "a certified

teacher with many years of experience, who had gone through the

training for LMB services." Falmouth also critiques the

credentials and experience of the leadership and tutors at

Aucocisco.

But, Falmouth faces an uphill climb in pressing this

challenge. The District Court impliedly found that Binder's

involvement in delivering Seeing Stars programming to John would

not change its conclusion with respect to whether an IEP that used

Seeing Stars programming delivered by Mahoney was reasonably

calculated to enable John to make progress. We apply a

"deferential [standard of] review for" "mixed questions of law and

fact" that are "fact-dominated." Cape Elizabeth,

.

Thus, we cannot see how there is merit to this ground for

overturning the District Court's ruling in favor of the Does

insofar as it is based on the determination concerning the adequacy

of this IEP, given what the record shows in the relevant respects

and the "due weight" that the District Court owed the hearing

officer's determination, G.D., 27 F.4th at 6.

Binder's testimony demonstrated that she was dismissive

towards and relatively unfamiliar with the program that she was

hired to oversee. Binder's testimony also indicated that, despite

Falmouth's awareness of the seriousness of John's orthographic

- 37 - processing deficit, Falmouth did not communicate to Binder when it

proposed to hire her that orthographic processing was a challenge

for John, let alone that it was his "biggest challenge." Indeed,

the record shows, Binder planned to help Mahoney stress

phonological processing and phonemic awareness in John's

programming, rather than orthographic processing.

Thus, we see no basis for overturning the District

Court's "too little, too late" assessment on this record. As we

have explained, the record provides support for finding both that

John had a serious orthographic processing deficit and that Seeing

Stars was specially designed to address it in a way that SPIRE was

not. And, Falmouth does not contest the District Court's

determination that the preponderance of the evidence supported the

hearing officer's finding that that Mahoney was not herself

equipped to adequately deliver Seeing Stars programming to John

without assistance.8 We therefore reject Falmouth's challenge to

the District Court's ruling insofar as that challenge focuses

narrowly on the District Court's asserted error in assessing the

adequacy of the January 2019 IEP.

Falmouth does note that Mahoney "is a certified teacher with 8

many years of experience, who had gone through the training for LMB services." But, Falmouth accepts that Mahoney's "experience delivering the [Seeing Stars] program may have been limited," and raises this point solely in service of comparing Mahoney to the instructors at Aucocisco. And, Falmouth develops no argument that a person with only "limited" experience with Seeing Stars was equipped to deliver such programming to John.

- 38 - C.

Falmouth's final fallback contention concerns the

District Court's assessment, in accord with the hearing officer's

determination, that the September 2019 IEP "was not 'reasonably

calculated to confer a meaningful educational benefit' to John"

(quoting Johnson, 906 F.3d at 194) because it did not provide

"specialized instruction [that] would use LMB programs" such as

Seeing Stars. Falmouth contends to us, as it contended below,

that it was justified, with respect to this IEP, in abandoning its

proposal to use Seeing Stars because John was making slow progress

at Aucocisco and because Falmouth offered instead to provide

"multisensory synthetic phonics instruction" along with an

additional hour per week of reading instruction. On that basis,

Falmouth concludes that the District Court erred, at least in this

respect, in applying the standard for determining whether a FAPE

has been denied to a child to the facts of this case.

But, as we have explained, our review of this

determination by the District Court is deferential due to its fact-

dominated nature. See Cape Elizabeth,

. And, the

District Court, which in turn was required to give "due weight" to

the hearing officer's determination, found that the preponderance

of the evidence supported the hearing officer's conclusion that

John was denied a FAPE by this IEP because John needed programming

that would more explicitly target his orthographic processing

- 39 - deficits than SPIRE did due to the acuity of that deficit. Thus,

it is problematic that Falmouth points to no evidence in the record

that shows that "multisensory synthetic phonics instruction" would

accomplish that task in a way that its prior SPIRE instruction had

not, especially given testimony that SPIRE itself included such

instruction. Accordingly, this challenge, too, fails.

IV.

Falmouth alternatively contends that, even if the

District Court did not err with regard to its ruling that John was

denied a FAPE during the periods of time in question, the District

Court erred in upholding the hearing officer's order that Falmouth

must reimburse the Does for John's tuition at Aucocisco. Here, as

well, we disagree.

A court may "order school authorities to reimburse

parents for their expenditures on private special education for a

child if the court ultimately determines that such placement,

rather than a proposed IEP, is proper under the [IDEA]." Mr. I.

ex rel. L.I. v. Me. Sch. Admin. Dist. No. 55,

(1st

Cir. 2007) (quoting Sch. Comm. v. Dep't of Educ.,

(1985)). A proper placement under the IDEA is one that

provides "'some element of the special education services' missing

from the public alternative" so that the placement is "reasonably

calculated to enable the child to receive educational benefit."

Id. at 25 (emphasis omitted) (quoting Berger v. Medina City Sch.

- 40 - Dist.,

, 523 (6th Cir. 2003)). We review this

determination "as a mixed question of fact and law." Id. at 23.

Falmouth argues that Aucocisco was not a proper

placement because it lacked any mainstreaming, "an essential and

beneficial piece of programming for John." But, the issue of

whether a parent's unilateral placement of their child at a private

program is proper for purposes of determining the remedy for a

denial of a FAPE is "a different issue, and one viewed more

favorably to the parent, than the question whether [such a]

placement was required in order to provide a free appropriate

education to" the child. Rome Sch. Comm. v. Mrs. B.,

,

33 n.5 (1st Cir. 2001). A parent's unilateral private placement

may be "proper under [the] IDEA" even if a placement there would

not meet all of the requirements that school districts face in

providing a FAPE. Florence Cnty.,

. Thus, "[a]n

appropriate private placement is not disqualified because it is a

more restrictive environment than that of the public placement."

Warren G. ex rel. Tom G. v. Cumberland Cnty. Sch. Dist.,

(3d Cir. 1999). And, in arguing that that rule should not

apply here, Falmouth points only to its contention that

mainstreaming was "an essential and beneficial piece of

programming for John." But, the LRE mandate itself reflects that

Congress has recognized "the desirability of mainstreaming" for

children receiving services under the IDEA, Roland M., 910 F.2d at

- 41 - 993. And, nonetheless, the IDEA allows for reimbursements for

private placements in appropriate environments, even when those

environments are more restrictive than what school districts

propose. See Warren G.,

.

To the extent that Falmouth is challenging whether the

District Court erred in assessing that Aucocisco was a "proper"

placement based on whether it provided ""'some element of the

special education services' missing from the public alternative,"

with a "nexus between the special education required and the

special education provided" at the private placement, Mr. I.,

(quoting Berger, 348 F.3d at 523), we disagree.

Falmouth does assert that the record shows that Aucocisco was not

a proper placement because "many of [John's] day-to-day

instructors at Aucocisco are poorly trained, and have far less

educational experience than John's Falmouth instructors." The

record evidence, however, suffices for us to defer under our

standard of review for mixed questions of fact and law to the

District Court's "fact-dominated," Cape Elizabeth,

-

77, ruling that the record supportably showed that the teachers at

Aucocisco were adequately trained and supervised by that school's

leadership, which was experienced in delivering Seeing Stars, and

thus could deliver instruction with the requisite "nexus."

Moreover, the hearing officer supportably found that John made

progress at Aucocisco, and the District Court agreed that it was

- 42 - greater progress than he had made in the two prior years at

Falmouth.

Finally, Falmouth argues that "the private program has

been ineffective at addressing [John's] significant attentional

difficulties." But, it identifies no portion of the record that

could support this assertion, and it does not explain how

Falmouth's own program is any more successful. Nor does Falmouth

explain how this assertion bears on the relevant inquiry about the

proper remedy under the IDEA for the denial of a FAPE. We thus

consider this contention to be one "adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation,"

and, so, we "deem[] [it] waived." Zannino,

.

V.

We next turn to the Does' cross-appeal from the District

Court's dismissal under Federal Rule of Civil Procedure 12(b)(6)

of the Does' counterclaims against Falmouth. To resolve the cross-

appeal, we must accept the facts alleged in the Does' complaint as

true and draw all reasonable inferences in the Does' favor. Legal

Sea Foods, LLC v. Strathmore Ins. Co.,

(1st Cir.

2022). To prevail, the Does need show only that their complaint

includes "enough factual detail to make the asserted claim

'plausible on its face.'" Cardigan Mtn. Sch. v. N.H. Ins. Co.,

(1st Cir. 2015) (quoting Ashcroft v. Iqbal, 556

- 43 - U.S. 662, 678 (2009)). Our review is de novo. Frith v. Whole

Foods Mkt., Inc.,

(1st Cir. 2022).

A.

The District Court held that "the only adverse action

plausibly alleged in the counterclaims is the denial and/or delay

of John's rights under the IDEA" to a FAPE and that "the Does'

counterclaims fail to plausibly allege that retaliatory animus or

disability-based animus is what caused or motivated the decisions

regarding John's IEPs." The District Court thus ruled that the

Does' ADA and RHA claims could not survive the motion to dismiss

as they were, at bottom, only "disguised IDEA" claims. As to the

§ 1983 count, moreover, the District Court found that the same

rationale applied and alternatively found that Kucinkas was

entitled to qualified immunity because he had not violated a

clearly established First Amendment right held by the Does.

B.

The Does argue that "allegations of 'disability-based

animus' or 'retaliatory animus' are sufficient to differentiate

Section 504/ADA discrimination and retaliation claims from an

underlying IDEA action, even if the adverse action is the same."

They then assert that their complaint, "viewed holistically,"

makes their allegations of animus as to both the ADA and Section

504 claims plausible based on "the cumulative effect of the factual

allegations contained in the complaint" (quoting A.G. ex rel.

- 44 - Maddox v. Elsevier, Inc.,

(1st Cir. 2013)). We do

not agree.

1.

With respect to the Does' challenge to the District

Court's order dismissing their ADA and RHA claims insofar as they

are based on retaliation, all of the Does' allegations concern

conduct that Falmouth undertook before the Does requested a Section

504 plan. And, while the Does allege that Falmouth continued its

conduct after the Does requested that plan, the complaint does not

allege that Falmouth in fact responded to the request in any way

besides developing and implementing a Section 504 plan for John.

Nor do the Does develop an argument that they engaged in any other

conduct that is protected under the ADA and RHA that did not occur

after the allegedly adverse actions by Falmouth. Thus, the

District Court did not err in finding that the Does had not

adequately alleged retaliation.

2.

We turn next to the Does' claim that they adequately

pleaded discriminatory animus with respect to their ADA and RHA

claims. The District Court acknowledged that claims under the ADA

or RHA can survive even when they have some overlap with a claim

under the IDEA. Nonetheless, the District Court held that the

allegations in the Does' complaint were insufficient to plead the

"disability-based animus" that the Does agree must have been

- 45 - pleaded for their claims to go forward. The District Court not

only concluded "that the requisite animus was not plead in the

counterclaim," but also that "nothing in the record . . . would

support an inference of retaliatory animus or disability-based

animus as motivating the denial of a FAPE." It concluded instead

that "Falmouth's IEPs for John reflect a failure on the part of

Falmouth to meet the standards required by the IDEA, but not an

attempt to discriminate against John or retaliate for his parents'

advocacy on his behalf."

In response, the Does merely recite a laundry list of

allegations, "the cumulative effect" of which is, they contend, "a

pattern of conduct" and "a pattern of deliberate indifference to

John's plight due to the nature of his disability." See Ocasio-

Hernández v. Fortuño-Burset,

(1st Cir. 2011)

("No single allegation" in a complaint "need lead to the conclusion

. . . of some necessary element, provided that, in sum, the

allegations of the complaint make the claim as a whole at least

plausible."). They do not cite any analogous case, and they do

not explain how the District Court erred. Cf. A.G.,

(rejecting a claim that a complaint could survive a motion

to dismiss in light of "the cumulative effect of the factual

allegations" where the complaint was found to be "speculative" in

crucial respects). In light of the conclusory manner in which the

Does have chosen to press their challenge to this aspect of the

- 46 - District Court's ruling, we reject their challenge and affirm the

District Court's dismissal of their claims under the ADA and

Section 504 insofar as they allege discriminatory animus.

C.

We come, then, to the Does' challenge to the District

Court's dismissal of their counterclaim under § 1983 against

Kucinkas. The Does contend that their complaint plausibly alleges

that Kucinkas's conduct violated their First Amendment rights

because he acted with retaliatory animus, and the District Court

thus erred in dismissing this count. The Does further contend

that the District Court erred by alternatively finding that

Kucinkas was entitled to qualified immunity. They argue that

Kucinkas's violated a "clearly established" right under the

federal constitution, specifically "[t]he right of parents to be

free from retaliation for exercising their First Amendment right

to advocate for their child's rights."

We need not address qualified immunity because the Does'

complaint does not plausibly allege a claim against Kucinkas under

§ 1983. For their claim to survive a motion to dismiss, the Does'

complaint must allege that "(1) [they] engaged in constitutionally

protected conduct, (2) [they were] subjected to an adverse action

by [Kucinkas], and (3) the protected conduct was a substantial or

motivating factor in the adverse action." D.B. ex rel. Elizabeth

B. v. Esposito,

(1st Cir. 2012). In this context,

- 47 - we understand the third prong of this test to essentially be an

inquiry into whether the Does have alleged that Kucinkas had

"retaliatory animus." See Maloy v. Ballori-Lage,

(1st Cir. 2014). Even assuming the Does have plausibly alleged

facts that satisfy the first two prongs of that test, the District

Court was correct to dismiss their counterclaim under § 1983

because they have failed to allege the requisite retaliatory

animus.

In support of their argument otherwise, the Does again

point to "'the cumulative effect of the factual allegations'

contained in the[ir] complaint," A.G.,

(quoting

Ocasio-Hernández,

), and argue that those allegations

-- including allegations that Kucinkas "engag[ed] in intentional

misrepresentation designed to chill their advocacy, willfully

conceal[ed] critical information about the nature of John's

learning disability, . . . den[ied] the existence of specialized

reading instruction to target his disability," and "attempt[ed] to

interfere with John's receipt of the instruction he needed from

Aucocisco, while maintaining mainstream contact with the Falmouth

Elementary School" -- plausibly allege retaliatory animus. They

also note the "temporal proximity" "between the protected conduct"

and what they deem to be "the retaliatory response."

The Does do not contend, however, that any inadequate or

unreasonable response to a request that parents make in the course

- 48 - of a dispute over whether their child is being given the services

needed to ensure that the child is receiving a FAPE may fairly be

characterized as "retaliation." And, a review of the allegations

in the complaint that are asserted to plausibly show that Falmouth

engaged in retaliatory conduct here, within the meaning of the

First Amendment, shows, at best, only one that possibly could

ground such a claim. That allegation concerns Kucinkas's alleged

"attempt[] to interfere with John's receipt of the instruction he

needed from Aucocisco" by, when the Does decided to send John to

Aucocisco each afternoon in January 2019, "insist[ing] that John

continue to receive specialized instruction from Falmouth's

teachers during the portion of the day he spent at Falmouth

Elementary School" rather than allowing him to spend his mornings

solely in his mainstream classroom.

But, the Does concede in their briefing to us that they

revoked consent for John to receive services under the IDEA only

after Kucinkas made that decision. Thus, we do not see how the

Does can argue that they have plausibly alleged that Kucinkas's

alleged "interfere[nce]" was anything other than his attempt to

ensure that Falmouth was fulfilling its duties under the IDEA,

given that John was eligible for services under the IDEA, the Does

had consented to John receiving such services, and -- as Falmouth

was not, at the time, paying for John's tuition at Aucocisco --

specialized education in the morning outside of his mainstream

- 49 - classroom was the only service Falmouth was providing John to

ensure he received a FAPE. For, there is nothing in the complaint

that would provide a basis for concluding otherwise. Cf. Carreras

v. Sajo, García & Partners,

(1st Cir. 2010) (noting

that, in the employment context, "suspicions raised by temporal

proximity 'can be authoritatively dispelled . . . by an employer's

convincing account of the legitimate reasons for the firing'"

(ellipses in original) (quoting Holloway v. Thompson Island

Outward Bound Educ. Ctr.,

(1st Cir. 2008))).

VI.

Affirmed.

- 50 -